continuance there during life for he cannot cease while he lives to be descended of the Blood-Royal of the Realm which immediately constitutes him in his natural Capacity nor to be King by Birth-right inherent he therefore only in such cases ceaseth to be King and our Allegiance to him only ceaseth to be due because he hath separated from himself that politick Capacity which was before apropriated to his natural Person by the Law Ibid. by virtue of the Lineal descent of that Person from the Blood-Royal whereupon Succession doth attend 2dly Ibid. It is agreed on all hands that we cannot have two Kings at once and therefore either the King Regnant in possession only or the King de jure out of possession only can be our legal King or he who is in the eye of our Law our Sovereign Lord the King and the only Supreme Governour of this Realm 3dly It appeareth by what hath been already said and by the determination of the Judges in Calvin's Case P. 438. P. 439. That Ligeance is due only to the King that the Ligeance or Faith of the Subject is proprium quarto modo tot the King omni soli semper it is due therefore to every one who is Seignior le Roy and so to a King Regnant in possession though he be only King de facto if the Law make him Seignior le Roy. It is due soli to him alone if he alone for the time being be our Sovereign Lord the King. It is due unto him semper as long as he continues the King Regnant in possession upon the same account 4thly A. 9. Edw. 4. Term. Pasch Observe that in Bagot's Case it is determined that le Roy Hen. fuist Roy en possession il covient qu' le Royalme eit un Roy South qu' les leges seront tenus maintein doque per c ' qu' il ne fuist eins forsque per usurpation unc ' chescun act judicial fait per luy qu' touche jurisdiction Royal sera bon licra le Roy de droit quand il fait regress King Henry the Sixth was King in possession and it is necessary that the Kingdom should have a King under whom the Laws should be held and maintained therefore be it that he was only in by usurpation yet every judicial Act done by him which toucheth the Royal jurisdiction shall be good and shall bind the rightful King when he returns And it is there added that le dit Roy H. ne fuit merement comme usurper car le corone fuist taile a luy per. Parliament The said King Henry was not meerly as an Vsurper because the Crown was entailed upon him by Act of Parliament as now it is upon King William If then il covient qu' le Royalme eit un Roy The Realm must always have a King under whom the Laws shall be held and maintained the King Regnant in possession being he alone under whom for the time being they can be held and maintained he only can be our Sovereign Lord the King for the time being If every Judicial act done by him which concerns the Royal Jurisdiction shall be good though it be always done under the Title and Authority of our Sovereign Lord the King then must he be our Sovereign Lord the King to all intents and purposes of Law for the time being then must the Laws made by him be good also though they run in the stile of our Sovereign Lord the King or our Lord the King. And if all this be true of a King Regnant or in possession though it should be granted that he held the Kingdom meerly by usurpation it must more certainly be true of one on whom the Kingdom is entailed by Act of Parliament as in our case it is and who is therefore not to be looked on as a meer Vsurper 5thly P. 434. Observe that in Calvin's Case it is determined that Protectio trahit subjectionem subjectio protectionem Protection requires Subjection and Subjection Protection Quia sicut subditus Regi tenetur ad Obedientiam ita Rex subdiot tenetur ad Protectionem P. 436 437. For as the Subject oweth to the King his true and faithful Ligeance and Obedience so the Sovereign is to govern and protect his Subjects that Power and Protection draweth Ligeance and that the Ligeance of the Subject is of as great extent and latitude as the Royal Power and Protection of the King that though the King in his natural Person is subject to Death P. 438. Infirmity c. yet in his politick Capacity he is esteem'd to be Immortal not subject to Death Infirmity c. Now I would not hence inferr with others that I owe a King no Subjection or Allegiance any longer than he doth actually protect me or that if he neglect his duty in protecting me in my Goods or Body or of protecting the Laws according to these wordds of Foretescue Rex ad tutelam legis Cap. 13. corporum bonorum erectus est I may neglect my duty of Allegiance to him But yet I think it reasonable hence to inferr affirmatively From the King Regnant in possession I for the time being do receive Protection therefore to him for the time being I do not owe Subjection Protection draws Allegiance therefore Protection from him draws Allegiance to him The Ligeanceof the Subject is of as great extent and latitude as is the Royal Power and Protection of the King therefore it must extend it self unto all times and places in which and where this Royal Power is exerted and this Protection is afforded to me Rom. xiij 1 4. St. Paul doth found the reason of our Subjection 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to the present Powers on this ground That they are unto us the Ministers of God for good or in the words of Christ that they are 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Benefactors Luk. xxij 25. to whom we therefore own Subjection on the score of gratitude as far as we with justice can afford it Since therefore saith the Reverend Bishop Sanderson De legum Oblig lec 5. §. 18. we owe it to the Supreme Powers even when they are usurped that we enjoy what is our own that we live safe from slaughter and from rapine yea that we live at all since without them we neither could have remedy or safe-guard against the Lusts the Furies or the Injuries of wicked Men 't is the most equitable thing and that which the Old Law of giving and receiving mutually doth require that for so many and great benefits we should make some return unto that Power which affords them And what is that Return he doth sufficiently explain in the ensuing words Profecto perfecto perversissimae mentis est 'T is certainly an indication of a most perverse mind to desire to live under the Patronage of his Government whom you will not obey and to refuse to be governed by him
181. viz. It is worthy the Note that we find no execution of blood except in open battel in all these combustions nor any Nobleman to die on a Scaffold either in this King's Reign or any other since William the First which is now almost Three hundred years SECT III. NOW as the strength of this Argument seems to me greater than is that of many others which are produced in this Cause so are there many singular advantages which it hath above them For instance First Whereas 't is said n. 1. That we cannot take this Oath upon the Grounds which commonly are offered to move us so to do without condemning the Doctrine of Non-resistance allowing Subjects in some cases a Power to Depose their Prince asserting that our Allegiance to him may cease even whilst he doth continue to Govern or to sway the Sceptre and so we cannot upon those Motives comply with the Act enjoining us to take it without condemning our ancient and avowed Doctrines our Subscriptions to our Homilies and Canons if not the Doctrine of the Ancient Church and that which once was counted the Glory of the Church of England and consequently we cannot do it on those Principles without the scandal of Hypocrisie and Mutability and so of being Ecclesiastical Weathercocks that turn with every wind that blows and Men of such flexible Consciences as will permit us to swear backwards and forwards or any ways for our interest which scandal would cause ur Persons to be despised and our Doctrine not to be regarded Whereas I say some of the other Grounds of taking the Oath of Fealty and Allegiance to King William seem to subject us to these and many other inconveniencies this way entirely avoids them all For 1. We may still honestly declare as do our Statutes n. 2. 3. Jam. 1. c. 1. Can. 36.60 Can. 1. 1640. our Canons and our Convocations That the King's Highness is the only Supreme Governor of this Realm and of all other his Dominions and Countries That the Kingly Authority within his Dominions and Countries is immediately and after God Chief and Supreme and that all Subjects by divine Law stand bound to yield all Faith and Obedience to it above all Earthly Power whatsoever For this Doctrine doth not in the least diminish any Privileges or meddle with any Prerogatives of our Sovereign Lord the King but only tells us who for the time being is that Sovereign Lord to whom these Prerogatives belong 2. n. 3. We may still honestly declare That it is not lawful upon any pretence whatsoever to take up Arms against the King Stat. Car. 2 A. 14. cap. 2.12 Car. 2. cap. 10. And that by the undoubted fundamental Laws of this Kingdom neither the Peers of this Realm nor the Commons nor both together in Parliament nor the People collectively or representatively nor any other persons whatsoever had have hath or ought to have any coercive Power over the Kings of this Realm And with our Convocation still assert A. D. 1640. Can. 1. That for Subjects to bear Arms against their King offensive or defensive upon any pretence whatsoever is at the least to resist the Powers which are ordained of God. We may still subscribe these Doctrines of our Homilies as wholsome and godly Doctrines and Doctrines to be embraced by all men 2d Par. of the Serm. of Obed. p. 72. That it is not lawful for Subjects and Inferiors in any case to resist and stand against Superior Powers that Christ hath taught us plainly that even the wicked Rulers have their Power and Authority from God and therefore it is not lawful for their Subjects to withstand them Although they do abuse their Power That if they would command us to do any thing contrary to God's Commandments in that case we may not in any wise withstand them violently P. 74 75. or rebel against Rulers or make any Insurrection Sedition or Tumults either by force of Arms or otherwise Against the Anointed of the Lord or any of his Officers but we must in such case patiently suffer all wrongs and injuries referring the Judgment of our Cause only to God. Hem. of Rebel Par. 2. p. 301. And that though Multitudes not only of the Rude and Rascal Commons but sometimes also Men of great Wit Nobility and Authority have moved Rebellions against their lawful Princes whereas true Nobility should most abhor such villanies though they should pretend sundry Causes as the Redress of the Common-wealth which Rebellion of all other mischiefs doth most destroy or Reformation of Religion whereas Rebellion is most of all against true Religion yet were the multitude of the Rebels never so great the Captains never so noble politick and witty the pretences feigned to be never so good and holy yet the speedy overthrow of all Rebels of what number state or condition soever they were or what colour and cause soever they pretend is and ever hath been such that God thereby doth shew that He alloweth neither the dignity of any person nor the multitude of any people nor the weight of any cause as sufficient for the which Subjects may move Rebellion against their Prince For this Doctrine only adds to these Particulars this That the King Regnant in possession is the King whom we may not resist in any case 3. We are not obliged for the justification of our selves n. 4. and of our Doctrine to appeal from the Homilies themselves to those who composed or subscribed them to prove their Actions towards others and the Sayings of one or two of them elsewhere were inconsistent with the plain import of the words which they subscribed and taught as good and wholsome Doctrine when it served to defend the Protestants against the Insurrections of the Romanists the chief Adversaries of that Doctrine which England knew of in those times or to insinuate to their disparagement that they held this to be good Doctrine when it was useful to secure them against the Romanists but that the Doctrine of the Lawfulness of Resistance was as good when it was useful to preserve the Protestants in England or beyond the Seas against the Romanists But can fairly account for that assistance which they gave to their oppressed Brethren from the difference betwixt the constitution of their Government and ours this being one of the chief Laws by which the liberty of the Netherlands was long maintained and justified If any Prince hath disturbed the State of the Republick either by violence wrong dealing or treachery Oration of the Lawfulness of the Netherlandish War p. 14. then all the States and Burghers may deny him Obedience and shall be free and discharged of their Oaths they shall appoint a Chief in his place until he be reduced to a better Mind and more easie Government From the Observation of Dr. Hammond out of Bodinus L. 2. de Rep. c. 5. That in France Spain England and Scotland Reges sine
in the word Concessimus for the honour of the King yet were they saith Sir Edward Coke the Common Laws and Rights of the People before 3dly It plainly is asserted That the whole Realm is subject to these Laws and to be Governed by them and no otherwise And agreeable to this Statute is that excellent Resolution of King James when his Subjects desired to know of him Whether he would Rule according to the Ancient form of this State and the Laws of this Kingdom or if he had an intention not to limit himself within these bounds but to alter the same when He thought convenient by the absolute Power of a King. Fourth Speech at White-hall A. 1609. p. 530 531. He Answers That the King was Lex loquens after a sort binding himself by a double Oath to the observation of the fundamental Laws of his Kingdom tacitly as by being a King and so bound to protect as well the People as the Laws of his Kingdom and expresly by his Oath at his Coronation So as every just King in a setled Kingdom is bound to observe that paction made to his People by his Laws in framing his Government agreeable thereunto And therefore a King governing in a setled Kingdom leaves to be a King and degenerates into a Tyrant as soon as He leaves off to Rule according to his Laws therefore all Kings that are not Tyrants or perjured will be glad to bound themselves within the limits of their Laws and they that perswade them to the contrary are Vipers and Pests both against them and the Common-wealth CONSIDERATIONS Humbly offered for Taking the Dath of Allegiance TO King WILLIAM and Queen MARY SECT I. BEFORE I produce the particular Arguments which may be urged for taking of this Oath it may be useful to lay down some general Considerations relating to this matter viz. 1st That through the whole Series of our Kings it hath often happened that Ground sufficient hath been given to question the Right of their Succession and in the Cases of Edward the Second and Richard the Second the lawfulness of their Deposition and yet no scruple ever hath been made till now of taking an Oath of Allegiance to the King who had Possession of the Government That ever the Bishop of Carlisle refused the Oath of Allegiance I do not remember 2dly That all the Interests of the Protestant Religion plead for the taking of the Oath if lawfully it can be done it being reasonable to conceive that from the present King we may expect the Preservation of that Religion and the Defence of it to the utmost of his Power not only here but in the Neighbouring Nations against the Malice of the French King against it He being chosen the Head of the Protestant League for that effect whereas we cannot reasonably expect King James should by French Interests return to sway the Scepter without the outmost hazard of the Interest of Protestants in this and all the Neighbouring Nations 3dly If we comply with those who take this Oath we shall prevent that Division of the Church of England which may if it be not prevented give great Advantage to her Enemies we shall strengthen the Hands of King William and of the Kingdom against the Adversaries of Church and State we shall contribute to the Peace of the Nation which all good Men are bound to pray for and seek by all means lawful If we refuse compliance we shall accidentally at least give Advantage to Dissenters who generally comply against the Church we by our Example shall cause others to refuse compliance and so shall strengthen the Hands of the Papal Party and Minister to those Divisions which may cause our Ruine 4thly By refusing to take this Oath we shall deprive our selves of our Subsistence and of the ordinary means of providing for our Family which without absolute necessity we cannot do 1 Tim. v. 8. for saith the Apostle If any provide not for his own and especially for those of his own house he hath denied the faith and is worse than an Infidel We shall deprive our selves of the capacity of exercising our ministerial Function which without like necessity we cannot justifie 5thly We seem not well able to Answer the Question What it is we would have or what we would be at for if we be asked whether we would have King James return a Conqueror or whether we would have him put in statu quo we must in Conscience Answer No unless we would have Popery and Slavery entailed upon us And that he should return any otherwise as matters now stand is next to impossible Since then we cannot be willing that we should be reduced to a capacity of yielding him ctual Allegiance upon those sad terms we seem upon the matter to have renounced the Allegiance we swore to him which was 1st That we were then willing and inclined to yield him true Allegiance and 2dly That we hereafter would act suitably to that Inclination 6thly We all conceive it reasonable that we should live peaceably and quietly under the Government of King William that we should never be active to introduce King James or to disturb the Possession of King William and that whilst we enjoy his Protection we should pay him the Taxes imposed on us Now this is all that many of those who write for taking of the Oath and many of those who take it for taking of the oath and many of those who take it think is meant by swearing Faith and true Allegiance to King William and therefore according to the ordinary Sence imposed upon the Oath by many Wise Judicious Persons we our selves think it reasonable to take it and surely then there concerns of the Protestant Religion at Home and Abroad our love to the Church of England to the Peace of the Nation to our selves to those Souls to whom we minister must weigh much with us to engage us to do that which in the ordinary import put upon the words by many Wise and Judicious Persons we own we cannot rationally refuse to do SECT II. HAving premised these general Considerations I now proceed to those Arguments which seem to prove it lawful in our Circumstances to take the Oath imposed by the said Act. And First This seems to be self-evident That a legal Oath n. 1. or an Oath imposed by Law ought to be understood in a sence reconcilable to the Law and consequently no Man by virtue of a legal Oath can be obliged first to transgress the Laws and then to suffer for so doing It is also evident from the nature of the thing Cowel verbo ligeance and the determination of our ablest Lawyers that Ligeance or Allegiance is such a kind of duty as no Man may owe to more than one Lord. It is that duty which no man owes or by the Law should pay but to his Sovereign who in one Imperial Kingdom can be but one and it is agreeable unto our Saviour's
Axion That no man can serve 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 two Supreme Lords Matth. vi 24. Now by the Laws of this Land I owe and am bound to yield Allegiance to him who is in Possession of the Kingdom n. 2. whether he have rightful Possession or not and am excusable and free from punishment by the Law if I afford it for so the Law runs The King our Sovereign Lord 11 H. 7. c. 1. calling to his remembrance the Duty of Allegiance of his Subjects of this his Realm and that they by reason of the same are bound to serve their Prince and Sovereign Lord for the time being in his Wars for the defence of him and the Land against Every Rebellion Power and Might reared against HIm and with Him to enter and abide in service in Battle if case so require and that for the same Service what Fortune ever fall by chance in the same Battle against the Mind and Will of the Prince as in this Land sometime past hath been seen it is not reasonable but against all Laws Reason and good Conscience that the said Subjects going with their Sovereign Lord in Wars attending upon Him in Person or being in other places within this Land or without by His Commandment any thing should lose or forfeit for doing their true Duty and Service of Allegiance It be therefore ordained enacted and established by the King our Sovereign Lord by the advice and assent of the Lords Spiritual and Temporal and the Commons in this present Parliament Assembled and by Authority of the same that from henceforth no manner of person or persons whatsoever he or they be that attend upon the King and Sovereign Lord of this Land for the time being in his Person and do Him true and faithful Service of Allegiance he or they be in no wise convice or attaint of High Treason ne of other Offences for that cause by Act of Parliament or otherwise by any Process of Law whereby he or any of them shall lose or forfeit Life Lands Tenements Rents Possessions Hereditaments Goods Chattels or any other things but to be for that Deed and Service utterly discharged of any Vexation Trouble or Loss Where Note 1st That this Service and Allegiance mentioned in this Statute is faithful Service and true Allegiance once and again and it is declared to be the duty of all Subjects 2dly That it is to be yielded to the King for the time being without enquiry whether he be the rightful King or no for it was agreeable to reason fo Estate saith the Lord Bacon History of the Reign of H. 7. p. 144. That the Subject should not enquire of the justness of the King's Title or Quarrel and it was agreeable to good Conscience That whatsoever the fortune of the War were the Subject should not suffer for his Obedience 3dly That this Service and Allegiance is to be yielded to the King for the time being against every Power and Might reared against Him. 4thly That through the whole Body of the Act he is called the Sovereign Lord of the Land their Sovereign Lord and so it seems we need not scruple the use of the said Title in our Prayers it being only that which the Law of the Land gives to every one that is King for the time being 5thly That this Statute hath continued unrepealed about Two hundred years and therefore hath been so long approved by the whole Nation and judged well consistent with the duty of Allegiance owing to their lawful Sovereign they therefore judged it not repugnant to their Oaths of Allegiance to their rightful Sovereign to bear true Allegiance and to do true and faithful Service of Allegiance to any other King for the time being who had got quiet possession of the Throne which is all that this Oath requireth of us Moreover all High Treason committed by a Native of the Land is an offence against his natural Allegiance n. 3. Cook 's Reports Par. 7. Calvin's Case p. 435. which appears from the Indictments of Treason which saith the Lord Cook are of all other things most curiously and certainly indited and penned for they run for committing this Crime contra debitum fidei ligeantiae suae quod praefato Domino Regi naturaliter de jure impendere debuit Against the duty of Faith and Allegiance which he naturally and of right ought to yield to his Lord the King or for committing this fact contra Dominum Regem supremum naturalem Dominum suum Against our Lord the King his supreme and natural Lord or contra naturalem ligeantiam Domino Regi debitam Against the natural Allegiance due to our Lord the King. Now the same Lord Chief Justice Cook in his descant on these words of the 25th of Edward the Third Instit Par. 3. ch 1. p. 7. Seignior le Roy used in that Statute concerning High Treason saith That this Act is to be understood of a King in possession of the Crown and Kingdom for if there be a King Regnant in possession althopugh he be Rex de facto non de jure yet he is Seignior le Roy within the purvien of this Statute and the other that hath right and is out of possession is not within this Act. Nay if Treason be committed against a King de facto non de jure and afterwards the King de jure cometh to the Crown he shall punish the Treason done to the King de facto and a Pardon by a King de jure that is not also King Pleas of the Crown p. 11. de facto is void The Lord Chief Justice Hales doth also say That a King de facto and not de jure is a King within this Act and a Treason against Him is punishable though the right Heir get the Crown And sitably to these declarations of these great Men I find in Bagot's Case Pasc 9. Ed. 4. argued in the Ninth year of Edward the Fourth that it is said That the King shall have the advantage of any Forfeiture made to Henry the Sixth c. and of Trespasses made in his time the Brief shall be contra pacem H. 6. nuper de facto non de jure against the peace of Henry the Sixth late King in Possession though not of Right c. and a Man shall be arraigned of Treason done to the said King Henry in compassing his Death and it is there added Qu' si cesty qu' est ore Roy in temps le Roy Henry ust fait Charter de Pardon c ' sera void a ore car chescun qu' ferra Charter de Pardon covient estre Roy en fait That if he who is now King had given a Charter of Pardon in the time of King Henry that Charter shall be void at present because it is necessary that every one who makes a Charter of Pardon should be actually King. Now hence 1. I inferr that we cannot reasonably except
Extremities Towns are reduced to the Jurisdiction of those to whom they were sworn not to submit but to destroy and upon their Surrender the must swear Allegiance to another Master and to destroy those whom before they were bound to preserve if they afterwards be re-taken by their former Prince he cannot look upon them as Traitors or Revolters for he could neither expect Allegiance from them when it was impossible for them to give it or the refusal of Allegiance to the Conqueror when it was impossible they should refuse it without being put to the Sword. The Reasons which justifie such particular places justifie a more universal such as are whole Kingdoms which are made out of such particular places and are subject to the same Fate and necessity of War to the same Confusions and Revolutions of Government and so to the same opposite Allegiance This therefore can be only such a Law of Nature as binds under such circumstances and ceaseth when those circumstances cease viz. When Power of Protecting Governing and Preserving cease without my fault and I can have them only from another upon condition of Allegiance 3dly Let us considerately peruse the Grounds of natural Allegiance n. 14. or the Foundations upon which according to the learned it relies and they perhaps may somewhat contribute unto our satisfaction in this case The foundation of legal Allegiance is the natural Law of Fidelity which obligeth us to be true unto our Promises and Oaths and this the Objection grants may cease The grounds of natural Allegiance are by our Judges in that famous Case of Calvin declared to be two 1. Protection and Government and from this Ground it is demonstratively evident that my natural Allegiance must cease to be actually due to him who cannot govern and protect me and must be due to him who actually doth so 2dly The Necessity of Government and the Profit of it for the preserving the Society of Man 't is necessary because the Prince cannot attain the ends of Government unless his Subjects yield him due Obedience 't is profitable because Peace is preserved and Justice hath its due uninterrupted Current whilst the King who protects and governs finds Obedience from his Subjects Now both these Grounds as hath been shewn in Bagot's Case and from the Reverend Bishop Sanderson require Obedience to the King in Possession for the time being for if there be a necessity when we have lost our Governor de jure and he is out of Possession that we should still have Government and we cannot have it but from the King de facto there must be a necessity that we should yield Obedience or Allegiance to him for they are words of the same import and used indifferently for the same thing in the Old Statute of Allegiance the Old Oath being commonly called saith the Act for the abrogation of it P. 188. The Oath of Allegiance or Obedience Peace also is preserved and Justice hath its Course under the King in Possession and cannot have its Course under him who is out of Possession 3dly Case of Engag P. 109. Bishop Sanderson saith That Allegiance is a Duty that every Subject by the Law of Nature owes to his Country and consequently to the Supreme Power thereof for the same Law which we may call the Law of Nature at least in a large acceptation which inclineth particular Men to grow into one Civil Body of a Common-wealth must necessarily withal imprint a Sense and tacite acknowledgment of such a Duty of Allegiance in every inferior Member of the Body to the Sovereign Power by which the Common-wealth is governed as is necessary for the preservation of the whole Body It therefore say I must imprint an acknowledgment of such a Duty of Allegiance in every inferior Member of the Body to the King de facto in full Possession of the Government because he is Caput communicatis and is for the time being that Sovereign Power by which the Common-wealth is governed And this he elsewhere proveth in our very case by this cogent Argument Whatsoever is to be done for any end Lect. 5. de leg §. 19. is so far to be done as it seems necessary and profitable for the obtaining of that end but the end of Civil Government and of the Obedience due to it is the safety and tranquillity of humane Society and therefore every Subject is bound to obey the Commands of him who de facto is Supreme Governor as far as the safety and tranquillity of that Society requires that Obedience Now three things are necessary for preserving of humane Society 1. Defence of our Country against Foreign force and the attempts of her Enemies Add And by parity of Reason against those who would create Seditions in her bowels for surely they are opposite to the safety and tranquillity of the Society 2dly The administration of Justice by which Rewards and Punishments may duly be administred as by Law established 3dly The care of Trade and Merchandice for in these three things the welfare of Manking doth so much consist that without them all things must run to ruin all places will be filled with Rapines Murthers Frauds and Injuries The Lives and Fortunes of the most innocent Subjects will become a prey to the Lust of the more powerful the only remedy against which Evils is That good Subjects remember that it is their duty to obey their Commands and Laws in all things which relate unto the publick safety by whose Sword and Authority they are defended from the injuries of wicked Men. I know he concludes with this exception That we must so yield Obedience to the Invasor §. 20. as not to violate the Right of the Lawful Heir or do any thing to his prejudice Which exception shall be considered in the following Head. 4thly Allegiance may be grounded on that Law of Justice which enjoins us to give every one his right But then according to our Laws according to that Old Rule Protection doth require Allegiance according to those known Principles That there must be always a Government under which the Laws may be preserved and Justice executed and where there is a Government there must be Obedience I say according to these Rules Allegiance for the time being must be the Right of the King in possession for the time being Moreover in many things which are in general enjoined by the Law of Nature humane Laws determine both of the exercise and measures of them for instance Thou shalt not steal Thou shalt not defraud another of his Right are Laws of Nature but yet the Law of Man determines what shall be esteemed stealing and what defrauding others of their Right Thou shalt not kill is another Law of Nature but yet the Law of Man determines when I may kill without committing Murther and when not so in like manner the Law of Nature requires Allegiance to my Sovereign but for any thing I can see to the contrary
Religion of the Nation Or doth any Man call a Conquer'd Nation or a City taken Storm or a Routed Army perjured because they accept of their Lives upon condition of promising upon Oath allegiance to their Conqueror 2dly The General condition of all Oaths is That I will perform them so long and so far as it is lawful so to do Now can any Man think it lawful to be active to the apparent Ruine of himself the Laws Religion and Community of which he is a Member If not he cannot think himself obliged by his Oath or Promise to those things which will in humane probability have these sad Effects 3dly The Oath of Allegiance is a legal Oath imposed by the Representatives and Guardians of the Community Now can it reasonably be thought that they intended to bind the whole Community and in them themselves to ruine both their Laws Religion and their private Interests If not no Man can rationally think himself obliged by such an Oath to do that which apparently doth tend to such an End. Again the immediate Law of all Societies is the publick Good. Now Allegiance saith Bishop Sanderson Case of the Engag p. 109. is a Duty that every Subject owes to his Country that is the Publick and consequently to the Supreme And hence it seems demonstratively to follow that he cannot owe it to the Supreme Power when the performance of it tends plainly and directly to the ruine of the publick Good and therefore cannot owe it to him when it tends to the destruction of that Community of which he is a Member The Allegiance which is confirmed by Oath is stronger than is natural Allegiance and yet the Casuists do generally teach that when the Observation of a promissory Oath is plainly destructive of the publick Good it is not Obligatory because the matter of it then becomes unlawful For 1. That which we cannot lawfully promise we cannot swear to do but we cannot lawfully Promise to be actively Obedient to the Commands of our Superior to the ruine of the Publick we cannot therefore swear to be so 2. An Oath can only bind us to do that which we can be obliged to do but no Member of a Community can be obliged to do what is destructive of the Good of the Community he being Jer. xxix 7. by virtue of his Relation to it to seek the Peace and Welfare of it and to pray unto the Lord for it and therefore cannot be obliged to act in contradiction to his Duty and his Prayers 3dly To this Effect may be urged that saying of our Lord The Sabbath was made for Man Mar. ij 27. that is for his behoof not Man for the Sabbath whence he concludes That the Rest commanded on that Day and in which the Observation of it did consist may be violated for the preservation of Man. Accordingly Kings were made for the publick Good the Welfare and Safety of the Government and Allegiance saith St. Paul is therefore due to them because they are the Ministers of God to us for good The Community or Publick was not made for them and consequently the humane Laws concerning them and the Allegiance we owe to them may be violated when it is necessary to do so for the preservation of the Publick When therefore Subjects are under a necessity either to Hazard or Ruine the Publick or to transferr their Allegiance for the time being to the King Regnant they may do the latter Moreover it may very probably be argued That when a King being wrongfully outed repairs to a foreign Power by which to conquer his own Kingdom I am not bound by my Allegiance tamely to give up my self without resistance to be enslaved to that power as I must be if in such cases I may not resist it being not in the King's Power how much soever it may be in his Will to Rule or to Command these Conquerors and therefore not to hinder our enslavement to them Yea when he visibly attempteth to dissolve those Laws on the Preservation of which the Good of the Community consists or by such evil Methods to subject it to Popery and Slavery i. e. to Temporal and Eternal Ruine my Duty of Allegiance cannot oblige me to be obedient to him in prosecution of those ends Had I sworn to stay a Prisoner in such a House that Oath would bind me to stay in it though I found it smoaky and wanting Accommodations for my Health but not when it is on Fire or ready to fall down upon my Head because the Observation of it to my own immediate Destruction is against the Law of Nature Much less can may Oath of Allegiance bind me to the Subversion of the Publick that being more against the same Law and the very End of Societies When therefore a King hath put his Conscience under such Guides as render it morally impossible for him to desist from the Subversion of the Established Religion and his Power and Person under such Hands that it is morally impossible he should return to his Government without enslaving the Community and subverting her Laws and Liberties I know not what natural Allegiance or Principles of meer natural Reason can tie me to hazard my own safety by refusing to promise Allegiance for the time being to another who will preserve both In cases of such unhappy Contests between the good of the Governor and the Governed it seems most natural to think it better ut pereat unus potius quam unitas For the present Governor in such a struggle may suffer much and yet the Government may not suffer but be as well preserved in another Person But when a Kingdom and a Church is thus subverted and enslaved the Government then suffers without prospect of Recovery and the Effects of these things reach unto Posterity Witness the woeful Spectacle of France According to the supposition of the Statute of Henry the Seventh and the Cases cited Obj. 2 the King out of Possession is de jure King and so we must be his Subjects de jure these being essential Relatives which mutually inferr one of the other If we be of right his Subjects we must owe him Allegiance of right and then How can we promise and swear to give away his right to another To this Objection I have given a sufficient Answer in what I have Discoursed on the Fourth Foundation of Allegiance n. 16. the Law of Justice To which things I add Answ 1st That as a King de jure hath right to the Allegiance of his Subjects so have they also the same right to Government and Protection by him and he is by his Coronation Oath obliged to afford it If then whilst he is out of Possession the exercise of his Government and Protection ceaseth though I have a right to it and he is not to be esteemed a violater of his Oath because he doth not then protect us or execute Justice for us Why may not the Exercise of that
Kingdom of Judah six years Joash was the true King and so the Power ordained of God. 1. This Assertion meddles not with the Right to Answ but only with the Exercise of the Supreme Authority Now it is plain to Common sence and experience that a King out of Possession whilst he so continues cannot do any thing belonging to the Higher Power to do nor is he such an Higher Power as St. Paul represents for he doth not actually bear the Sword of Justice he doth not watch continually for that very thing he makes no Judges or Justices of Peace there are none Commissionated by him for the punishment of evil-doers or for the praise of them that do well He cannot be a terror unto evil works or a Rewarder of the good done in that Kingdom in which he hath lost all Power So that if it be necessary that we should always have a King under whom Justice should be executed and the Laws be maintained and he that is out of Possession for the time being cannot be that King it plainly seems to follow that for the said time he cannto be the Minister of God to us for Good intended by St. Paul. Again it is as plain that the King in quiet possession for the time being actually doth or may perform all these particulars and so in reference to them all may be the Minister of God to us for Good And why then may he not be deem'd the Ordinance of God for the time being Or why may not those Laws which make him the Supreme Power and the Executor of these Offices for the time being be also said to render him the Ordinance of God for the time being The Instances produced from the Old Testament have nothing in them parallel to our case Answ 2 or opponte to our Hypothesis as will be evident if we consider that the Possession pleaded for as being that which creates a Right to our Allegiance for the time being and renders any Prince the Ordinance of God for the said time is 1. Full and quiet Possession of Kingly Government without the Contest of any opposite prince in the said Nation for he who is not King can never be our Sovereign Lord the King. 2dly Possession given and received by the usual method viz. The Consent of all the Representatives of the People Governed and the Coronation of the Person Governing with the usual engagements to the Governed Which Coronation how unnecessary soever it may be to a Prince who hath an Hereditary Title to the Crown must necessarily be needful to make a King who is not so by Birth-right our Sovereign Lord the King for the time being For want of these two things though Oliver had engrossed the whole Government yet was he still a meer Vsurper and no legal Governor and therefore no Allegiance could by our Laws be due unto him he being no King much less a King chosen by the House of Lords and Crowned in the usual manner And by the enjoyment of these things it was that King Stephen John and the three Henrys though deficient in Title by Birth-right were notwithstanding in their respective times our Kings and so the Odinance of God for the said time This being premised the impertinency of all the instances produced will easily appear For 1. As for Absalom he never had any qiet possession of the Kingdom nor did ever David flee out of the Land for when the Battel was fought he was in Mahanaim a City of Refuge and a Sacerdotal City He had with him an Army of his own Subjects able to cope with Absalom besides those who in reality were for David though they pretended to follow Absalom 2dly Sheba was never Anointed or placed on the Throne he never had Possession or any deliberate Consent of the ten Tribes for he was presently pursued 2 Sam. xx 14. not only by the Men of Judah but of Israel also 3dly That Athaliah ever ruled by the consent and approbation of the People of Judah is not evident from the Sacred Records perhaps she did it only by meer force and violence 2 Chr. xxij 9. xxiij 3. because the house of Ahaziah had no power to keep still the Kingdom or because they knew of noen of the Seed-Royal that survived Moreover in all these instances there was an express Law or Declaration of the Will of God against all these pretenders For Absalom and Sheba rebelled against that David whom the Lord had expresly chosen to seed Jacob his Chosen Ps lxxviij 71. and Israel his Inheritance Athaliah was excluded by that Declaration Promise Oath of God whereby he had engaged that David's Kingdom should be established for ever Ps lxxxix 33 34 35. 2 Sam. vij 16. and that there should not want a man to sit upon his Throne Whence having found a Son of Ahaziah the Priests and People with one voice cry out The King's Son shall Reign 2 Chr. xxiij 3 as the Lord hath said of the Sons of David Now though 't is granted that no man can be God's Ordinance against his own immediate and express Appointment of another individual person so to be this hinders not but where there is a Law to make it so where the same ways are used which convey a good Title and where the exercise of the Government is conveyed by them whom God hath intrusted with the designation of the Individual Governor that Governor may exercise the Supreme Power for the time being even when the Right is in another or may at least be deemed God's Ordinance in so doing For whereas it is said that Civil Magistracy is by the Law of Nature Obj. but he that is only King de facto and so is King in prejudice to and violation of anothers Right cannot be a Magistrate by the Law of Nature but against it and so his exercise of that Authority is contrary to the Law of Nature I Answer Repl. that Magistracy is only by the Law of Nature because some government is so not because this Individual Governor is so If therefore Government may equally proceed under a King de facto as de jure they may be equally by the Law of Nature because those Acts of Government viz. the punishing Offenders the protecting of the Innocent and whatsoever else is of the Law of Nature because essential to Government which is so may equally be performed by both For a Conclusion of this Answer and this Section with it it may deserve to be considered That in these and all other cases of such Popular Elections and Revolts left on Record in the Old Testament we find not any person punished afterwards as Rebels for siding with the opposite Party against their Rightful King None that followed Adonijah and proclaimed him King none of the ten Tribes who Anointed Absalom or followed after Sheba none who submitted to Athaliah To which add a like Observation out of Daniel's History In the Life of Hen. 3. p.
controversia jura Majestatis habent per se singulis civibus nec universis fas est summi principis vitam famam aut fortunas in discrimen vocare sive vi sive judicio constituto id fiat Their Kings have all the Rights of Majesty within themselves and 't is not lawful for any of or all their Subjects to bring their Lives Fame or Fortunes into jeopardy either by force or way of justice But as for the Emperor of Germany Charles the Fifth Tyrannide cives ad Rempublicam oppressit cum jura Majestatis non haberet Divin Dial. par 2. p. 81. He by his Tyranny over his Subjects when he had not the Rights of Majesty forced them to resolve themselves into a Common-wealth And from that of Dr. More That * Lutherus semper docuerat Magistratui non esse resi stendum extabat ejus de hac re libellus cum autem in hac deliberatione periti juris docerent legibus esse permissum resistere nonnunquam nunc in eum asum de quo leges inter alia mentionem faciant rem esse deductam ostenderent Lutherus ingenuè profitetur se nescivisse hoc licere Sleid. Comment l. 8. p. 195. Luther would never assent to the Consederacy of defensive Wars at Smalcald till he was throughly instructed by the learned in the Law touching the Constitution of the Empire of Germany that by the Magna Charta of that Empire the Princes of the Empire are invested with such Rights as if they be violated by the Emperor it is lawful for them to take Arms and resist Sine Rebellionis insidelitatis crimine Without the Crime of Rebellion and Vnfaithfulness and that the Emperor had viovated those Rights Much less are we constrained to fly to such Assertions as these viz. The Homilies of Obedience do no where teach Submission to lawless Violence Mr. J. p. 73. but only to lawful Authority and the Homilies against Rebellin speak not one word of submitting to mauthoritative or lawless Violence Serm. of Obed. Par. 2. p. 72. of Reb. p. 277. Whence it must follow that Princes have lawful Authority to be sharp and rigorous and wrong doers to abuse their power Pag. 74 75. Hom. of Rebel p. 287 288. to do all wrongs and injuries to them who will not obey them against God's Commandments to be mortal Enemies seeking the Lives of their Subjects to be naughty cruel Princes Princes that be to their good Subjects mortal Enemies Princes that are hurtful or like to be hurtful to the Common-wealth For whosoever reads those Homilies honestly and carefully will find in them almost as many Passages as Pages requiring Obedience to such Princes 4. n. 5. We may still with our Forefathers condemn those Romish Doctrines which ascribe unto the Pope a power of crubing the deposing Princes Bish Morton's discovery of the Rom. Doctrine in the Case of Conspiracy and Rebellion p 9 15 19 37. in case of Heresie perverting of Faith and persecution of their Catholick Subjects which pronounce it lawful for Catholioks to break Faith with Hereticks to do evil that good may come to use fraud falshood and injustice treachery and dissimulation for the benefit of holy Church we may as they have done before us condemn those Principles as Rebellious which set up a Democratical or Monarchical Power of People or of Pope over Princes which dissolve the Oath of Obedience to Princes which countenance the violating Faith with men of divers Religions which allow the Doctrine of forcible Deposing of Princes from their Thrones I say We may still do all this without fear of having that of the Apostle retorted on us Thou art inexcusable O Man Rom. ij 1 3. whosoever thou art that judgest for wherein thou judgest another thou condemnest thy self for thou that judgest dost the same things And thinkest thou this O Man that judgest them who do such things and dost the same that thou shalt escape the judgment of God. For we by taking of the Oath of Fidelity and Allegiance to King William and Queen Mary upon this Principle approve of no Democratical Power over our Sovereign Lord the King No forcible deposing of Princes from their Thrones but without farther enquiry after their Right if we find them setled by the Naitons Representatives in quiet Possession of the Throne give them Faith and that Allegiance which our Laws have made due to every King in the Possession of the Realm And lastly we allow of no other Absolution from our former Oaths than that which Casuists of all Perswasions do admit of viz. By the Cessation of the matter of our Oath King James now ceasing to be King in Possession and so in the Law Sence to be our King. 5thly n. 6. We may also retain our old Sence and Exposition of St. Paul and Peter viz. That the present Powers which by the Law are such be they such as duly use or do abuse the Power committed to them such as according to their Duty are the Ministers of God for good Or such as prove eventually the Encouragers of evil Doers are still the Ordinance of God and therefore he that doth resist them shall receive to himself Damnation and are not by our Principles obliged to restrain their words unto such Princes as are in Fact as well as Duty the Ministers of God for good but only to such Princes as by the Tenor of our Law become our Sovereign Lords however they demean themselves in the Exercise of the Government and so we are not concerned in these Objections against the other Interpretation 1. That it rather seems to make the Discourse of these Apostles an Exemption from Subjection and Obedience to the then present Powers and an allowance to them than any Obligation to be subject and obedient to them they being not in Fact as well as Duty the Ministers of God for good but most unnaturally and barbarously Cruel of a most savage bloody Temper as is recorded in the Roman Histories touching Tiberius Claudius Caligula and Nero or if such persons were to be obeyed without Resistance as being the Ministers of God for good who then may be resisted for not being so 2. It plainly seems to lay upon the Blessed Apostles the imputation of Dissimulation and acting not according to that Simplicity and Plainness as might have reasonably been expected from the Discpensers of the Gospel for without any limitation or exception they require every Christian Soul to be subject to the Higher Powers for Conscience sake and upon pain of Damnation never to resist them They declared to the Heathen World That Christianity required all its Professors how ill soever they were treated how cruelly soever they were persecuted how wrongfully soever they did suffer from them to suffer with the greatest patience and never to take up the Sword for their Defence against them but after the Example of their Lord when they thus suffer not to revile
unjust Possessor of the Throne Moreover by a particular consideration of them it will be evident that they partly have received a sufficient Answer and that 't is easie from the Premises to give a full Solution to them To reassume them therefore in their order it is Objected That which renders a Man an Usurper of another Man 's Right n. 10. Obj. 1. without due Title or Admission to the Exercise of that Right can never render him the Ordinance of God to which I owe Subjection and Allegiance but that which maketh any person King de facto only in opposition to a King de jure maketh himan Usurper of another Man 's right without due Title or Admission to the exercise of that Right Ergo. To this I Answer That a due Title may be either such Repl. as according to the strict Rules of Justice bears that name as being obtained by due means and conferr'd without injustice or injury done to any person and so it must be granted that a King de facto or an unjust Conqueror can have no due Title against a King de jure Or 2dly that may be stiled a due Title which is legal or allowed of by the Law and which is conferr'd with those Formalities of Law and with those usual Ceremonies and Rites which customarily are observed in the most Regular Collations of those Titles A Title just in the first sence cannot be necessary to render a Prince the Ordinance of God or any other Secular and Ecclesiastical person capable of being owned as such for then none of the jewish High Priests in the times of our Saviour could have been owned as God's Ordinance they having seldom obtained that Office by due means nor having it conferr'd upon them without the injury of him to whom by God's direction it belonged for life viz. The eldest Son of the house of Aaron for the Procurator of Judea made that Office Annual it was usually bought and sold Vide Ham. in Luc. 3. not c. Josephus reckons no less than twenty eight of these irregular Advancements to that Dignity and yet St. Paul owns one of these very persons as the Ruler of the People Act. xxiij 5. Our Lord owns those who were sent by their Authority as men who could not be resisted lawfully Matt. xxvj 52. Joh. xi 49 51. The Holy Ghost doth own them as High Priests and even assisted one of the worst of them to prophesie whilst he held the Office Nor doth our Lord himself deny his Right unto that Title Moreover those Bishops which received their Power and Investiture from those Popes who wrested it from Kings and others who had right to nominate and to elect them could not upon this supposition be God's Ordinance nor as such obeyed in prejudice to the Rights of kings and these Electors 3dly No Conqueror of a Rightful king could be God's Ordinance notwithstanding any consent afterwards obtained from the People 4thly The four great Monarohies could not be the Ordinance of God with respect to the greatest part of their Dominions which they obtained only by the Sword. 5thly Most of the Roman Emperors in the Primitive Times could not be truly stiled God's Ordinance as being advanced to the Imperial Throne rather by the Arbitrary choice of the Army than the free Antecedent choice of the Senate Then lastly had we of this Nation no Ordinance of God in being during the Reigns of Henry the Fourth Fifth and Sixth that is for the space of sixty years they being accounted and in one of our Acts of Parliament often stiled Kings in Deed 1. Edw. 4. and not of Right And if a due Title in the Second sence be sufficient to render a person the Ordinance of God then be it supposed though not granted that King William and Queen Mary are only King and Queen de facto yet may they have a due Title because they have a legal Title from those Laws which declare the King and Queen for the time being to be our Sovereigns within the parvien of the Statute The Government also being conferr'd upon them by consent of the Nobility and Commons representing all the Coverned they being Crowned King and Queen after the usual manner and so having the Government conferr'd upon them with those Formalities of Law and with those usual Ceremonies and Rites which customarily are observed in Collating of it The Precept n. 11. Obj. 2. Let every Soul be subject to the Higher Powers cannot agree to him who is only King de facto in opposition to him who is King de jure for this Subjection doth not only signifie a passive Obedience or Non-resistance but an active Execution and Observation of all his lawful Commands the Contribution of Taxes to his support and maintenance our Assistance and Endeavours to keep him in his Station by our Arms Purse our Counsel and our Prayers our Love Reverence and Honour of Flim In a word our Fidelity and Allegiance to Him against all others Now can all this be due to a King de facto in opposition to him whose Right it is 1. Our Law seems very plainly to require most of this to a King de facto for the time being as making it our duty Answ to do him true and faithful Service and Allegiance and that because for the time being he is our Sovereign Lord the King and so the Higher Power to which we are to be subject for the time being and if he may be the Ordinance of God as I have shewed he is most of the things here said to be included in Subjection must be due unto him by St. Paul's Injunction 2hly I have shew'd already that a King out of Possession while he continues so to be cannot do any thing required by the Office of the Higher Power he cannot bear the Sword of Justice he can Commission none to punish evil doers or reward the Good he cannot be the Minister of God to us for good And yet it is on these accounts that St. Paul lays a necessity of Subjection on us Not only for Wrath but Conscience sake and that he tells us we are to pay tribute because he is continually attending on these things I have also shew'd that from a King de facto in full and peaceable Possession of the Government we do or may enjoy all these benefits and in all these particulars He may be unto us the Minister of God for good and that from Him alone it is we can receive actual Protection and all the benefits of Government if therefore it be necessary that we should always have a King under whom Justice should be executed and the Laws have their course it seems as necessary that the King for the time being should be received as our King if Protection doth require Allegiance and we for the time being do receive it only from him it seems as evident that for the time being we should yield it only to Him. If then the
King de jure out of Possession can be to no intents and purposes the Minister of God to us for good and the King de facto may be so to all the said intents and purposes then may he also be the Higher Power and the Ordinance of God for the time being In a word the Lord Chief Justice Coke expresly saith Instit par 3. p. 7. That by the Law there is always a King in whose name the Laws are to be maintained and executed otherwise Justice should fail and if so then by the Law the King Regnant must be our King there being no other in whose name the Laws can be maintained and executed and the failure of Justice be prevented And if he be the Higher Power he must also be that Ordinance of God for the time being to which we owe the Duties mentioned in the Objection 3dly As for the first of these Duties An active execution and observation of all the lawful Commands of the King Regnant for the time being it admits no real Ground of Scruple for lawful Commands may lawfully be obeyed The Contribution of Taxes to his support and maintenance is by St. Paul declared to be due 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 for this very cause that he attends continually upon the Government and therefore due to him that doth so Our Assistance to promote the welfare of the Government we are under by our Prayers and Counsels seems plainly to be our duty by virtue of that Command which God gave to his own People and the continuance of the Reason of it Seek the peace of the City Jer. xxix 7. whither I have caused you to be carried away Captives and pray unto the Lord for it for in the peace thereof you shall have peace and of that Apostolical Injunction That prayers 1 Tim. ij 1 2. and supplications intercessions and giving of thanks be made for all that are in Authority or eminent Place As for our endeavours to keep them in their Station by our Arms it only can be so far our duty as it is lawful so to do Nor do I find St. Paul inculcating it as any part of our Subjection to the Higher Powers nor doth our Law since the Cessation of the Tenure of Knights Service require it personally of all Subjects At least we of the Clergy cannot be concerned in it because we by so many Statutes are exempted from bearing Arms. And lastly as for bearing Faith and true Allegiance you see our Law doth plainly and expresly make it due unto a King de facto And so I cannot fee why all these Duties may not as far as we can be concerned in them be paid to such a King for the time being It is damnation to resist the Power ordained of God in favour of any other person n. 12. Obj. 3. but can it be damnation to resist him who is only King de facto in favour of a King de jure if 2o then what just War can be made for the Recovery of his Right or why did Jehoiada not only depose but even cause Athaliah to be murthered for the sake of Joash 1. The word which we translate Damnation Answ in the Original is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is Judgment Now by our Law Treason may be committed against a King de facto and that is punishable by the Judgment of Death and if this Treason be an offence against the natural Allegiance due to the King de facto as all Treasons are and I do thus offend by levying War against the King for the time being in this Realm by being adherent to his Enemies or giving Aid unto them I must be guilty of it by doing this in favour of a King de jure It therefore may be judgment to resist the King de facto in favour of the King de jure i. e. it may be an Offence which by the Law will render me obnoxious to judgment If the King de jure at his return to exercise the Government may punish me for any Treasonable action done against the King de facto and consequently for resisting such a King in favour of himself it must be an Offence deserving Judgment according to our Law thus to resist the King de facto in favour of the King de jure Nor doth it follow hence that the King de jure can make no just War for the Recovery of his Right for this he may do by the Assistance of his Allies by Foreign Aids or by those Subjects who have still adhered to him or will repair unto him only they cannot do it who have received Protection and lived for a time in quiet subjection to another Government If therefore Men will act up to their principle That their Allegiance is still due to King James they must immediately go out of the Realm and repair thither where they alone can pay it to him If they think it unlawful to own any Allegiance due to King William they must expect no Protection seek for no Justice from him pay no Taxes to him for if they repair to him as the Avenger of any evil done to them or as the Minister of Justice if they pay him any Taxes they thereby virtually own him as the Higher Power seeing these things are only due unto him and can be expected from him because he is the Higher Power and you are his Subjects To the Case of Athaliah I have Answered before §. 2. n. 17. and shall now only add That if she obtained any consent from the People it was by reason of their ignorance that she had any Competitor or that any of the Sons of Ahaziah were alive and that she could not have the Throne of Judah whilst any of the Seed-Royal lived by reason of God's manifest declaration to the contrary and therefore when the King's Son was discovered the Priests the Levites and the Chief of Israel do presently cry out 2 Chr. xxiij 3. Behold the King's Son shall Reign as the Lord hath said of the house of David Here therefore was the immediate Declaration the Promise and the Oath of God against her which whosoever in our case can shew will make this instance pertinent Moreover she who gained consent only on supposition that there was none of that Seed of David left of whom God had expresly said That they should sit upon the Throne could only be supposed to have their consent so long as no such Seed appeared The Power is the Minister of God n. 13. Obj. 4. or one commissionated and Deputed by him for the same dependance that a Subordinate Magistrate hath upon his Sovereign for becoming his Minister the same hath a Sovereign Prince upon God for being his Minister But can any one be Deputed or Commissionated by God to take away another Man 's right or wrongfully to detain it That the Supreme Magistrate is Commissionated by God to be his Minister Answ as well as the Inferior Officer
CONSIDERATIONS Humbly Offered for Taking the Oath of Allegiance TO KING WILLIAM AND Queen Mary Optima Regula qua nullae est verior aut firmior in Jure Neminem oportet esse sapientiorem legibus LONDON Printed by J. Leake for Awnsham Churchill at the Black Swan at Amen-Corner MDCLXXXIX THE PREFACE ALthough I have insisted chiefly on the following Argument because it seems most fully to take off that scandal from the Genuine Members of the Church of England which others seem not so to have regarded as the importance of the matter doth require yet do I by no means condemn those Writings which plead for taking the imposed Oath upon such Grounds as do more fully justifie the Title of our present Governors which as I never will dispute so I conceive my self unable by reason of my want of Knowledge in the Law to pass an exact judgment in that matter But yet in matters which chiefly do relate to History it may not be improper for one of my Profession to produce what He by reading of our Historians hath observed When by the Greatest Councils of our Nation an Original compact or establishment betwixt the King and People was asserted few can be ignorant with what disdain the Notion was received and how 't was represented as an imaginary notion without foundation either in History or Law or with what earnestness an evidence or prospect of such a contract was demanded Now in order to the satisfaction of such Enquirers be it observed 1. That Florence of Worcester Simeon of Durham and R. Hoveden do with one voice assert That (a) Ubi Aldredus Archiepiscopus Walffunus Wigornensis Episcopus Clito Eadgarus comites Eadwinus Morcarus de Lundonia quique Nobiliores cum multis aliis ad eum venerunt datis obsidibus illi deditionem fecerunt fidelitatemque juraverunt cum quibus ipse soedus pepigit c. Flor Wigorn p. 635. Dunelm p. 195. R. Hoved. Par. Pr. p. 258. William called the Conqueror made a League or Compact with the Archbishop Bishops Earls and Nobles of the Land who met him at Beorcham To this it is indeed replied by Dr. Brady That there was no Election no Consent of the People no Bargain strucken or Covenant made to observe and keep the Laws which were bonae approbatae leges Regni the good and approved Laws of the Kingdom but on the contrary here is the Submission of the People the Behaviour of a Conqueror Hostages taken Towns burnt Rapine committed Answ to Arg. Antinorm p. 251. and He himself made King by the influence of an Army To which I Answer 1. That Gulielmus Gemiticensis and Walsingham expresly say That William the Conqueror was (b) Ab omnibus tam Normannorum quam Anglorum proceribus Rex est Electus Gul. Gemit de ducibus Norm l. 6. c. 37. Walsingh Hypod. Neuslriae p. 436. Elected King by all the Nobles of England and Normandy 2. Florence of Worcester Simeon of Durham R. Hoveden Daniel p. 36. and John Brompton declare That as the Bishops and Barons of the Realm swore Fealty to him so He reciprocally (c) Cum quibus ipse foedus pepigit nihilominus exercitui suo villas cremare rapinas agere permisit Appropinquante igitur Nativitatis festivitate cum omni exercitu Lundoniam ut ibi in Regem sublimaretur adiit ipsa Nativitatis die ab Aldredo Eboracensium Archiepiscopo in Westmonasterio consecratus est honorifice prius ut idem Archipraesul ab eo exigebat ante Altare Sancti Petri Apoftoli coram clero populo jurejurando promittens se velle Dei Sanctas Ecclesias ac Rectores illarum defendere hec non cunctum populum sibi subjectum juste Regali providential regere rectam legem statuere tenere rapinas injustaque judicia penitus interdicere Flor. Wigorn p. 634 635. Dunelm p. 195. Hov p. 258. Ipsum Regem W. ad jura Ecclesiae Anglicanae tuenda conservanda populumque suum recte regendum leges rectas statuendum facramento solenniter adstrinxit Chron. Job Brompt p. 962. being required thereto by the Archbishop of York made his Personal Oath before the Altar of St. Peter to defend the Holy Church of God and the Rectors of the same to govern the Universal People subject to him justly to establish equal Law or Laws and to see them duly executed And when new Commotions were made by the Nobility and Clergy upon their Submission and Oath of Allegiance re-taken Ibid. p. 37. He himself takes again his Personal Oath (d) Occurrerunt igitur Angli memorati ubi post multas deceptationes praesente Archiepiscopo Lanfranco Rex pro bono pacis juravit tactis Sacrosanctis Evangeliis bonas approbatas antiquas Regni leges quas Sancti ac pii Angliae Reges ejus Antecessores maxime Rex Edvardus statuit inviolabiliter obhservare sic pacificati ad propria laeti recesserunt M. Paris in Vit. 23. Mon. p. 30. before Archbishop Lanfranc and the Lords for the Good of Peace NB. to observe the Ancient Laws of the Realm established by his Noble Predecessors the Kings of England and especially of Edward the Confessor 3. R. Hagulstadensis S. Dunelmensis R. Hoveden M. Paris Henry of Knyghton and W. of Malmsbury inform us That (e) Legem R. Edvardi vobis reddo cum illis emendationibus quibus Pater meus eas emendavit consilio Baronum suorum R. Hagustald p. 311. Dunelm p. 225 226. Fioveden part 1. p. 268. Mat. Paris p. 38. Henr. de Knyght p. 2374. W. Malmsbur l. 5. p 88. Henry the First granted to all the People the Laws of Edward with the Emendations which his Father had made of them strengthening them with his own Oath and the Oath of all his Nobles that they might not be eluded And W. Lambara in his Book of the Ancient Laws of England cites this as one of the Laws of William the Conqueror (f) Hoc quoque praecipimus ut omnes habeant teneant legem Edwardi Regis in omnibus rebus adauctis hiis quas constituimus ad utilitatem Anglorum Apud Seld. Annot ad Eadmer p. 192. This also we Command That All men have and keep the Law of King Edward with the Additions we have made to them for the benefit of the English-men All which things plainly shew in opposition to the Assertion of Dr. Brady That there was an Election of William the Conqueror a bargain strucken between him and his Subjects and that He did consent covenant and swear to observe the good and approved Laws of the Realm and in particular those of King Edward And whereas the same Dr. Brady saith P. 25. These Laws of King Edward were mostly penal or else of small moment our Forefathers were far from having such a slight opinion of them For 1. The (g) Sed postea ad preces communitatis Anglorum Rex adquievit qui deprecati
sunt quatenus permitteret sibi leges proprias consuetudines Antiquas habere in quibus vixerant Patres eorum ipsi in eis nati nutriti sunt scilicet leges Sancti Edwardi Et ex illo die magna Authoritate veneratae per universum Regnum corroboratae conservatae sunt prae caeteris Regni legibus leges R. Edwardi Chron. Eccl. Lichsield apud Seld. ibid. p. 171. Chronicle of Lichfield doth informus That the whole Community of England sued to the Conqueror that he would permit them to have the proper Laws and ancient Customs in which their Fathers had lived and under which they were born and educated viz. the Laws of St. Edward and that the King consented to their Petition 2dly When they had fought for the Empress Maud against King Stephen and placed her upon the Throne they (h) Interpellata est a civibus Londinensibus ut liceret eis uti legibus Sancti Edwardi non legibus Patris sui H. quia graves erant sed illa non adquievit inde populus commotus illam capere Statuit Chron. Job Brompton p. 1031. Chron. Gervas p. 1355. Henr. de Knyght p. 2387. requested her to Grant to them the Laws of King Edward and upon her denial of that request they again thrust her from the Throne and forced her out of the Kingdom 3dly (i) Cum autem haec Charta perlecta Baronibus audientibus intellecta fuisset gavisi sunt gaudio magno valde juraverunt omnes in praesentia Archiepiscopi saepe dicti quod viso tempore congruo pro his libertatibus si necesse fuerit decertarent usque ad mortem M. Paris p. 167. When the Archbishop of Canterbury in the days of King John produced the Charter of Henry the First by which He granted the ancient Liberties of the Kingdom of England according to the Laws of King Edward with those Emendations which his Father by the Counsel of the Barons did ratifie this Charter being read before the Barons they much rejoiced and swore in the presence of the Archbishop That for those Liberties they would if need required spend their blood And 4thly They made this one part of the (k) Sequitur forma juramenti soliti consueti praeftari per leges Angliae in eorum Coronatione quod Archiepiscopus Cantuariensis ab iisdem Regibus Exigere recipere consuevit Concedis justas leges consuetudines esse tenendas promittis per te esse protegendas ad Honorem Dei corroborandas quas vulgus elegerit Resp Concedo promitto Vid. Book of Oaths H. de Knyght p. 2746. Coronation Oath of the Kings of England That they should consent to the observation of the just Laws and Customs which the Community of the Realm had chosen and especially of the Laws of King Edward And in the time of Richard the 2d it is declared That the usual and customary Oath which the Kings of England took at their Coronation and which the Archbishop of Canterbury was wont to exact of them and receive from them was That they should grant that the just Laws and Customs which the Community had chosen should be observed and confirmed by them All which things put together seem to conclude an Original compact or establishment of Laws by which the Kings of England were to Govern and the Kingdom to be Governed and the Continuance and the Renewal of that Original Establishment by our succeeding Kings Add to this that Rule of Grotius That * Successio non est titulus imperii qui imperio formam assignet sed veteris continuatio jus enim ab Electione coeptum familiae succedendo continuatur quare quantum prima Electio tribuit tantum defert successio De jure Bell. l. 1. c. 3. §. 10. Succession is not a Title of Empire which gives the form to it but is only a continuation of the old Title the Right begun by the Election of the Family being continued by Succession and thence with him we reasonably may inferr That Succession only brings down to Kings what the first Election gave and makes them only Kings according to the Compact and with the Conditions agreed on at the first admission of their Progenitors to the exercise of the Royal Authority To this Historical Account of the present subject I add these words in the preamble of the Statute made 25. of H. 8. to forbid Impositions paid to the See of Rome Cap. 21. Your Grace's Realm recognising no Superior under God but only your Grace hath been and is free from Subjection to any Man's Laws but only to such as have been devised made and obtain'd within the Realm for the Wealth of the same or to such other as by sufferance of your Grace and your Progenitors the People of this your Realm have taken at their free liberty by their own consent to be used among them and have bound themselves by long use and custom to the observance of the same not as to the Laws of any Foreign Prince Potentate or Prelate but as to the customed and ancient Laws of this Realm Originally Established as the Laws of the same by the said Sufferance Consent and Cisstom and none otherwise In which words 1. There seems to be a plain distinction between ancient and accustomed Laws of this Realm which the People enjoy by Susferance of our Kings or were induced into it by the said Sufferance Consent and Custom and Laws made devised and obtained within this Realm for the wealth of the same these latter being Statute-Laws Leges istae vocatae sunt leges Sancti Edvardi non quia ipsas primo invenerat sed quia quasi sub modio positae in oblivione derelictae a tempore R. Edgari avi sui qui primo manum suam misit ad ipsas inveniendas statuendas Henr. de Knyght de Event Ang'l l. 1. c. 15. Chron. Lichfield ubi supra Sir Robert Atkyns Enq. into the Disp Power p. 9. the other being Laws Originally Establish'd and Ancient Customs of the Realm which the People of this Realm have taken at their free liberty by their own consent to be used among them and our Kings finding thus established suffer'd them to enjoy And these the Histories and Records I have cited tell us were the Laws of St. Edward or rather of King Edgar renewed and confirmed by St. Edward which the Community of England desired of King William and his Successors that they might enjoy by his and their sufferance or permission and which accordingly He and they consented that they should enjoy as their proper Laws and ancient Customs swearing also at their Coronation to maintain protect and to corroborate them and which the Archbishop of Canter bury at his Coronation of them always exacted to be granted to the People To which may be added the Laws contained in Magna Charta which though they run in the stile of a Grant from the King
against the using of those terms Our most Gracious Sovereign our Sovereign Lord and Lady King William and Queen Mary they being only the terms which our Law gives to every one that is in Possession of the Government yea say our great Lawyers terms which belong to the King in Possession alone though he be King de facto and not de jure 2ly If Treason committed against a King in Possession though de facto only by any of his native Subjects be an offence against his natural Allegiance due to him and against that duty of Faith and Allegiance which he naturally and of right ought to yield to him then is Faith and Allegiance both his Right to challenge and our Duty to yield to him and then he by requiring us to swear it requires us only to give him his Right and we by so doing shall only engage our selves to the performance of our Duty If it be his Right because he is a King Regnant in Possession then it is his Right no longer than he is in Possession and then the Oath can require it no longer then he is in Possession and then we have no just Ground to fear that the Oath of Allegiance to King James doth bind us now he is not in Possession or that the Oaths we take unto King William and Queen Mary can bind us any longer than they are in Possession this Oath can therefore do no real Injury to King James for if he be not in Possession he hath not by these Expositions of Seignior le Roy a Right to actual Allegiance If he become again the King Regnant in Possession the duty of bearing Faith and Allegiance to him immediately returns without taking any new Oath Again if the King that hath Right and is out of Possession is not within this Act and therefore cannot be the Seignior le Roy within the purvieu of this Statute and therefore not the King against whom Treason may be committed against this Act then can I not offend against my natural Allegiance or against any Duty of Faith and Allegiance which of right I ought to yield to him and then I do not so offend by taking of the Oath of Faith and true Allegiance to King William and Queen Mary and therefore I may take that Oath notwithstanding my former Promise upon Oath to bear Faith and true Allegiance to King James because by doing so I offend not against any Faith and Allegiance due to him Moreover if the King in Possession be the Seignior le Roy within the purvieu of this Act it must be Treason against him to compass or imagine his Death or to prepare by any Over-Act to depose him This being saith the Lord Coke Ibid. p. 12. a sufficient Over-Act to prove the compassing and imagination of the Death of the King for this upon the matter is to make the King a Subject and to dispose of his Kingly Office of Royal Government Then must it be High Treason against Him to Levy War against him in this Realm to be adherent to his Enemies within this Realm giving to them aid and comfort in this Realm or elsewhere for all these things are by that Act made Treason against the Seignior le Roy within the purvieu of this Statute This Statute therefore as it is expounded by the Lord Chief Justices Coke and Hales must oblige the Subjects of King William and Queen Mary not to assist King James against them that being Treason against the 25th of Edward the Third which they cannot be obliged to commit If King James should he come again to the Possession of the Crown might punish me for any of these treasonable Acts committed against King William and Queen Mary but could not punish me by the Eleventh of Henry the Seventh for any Duty of Allegiance or faithful Service paid to them as my Sovereign Lord and Lady then sure Allegiance and Faith will be due to them whilst in Possession and to them only for were it due to King James I might be punished for not performing it to him If lastly no Pardon now given by King James can save me from the guilt of Treason against King William and Queen Mary and that guilt only be contracted by offending against that Duty of Faith and Allegiance which of right I owe to them sure I cannot offend by want of Faith and Allegiance against him who cannot pardon me but against them only against whom I commit that Treason and therefore unto them alone Faith and Allegiance must of Right be due and so to them by Oath and Promise may be given As an Addition to n. 4. or a Consideration strengthening the former Argument let it be observed 1. Sand. de juram prael 7. §. 7. That it is agreed on all hands that a promisory Oath ceaseth to bind when the matter of the Oath ceaseth Thus if a Man swears to appear at such an Assizes if there be no Assizes kept there he cannot be bound to appear because impossibilium nulla est obligatio there is no obligation to impossibilities and of the matrimonal Vow St. Paul declareth That the Woman is bound by the Law whilst her Husband lives 1 Cor. vii 39. but if her Husband die she is at liberty to be married to whom she will because then the matter or objectof her Vow is removed Others deliver the Rule thus Ames Quum aufertur Ratio formalis juramenti juramentum cossat When the formal Reason of an Oath ceaseth the Obligation of the Oath must cease Thus if a Man swears Residence on a Living his Oath only binds him whilst he is Incumbent because he only took and only was obliged to take it for that very reason because he was Incumbent Now the formal Reason of the Fidelity and Allegiance promised to King James was this That he was our Sovereign Lord King James saith the Oath of Allegiance the Supreme Governour of this Realm saith that of Supremacy and therefore when he ceaseth in the sence and meaning of the Law to be our Sovereign Lord and the Supreme Governour of this Realm my Oath to yield Faith and Allegiance to him must cease to be obliging to me If when another is King Regnant in possession he is legally dead for that time his politick capacity being then separated from the natural Person of the King then must the Subjects of England be free from their Allegiance to him for that time for though Ligeance is due as was resolved in Calvin's Case Cook 's Reports p. 438. to the natural Person of the King and not to the politick Capacity only yet is it only due to the natural Person of the King when it is accompanied with his politick Capacity for otherwise he could not possibly divest himself of it by any the most formal or voluntary resignation of the Government whatsoever nor by any other Act whatsoever viz. the entrance into a Monastery out of his Dominions and the
whose Protection you enjoy Moreover if the King in his politick Capacity doth never die and yet the King out of possession is no King as to that politick Capacity or as to all intents and purposes of Law then the King Regnant in possession must be King for all the same intents and purposes or there must be an Interregnum which yet our Law will not admit of The Lord Bacon Tells us n. 5. History of the Reign of H. 7. p. 144. 1 Chr. xxj 17. That the Spirit of this Law was wonderfully pious and noble being like in matter of War to the Spirit of David in matter of Plague who saith Is it not I that commanded the people to be numbred even I it is that have sinned and done evil indeed but these sheep what have they done Let thy hand I pray thee O Lord my God be upon me and on my Fathers house but not on thy people that they should be plagued The equity of which Prayer is built on this foundation That they who had no hand in the sin should bear no share in the punishment and should not be dealt with ut oves quae ducuntur ad mortem neque evadere possunt As sheep led to the slaughter which they cannot avoid This applied unto the present Law runs thus They who have had no share in he Sin if any he committed in that Revolution which hath dispossessed the King of Right and given possession to the King de facto should have no share in the Punishment and should not be brought into an unavoidable necessity of being ruined and undone by it But now without the benefit of this Law of Henry the Seventh and on the supposition of a necessity still laid upon them to retain Faith and Allegiance to the rightful King though out of possession and to deny it whatever they may suffer by so doing to the King Regnant or in possession as aforesaid they must be under an unavoidable necessity of being ruined and undone for they cannot reasonably expect Protection from the King Regnant if they deny him their Allegiance and not only so but declare they hold themselves in Conscience bound to give it to his Enemies nor can they hope to escape those Penalties which are at present or may hereafter be imposed on all who shall refuse to promise they will bear Faith and true Allegiance to him and so the more honest and the better Subject any Man is the greater miseries and hardships will he lie exposed to for the Sense of his Allegiance will induce him to preserve his rightful King upon the Throne as far as lawfully he can and hazard Life and Fortunes in so doing and when he hath done this he must if he be still obliged to retain Faith and true Allegiance to him when out of Possession in opposition to the King Regnant expose his Life and Fortunes still to a greater and more certain hazard Whereas as the Seasonable Discourse well observes Let Men argue as much as they please P. 2. yet it is certain that no Man is of such a captivated Allegiance as by reason of it to engage himself or think himself engaged to his own certain Ruine and Destruction The most valiant and strictly obliged Troops stick not to ask Quarter when they cannot defend themselves any longer and are justified for it by those to whom they swore to bear Faith of Life and Member as the old Oath of Ligeance did oblige all Subjects Excellent to this purpose is that Observation of the same Author A Man cannot by Oath or by any other way viz. P. 41. by natural Allegiance be obliged further to any Power than to do his utmost in behalf thereof and though the Oath for the right Magistrate be taken in the strictest terms of bearing Faith or Life or his natural Allegiance be construed to extend to the venturing the last drop of his Blood in his Service yet it is to be understood always with this condition if the Action or Passion may be for that Prince's Advantage For Instance In an Army each man is or may be obliged by Oath to lose his Life to the Prince whose Army it is rather than turn back or avoid any danger This Army after it hath done its utmost is beaten and now the Souldiers can do no more for their Prince than die which indeed is to do nothing at all but to cease from doing any thing either for him or themselves In these streights therefore it is not repugnant to their Oaths to ask Quarter or a new Life nor to take it with an Obligation of Fidelity to those who give it only upon that condition or with an Oath never more to fight against him who gives it whilst his Power continues In like manner they who live under the full Power of the King Regnant for the time being may be said to take Quarter for he hath their Lives and their Substance at his Mercy and so they may as lawfully oblige themselves to that which the Prince in Possession requires from them viz. that they will live in Allegiance or obedience to him and will not attempt any thing against him Secondly n. 6. Ibid. The same Lord Bacon adds That this Law wanted not prudence and deep foresight for it did the better take away occasion for the People to busie themselves to pry into the King's Title for that howsoever it fell their safety was already provided for And truely if as the Author of the Seasonable Discourse Asserts we may assure our selves of a justifiable Obedience by this That he who requires it is King in Possession and hath us and the means of our Subsistence in his Power then Subjects may easily know the Rule of their Obedience and the meanest capacity will not be wanting for a Rule of that Subjection to the Higher Powers which the Apostle requires for Conscience sake from Every Soul. But if all persons whatsoever must be put to the perplexity of examining the Title of every King that reigns over them and is in Possession of the Government it will I fear prove a very difficult task if not impossible for every Soul to yield this Subjection 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to the present Powers for Conscience sake or to every Ordinance of Man for the Lord's sake there being often very intricate perplexities both as to matter of Right and as to matter of Fact touching these things For not to insist upon the long Contest betwixt the House of York and Lancaster the meanest capacity to satisfie himself of the Justice of the present Cause besides his general knowledge of the Nature and Obligation of an Oath must be able to pass an exact Judgment first concerning the Desertion of King James Whether it do not amount to an Abdication Secondly Whether there were not some Original Contract by the Violation of which he may have lost his Right to govern Thirdly whether by his Endeavours to subvert the
Fundamentals of this Government he may not have forfeited it And Fourthly Whether he may not have done it by actually subjecting part of it to a foreign Power and both it and himself to Papal and French Power Again on the part of King William he must know Whether he had not a just cause of War and if he had Whether that do not create a right to the thing gained by it Whether King James by disbanding his Army and withdrawing his Person did not virtually yield him the Throne And must not the Decision of these things if it be necessary to be made by every Soul in order to the paying that Obedience to the Higher Powers he stands obliged to yield them for Conscience sake cast many honest Souls into great Mazes and under insuperable difficulties And must it not then be very reasonable to conceive that God hath given them some way more easie And fitted to their mean capacities for satisfaction in this case and what can that more likely be than this of yielding actual Obedience to him whom they find in actual Possession of the Government whilst they enjoy the benefit of his Protection and of his Government Thirdly God saith the Apostle hath called us to Peace n. 7. 1 Cor. vii 15. i. e. to peace even with Pagans and to a peaceful Deportment in our conjugal and oeconomical Relations for unto that he in that Paragraph seems more immediately to referr 1 Pet. ij 12. And the Apostle requires the Christian to yield Subjection to the present Powers that by this good Behaviour their Adversaries might be convinced of the peaceable Deportment of Christians and how free their Religion was from causing any disturbance to the Government Now if Christianity did indeed enjoin them to yield this peaceable Subjection to the Powers then reigning and having full Possession of the Government without a scrupulous enquiry into the justness of their Titles they must be then obliged to live peaceably under all Governments and give disturbance unto none but if it did enjoin them first exactly to enquire and satisfie themselves of the validity of every Princes Title and refuse Subjection as ost as they found reason to dispute the Justice of it it might then often happen that all of them might be obliged to disturb the Government and the Jewish Converts at that very time who scrupled the Title of any Heathen Ruler over them might lie under continual Temptations to Disobedience and Tumults Again even in our present Case if we can bring our selves to this perswasion That Allegiance is due to a King in Possession for the time being we may not only pray for all that are in Authority 1 Tim. ij 2. that under them we may live peaceable and quiet Lives in all holy Conversation and Godliness but we shall actually do so But if after the Wisdom of the Nation in the most solemn Assembly hath conferred the Government on such a Person and given him the Title of our Sovereign Lord the King and put him in full Possession of the Crown every private person may still not only Question whether they ought to own him as such but even deny him their Allegiance and maintain that by an immutable Law of Nature they stand bound to give it to another it is in vain to pray we may live peaceable and quiet lives under his Government to hope for any Settlement of such a Government or any peaceable subsistence of it since we conceive our selves indispensably obliged to promote and to abett all struglings to disturb and overturn it But against this Discourse it may be urged n. 8. Obj. That Allegiance is a Duty we owe unto a lawful Sovereign not only by virtue of our Oath which is stiled legal Obedience but by virtue of the Law of Nature Now though our legal Obedience may cease as being that which only is imposed on us by Law and so may be removed by such a Law as rendereth it impracticable or transferrs it to another yet our natural Allegiance must be immutable because the Obligations of the Law of Nature are so To strengthen this Objection let it be considered out of the famous Judgment given in Calvin's Case First P. 440. That our Ligeance is due to our natural Leige Sovereign descended of the blood Royal of the Kings of this Realm Secondly Ibid. That by the Law of Nature is the Faith Ligeance and Obedience of the Subject due to his Sovereign or Superiour because Magistracy is of Nature for whatsoever is necessary and profitable for the preservation of the Society of Man is due by the Law of Nature but so is Magistracy Seeing as Tully saith Sine imperio nec domus ulla nec civitas nec gens nec hominum universum genus stare nec ipse denique mundus potest Without Government no House City Nation nor the whole Race of Mankind could stand Thirdly Ibid. That seeing Faith Obedience and Ligeance are due by the Law of Nature it followeth that the same cannot be changed or taken away Fourthly P. 441. That when a Man is out of the Kings legal Protection as a Man Out-law'd a Man attainted with a Premunire he is not out of his natural Protection but notwithstanding any Statute the King may protect and pardon him And so in like manner it seems reasonable to distinguish betwixt legal and natural Obedience or Allegiance and to affirm That by these Statutes and Judgments we seem to be absolved indeed from our legal but cannot by them be absolved from our natural Allegiance I think I have made the Objection as strong as the most scrupulous person would propound it and if I can really tender a clear and satisfactory Answer to it I hope my foregoing Argument will hold good even in the judgment of the most impartial I therefore Answer n. 9. Repl. 1. That what is granted seems to yield Advantage enough to us viz. That legal Allegiance may cease to be due to a King de jure and may be due to a King de facto though natural Allegiance cannot this last is due Antecedently to all Laws Promises and Oaths whereas legal Allegiance is that which we by Law do swear and promise Natural Allegiance is due to our natural Liege Lord descended of the Royal Blood of the Kings of this Realm Legal is that which the Laws exact to the King for the time being though he should not be thus our natural Lord. Natural Allegiance is due because he to whom I owe it is rightful King. Legal because he is King Regnant and actually affords me that protection which calls for Subjection This is undoubtedly mutable the other is esteem'd immutable Well then supposing but not granting what this Objection doth suppose That King William were King only de facto no natural Allegiance can be due to him but only legal and mutable that therefore only is required by the Law imposing this Oath and that
according to Law is due to him for his legal Protection Why therefore can we not swear to yield him this legal Allegiance whilst this Protection doth continue We cannot say some do it Obj. because it obstructs the exerting of our natural Allegiance and so obliges us not to perform our Duty not to yield to the rightful King his Right For instance if a struggle happen betwixt the King de jure and de facto it obliges us not to assist the first as natural Allegiance which never ceaseth doth require against the latter Now that is an unlawful Oath which doth oblige us not to perform our Duty But to this I Answer Repl. That this Exception makes it as unlawful for a Conquered Army to ask Quarter or to receive it upon the Terms forementioned or for a Conquered Nation to submit unto the Conqueror until the lineal Succession be extinct and yet it is generally granted That in these Cases we may take Quarter and submit upon condition never to sight against the Conqueror but to bear Faith and true Allegiance to him 2. This obstruction of our natural Allegiance is only such as we may reasonably take for the presumptive Will of the rightful King or that which he should rationally grant to his oppressed Subjects for in extream necessity it is to be presumed that he would recede from the Rigour of his Right for Preservation of his Subjects rather than by holding them to it to subject them to certain Misery and Ruine without receiving any benefit thereby We think that the Will of the displeased Prince is That he would not have us hopelesly begin the Miseries of a new Confusion for him we therefore must believe his Will that we should not exert our Natural Allegiance in such Cases Why therefore should it not be as much supposed his Presumptive Will that when we cannot refuse the Promise of bearing Faith and true Allegiance to the King in possession for the time being without our present Misery and Ruine we should submit unto it And therefore it is said That King Charles the First gave way to the taking the Engagement Case of Engag P. 113. rather than that his Good Subjects should loso their Estates for refusing the same P. 123 124. And Bishop Sanderson would not condemn the taking of it in this Sense I N. N. promise That so long as I live under this Power and Protection I will not contrive or attempt any Act of Hostility against them but living quietly and peaceably under them will endeavour my self saithfully in my Place and Calling to do what every good Member of a Commonwealth ought to do for the safety of my Country Only he adds this He who understandeth the words of the Engagement P. 131. so as if they did oblige him to any thing contrary to his Allegiance or render him unable to act according thereunto upon any seasonable emergent occasion cannot with a good Conseience take it but only he who understands it to be no way contrary to his hounden Allegiance so long as he is under such a force and cannot exercise it and that whensoever that force is removed from him so or he from it as that he hath Power to act according to his Allegiance the Obligation of the Engagement of it self determines and expires Now if this be understood to be a promise to live quietly and peaceably under the Government without contriving or attempting any act of Hostility against it till by the Providence of God it doth expire or ceaseth to be the Government under which I am for the time being then is it the same with that Allegiance which the Statute of Henry the Seventh requireth and these Cases plead for But if it only be a Promise to live quietly under their Government till they can get an opportunity to destroy and cut their Throats or an occasion offers it self to side with them that are struggling so to do It is one of the most vain illusory senseless Engagements in the World for who knoweth not that without any Engagements all men will be quiet till they can get an opportunity to be otherwise Who can have the face to go to any Prince with this Petition Sir I desire the benefit of your Protection and your Government assuring you I will give your Government no Disturbance till I can get an opportunity to do it or till I can find some Body struggling to Dethrone you Who can judge it fit that any Government should permit such persons to live in it who declare themselves bound when any opportunity or seasonable occasion happens to endeavour its destruction and when they see any body struggling to do so to side with them What are such persons under the present Government Subjects or Enemies If the First then Bishop Sanderson informs them Ibid. p. 109. That Allegiance is so intrinsecal proper and essential a Duty and as it were fundamental to the Relation of a Subject qua talis as that the very name of a Subject doth after a sort import it If they be Enemies and not Subjects how can they reasonably expect that Protection which is due only unto Subjects for that very cause that they are Subjects and not that Treatment which all Governments think sit to use to their avowed Enemies Secondly I Answer That the Reply removes not the whole strength of the Argument part of it being this n. 10. Answ 2. That Treason may be committed against a King de facto in Possession and cannot be committed against a King de jure out of Possession and yet it always is committed against the natural Allegiance which is due to our Soevereign Lord the King. And therefore even this natural Allegiance seems due to the King in Possession and the exercise of it for the time being is Suspended as to the King out of Possession Calv. Case p. 441. Moreover our Law Books as they tell us That the Allegiance of the Subject is due by the Law of Nature so do they also tell us That Protection and Government is due by the Law of Nature What Incongruity therefore is it that for the time that he cannot perform what is due to the Subject by the Law of Nature De jure belli 1. 3. c. 18. § 2. the Subject should suspend the exercise of what was due to him by the same Law. Grotius affirms That Reges qui Regnis exuti sunt cum aliis Regni bonis eriam jus leg andi perdiderunt That Kings out of Possession of their Kingdoms have lost the Right of sending Ambassadors and yet that is a natural Right of Kings And if that for that time may be lost to him and gained to the King in Possession Why may it not be so as to Natural Allegiance 3. Though our Lawyers distinguish between Natural and Legal Allegiance yet they do truly tell us Calv. Case p. 435. That they differ not in Substance but only as the
Duty of Allegiance promised and sworn doth differ from it before those Engagements The Substance and Effect thereof is due by the Law of Nature the Form and Addition of the Oath is of humane Provision So that legal Allegiance contains the Natural and adds the confirmation of an Oath unto it Where then the legal Obedience is suspended and ceaseth for a time the natural Obedience must much more cease to be exerted Again the Allegiance which all Subjects owe unto their Sovereign is natural or that which is required of them by the Law of Nature whether they live under an absolute or mix'd Monarchy under a Government which in no case allows them to resist to take up Arms against the Sovereign or under such Governments as that of Poland that of the King of the Romans See Bodin 1.2 de Republ c. 5. Grot. de jure belli annot ad l. 1. c. 4. Sect. 14. Sleid. Comment l. 8. p. 195. See Sect. 3. Numb 4. and of Arragon and that of the Emperor over the Princes of the Empire where if they violated their Oaths if they did not preserve their Laws and Liberties their very Contract was Their Promise of Allegiance should go sor nothing the Inhabitants of the Kingdom should not be bound to shew them any Obedience but they should be impowered to resist them sine Rebellionis aut infidelitatis crimine without the guilt of Rebellion or breach of Faith. Whence it is plainly evident that all natural Allegiance is not immutable and indispensable Thirdly To this Objection I answer by Explanation n. 11. and Distinction of a natural Right or a Right grounded on the Law of Nature and by Application of these things to the present Subject 1. The Law of Nature is that which the Dictate of Reason from Principles known and approved from their own evidence obligeth me to judge sit to be done or lest undone by reason of that Moral honesty or turpitude which is apparent in the Action 2. Nature may be esteemed to dictate any thing either directively as a thing consentaneous to the Laws of Reason sit and agreeable to natural Principles as perhaps Kingly Government in opposition to Aristocracy or Democracy or else Preceptively as necessary to be done or be omitted by virtue of some evidence which clearly shews the Equity or Turpitude of the performance or omission of it 3. Of these Laws of Nature some are Principles and those either general as that what is good is to be chosen what evil is to be avoided that I am to do or avoid any thing out of respect unto some good or evil to my Soul or Body That which I judge to be fit due and meet by the Laws of Humanity and Justice to be done to me in the like cases I must do to others that the publick Good is to be preferr'd before my private Good of the same kind Or secondly relating to Particulars viz. That I ought to do good to all as far as I can do it without Spiritual or great Temporal damage to my self 2dly That I am to do no hurt or damage to any innocent person if I can avoid it 3dly That I am to be true to my Word and faithful to my Promise especially when I have for the more assurance of another confirmed it with an Oath 4thly That I ought to do my best endeavour that he who hath deserved well of me should receive well from me And against these Laws of Nature God himself cannot dispense i. e. he cannot grant liberty to any one to act against the Tenor of these Laws even in those circumstances in which they would have otherwise been obliging and therefore they are truly called immutable and are the same in all who are endowed with the exercise of Common Reason Some are Conclusions resulting from these Principles and they do only bind as we may clearly see the natural connexion of them with these Principles and when no Laws of a more strict connexion with them intervene to hinder their obliging force 4. Some Laws of Nature continually do oblige under all circumstances and so their Obligation never ceaseth as the Laws forbidding the hatred of God and Idolatry Others oblige only under such circumstances as Thou shalt not kill viz. except when it is necessary for thy own preservation and desence Thou shalt not take away what is thy Brothers viz. unless extream necessity compel thee to it In these latter there must be a comparison of Duties and of Circumstances that we may know the better when they are to us Laws of Nature and when not Now to apply these things It seemeth hard to say n. 12. that by any dictate of Common Reason clear by its own native Light or any first Principle of Nature we in these circumstances are still obliged to yield natural Allegiance to King James and cannot without violating these Common Principles of clearest Reason afford it to King William and Queen Mary for then that great Assembly of the Nation those Reverend Bishops and that numerous Clergy which believe they may and therefore actually have done the contrary and either have obliged or exhorted others so to do must sin against the clearest light of Common Reason which sure we cannot charitably think or say then must this Law of Henry the Seventh which hath so long obtained and all those Judgments which have been made so solemnly by the great Sages of the Law have been Laws made and Judgments given and Sentences pronounced against the clearest light of Nature Then thirdly all persons of other Nations who in like cases have done the like in Swedeland Portugal and Germany and other places and all those learned Persons who in their Writings have expresly or by just consequence allow'd the transferring of our Allegiance in these circumstances must both have acted themselves and authorized others to act in contradiction to the plain light of humane Reason which yet seems a plain contradiction to that property of a true Law of Nature that it is the same in all who are endowed with the exercise of Common Reason 2dly n. 13. When it is said that Allegiance from the Subject is due by the Law of Nature to his Soverign this is none of those Laws of Nature which oblige under all Circumstances For when I am subdued by the Power of another who hath conquered me and hath my life at his mercy no Man doubts but that I may engage for preservation of my life that I will not be active against him that gives it That is that I will no further bear Allegiance to my former Sovereign When a Nation or part of it is subdued by a Conqueror without visible hopes of recovering Freedom they may swear Allegiance to the Conqueror Upon Frontiers saith the Seasonable Discourse P. 47. all Men are most strictly obliged to the destruction one of another according to their several Allegiances yet it happeneth daily that by Sieges and other
the Law of Man may determine who shall be esteemed that Sovereign and what is that Allegiance I stand bound to yield him and were this otherwise all those Laws forementioned of Poland n. 10 Arragon and the Imperial Princes must be contrary to the Law of Nature and to the natural Allegiance due to their Soverigns 3dly There can be no prejudice to the Right of the King de jure in these matters in which he doth or ought to be presumed willing to recede from that Right Ibid. Sect. 21. Now saith the Bishop it is to be presumed that Allegiance should be so far paid to the Invader as it serves for the good of the Community the safety of which is far more the interest of the right Heir than of him who hath the Possession without Right and so this Father of the Country cannot but have that affection for it that rather than it should be destroyed and his Subjects ruined they should modestly accommodate themselves to the present affairs than by their unseasonable resistance add or refusal of Allegiance they should bring upon themselves certain destruction 5thly The true foundation of Allegiance is that of the Law of Gratitude which saith That from whom I receive Protection and all the other benefits of Government to him in gratitude I owe Subjection and Obedience and upon this Subjection is founded by St. Paul declaring That we must needs be subject because he is the Minister of God for good Now this makes plainly for Subjection to that King from whom for the time being we receive Protection and all the benefits of Government This is the ground of that Obedience which Children owe unto their Parents and Servants to their Masters and therefore where these cease we may much more suppose that the Allegiance of Subjects to their Prince should cease Now Though no Man can have the same relation to me as my Father has or do that Action which gave him that Relation yet do the Roman Laws conclude That even Fathers may forfeit this right so far as that their Childrens obligation to Obedience to them may cease Vide Sharock de officiis secundum naturae jus c. 5. n. 7. p. 352. The Law of the Twelve Tables saith That if the Father sell his Son thrice or his Daughter once they shall be freed from obligation of Obedience to him the Roman and Imperial Laws That if the Parents will not nourish but expose their Children they shall have no power to recover them to their Obedience though by that Action they cannot cease to be their natural Parents That if Parents seek to poison or otherwise to attempt the life of their Children or neglect to take care of them then shall they have no benefit of their Obedience And as for Servants their Law provided thus Ibid. p. 353. That if sick Servants were neglected by their Masters if in that state they cast them out of their Houses neither providing for them themselves nor committing them to the care of others they were to enjoy their liberty Now if our Case should be determined by the equity of these Rules and I can see no reason why it may not be so I mean if we do only take our measures of it from the Law of Nature abstracting from our Oaths and the decision of the Holy Scriptures that Father of the Country who hath deserted us cast off all care of us exposed us to the pleasure of another that Master who hath left us when sick and distemper'd neither taking care of us himself nor committing the care of us to any other must have lost his Title to our Subjection and Obedience Lastly I answer n. 15. That in matters of this nature there must be place for a comparison of natural Obligations and when they seem to clash those which are more immediate and nearest to first Principles those which are most obliging under all circumstances those which are most immutable and indispensable must prevail against all others which have less of these great Characters of the Law of Nature instamped upon them Let us then bring this matter to these Rules as Men supposed to be left purely to the Law of Nature for the decision of this case as the Objection doth suppose and then it seems to be fairly argued 1. That the first and most immediate Law of Nature is Self-love and Preservation as that imports the love and preservation of my Soul and Body of my Soul absolutely and of my Body by all lawful means or by such means as are not prejudicial to the higher interests of my Soul. This is so certainly the fundamental Ground of Action that I can have no Motive to do any thing and so no Motive to yield Obedience to any Sovereign which may not be resolved into these Principles and when these Principles combine and equally affect the whole Society 't is their most strong and most immediate bond of Action according to that known Rule salus populi est suprema Lex When then the safety and preservation of the Community depends upon their promise of Allegiance to the Supreme Governor for the time being as it must do when they are in his Power and cannot have the benefit of his Protection and his Government without it it must prevail above all Obligations of Allegiance to him who being out of Possession can no more Protect or Govern them If it be said that the acting Obj. even in this case contrary to their Promise and Allegiance rendring them guilty of falshood and perjury must be more prejudicial to their Souls than their refusal of Allegiance to the King Regnant can be to their Bodies and so it must be acting contrary to the true Principle of Preservation and Self-love I answer by Concession That if thus acting were indeed acting contrary to the true intent and meaning of the Oath of Allegiance and it were lawful thus to bind our selves by Oath and Promise we by thus acting should act against Self-love and the true import of Self-preservation but if Men will examine either their own Actions or the general Conditions of an Oath they will find reason to believe that in so doing they do not indeed act against the true intent and meaning of their Oath or Promise For 1. This Oath of Allegiance say these Objectors doth oblige us to spend the last drop of our Blood and to hazard our Lives and Fortunes in the King's Service against all Men whatsoever and yet did any of this Nation besides Roman Catholicks conceive themselves obliged thus to act for King James against the Prince of Orange when they saw they could not do it without being active towards the Ruine of themselves their Liberties and their Religion 'T is therefore evident That by their Actions they declared they judged themselves exempted so far from that Oath as it did lay upon them a necessity of being instrumental to promote the Ruine of themselves the Laws and the
Allegiance which I have promised by Oath to him cease though he hath the same right to it 2dly When we say a King out of Possession hath righ tto the Allegiance of his Subjects we mean not an immediate right but mediate i. e. our meaning is That first he hath right to Possession and actual Government and by that to Allegiance he therefore must be first in Possession before we can exert the Allegiance due to him Accordingly though Edward the Fourth is by Act of Parliament in the First Year of his eign declared to have been in Right See Bagot's Case 9 H. 4. Term Trin. from the Death of the Right Noble Prince Richard Duke of York very just King of the Realm of England yet because he only took upon him to use his Right and Title to the said Realm of England on the Fourth of March A. D. 1460. and entered only then into the Exercise of the Royal Estate Dignity Preheminence and Power of the same Crown and to the Governance of the said Realm of England by the amotion of Henry the Sixth till then King in Deed though not of Right therefore is he said by the Act of Parliament to have been only on the Fourth day of March in the lawful Possession of the same Realm with the Royal Power Preheminence Estate and Dignity belonging to the Crown thereof and then only to be lawfully seized and possessed of the Crown of England in his said Right and Title and of all Prerogatives belonging to it Now what is only thus of Right may be both promised and performed to another whilst this other is in Possession though he be not de jure so provided he be so according to the Course of Law or the accustomed Rights of giving and receiving Possession as is apparent in the Case of a Lord of a Manor who is thus in Possession of what is the Right of another who is by Fraud or corrupt Verdict or Judgment outed of his Right for the Homage due of Right to the true owner is here by Law as occasion offers it self to be sworn to the unjust Possessor Nay we read of divers Acts of Parliament continuing the Name and Honour of a King to him who by their own Confession had not the just Title and only proclaiming him who had the right Title Heir apparent to the Crown as in the very Case of * In ipsa autem vigilia capta fuit conclusio differentiae hujusmodi viz. Quod Dux Filii sui Edvardus Comes Marchiae ac Edmundus Comes Rutlandiae qui ambo discretionis annos attigerant jurarent ipsi Regi fidelitatem quodque ipsum recognoscerent eorum Regem quamdiu ageret in humanis id enim Parliamentum ipsum jam decreverat addendo de ipsius Regis consensu quod quamprimum Rex ille in fata discesserit licebit dicto Duci suisque Haeredibus coronam Angliae vendicare possidere Hist Croyl Ed. Oxon. p. 550. Richard Duke of York and Henry the Sixth and in the Case of †Theobaldus Cantuariensis Utrosque demum ad concordiam emollivit in tantum quod Rex Juvenem Ducem in filium susceperit adoptivum juramenti attestatione Regni sui constituit Haeredem Regi tamen honorem debitum fidemque dum viveret Dux ipse promiserat se conservaturum Ibid p. 451. Vide Dunelm continuat p. 282. King Stephen and Henry Duke of Normandy Not to mention the Treaty of Peace made afterwards for the avoiding the shedding of Christian Blood ‖ Daniel 's Hist pag. 91. That Henry the First being invested with the Crown by the Act of the Kingdom should enjoy the same during his Life though the just Title was in Robert. This Assertion n. 17. Obj. 3. That actual Possession makes a Sovereign Lord the King for the time being destroys all Hereditary Successions in which the Heir is the power in being without farther Act done by him or passed by the People or others and without actual Possession Since it is certain that no person can now claim by a Paternal Authority uninterrupted from the beginning Answ 't is certain that all Kingdoms are now Hereditary by virtue of their own Consent and Compact or by their own Establishment that the Crown shall be continued in such a Line it therefore is Hereditary because they have consented and agreed it should be so If then all Parties concerned have consented also to a Law that a King in quiet Possession of this Government shall be looked upon for th etime being as the Heir that is shall be to all intents and purposes as much our Sovereign Lord the King as if he were so Cook 's Instit par 3. c. 1. p. 7. This Law can bear no Contradiction to such an Hereditary Succession but only be a wise Provision that in the interruptions of the Regular Succession Justice should never fail there being by the Law always a King in whose name the Laws are to be maintained and executed and therefore they who have the least acquaintance with our History must know that tho' our Kings de facto were more numerous before the Union of the two Houses than those de jure yet are they equally placed in the Catalogue of the Hereditary Kings of England and Allegiance was sworn to them by their subjects without any Scruple as well as to the Kings de jure 2dly That the Heir is of Right the Power without farther Act done by him than claiming of the Crown may be granted but that he is actually the Power in Being whilst he is uncapable by being out of Possession to exercise any Act belonging to the Supreme Power is denied For we find throughout the whole History of the Kings of England Vide Knighton Chron. l. 2 c. 5 8. That they who had the Right by Proximity of Blood but wanted Possession See the whole Pedegree of them in Bagot's Case 9 Ed. 4. Term. Trin. were never owned as Kings and Queens of England as is visible in the Case of Robert the Eldest Son of the Conqueror of Maud the Empress of Germany Prince Arthur and Elenor his Sister and of all the Issue of Lionel Duke of Clarence who by the Judgment of the High Court of Parliament in the Eighth of Richard the Second were declared Heirs Apparent to the Crown in case King Richard should die without Issue as he did On the other hand they who were Kings de facto and not of Right as unquestionably were King Stephen and King John Ed 4. 1º c. 1. and as Henry IV V and VI. by Act of Parliament were declared to be were always reckoned as true Kings of England and Allegiance was sworn and paid to them as such An Inferior Magistrate is not to be obeyed or owned as our Superior in opposition to a Superior Magistrate's Command n. 18. Obj. 4. because in such things he hath no lawful Call Warrant or Commission and for the same
reason a King de facto is not to be owned or obeyed as our Superior in opposition to a King de jure because he cannot be supposed to have a lawful Call or Warrant to Exercise the Kingly Government If an Inferior Magistrate hath a Law to warrant his Commands Answ he is to obeyed even against the verbal commands of his Superior without law Now a King de facto in quiet Possession hath a Law to warrant his Acting as our Sovereign Lord the King and requiring our Faith and true Allegiance ot him for the time being he therefore is to be owned and obeyed as having a legal Call to the Government for the time being Secondly To give a satisfactory Answer to this and many Objections of the like nature it will be proper to consider what a Call or a Commission to be the Governor of any Nation doth import and for the Resolution of this Enquiry let it be noted 1. That God doth not now as in the Case of Saul and David by himself appoint and nominate the Person who shall sway the Sceptre in any Nation of the World. We see by plain Experience God doth not interpose in this extraordinary manner in the Election or Constitution of Superiors The Roman Emperors had no such Appointment but were Elected by the roman Armies or chosen and confirmed by the Senate whence it must follow That an immediate Appointment or Designation of the Person by God cannot be necessary to render any Prince God's Ordinance 2. By virtue of God's general Appointment or Ordinance that all Nations shall have some Government placed over them no Individual Person can claim a Right to be the Higher Power in any Nation moe than Others nor are the People tied to yield Subjection by it to this Man rather than to that As then the former Designation was more so this is less than reasonably can be required to make a Man the Individual Person who is God's Civil Ordinance in reference to such a Nation 3. It cannot be said of any Person or Family at present in the World That he or it claimeth or holdeth the Throne in any Nation by a Right of Fatherhood or Primogeniture derived from Adam I know no Prince on Earth who thus pretendeth to derive his Pedigree and am perswaded that if any hath the Vanity to make such an Extravagant pretence he cannot thus make out his Title It remains therefore 4. That Government be conveyed to this or that Individual Person or Family by Compact or Consent and Choice of the Persons governed that such a Person or Family shall Exercise the Government over such a Nation it therefore must be that Choice Consent or Contract of the Persons to be governed which renders any person the Ordinance of God to such a Nation that is it must be granted that all the present Governors of any Nation become God's Ordinance to them by the Consent of the Community Where therefore any person is invested with the Supemacy by them to whom God hath committed the Choice of a Superior or by their consent to have such Persons for their Superiors there is the Ordinance of God. And if they do admit that person to the Government who by Constitutions and antecedent Compacts hath a right to be so he is to them the Ordinance of God de jure If in this Choice they deviate substantially from these Constitutions he only is the Ordinance of God de facto but yet he truly is the Ordinance of God because he is so by the only means which God hath left for the Investing any Individual Person with that Office. Hence do we find throughout the History of our Kings that the Election of or else a Compact with the People hath generally been looked upon as a thing proper either to satisfie the People or to strengthen their Title to the Crown thus v. g. Of the Conqueror Dunelm p. 195. Hoved. par 1. p. 258. Simeon Dunelmensis and Hoveden inform us That Foedus pepigit he made a Covenant with his People and at his Coronation took an Oath to defend the Holy Church f God and the Rectors of the same to govern the Vniversal People Subject to him justly to establish equal Laws and see them duly executed Daniel p. 36. William the Second held the Possession of the Crown of England by the Will of the Kingdom Ibid. p. 52. the Succession in Right of Primogeniture being none of his * Dan. p. 61. Rich. Hugust p. 310. Henry the First was invested in the Crown by the Act of the Kingdom concilio Communi Baronum Regni Angliae saith the King. King Stephen declares himself to be chosen King †Assensu populi Cleri in Regem electum Malmesb. Hist Nov. l. 1. f. 101. b. Rich. Hugust p. 314. by the consent of the People and the clergy as he had good reason to do having no title at all saith Daniel but as one of the Blood by meer Election advanced to the Crown p. 69. King John received the Crown by way of Election as being chosen by the States saith Daniel The Succession of Edward the Second saith 1 Pag. 127. Non tam jure haereditario quam unanimi assensu procerum Magnatum Ed. Franc. 1602. P 95. Walsingham was not so much by Right of Inheritance as by the unanimous Assent of the peers and Great Men. Edward the Third was Elected 2 Dan. p. 217. Cui electioni consensit populus universus id p. 126. with the Vniversal consent of the People upon his Fathers Resignation Edward the Fourth on his entrance on the Government makes a solemn declaration 3 TRussel p. 179. of his Right to the Crown of England challenging it to belong to him by a double Right The first as Son and Heir to Richard Duke of York the Rightful Heir of the same The second as Elected by Authority of Parliament upon King Henry 's forfeit thereof And Henry the Seventh to all his other Titles by 4 Lord Bac. Hist of H. 7. p. 12. Marriage Conquest and from the House of Lancaster adds that of the Authority of Parliament This Principle makes Authority and Supreme Power inseparable from Actual Regency n. 19. Obj. 5. or Command investing him with the Supreme Power who hath it for the time being and making him incapable of being the Higher Power who is out of Possession whilst he so continues which seems clear contrary to the decision of the Holy Scriptures for though all Israel chose Absalom to be their King 2 Sam. xix 10. and anointed him over them though he had for the time the Kingdom in possession and David fled out of the Land leaving no Governor behind him yet the Power was in David he was even then the Supreme Governor and Higher Power to whom Subjection was due 2 Sam. xx 2. 2 Chr. xxij 12. So he was also when all Israel followed Sheba And though Athaliah possessed the
and threaten and much less to resist their Persecutors but only to commit their Cause to him that judgeth Righteously Now if after all these Declarations they indeed allowed all Christians to resist and take up Arms against their Governors when they conceived them guilty of Tyrannical abuse of Power when they became a terror to good Works and not to Evil only when they did not act according to Justice or established Laws or for the Good and Welfare of the Kingdom but the contrary surely they cannot be excused from a semblance of Deceit and of imposing on the Heathen World. 3. It plainly seems to make them guilty of the Murther of those many Christians who when they declared themselves * Vide Tertull. Ap. c. 37. ad Scap. c. 5. Cypr. Ep. ad Deme. r. Buseb l. 8. c. 1 4. Aust de Civ Dei l. 22. c. 6. sufficient both for strength and number to resist and overcome their Persecutors at the same time declared they durst not do it because it was forbidden by the Christian Laws And whereas against our Interpretation of the words it may be objected n. 7. First Obj. 1 That it makes wicked Magistrates the Ministers of God to us for good the Powers ordained of God yea that according to it even Vsurpers if they can once obtain quiet Possession and the consent of the Nobility and of the Commons must also be the Ordinance of God for the time being This I confess is true Answ but then it seemeth to be only that which Scripture which Antiquity which Reason and the Law of this our Nation doth allow and justifie For of those wicked Enperors forementioned it is that St. Paul saith They are the Ministers of God to thee for good to them it is St. Peter doth require Subjection 1 Pet. ij 14. as to men sent for the punishment of evil doers and for the praise of them that do well And even of the Power of Pilate to condemn our Saviour Christ doth himself confess That it was given him from above Joh. xix 11. And Reason saith the same for even under wicked Magistrates Justice is executed Offenders against the Lives and Lively-hoods of others punished and Peace preserved and from their Government it is that we are kept from the Insolencies of Thieves and Robbers from barbarous Assassinations and all the miseries of Anarchy For take away the Higher Powers saith St. Chrysostom and all goes to wreck Chrys in Rom. Hom 23. Tom. 3. p. 191. neither will City nor Country nor Family nor Assembly nor ought else stand the stronger will devour the weaker and all things will be turned upside down So that we do in some measure receive that good from the most wicked and depraved Governors which without Government we could not have Accordingly the ancient Christians say in General of those Kings who were not very good at least many of them in their times That they are the Ordinance of God That by his command Kings are Ordained Theoph. ad Autol. l. 1. p. 76. That they were appointed by God That they received their Government from above That the Emperor derives his Government from him from whom he doth receive his breath Iren. l. 5. c. 24. Tertull. Apol. c. 30 33. ad Scap. c. 2. That he is the Man whom God chuseth and therefore must be loved by Christians who know he is appointed by God and that he makes them Governors over the Nations Legat. pro Christianis Apud Eus H. Eccl. l. 7. c. 11. Apud Athanas Ep. ad Solit. Vit. agentes Athenagoras saith of Aurelius and Commodus You have received the Kingdom from above Dionysius of Alexandria of Valerianus and Gallienus God hath committed the Kingdom to you Hosius of Constantius who laboured might and main to introduce the Arian Heresie into the Church against those Imperial Laws which had established the Nicence Faith That God had given to him the Empire Paulinus of Trier Lucifer of Calaris Eusebius of Vercelli and Dionysius of Millain That God gave to him the Kingdom Athanasius Apol. ad Constant De Civ Dei l. 5. c. 21. That God by his Word had given the Kingdom to his Servant Constantius He that gave the Government to Marius saith St. Austin gave it to Caesar he who gave it to Augustus gave it also to Nero he who gave it to the Vespasians most sweet Emperors gave it also to the most cruel Domitian and he who gave it to that most Christian Prince Cnstantine gave it to Julian the Apostate Tho he be wicked abominably wicked though he commit Ten thousand Evils and do the worst of mischiefs to us saith St. Chrysostom yet he is a King a Governor one to whom the Government is committed and therefore to be reverenced and not to be despised for his wickedness but revered for his Dignity But yet it may be said n. 8. How true soever this may be of an evil King who hath a lawful Title to his Government it seems strange and incongruous to assert That he who is only King de facto and so can only Exercise that Government which doth of Right belong unto another should be the Ordinance of God and it is liable to these great Objections and Absurdities 1st That which renders a man an Usurper of another Man 's Right without due Title or Admission to the Exercise of that Right can never render him the Ordinance of God to which I owe Subjection and Allegiance but that which makes him only King de facto in opposition to a King de jure makes him an Usurper of another Man 's Right without due Title or Admission to the Exercise of that Right 2dly The Precept Let every Soul be Subject to the Higher Powers cannot agree to him who is only King de facto in opposition to him that is King de jure for this Subjection doth not only signifie a Passive Obedience or Non-Resistance but an active Execution and Observation of all his lawful Commands the Contribution of Taxes to his Support and Maintenance our Assistance and Endeavours to keep him in his Station by our Arms Purse our Counsel and our Prayers our Love Reverence and Honour of him In a word our Fidelity and Allegiance to him against all others Now can all this be due to a King de facto in opposition to him whose Right it is 3dly It is Damnation to resist the Power ordained of God in favour of any other person but can it be Damnation to resist him who is only King de facto in Favour of a King de jure to whom assistance must be due de jure If so then what just War can he made for the Recovery of his Right or why did Jehoiada not only Depose but cause Athaliah to be Murthered for the sake of Joash 4thly The Power is the Minister of God or one Commissionated and Deputed by him for the same Dependance that a Subordinate Magistrate hath
upon his Sovereign for becoming his Minister the same hath a Soreign Magistrate upon God for being his Minister but can any one be Deputed or Commissionated by God to take away another Man 's Right or wrongfully to detain it 5thly By this Assertion no King de facto or in quiet possession can be an unjust Possessor or an unlawful occupant of the Throne for he that is so in as to be God's Ordinance i. e. Commissionated and Deputed by him to be the Higher Power must needs be rightly in and Authorized to execute the Government These n. 9. I confess seem to be great Absurdities at the first view Answ and such as plainly shock the whole Foundation of our Argument but yet I hope their force may be sufficiently abated by these Considerations following 1. That some of these Arguments seem with an equal strength to prove that wicked Kings are not and cannot be the Higher Powers or the Ordinance of God as that Kings in possession without Right can never be so 2. That it is plain to common Sense and the Experience of Men that a King out of Possession whilst he is so exerciseth none of the Characters and Offices ascribed by St. Paul to the Higher Powers and that the King de facto doth or may exercise them all 3. That he who in our Case is King Regnant in Poessession is not to be deemed an Vsurper in the Law Sence and Acceptation of the Word 4. That by the difference which must be put betwixt him and a meer Vsurper all the forementioned Objections may be solved And First Some of these Arguments seem with an equal strength to prove what most undoubtedly is false viz. That Princes acting wrongfully and injuriously towards their Subjects cannot be the Higher Powers for it is certain they can derive no power from God but for the good of Man. They can have no Commission Title or Authority from him to hurt the Innocent to pervert Judgment or to do Evil to his People they therefore do exert this Power without due Title or Commission from God they usurp upon the Rights of other Men for every Subject has a right to Justice every innocent person to Protection from suffering hurt or violence They cannot be Commissionated or Deputed by God to do these things for then they must have Authority from God to do them and so they must be rightly done And yet even in these Cases we must suffer patiently and be thus subject for Conscience towards God and cannot forcibly resist them without the peril of Damnation which we only can incurr because we do resist the Higher Powers They therefore in these Actions are at once the Power and the Abusers of the Power yea the Vsurpers of a Power which belongs not to them and therefore even of the Power of Pilate to condemn the blessed Jesus our Lord speaks thus Thou couldst have no Power over me Joh. xix 11. unless it were given thee from above And when Peter drew his Sword in the defence of his Innocence against men Commissionated by an Illegal High Priest he saith unto him Mat. xxvi 52. Put up thy Sword into its place for all that take the Sword shall perish by it Moreover if Subjection signifies active Subjection to their Administration of the Government if it require our Arms Purse Counsels Prayers 't is certain this cannot lawfully be afforded to strengthen and assist them in these Evil Actions but that in all these Cases we may both Counsel and pray against their Wickedness and though we may not even then lift up our hands against them we may hold them down Secondly n. 17. In Answer to the Fifth Objection in the Second Section I have proved that it is plain to common Sence that a King out of Possession whilst he is so cannot do any thing belonging to the Higher Powers to do and that a King de facto in Possession may perform all things of that Nature Thirdly I add That King William and Queen Mary being King and Queen by the consent of the Nobility and Commons the Representatives of the Kingdom cannot be looked upon as meer Vsurpers for the Reason given in Bagot's Case concerning Henry the Sixth That he was not to be deemed an Vsurper because the Crown had been entailed on him by Act of Parliament Which may be proved Secondly From the nature of a meer Usurper or Possessor Gre. p. 295. viz. That he is one who is in the place of Power without any Call Consent or Constitution of the People or that he is one that is in meerly by his own Act Whereas King William and Queen Mary are not in the place of Power meerly by their own Acts but by the Call Consent and Constitution of the Nobility and People Thirdly From the Nature and the Essentials of Government For what doth constitute it but the Subjection of the governed Party or the Resignation of themselves their wills abilities or powers to the Rule and Arbitration of some other What Title hath any Conqueror to another Man's Subjects without this Or what King now in Being can claim a Right unto his Kingdom upon any other Title What are the motives to Government but the preservation of Peace and Order and the prevention of Injuries and Wrongs When then there is after mature deliberation had such an actual Designation of the whole Community there is Government conveyed in that very way in which it always was since paternal Government ceased communicated and in which alone it can be properly conveyed And so there is no Usurpation of it in respect of him who thus receives it whatever irregularities may be in their Actions who do thus conferr it Lastly I add That by due observation of the difference which must be put betwixt Usurpers and our present King and Queen and the two Observations made all the forementioned Objections may be solved For First As we compared them before with the Case of a King injurious to his Subjects and found them almost as strong against his being the Higher Power so let us again compare them with the Case of a King injurious to his fellow King injustly Invading and so entirely Conquering his Dominions and seizing on them for himself Did not the beginning of this Action constitute him an injurious Person when he takes upon him the Government thus got doth he not take away another Man 's Right and must he not then wrongfully detain it is not the person thus wrongfully Excluded King de jure may he not justly wage War for the Recovery of his Right but yet do not all Persons own that 't is not only lawful but even necessary for the People after such Conquest to consent to take the Conqueror for their Governor to yield Allegiance to him and that by doing so they render him the Higher Power and the Ordinance of God And yet all the forementioned Objections are as strong against him as any other