Heirs without respect to the right Heir whom he had not yet married and for ought they knew never intended of which his strange carriage towards that good Lady whom he confined to live with the Queen Dowager her Mother in London but he kept Edward Plantagenet the Son and Heir of George Duke of Clarence close Prisoner in the Tower might give the Nation just cause of suspicion that he intended to Reign by his own Title as Heir of the House of Lancaster or as Conqueror without any respect to the Title of the House of York And he intended faith the Lord Bacon that it should be so believed for to the Act of Parliament he added the Pope's Bull for confirmation But in our Case much more Justice Wisdom and Moderation did appear the Title of the right Heir being united to that of our Deliverer and the Crown intailed on the right Line the present Administration being by consent and in the name of the King and Queen which was not observed in the Case of Henry the Seventh and the consent of the Princess Anne being also obtained who hath now a nearer prospect of the Crown than otherwise she could have hoped for Nor is the making of the Convention a Parliament without a President for in the year 1660 when General Monk had summoned several Members in the like manner but not so free there being many of the King's Party excluded yet they were made a Parliament by the King notwithstanding any want of the King's Writs Anno Car. 2di 12o. And as to the Rational Part of the Answer let it be considered That a Nation must unavoidably run into Confusion unless such a means may be used for suppose the Royal Line should be extinct there can be no fitter means to settle a Government than by such a Convention duly chosen and the Agreement of the Lords Spiritual and Temporal who want only the Royal Writ to Summon them and that not being to be had the Nation may do what is in their power to prevent that Confusion which the King 's deserting them and carrying with him the Broad-seal leaving two Armies in the midst of the Nation by reason whereof it might in a short time have been as ill with us as it is now with our distressed Brethren in Ireland made necessary and Necessity hath no Law superiour to it This therefore may be an Answer to those that object against the too great hast in proceeding to a Settlement before a Parliament could be regularly called by Writ for considering the great Destraction of the Nations and the ill Circumstances wherein this and the Kingdom of Ireland were The delay of a speedy Establishment might have unsettled us for ever for the King having either deserted the Government or being driven from it and another being fully possessed of the Kingdom the common Safety would soon be destroyed if either the prevailing Power should be resisted or some person not be admitted for the Administration of Justice and Prevention of Violence As when a Ship master forsakes his Ship in a Storm and his Mate thrusts himself into his Office to guide the Ship if the Mariners will not presently obey him as long as he guides the Ship towards the Harbor the Ship must likely perish and the Mariners in it Or if the right Master should be utterly disabled by Sickness or Destraction to perform his Office may not another assume his Office by consent of the Mariners 'T is King James the First 's saying The King is for the Commonwealth and not the Commonwealth for the King The end is alway accounted more noble than the means And unless it should be granted that a King in plenary Possession ought to be acknowledged and obeyed I cannot see on what ground our Saviour commanded Tribute to be given to Caesar or the Apostle injoyned Subjection to the Higher Power The Powers then in being being such as usurped on the Senate and were set up as Emperours by a part of the Souldiary their best Title being the Approbation of the Senate Ex post facto The Usurpation of Julius Caesar is too well known to need a Relation and that could not give a sufficient Title to Augustus against the Claim of the Senate the Argument of our Saviour for paying him Tribute was because the Money bore his Image as also the Money in the days of Julius Caesar bore his and so may be an argument for paying Tribute to any Prince whose Money is current in a Nation But this will be more evident by considering who was the Prince in being when the Apostle wrote his Epistle to the Romans which was either Claudius Caesar or Nero and the most credible Historians inform us that on the death of Caligula the Consuls and Senate advised how they might restore their Commonwealth to its ancient Freedom taken from them by the Caesars but being too slow in their Resolutions because of Dissentions among themselves it hapned in the interim that Claudius having hid himself being frighted with the news of Caligula's death was discovered by a common Souldier who knowing him saluted him Emperour and led him forth to his fellow-Souldiers with whom he remained a part of the night Minore spe quam fiduciâ saith Suetonius the Consuls and Senate then sitting in the Capitol consulting for their common Liberty sent for him by the Tribune of the People to have his Advice therein the Souldiers and People assembled desired that one might be forthwith named for their Emperour on which Claudius took courage and promising Rewards to the Souldiers being also pittied by the People who thought him designed to suffer punishment they saluted him Emperour Tacitus gives alike relation of Nero his Successor Annal l. 12. That Agrippina his Mother concealing for a time the death of Claudius kept the Palace Gates shut and pretended great kindness to Britanicus the eldest Son of Claudius until she had contrived to make Nero Emperour and having gotten the Praefect of the Bands then on the Guard to her Party sends out Nero accompanied by Burrhus to the Guards where while some expected Britannicus to follow the Praefect and Souldiers to whom Rewards were promised saluted Nero Emperour Now one of these thus advanced to the Empire by the Souldiers was undoubtedly the Emperour then in being when the Epistle to the Romans was written to whom Obedience is required for Conscience sake as to the Ordinance of God if it be replied that the Senate did afterwards confirm them in the Empire that will not vary the present Case the present King and Queen being also confirmed by Parliament That which hath been said leads me to consider these Scriptures which seem to confine our Obedience only to the lawful Powers yet some learned and good men have given such a sence of them as may raise a doubt whether they speak of a King de Jure only or de Facto and if of a King de Jure only then of such a
quotes Barclay l. 3. c. 16. p. 212. saying that a Prince seeking the ruin of his People is no longer King. Se omni dominatu principatu exuit atque ipso jure sive ipso facto Rex esse desiit l. 6. c. 23. With whom he joyns Grotius l. 1. c. 4. n. 11. Si Rex vere hostili animo in exitium totius populi feratur to resist such a one is not to resist a soveraign King but him who ceaseth to be such Consistere simul non possunt voluntas imperandi voluntas perdendi quare qui se hostem totius populi profitetur eo ipso abdicat regnum And p. 531. Falkner says On yielding such suppositions to be true I shall grant the Answer given to be true To this purpose speaks Grotius l. 1. c. 4. § 7. n. 2. treating of Resistance This Law seems to depend on the intention of those who first entred into Civil Society from whom the right of governing is transferr'd Now if such had been asked whether they intended to impose a Yoak equal to Death upon all that should resist the Tyrannies of a superior Magistrate upon any account whatsoever I know not how they could willingly answer in the affirmative for what in this case Charity would recommend that may be received as a Law. 7. But another Query is Whether the King being destitute of the assistance of his Subjects leaving the Land in confusion two Armies being in its bowels hath vacated the Government and so it is necessary that some other to avoid Anarchy and Confusion be appointed to succeed To this I answer 1. That the King even before his leaving the Kingdom had deserted the Government for it is undeniably affirmed by Civilians whose practice is agreeable That nolle habere and renunciare are terms equivalent as when a man conveyeth an Estate with a Charge and Incumbrance upon it he that will not accept of the Estate with the Incumbrances and Charge though he would gladly enjoy the Estate doth in the judgment of the Law and in all Equity renounce his Title to it for he must accept it modo forma debitis or not at all whence I thus ground my Argument He that is not willing to hold the Government of England as constituted with certain Limitations and Conditions annexed doth constructively renounce it But the late King was not willing to accept or hold the English Government as constituted and limited Ergo the sequel of the Major is clear because Onus transit cum emolumento and both Law and Equity do preclude a right to the one without the other an entrance into the Government without the observance of the Condition modo formâ is so far from giving a right to it that it is a renunciation of it And the Minor is as clear because it is not possible for a Popish Prince such as ours was to be willing to govern the English Nation without one or more Popish Priests without many Papists in Office Civil and Military and without subjection to the Pope of Rome and holding correspondence with him So that if it should be demanded of the King which yet needs not the having sufficiently declared the contrary whether he would accept of the Government as by the Laws and Statutes against Papists is provided his refusal is a renunciation And of this we have had plain demonstrations The King declaring to the Scots that he had an Absolute Power and practising the same in England by entertaining the Pope's Nuntio setting up of Popish Bishops imprisoning the Protestant Bishops entertaining Jesuits and Papists in his Privy Council and chief Offices Military and Civil the Charters generally taken away Magdalen Colledge emptied of its Students to make way for Papists these were manifest indications of the subversion of the Government for as Aristotle l. 5o. Polit. n. 112. Tyrannus efficitur qui vi dominatur Regnum est Imperium voluntate Civium delatum at si quis vel fraude vel violentia Dominatur manefesta Tyrannis est l. 3. n. 87. Reges solùm volentibus imperant si nolentibus imperatur regnum esse desinit So that the King having first deserted the People and lost their affections and for this and other causes deserted the Kingdom and left it in confusion giving order to his General to disband his Army without Pay many of which were Papists and known Enemies to the Nation from whom they feared great mischiefs to themselves There being also another Army in the Nation which became successful it was highly necessary that the Nation to avoide utter ruine should by their Representatives freely chosen convene to consult and agree upon a fit person for the administration of the Government and whereas the person that headed the prevailing Army was by good Providence married to the Heir apparent of the Kingdom if he not only by his own merit in preserving the Crown which otherwise had been lost but by Marriage of the right Heir and with her and the Kingdom 's consent be chosen to a Consortship in the Administration of the Government it is no more than what Necessity and Right did require Nor is it more than what was done in the Case of Henry the Seventh who having overthrown Richard the Third in Battel was in a Parliament called by him acknowledged their King of which I shall give you the History as related by my Lord Bacon p. 10. of his History which may serve as a President to authorize what is now done and leads me to the Eighth Quere to which I shall answer first Historically and then Rationally in Justification of the late Proceedings The Coronation of Henry the Seventh was on the 30th day of October 1485 and on November the 7th the Parliament met in which without respect to his Queen's Title whose Coronation was deferred till almost two years after when danger taught him what to do he obtained that the Inheritance should rest remain and be in the King and the Heirs of his Body not mentioning his right Heirs so that the Entail seemed rather a personal Favour to him and his Children then a Disinherison of the House of York and this being obtained he married the Lady Elizabeth on the 18th of January which was celebrated with greater Triumph and Demonstrations of Joy and Gladness than either his Entry or Coronation which the King rather noted than liked and he shewed himself no very indulgent Husband to her though she were Beautiful Gentle and Fruitful So great an Enemy he was to the House of York that he caused Sir Will. Stanly who had saved his Life and set the Crown on his head in Bosworth-field to be executed for saying That if he were sure that young man Perkin Warbeck were King Edward's Son he would never bear Arms against him This Case seems much more unjustifiable than ours for here the King and Parliament did not only set the Crown on the head of the Conqueror but intailed it on his
King Charles the First but they are afraid of the reproach and scandal as if they did allow of that by doing the like But the Case is extreamly different the one King being a well-resolved Protestant the other a seduced Papist Charles the First gave as great assurances of his constancy in the Protestant Religion by taking the Holy Sacrament publickly and purposely for the satisfaction of his Subjects by disputing for it against Papists by charging his Children against it a little before his death and even then giving a full Testimony of dying in it But James the Second contrary to his Education and his Royal Father's Charge deserted that Religion espoused Popery and resolved to introduce it to his Kingdom which he deserted rather then he would forego that design His Father lost his life to preserve the Church and the Established Religion which King James industriously sought to destroy and in fact he had destroyed the Government Established before he deserted the Kingdom 2ly There was a great disparity in their actions tho' Charles the First was unhappily forced from the full Administration of the Government and Protection of his Loyal Subjects yet he kept within the Kingdom and endeavoured to assert his and his Peoples Rights not by the Sword only but by many Treaties and gracious Condescentions such as satisfied all sober persons even among his Adversaries as by their too late Votes on that behalf appeared He did not declare that he was Absolute and expected Obedience to his Commands without any Reserve he did not Imprison his Bishops only for Petitioning in a matter of Conscience as James the Second and the Enemies of Charles the First did Fears and Jealousies or very light Impositions on the People for urgent Necessities were made the Ground of the War against Charles the First but real and intollerable Greivances such as the Subjects could not bear nor knew how to remove 3ly There is a great disparity in the adverse Parties Charles the First was opposed by his Subjects James the Second by a free Prince to assert a just Right the better part of Charles the First 's Subjects adhered to him and dyed for him and at length the whole body of the Nation being convinced of the Injustice of the War recalled Charles the Second to succeed his Father And I hope no man will compare the Benefits we have received by the present King's proceedings with the Mischiefs that we endured and expected greater not only from the Vsurpers on Charles the First but the transactions of James the Second And such persons do as surely deserve as they will draw on themselves that Popery and Slavery which they abhor who are not satisfied with that happy Deliverance which they now injoy and by their Thankfulness and Obedience to God and the King may be confirmed to them and their Posterity so that I am well perswaded that they who ingaged against Charles the First were highly criminal and that they who since James the Second deserted the Kingdom shall ingage for him are really peccant The second Consideration is Whether the King having on these grounds begun a War and gotten quiet possession of the Kingdom and by the People acknowledging the Right of his Lady to the Succession on the Vacancy by Desertion are proclaimed King and Queen have a just Title and such as we ought to swear Allegiance to As to the Vacancy of the Government I have said enough already and all will grant that if a Crown be Forfeitable ours was forfeited Now in case of this Vacancy the Right of Succession by our Laws is in the next Heir which is the present Queen and that she ought immediately to succeed because by a Maxim in our Laws the King never dies and the sole Administration is to be in her and therefore it is objected That we cannot swear Faith and true Allegiance to any other Answ Seeing all Oaths and Acts that oblige the Subjects are in the name of the Queen as well as of the King we pay our Obedience where it is due and this may satisfie the Conscience of every one as to our present Condition at least until there be a separation made And if the sole Power should be devolved on the present King the consent of the next Heir being obtained to whom is the Injury done Not to the Princess Anne for velenti non fit injuria not to the People for the same reason they having expressed their consent but this hath its President in the Case of Henry the Seventh as is already said If in discussing the Right of Succession a question do arise concerning the Primary Will and Intention of the People at the first Institution of a Kingdom it is not amiss to take the Advice of the present People i. e. of the Nobles Clergy and Commons as Cambden says of England Anno 1571 1572. Grotius l. 2. c. 7. n. 27. And the Equity of it seemeth apparent that he who redeemed the Crown may wear it by consent of the People and the consent of the right Heir nor can the People be blamed for joyning in such consent because it hath been thought a Duty in Gratitude that such Heroes as have vindicated a People from Thraldom and become great Benefactors to them have been by consent of the People acknowledged their Kings So Aristotle Polit. l. 3. c. 10. n. 89. And in such a juncture of Affairs the whole Protestant Cause lying at stake the Kingdom of Ireland being possessed by Papists and many Divisions in our own Nation there is need of more than the Authority of a single person The Act of 13 of Eliz. asserts it to be in the Power of the Parliament to alter or limit the Succession And as to matter of fact such alteration hath been made for in the Cases of Queen Mary and Queen Elizabeth the Succession was altered because one of them was Illegitimate Again Quod fieri non debuit factum Valet The necessity of Affairs that inforc'd it may speak much in defence of it As Josephus says of the Jews submitting to the Roman Emperours That having submitted to them they ought not to make resistance And if by tract of time an Empire which was unjustly acquired may justly be submitted to because of an implicite Consent of the People to such an Empire I see no cause but the express actual Consent of a People to a Prince may justly oblige them Such a Consent of the Senate and People to the Roman Emperours was the ground of our Saviour's Injunction for paying Tribute and of the Apostles requiring Subjection to them And so we may conclude as Hushai did 2 Sam. 16.18 Whom the LORD and this People and all the Men of Israel shall choose his will I be and with him I will abide FINIS