despaired of it It was doubtless a commendable action of the Men of Israel to rescue Jonathan from the Fury of his Father Saul who sought to destroy his life as well as to defeat David of the Crown to which God had appointed him to succeed And it is as commendable in our Nation to commit the defence of the Crown of England to that Heroick Person who hath so wonderfully restored it to the right Line And who can pretend any Injury is done in that case wherein all Parties that are concerned do expresly agree and acquiesce Object But this was not agreeable to the Declaration of the Prince of Orange at his first coming to England Ans 1. The Prince declared That he would refer all Matters in question to the Determination of a Parliament freely Elected which doubtless he would have done had the late King been as willing to confide in the good will of his own People as the Prince was but having not Confidence to abide the Decision of a Parliament he frustrated that end of the Prince Ans 2. One end of the Prince's Invasion was to vindicate the Title of his Lady and that which he also had to the Crown which being by the late King's rashness and precipitation made void it was necessarily devolved on the Convention to supply and in the circumstance wherein we were they could not do otherwise Object The Convention is no Parliament and therefore can make no Laws much less can it dispose of the Crown Ans Though the Convention want the formality of being called by the King 's Writ yet it hath the power and authority of a Parliament and in some cases greater as hath been shewn and may thus farther appear In the 36 of Edward the Third we have this Clause in the Statute That for maintenance of these Acts viz. Magna Charta and others relating thereunto for the Publick Good and for the redress of Publick Greivances which daily happen a Parliament shall be holden every year as was ordained by another Statute viz. 4 Edw. 3. c. 14. These Laws were never yet formally repealed and the reason of a Law continuing it is reason the Law should be still in force especially when it concerns our Magna Charta and other Statutes made to prevent the Mischiefs and Grievances which daily happen And Judge Vaghan in his Reports says That in cases which depend on fundamental Principles millions of Presidents to the contrary are to no purpose So that the neglect of observing such a fundamental Law as maintains our Magna Charta cannot make those Laws void In the Act for Triennial Parliaments made in the Reign of Charles the First it was provided That if the King should fail to call a Parliament according to those Statutes viz. 4 36 Edw. 3. The People should meet without any Writs at all and choose their Parliament-men This Triennial Act of Charles the First was repealed by another Act for Triennial Parliaments at the return of Charles the Second because it was thought that it intrenched on the King's Prerogative to which as the effect shews they were too much devoted wherein yet they took notice That because by ancient Statutes of the Realm made in the Reign of Edw. the Third Parliaments were to be held very often it was enacted That within three years after the determination of that present Parliament Parliaments should not be discontinued above three years at most and should be holden oftner if need required but were omitted from October 1685 to the time that the Convention meâ— i. e. above three years Now if ever there was need for calling a Parliament it was in the case of our late Revolution and seeing the late King did then refuse to call a Parliament it was necessary that the People should for the maintenance of our Magna Charta and other Statutes relating thereunto otherwise we had been left without a remedy in our greatest extremity therefore I conclude that the Convention had the power of a Parliament and from thence that by the Statute 13 Eliz. this present Parliament had the power of limiting the Descent of the Crown which they have devolved on the present King and Queen and that they are legally in the possession of it and all the Laws made by the present Parliament are obligatory to the Subjects Concerning the Declaration That it is not lawful on any pretence whatsoever to take Arms c. What provocations the late great Indignities which both the Royal Family and all Loyal Families had suffered in the late Rebellion I need not say and what opposition was made by some Parliament-men of both Houses at the passing of the Declaration and by what secret and unsuspected Arts and Insinuations they were moved to pass it but certainly if the effects of it had been foreseen and they had considered maturely what ill conclusions might be inferred from those premises such as the establishing an Arbitrary Power and ruling by a standing Army and destroying many wholsome and fundamental Laws they would never have contributed to the establishing of their own Slavery by a Law. Of this design the Parliament-men in both Houses became sensible And when in the thirteenth Session of the Parliament 1675 the like Declaration was required as a Test of all Parliament-men in either House and of all Officers of Church and State viz. I A. B. do declare That it is not lawful on any pretence whatsoever to take up Arms against the King c. there was great opposition made against it as a Bill of dangerous consequence insomuch as it was debated five several days in the House of Lords before it was committed to a Committee of the whole House The Lords that opposed it were of great Quality for Paris and Interests their Names as I find them were Buckingham Bridgewater Wâ—â—â—chester Salisbury Bedford Dorset Aliâ—bury Bristol Dembigh Pagist Hollis Peter Howard of Berks Mohun Stamford Hallifax Delamore Eâ—re Shaftsbury Clarendon Grey Roll Say and Seal Wharton Audley Fitzwater The Bill was intituled An Act to prevent the Dangers which may arise from Persons disaffected to the Government Divers amendments and alterations were proposed some would have it run thus in the second part of it I do abhor that Traiterous Position of taking Arms by the King's Authority against his person or against those that are Commissioned by him according to Law in time of Rebellion or War c. And as to the third part concerning Church-Government some would have it run thus I do swear not to endeavour by force or fraud to alter c. Others thus I do swear that I will not endeavour to alter the Protestant Religion now by Law established in the Church of England But the first part about taking up Arms was most hotly disputed And first they debated the Form whether there should be any Oath in the Bill Here they argued against the multiplying of Oaths and that there was really no Security to any State by
an Absolute and a Limited Monarchy the other shews what Obedience Subjects owe to such Princes as presume to Govern contrary to the Established Laws Pufendorf Politica Inculpata Printed 1679 p. 107 c. What temperaments ought to be used in Commonwealths and of what force they are will cleerly appear if the difference betwixt an Absolute Empire and that which is Limited by Laws be rightly understood which will be more requisite because of the pernicious Abuse of the word Absolute which not being rightly understood hath given an opportunity to wicked Princes to vex the Common-wealth and to commit many Wickednesses it being easie for Flatterers thereby to blow up the Ambition and other Vices of Princes viz. You are an Absolute Prince therefore you may do what you please oppress your Citizens and Neighbours that you may be called a great Man c. which Inferences seeing the worst of men think to be naturally deduced from that word therefore it is become detestable in free Cities yea some learned men are not ashamed to say that an Absolute Prince may do all that Nero did under the notion of an Absolute Prince Therefore as this is the chief Liberty of particular men that they can dispose of their own things and actions yet within the bounds of Nature and this Liberty agrees with all men that are not subject to another's Empire So when more men unite into a Civil Society it is necessary that this Liberty should exist in them as in a common Subject viz. a Liberty to determine of the means requisite to their own preservation by their own discretion which Liberty as it hath a right annexed to prescribe those means to the Subjects and to compel them to Obedience is called Empire whence in every Government there is an Absolute Empire viz. in Habit though not in Exercise for it is a contradiction to be subject to none and not to have a right to dispose of what is his own Now that Absolute Empire is not in it self unjust or intollerable may easily be known from the end of the Institution of Government for we do not therefore constitute Governments that men may act according to their Wills without regard to the Law of Nature but that provision may be made for the security of each particular by the united strength and wealth of all therefore to Govern Absolutely is nothing else but a power to prescribe to the Subjects such means for procuring the Publick welfare as shall seem to the Governour 's discretion most conducing thereunto and as present occasions may require Because the Judgment of one Man in discerning what is expedient for the Publick safety may be easily deceived and there is not in all men such soundness of mind as to be able to restrain their wills within reason in so great a Power therefore it seemed expedient to many People nor to commit such an Absolute Power to one Man's Judgment subject to Errours and prone to Vices but to prescribe to him a certain form and manner of Administring the Government on the observation of which Form they obliged themselves to obey Nor is there any injury done to Princes by this Limitation of the Empire because they are advanced to that Empire by the Peoples choice for if it seemed grievous to hold a Government and not to have power to Administer it Arbitrarily he might have refused it nor is it consistent with his Obligation upon such acceptance of the Government to endeavour afterwards by Fraud or Force to subvert the prescribed Form. That which some object is very frivolous viz. That whereas Kings are appointed by God who hath commanded them to Govern well to which end a fulness of Power is requisite and therefore it must be presumed that God hath given them a certain measure of Power which neither they ought to suffer nor the People require to be restrained even as a Husband cannot consent that his Wife should usurp a Power over him or prostitute herself Doctus spectare lacunar Doctus ad calices vigilanti stertere naso Now though it be granted that Empires are from God i. e. God hath ordained that Government should be so it is left to the Arbitriment of such Nations to whom God hath not prescribed a particular Form to appoint what Form of Government they approve of As for Example There is no Divine Precept that a free People being about to choose a King should choose a Sigismond rather than a Henry nor is there any particular Form of Government by Divine Right wherefore it is wholly in the will of the People whether they will erect an Absolute or a Limited Empire provided that the Limitations contain nothing impious or contrary to the ends of Government And that you may rightly understand by what kind of promise a Government ceaseth to be Absolute we must consider that a King accepting a Government binds himself to Administer it justly either by a general or special Promise which commonly is confirmed by Oath a general Promise may be either tacite or express a tacite Promise must be understood in the very acceptance of the Government though it be not expressed yet most frequently it is exprest an Oath and solemn Rights being added nor is it unusual in such Promises to describe the Office of a King by enumerating the chief parts viz. to defend the Good to punish the Evil to administer Justice c. Now such Promises no way diminish the Absoluteness of Government the King by them is obliged to Govern Justly but in what manner or what means he shall use is left to his discretion but a special Promise in which both the manner and the means are exprest is two-fold viz. the one binds only the Conscience of the King the other rendereth the Obedience of the Subjects conditional also An Example of the first sort is this If a King promise that he will not commit Offices to a certain sort of people that he will grant to none such priviledges as shall be burdensome to others that he will make no new Laws impose no new Tributes nor use forreign Souldiers When as yet there is no Council established which the King is bound to consult in cases wherein the safety of the Nation the Supreme Law may force him to recede from his promise here the Administration of the Government is restrained to certain Laws and when the King without necessity shall do against the Laws he is guilty of breach of Faith yet the People have no power to refuse the King's Commands or vacate his Acts for if the King say that the safety of the people necessitates him to extraordinary Actions and it must be presumed that he says true the Subjects have nothing to reply seeing they did not reserve to themselves the cognizance of such extraordinary Cases from whence it is clear that a people doth not sufficiently provide for themselves in giving the King a limited Empire unless there be a Council
themselves As many Voices do make a Harmony which no one could do This Argument is like that of Socrates who would perswade Alcibiades to adventure himself in the Assembly of the People saying If thou dost contemn them singly thou need'st not to fear them altogether But seeing Empire doth consist in the Subjects Concessions of Non-resistance and of their Strength and Wealth at the dispose of the Emperour these are the Seeds of Majesty which lying hid and dispersed in single persons do by a combination and agreement exert themselves and produce a Majesty I cannot conceive how a wise Christian King can delight to hear what some Flatterers may suggest That God hath transferred on him that right of Government which by the Creation was only in himself and thence infer such things as rob God of his Authority to exalt the King and would make men doubt whether God had not abdicated all his Authority and left it to Kings and Kings conceive that they may do what they please impunely But suppose a company of Banditti grow so numerous as to set up an Emperour of their own and depose their lawful Prince doth God transfer the Majesty of this on that other And the most of Kings owe their rise to Conquests And it is not impossible but that the Father of a Family may have so numerous an Off-spring that they may constitute their common Father to be their King Doth this act transfer such a Majesty on him or if be appoint a Successour or the several Families set up another than such a one as was appointed by him perhaps a younger Brother or a Servant which is not against any Law of Nature doth God bestow such a Majesty on the Successour This is such a Metempsychosis of Majesty as no wise man will desire a farther disproof of seeing that whensoever a Kingdom doth become void it is left to the People to confer the Government by their consent and submission to his Successour So that this Author had no such notion of a Divine Majesty residing in the person of a King as imprinted an indelible Character on him which could not by any Vice or Miscariage of his own be obliterated Such Polititians as write of the Majesty of Governours do distinguish it into real and personal and affirm the real Majesty to be in the People who had the power to constitute what form of Government they pleased whether Monarchy or any other and in case the Governours in the Form constituted do fail of Heirs or Successours the restoring of the Government revolves on the Community What is held on Condition may be forfeited and on the Forfeiture returns to them that gave it Those Soveraigns that are limited by Law and have not the whole Legislative Power but are bound by Oaths to govern according to Law may forfeit Tyranni in Exertitio do decidere Jure suo Hereditario And if a King of England who hath Regnum Pactionatum makes himself an Absolute Prince he makes himself no King of England because he alters the Species of Government Puffendorph de Jure Naturae c. p. 1008. But this Sanctity none but such as are Absolute Kings do enjoy not such as are under the Power of the People nor such as desert the Government or abdicate the Kingdom against whom when they act things very injurious whatever is lawful against a private person is lawful against them As also if a King that is constituted by his People would alienate his Kingdom or alter the Form of Government it is evident that he not only cannot do it but if he continue to effect it by force the People may resist him by force Another difficult question is what is and what is not lawful in case of an unlawful Invasion Here observe that the Invasion by the Prince of Orange was not as to him unlawful and therefore much more may be due to him than to unlawful Invadors What obligation may the commands of such have being in possession of the Kingdom because force may compel a necessity of external Obedience but not of such an obligation of Conscience that if the Subject obey not he shall be guilty of Sin in this Case to avoid a greater evil a man may be by force constrained to do what else he would abhor which if we can by any means we ought to avoid But what if the Invador having by force and evil arts got the possession yet pretends he hath a right to it and behaves himself as a good Prince in this case it seems very probable that he who is thus in possession ought to be accounted a lawful Prince as long as there is no other that can challenge a better right for this is agreeable to reason Where the power of the Possessour doth prevail and he behaves himself as a good Prince every man should rather regard the publick Welfare rather than expose it to perpetual Troubles and Revolutions for the sake of an uncertain Governour therefore when the People give consent to such an Invader at least tacitly they are really bound to yeild them Obedience for thus it is known the first Caesars obtained the Empire yet St. Paul Rom. 13. attributes a lawful Authority 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to them and that we ought to obey them for Conscience sake And our Saviour commands us to give unto Caesar the things that are Caesar 's when none else could claim a better right And the Senate and People of Rome had deserted their ancient right for fear and want of strength than as allowing that Dominion To which purpose was that Statute of Henry the 7th which provided that none that obeyed the King de facto in being should be for that cause molested or troubled by any process of Law or Act of Parliament And that of Nicetas Coniates is to the same purpose That neither the Emperour that deserts is to be sought nor he which is present to be expelled even as in an Hereditary Kingdom where there are two or more Competitors while the Contest depends and is not determined by Treaty or Arms it is most safe to obey him that is in possession To this also agrees that Defence of Cassius that sided with Niger against Severus as Zephiline Epit. Dionis and Zonarus Tom. 2. relate it I neither knew you nor Niger but being found in those parts did not oppose you but Julian and seeing I endeavoured the same thing as you did I have not offended you no not in this that I did not afterward come over to you for neither would you have any of your Friends to go over to him But what is to be done when any one usurps the right of a lawful Prince that is expelled What shall a good Subject do as long as the lawful Prince is in being to whom he seems to owe Obedience In this case it is determinable that matters may be reduced to such a pass that it may not only be lawful but a duty to
Fortescue tells Hen. 6. That the King cannot alter the Laws of his Kingdom for he governs his People not only by a Regal but a Political Power when it is said the Princes Will hath the force of a Law this saith he is to be understood of a Regal or Absolute Power from which a Political Power much differs for such can neither change the Law nor charge the People with new Impositions against their Wills. And Bracton l. 1. c. 2. Leges Anglicanae cum fuerint approbatae Regis Sacramento confirmatae mutari non poterint and he adds l. 1. c. 17. Temperent ergo Reges Reges potentiam suam per legem quae est fraenum potentiae Let Kings therefore restrain their Power by the Law which is the Bridle of their Power and l. 1. c. 8. Rex in justitiâ recipiendâ minimo de populo comparatur The King in receiving Judgment is compared to the meanest of his People Claudius Sesil a French Historian says as much of their Kings That the Parliament was set as a Bridle to him though they have now cast it off Judge Jenkins says to this purpose We do hold only what the Law holds The King's Prerogative and the Peoples Liberties are both determined by Law and Charles the 1st in his Declaration at York says That his Prerogatives are built on the Laws of the Land And when the Parliament would have him grant an extraordinary Power to the Lords Lieutenants he tells them in his Answer to both Houses That if they would have him to grant more Power to those Lieutenants than by the Law of the Land was in the King himself it was fit that the same should be by some Law first vested in him with a Power to transfer it And Judge Jenkins says speaking of the Oath of Supremacy We do not swear that the King is above all Law nor above the safety of the People but his Majesty and we will swear to the contrary the Law and Safety of the People are his Honour Safety and Strength As to the Objection made from the Declaration viz. That it is not lawful on any pretence to take Armes against the King c. from the Statute 13 of Ch. 2d c. 6. That it is unlawful for the Parliament to levy War offensive or defensive against the King. Thô that be not much to their case who did not take up Arms against him or those that were duly commissioned by him There is a full answer given by the Earl of Clarendon to Mr. Hobbs who extended the King's power beyond the Law In dangerous circumstances says he men are not to resort so much to the words of Submission as to the intention of the Lawgivers which could not be that the Prince should have power to take away the lives of his innocent Subjects nor could such a Submission be ever supposed to be the mind of the Contractors For suppose that the late King had come armed with some Irish Papists into the House while that Parliament sate with a purpose to destroy them would they tamely have submitted and kept their Swords by their sides when the Swords of the Irish were aimed at their Throats If such a case had been proposed they would never have made such a Law as should be written in their bloud and therefore that Law must have some other interpretation such as this That a Defence against illegal actions committed by persons that are not qualified by Law is not levying War against the King for if any one or many be sent to take away my life without a due Trial he is not sent by the King for the Law is the King 's autoritive Command and that alloweth me a fair Trial for my life which if it be denied I may and ought to defend it against all such as come to take it away contrary to Law. And the Magna Charta declares such Commissions to be null where the words are That neither we i. e. the King nor our Heirs shall procure or do any thing whereby the Liberties hereby granted shall be infringed and if any such thing be procured it shall be of no force Now the Liberty granted Ch. 1. of that Charter is That no man should be punished or condemned but by Trial Per Sacramentum proborum legalium hominum de vireneto that is by a Jury of honest and lawful men of the Neighbourhood And this priviledge was purchased by the fifteenth part of the Subjects Goods and so becomes their Inheritance it is Libertas multoties empta If we may resist a person that is not qualified by Law though he act a thing that is just much more when a person that is not qualified comes to act an unjust thing for no man can want authority to defend his life against him who wants authority to take it away And not to resist in such a case is not only against the Law of Nature but against our own Law which always intends the good of innocent persons but such a Law would destroy the foundation of all our other Laws and the Government itself for it would turn a Limited into an Absolute Monarchy To make a Commission valid first the person that grants it must have just authority 2dly The person commissioned must be legally qualified 3dly It must be for the execution of a lawful action and malum ex quolibet de fectu the want of any of these renders the Commission illegal for the King himself hath no authority to grant Commissions against the rules of the Law for the executing of his own Will nor can any one execute such a Commission without Law but he is in danger of being judged by the Law And hence it is that the Acts of Pardon and Indemnity are extended to such as under Charles the First and Second acted by legal Commissions because they might have done in the heat of War what might have been judged Criminal in times of Peace St. Paul himself was much moved and shewed a kind of Resistance when he was but gently at the Command of the high Priest because it was contrary to Law And Bishop Hall in his practical Cases Decad. 2. Case the First says If a Thief rob me of my Treasure and flies my Conscience would not strike me if I pursue him and so strike him that he dies and our Law hath provided for the indemnity of such as slay another se defendendo as in the Case of Simpson mentioned by Sir Edward Cook in the fourth part of his Reports p. 333. when one would have seized him and carried him away was slain in the Attempt by Simpson it was adjudged to be done in his own Defence and found a chance medley and Simpson was acquitted And by the like Reason if a multitude of Armed Men that have no Authority or are not qualified by Law do assault me to take away my Life or my Goods I may resist them and as every Constable in case of an unlawful
the Election of Sheriffs and anciently the disposing of the Militia and many great Offices both by Sea and Land and the Judicial part was left to the King confined by certain Methods the King in Person not being able to decide the least Cause 3. I thus except against the Minor. The subjection required in the Text is due to the King's Person for the sake of the Power and therefore is not to be extended farther than the Power wherewith he is invested and with a Salvo to that part of the Power which is vested in another so that we owed no such subjection to King James as did derogate from anothers Right beyond the extent of his own Power which was not absolute but limited by Law. And let this be considered from the Objection Those actions which will produce mischeivous consequences should not be ingaged in without most clear evidence of being our duty But to refuse Submission to the present Government will produce c. therefore they are not to be ingaged in without most clear evidence which as things now stand cannot be accounted clear and undubetable in relation to King James Object 2. The King can do no wrong and therefore is not to be dealt with as a Malefactor Ans As to your Maxim The King can do no wrong if it be understood of the King 's private or personal capacity it may be thus retorted The King can do no wrong but he that oppresseth ravisheth or murders an innocent person doth wrong therefore he is not King i. e. in such actions he is not to be considered as a King. But this Maxim as many others is to be understood of the King 's political capacity in which respect the Law is his Will and the execution of the Laws are his Actions in which sence he can neither do wrong nor suffer wrong nor ever dyes The true sence of the Maxim is this as Sir Edw. Cooke Id potest quod jure potest and this he says is the King 's greatest priviledge which makes him like unto God who cannot act but agreeably to the eternal Rules of Justice but the King acting by his own Will against Law may do wrong and Judgment hath been given against him for unjust and illegal Actions And doubtless King John and Henry the Third that would have subjected the Kingdom to the Pope as King James also would cannot be exempted from doing wrong though as it was necessary he must use many Instruments therein Ahab did wrong Naboth in taking away his Vineyard as well as his Instruments that did act under colour of Law. Object 3. That King that is not accountable to his people for any wrong done is not by them Coercible into a private estate but the King of England is not accountable c. therefore he is not Coercible Ans The Argument is besides the Business for the People of England do not Coerce the King to a private Estate but if he attempt to alter the Government and Religion and enslave and destroy the People they may use the remedy which the Law of Nature allows Moderamen inculpatae tutelae The Law not having appointed a legal remedy against the unjust oppressions of Princes doth not render it sinful to use the remedies allowed by the Law of Nature for the Laws grew up gradually and legal remedies were introduc'd occasionally before the institution of which remedies it was not sinful to use extraordinary remedies as to kill se defendendo to pull down Houses in case of Fire c. 2. The Law provides remedies for cases within its own compass but not for cases that may happen when the Law itself shall be subverted it is unreasonable to expect from written Laws any directions how Subjects must behave themselves when the authority of the Laws ceaseth If our Laws have not provided for the cases of the King's Lunacy Extinction of the Royal Line wilful Desertion doubtfulness of Title c. but leave us to the general Rules of Prudence and Discretion the same may be affirmed in the present case 3. What is not prohibited is lawful the cases of extraordinary nature are not included in general Prohibitions according to that Maxim Consensus in rebus magni prejudicii ex verbiis quantumvis generalibus non presumitur And Concessione generali nemo presumitur ea concessisse quae in specie vere similiter non esset concessurus And it cannot be presum'd that the Law would consent that the King might at his pleasure destroy their Lives as well as their Laws considering how tender the Laws have been to preserve the Lives and Liberties of the Subjects who have been always accounted a free People Object 4. If the whole Executive Power of the Law is in the King then all Laws to Coerce the King are in effect null because Execution is the life of the Law But the whole Executive Power c. therefore c. To the minor it is already shewn in what cases and respects the Executive Power of the Law is in the People and in other cases the King cannot suspend the Execution of the Laws by his personal Command the Officers being bound by their Oaths as well as Law to the due Execution of them So that if the King in person should make unlawful Entries hinder the Execution of Writs and Judgments break the Peace head a Riot c. Sheriffs and other Officers are bound to suppress and oppose such by their Oaths If it be objected that the case of the King's presence makes an exception I answer Neither the Oaths nor the Laws makes any such exception And ubi Lex non distinguit non est distinguendum Again the Defence made against the King's illegal Assaults is not an act of the Executive Power which is in the King but of Natural Right for in cases where the Law hath not provided a remedy and particularly and expresly prohibited Self-preservation there we may recur to natural and moral Remedies and every man is allowed to be his own Judge in case of imminent danger when there is no time allowed nor any Judge to be appealed to You say that if the King will pervert the great end for which he was appointed and pervert the Laws c. then as Bracton says Datur petitioni locus licet ei fraenum ponere i. e. as you expound it to curb him by Petitions with holding Taxes and questioning his Ministers there is no ense recidendum in our Law. Ans To curb by Petition is to bind with Ropes of Sand to question Ministers if the Executive Power be in the King is to no purpose and so to with-hold Taxes if the King in the head of an Army may compel them nor yet is there any need of deposing or cutting off for Henry 3. was not so dealt with If a King mix himself with Outlaws and Cut-throats against which we may and in some cases are bound to rise and expose himself to Casualties the people cannot
to their Power and beyond it have endeavoured to depose any Prince whom they judge Heretical the not owning of the Pope's Supremacy is thought a sufficient cause for excommunicating first and then deposing such a Prince and incouraging the People to withdraw their Allegiance and take Arms against them witness the Bull of Pope Pius against Queen Eliz. and the approbation of that hellish Powder Plot against King James for the contrivance whereof Garnet was numbred among their Saints at Rome and the deposing of Kings and Emperors of the Romish Communion hath been often practised by the Pope in Germany France and other Countries on frivolous pretences as the History of former and later times doth abundantly manifest And our own Chronicles shew what was practised by the English Nation when it was wholly at the devotion of the Pope in deposing one King and choosing another And God forbid that any Protestant Nation should be guilty of such Principles or Practices as have been received and allowed of by the Romanists Our case is vastly different as is evident by the Declaration of the Lords and Commons the many Grievances therein mentioned and the occasion of a just War given to the present King reduced the late King who had wholly destroyed the Foundation and Species of the Government to desert the Nation and to fly to France for refuge leaving his People in Confusion and made it necessary for them to do what they have done to prevent their utter destruction by those Flames which he having kindled fled from them for his own security Nor can any Protestant Nation be scandalized at our Transactions they having done the same thing on a like occasion Thus the Swedes excluded Sigismond the Third and his Heirs for altering the established Religion by introducing Popery and sending his Son to be educated a Papist for violating his Oath altering the Laws raising Souldiers and exacting Money contrary to Law causing a Nobleman to be assassinated for diswading him from his illegal Practices punishing such as would not receive the Romish Religion and deserting his Country without consent of his People for which causes he was adjudged to have Abdicated his Kingdom and the Nation chose Charles Duke of Sudermannia to succeed him Christiern the Second King of Denmark was so dealt with by his People and what the Hollanders did against the King of Spain and the Scot against Queen Mary is generally known and neither of these can be scandalized at us who have acted more innocently than the best of them Object From the Act of 13 of Q. Eliz. which makes it high Treason during her Reign and forfeiture of Goods ever after in any wise to hold or affirm that an Act of Parliament is not of sufficient Force and Validity to limit and bind the Crown of this Realm and the descent limitation and inheritance thereof It is objected that this Act concerns not the present case seeing what is to be done for the descent and limitation of the Crown is to be done by an Act of Parliament but a Convention is no Parliament and that Act was made only to serve the present Interest of the Queen against the Claims of the Queen of Scots Answ That in the circumstances wherein we were left there was this Remedy left us and no other the late King having immediately before his departure destroyed the Writs for calling a Parliament though he had prepared the Elections for such a one as might serve his purpose And an extraordinary Distemper requires unusual Applications yet this was the most usual and proper means for what could heal our Distractions but an unanimous agreement of the People in choosing a Convention when a Parliament could not be had And who were more able or likely to consult for the common welfare than the Lords Spiritual and Temporal and the Representatives of the People duly Elected with whom the King having left them in Person left his Authority with them and they became as August an Assembly as ever any Senate of the Ancient Romans when the Empire became void who had the Power to create an Emperor which also had been often practised by the Ancient Britains Nor was it fit that the Nation should continue without a King least every Man should have done what seemed good in his own Eyes as when there was no King in Israel And though a Convention have not the formality of a Parliament yet that being not to be had it hath a greater Power than a Parliament because they act not as Subjects but a free People who may choose their King and make such Laws for Government as shall not be in the Power of the King and Parliament to dissolve without the Dissolution of the Government itself as when the Foundations are destroyed the Fabrick must fall nor was there any one to invalidate the Acts of a free Convention as the King in Parliament might do by his Negative Voice 2. And whereas it is objected that the Act of 13 Eliz. respected only the Title of that Queen and was made to serve the present turn this is contrary to the express Letter of the Act which provides that ever after it should be punishable with forfeiture of Goods in any wise to hold or affirm that an Act of Parliament was not of sufficient force c. So that this Act still continues in force as the reason of it doth viz. to prevent the dangerous disputes concerning the Succession Object But the Convention ought to have set the Crown on the right Heir as the most likely means to prevent all Disputes Answ Quod fieri non debuit factum valet That which ought not to be done in more peaceable times may be warrantably done in case of imminent danger and Necessitas cogit defendit The Affairs of the Nation were involved in so many Intricacies by reason of a Confederacy of the Popish Princes against the Protestants throughout all Europe and the delivering up of Ireland into the Possession of the Papists who also had the Command of the strength of England by Sea and Land that the Courage and Conduct of a Woman though never so well qualified could not be thought competent to wrestle with so many and great difficulties and who more fit to unite so Noble but distorted a Member as the Kingdom of England to the Body of the Protestants than he who by mutual Consent of the Princes of that perswasion was chosen to be their Head who also being of the Bloud Royal and having married the right Heir was by her consent and by the consent of the Princess Anne as well as by the unanimous consent of the Nation chosen to stand as a Skreen between them and the Fury of the French King to defend their Title to the Crown which he had so successfully recovered from a lost condition Or who so fit to wear the Crown as he that won it for himself and the Right Heirs when otherwise they might have
constituted without whose consent the Prince alone cannot determine such cases But then the Empire is more strictly limited if it be expresly agreed between King and People that he shall govern according to certain fundamental Laws and in certain Cases consult with his People and Nobles and if he shall do otherwise that the people shall not be obliged to obey him having promised not an absolute but a legal Obedience yet by such fundamental Restrictions the Government is not maimed for all such Acts as can be performed in an absolute Empire may be performed in this nor in such a Government doth a King cease to be Supreme for it doth not follow that because he cannot do all things after his own will therefore he is not Supreme nor because I am not bound to obey him in all things therefore I am his Superior or Equal for Supreme and Absolute are not the same the one excludes a Supreme or Equal the other implies a power of doing all things at his own pleasure Pufendorf de Jure Nat. p. 1002. Quid si Princeps innocentem Civem c. What is to be done if a Prince endeavours in an hostile manner to destroy an innocent Subject who cannot fly from him Answ A man can hardly conceive how the same person can sustain the Name of a Prince and an Enemy or how he can expect to be accounted Holy whose Zeal inspires him to sacrifice an innocent Subject to his own lust He would conclude The true Case of England that if he whose Duty it is to protect another do unjustly become his enemy he doth thereby release that other of his obligation to him so far at least that he may without using force seek protection from another against his furious assaults And such defence is then more favourable when the number of those whom such a Prince seeks to destroy is very great But seeing that an instance of such a Prince as seeks to destroy his innocent Subjects only for his lust is very rare a greater difficulty doth arise what is to be done when a Prince under pretence of Law becomes injurious to his Subjects by imposing unjust Commands such as the Subject thinks he cannot obey without sin which he judgeth worse than death If the executing of a Command be such as I cannot perform without sin and no reason can be offered either from any fault of mine nor from the consideration of the public welfare why I should be constrained to execute such an act it plainly appears that the Prince makes it his business to destroy an innocent Subject for his own lust and bears an hostile intention against me whereby he acting not as a Prince but as an Enemy I may well suppose that he hath released my obligation to him as a Subject And afterward p. 1004 1005. speaking still of an absolute Prince he says what if he impose grievous Taxes without summoning a Council that may judge of the necessity of the good of the Common Weal do require them what if some eminent men be unjustly cut off on pretence of Plots against the Prince and by orderly process of Justice what if he keep not his promises or observe not the priviledges formerly granted if such an absolute Prince pretend great Crimes or the necessity of the Common Weal he shall be thought to have acted rightly for all priviledges have this exception unless the safety or necessity of the Common Weal do forbid them But there is a great difference between these two positions 1. That the People hath power to resist the Magistrates and reduce them to better order if the Magistrate doth not govern according to their pleasure And 2. That the People or particular persons have a right in the case of extreme danger as when the Prince becomes an Enemy to defend their safety against him thus when it is said that a people which hath yielded themselves to subjection hath not thereby lost the right of vindicating their liberty or safety this must be understood in no other sence than that a people may defend themselves against the extreme and unjust force of the Prince which defence if it succeed well it redeems their liberty because when the Prince becomes an enemy he himself seems to absolve his Subjects from their obligation to him so that the Subject is not bound to return again under his yoak no not altho' the Prince should change his mind There is no natural connexion between these two viz. An absolute power to procure the welfare of any one And an absolute power to destroy him at his pleasure nor can it be shewn how such a power in the Prince for the peace and security of the Subject can oblige them when the Prince acts contrary Therefore they infer amiss who say That because the supreme Prince is accountable only to God therefore it was the will of the people when they made themselves Subjects to deprive themselves of all right against their Prince as if he that defends his life against a violent assaulter doth thereby call him to judgment as if such defence were an act of Jurisdiction or as if besides the necessity of self-preservation some special Call were required in him who defends his life against an unjust force any more than he that seeks to depel hunger or thirst with Meat and Drink for as Grotius says rightly if they who first set up a supreme power over them should have been demanded whether they would impose this burden on themselves that they would rather chuse to die than in any case repel with Arms the unjust violence of their Superiors they would have answered that they never so intended for that were a greater mischief than what they sought to avoid by their consenting to live under Government before which time they lay open to injuries but so as they might resist them but by such a consent they should have bound themselves to endure all manner of injuries from him whom they themselves had armed without any resistance A hazardous fight is a less evil than a certain death p. 1008. Now none but absolute Princes enjoy such an inviolable sanctity not such as are any way obnoxious to the People nor such as depart from the Government and plainly relinquish the Kingdom whatsoever is lawful against a private person is lawful against a Prince when they practice grievous Injuries As also when a King seeks to alienate his Kingdom or change the manner of Governing it is then evident that he doth not only do a vain act but that if he persist to effect his designs by force the Subjects may oppose him by force And p. 40. of his Politica inculpata he resolves this Case That a person taken in War may promise to do for his liberty what his enemy hath power to force him to do viz. he may swear never to bear Arms against his conqueror this may be done without injury to his Prince because if the conqueror should destroy
Orange And they do pray the said Prince and Princess of Orange do accept the same accordingly And that the Oaths hereafter mentioned be taken by all Persons of whom the Oaths of Allegiance and Supremacy might be required by Law instead of them and that the said Oaths of Allegiance and Supremacy may be Abrogated A. B. Do sincerely Promise and Swear that I will be Faithful and bear true Allegiance to their Majesties King William and Queen Mary So help me GOD c. I A. B. Do Swear That I do from my Heart Abhor Detest and Abjure as Impious and Heretical this Damnable Doctrine and Position That Princes Excommunicated or Deprived by the Pope or any Authority of the See of Rome may be Deposed or Murdered by the Subjects or any other whatsoever And I do Declare That no Foreign Prince Person Prelate State or Potentate hath or ought to have any Jurisdiction Power Superiority Preheminence or Authority Ecclesiastical or Spiritual within this Realm So help me GOD c. Now if in the Judgment of the Great Counsel after mature Deliberation these evident Matters of Fact did amount to a just Cause to pronounce the Crown Void I cannot perceive what in Justice they could do otherwise then to lodge it where it is the present Circumstances in which the Nation was requiring a speedy Settlement For which end it was provided after the Vacancy of the Roman Empire the Electors were to agree in the Choice of another within thirty Days or else to be allowed only Bread and Water until they had agreed If it be objected That the Crown ought to be set only on the Queen it may be thus answered That there is as little Deviation made as possibly could be and that the present King might have claimed it by Conquest with as much reason as either William called the Conqueror or Henry the Seventh but he had also a better Title than either of those being nearer in Bloud then either of them and the Title of his Lady being undoubtedly the next in Succession but by a suspected Child was endeavoured to be excluded ought to be as happily it is vindicated by her Royal Consort whereupon the Administration of the Government being by general Consent conferred on him during Life it is no more than what he might have claimed nor less than what they could have granted And therefore there is no cause can be given why we should not transfer our Allegiance to him at least in conjunction with the Queen in the case of Henry the Seventh the Nation did so before his marrying the Queen in whom the right Title was and much rather may we when the Queen's Title is acknowledged and the Test of all publick Acts and Writs are in both their Names so that during the joynt Lives of the King and Queen supposing that King James hath forfeited the Crown our Allegiance is undoubtedly due as by the new Oath is required But if yet any man should scruple the taking this Oath as not being satisfied that the right of Title is in the present King I say that this is more than appears to be required either by the Letter of the Oath or the intention of the Authority that imposed it And first as to the intention of the Legislator let it be considered what other intent they could have in laying aside the Oaths of Supremacy and Allegiance wherein the right Title of the Prince in being was so punctually asserted to make room for this wherein the assertory part is wholly omitted but to prevent the objection of such as should pretend this too nice scruple of Conscience to which there being in the Nation so many Pretenders to a Liberty of Conscience which cannot be forced I do rationally believe that the present Authority had a respect in penning the Oath so cautiously for the Oath doth not say as without gross Nonsence it can be supposed I do promise that King William and Queen Mary are lawful King and Queen c. but only that I will bear Faith and true Allegiance to King William and Queen Mary which may be done supposing that King William is only King de Facto and Queen Mary de Jure as in the Case of Henry the Seventh before mentioned And as to the Letter of the Oath though the Comparison be odious yet the Resolution of Bishop Sanderson in the case of subscribing the Engagement may determine such scrupulous Consciences the words of the Engagement are I do promise to be True and Faithful to the Common-wealth of England as it is now Established without King or Lords The words of the present Oath are I do sincerely Promise and Swear that I will be Faithful and bear true Allegiance to their Majesties King William and Queen Mary Where first observe that the Swearing doth no more add an Obligation to the Matter sworn to in the Oath than the Promise and Subscription doth to the Matter of the Engagement Secondly The Ingagement was for altering of the Species of the Government from that which was most Noble to that which was most Ignoble and indeed to an individuum vagum there being then no Government established Thirdly The King then in being had in no case made a Desertion or Forfeiture of his Crown but endeavoured with the hazard of his Life to vindicate his just Title Fourthly The Invader then was a Subject and a notorious Usurper who by fraud and force had driven him from his right All which considerations made a great difference between the legality of taking this Oath and subscribing that Ingagement But here I must premise that I do not insist on this Instance as if I thought the present King and Queen were only so de facto for I am rationally and fully perswaded that they are rightfully King and Queen of England c. as ever any of their Predecessors were That learned Casuist gives a higher and stricter or a lower and laxer sence of the Engagement the lower and laxer sence he thus expresseth Whereas for the present the Supreme Power under which I am is actually possessed by the House of Commons without King or House of Lords I promise that as long as I live under their protection I will not contrive or attempt any act of Hostility against them but living quietly and peaceably will endeavour faithfully in my Place and Calling to do what every good Member of a Common-wealth ought to do for the safety of my Country and preservation of Civil Society therein And our Casuits says p. 106. There want not greater probabilities of reason to induce us to believe that this sense is to be accounted the immediate and declared intent of the imposers who though they might have a more secret reserved and ultimate intent the ingager is not concerned in it the Equivocation if any lieth on the Imposers score not on the Subscribers Because 1. Many both Divines and Lawyers took it which they would not have done in another sense 2.
the Laws to which he was Sworn he should be Perjured And by what reason can a man be obliged to observe his Oath to a person that being mutual obliged to him hath notoriously violated his Oath and becomes a perjur'd Person it is well resolved by Amesius de Juramento l. 4. c. 22. Quum aufertur ratio Juramenti Juramentum cessat ratione eventus Qui easus est eorum qui Juraverunt se obedituros domino aut prinoipi alieui qui postea cessat esse talis When the reason of an Oath doth cease the obligation of the Oath ceaseth also by reason of the event which is the case of such who have sworn to obey a Lord or Prince who afterward ceaseth to be so King John's Confirmation of an Original Contract Anno 1214. upon granting the great Charter and that of the Forest it was enacted at Running-Mead That 25 Barons should be elected as Conservators of the Liberties thereby granted who upon Violation of them might no redress being made within 40 days after notice enforce the King by seizing his Castles and Lands and as a Security the four chief Captains of the Castles of Northampton Kenelworth Nottingham and Scarborough were sworn to the Barons and that none should be placed in them but such as the Barons thought to be faithful and also the Castles of Rochester and others which of right belonged to the Archbishop of Canterbury were delivered up and others to the Barons But the King by help of some Forreigners regain'd them all and was Master of all England except the City of London whose Suburbs he burnt And then the Bishops and Barons swore at St. Edmonds on the high Altar That if King John did not observe his Grants they would compel him to it by withholding their Allegiance and seizing his Castles and when the King would not restore their Liberties and Properties they raise an Army under Robert Fitz-Walker and regain all their Castles enter London and resolved never to desist until their Charters were better secured The King being generally forsaken having not above seven Knights with him whereas the Barons and Knights were reckoned 2000. besides Esquires of good Note He sent to the King of Morocco offering the Kingdom to him who having enquired into the difference between the King and his People despised the offer as Matthew Paris relates it He offered it also to Pope Innocent to be made Tributary to him if he would excommunicate the Archbishop of Canterbury and the Barons that he might be revenged on them all which notwithstanding they maintain the War and they elect Lewis of France for their King and their Actions were approved by the Peers of France assembled at Lyons I have read that in the Clause of the Charter confirm'd by H. 3. it was provided that if the King should invade those Rights it was lawful for the Kingdom to rise against him and do him what injury they could as owing him no Allegiance And much to this purpose is quoted out of King John's Charter in these words Et illi Barones cum communa totius terrae destringent gravabunt nos modis omnibus quibus poterint scilicet per captionem Castrorum terrarum possessionem aliis modis donec fuerit emandatum secundum arbitrium eorum And the practice of the Nobles and Commons in those days do evidence that they had some such Grants from their Kings for their justification and perhaps much more then doth now appear for it was made an Article against Richard the Second that he had erazed and imbezled the Records to the great dammage of the People and the disinherison of the Crown But this King Henry the Third upon a grant of the thirtieth part of his Subjects Goods ratified their Charters and Swore to preserve them inviolably as he was a Man a Christian and a King crowned and anointed and the Archbishop of Canterbury with the other Bishops denounced a Sentence of Excommunication against all such as should invalidate the Priviledges granted by the Charters throwing down on the ground the lighted Candles which were in their hands and saying So let every one who incurs this Sentence be extinct in Hell. And here I cannot forbear to repeat that Article of the Magna Charta which yet appears in the original Grant or Confirmation which the Bishop of Salisbury says he hath in his own hands under the great Seal See the Bishop of Sarum 's Pastoral Letter p. 27. whereby it is provided That in case the King should violate any part of the Charter and should refuse to rectifie what be had done amiss it should be lawful for the Barons and the whole People of England to distress him by all the ways they could think on such as the seizing on his Castles Lands and Possessions provision being only made for the safety of the persons of the King and Queen and their Children Now this being a fundamental Law and Contract and never repealed may abundantly justifie all that hath been done by the People of England in the late Revolution For whereas it is objected that the late Laws and Declaration That it is not lawful on any pretence whatsoever to take up Arms and that it is unlawful for both Houses of Parliament to levy War offensive or defensive against the King and the Recognition made the first of King James do supersede all former Laws I answer That such fundamental Laws cannot be abrogated without a particular recital of them and an express abrogation so that those Laws mentioned in the Charters for the restraint of illegal Actions and those that gave the Heretochs the power of the Militia and Officers by Sea and Land not being particularly repealed cannot be abrogated by those hasty Acts which have been since made for though the Militia be by those hasty Acts granted to the King yet it must be understood that they were so granted in trust and confidence that it should be imployed for the protection and safety of the People and Sir Edward Cooke in his Institutes on Magna Charta alloweth that the King hath no power over the Militia to Muster his Subjects but only in such cases and in such manner as the Parliament by special Acts hath prescribed and therefore those Heretochs or Lord-Lieutenants which had the power of the Militia for the word Heretoch by Selden in his Titles of Honour p. 603. is compounded of Here which signifies Exercitus and Togen ducere signifies Dux exercitus sive navalis sive terrestris and signifies a Commander of an Army by Sea or Land. See Spelman p. 232 348. That the Sheriffs of every County who had the Posse Comitatus or the power of raising the Militia were to be chosen by the People in the County-Courts is evident by express words of King Edward the Confessor's Laws Cap. de Herotochiis as Lambard's Arch. p. 135. and Sir Edward Cooke 3 Edw. 3. c. 17 19. And by the Articles against Richard the Second
he was a very wise man and well acquainted with the Constitution of the Roman Government for by the Lew Regia granted by the Senate to Augustus it was declared Quicquid per Epistolum statuit cognoscons decrevit aut pro edictum perpalaâ—it Lâ—â— esto And Cicero De Legibus Regio Imperio duo sunto Militiae summum jus habento nemini parento So Dion of Augustus That he was free and of Absolute Authority both over himself and over the Laws for the Emperour is a Living Law and commands as much by word as the Law doth by writing But we are not under the Laws of the Romans Turks or Tartars And if God should for our sins now or had he in the late King's raign permitted the French King to invade us with his Dragoons I doubt not but we might Vim vi repellere resist his Tyranny and Usurpation And as to the Protestants under Q. Mary none of them were put to death until she had procured a Parliament to make Laws against them and then it was their Duty to submit And we are bound with all thankfulness to bless God who prevented the late King from procuring such a Parliament and such Sanguinary Laws which he had well nigh effected to the Extirpation of our Religion Laws and Liberties and fastning those heavy Yoaks of Popery and Slavery on us and the Posterities that were to succeed us This was the Lord's doing and as it is marvellous in our eyes so it ought with all humble thankfulness to be acknowledg'd and accepted But it is objected from Sir E. Cooke That the Regal Authority is so inherent in the person of the King that no separation can be made so that as long as he lives our Allegiance is due to him and to no other Ans Whatever that great Lawyer says the Law says otherwise for even while a rightful Prince is in possession the Law makes a difference between his private and his publick Capacity and as while the King acts by the Laws we owe him our Obedience so in those things wherein he acts arbitrarily by his own Will contrary to Law our Allegiance is not due in such cases Object We are sworn to the King and to his lawful Heirs and Successors now as the King while he lives can have no Heir to whom in his life time we owe our sworn Allegiance so when he dies there can be no lawful Successor but the Heir if there be any that survives Ans In the sence of the Oath there can be no Heir till the death of the King and in our case there is no obligation due from our Oaths to the Heir until he or she be actually King or Queen of England as our Law expounds itself And when the King dies in a natural or civil and political sence by deserting his Government and going over to an avowed Enemy to the Nation their Religion and Liberties or hath submitted his Kingdom to the Usurpations of the Pope and so renders himself not only as useless as if he were buried in a Cloyster but as destructive as an open Enemy there is in such cases a Demise made of the Crown and it descends to the Heir 2ly In this case if he that is not the next Heir by Bloud be by the unanimous consent of the people as well as by the good liking of the lawful Heir chosen and admitted into the actual possession of the Government all Rights that were due to the Heir become due to such a Successor in the eye of the Law So Bracton determins it Heredis verbo omnes significari successores si verbis non sint expressi So Littleton in his Tenures Title of Homage Sect. 85. Allegiance is due to every one in possession that becomes King and to no other Judge Popham in his Reports f. 16 17. mentions a Case to this purpose Richard the Third granted certain Priviledges to the City of Glocester with a Salvo to his Heirs in Q. Elizabeth's reign it was questioned whether the Salvo did pass to her she being not Heir to King Richard but Successor onely and all the Judges did resolve that the Salvo did pass to the Queen Grotius l. 2. c. 9. s 8 9. If a King dye without Issue in an Hereditary Kingdom the Empire remains in the Body of the People who may create another and limit him the People being sui Juris Now in such a case a Convention of the People duly assembled in their Representatives is the most August Assembly even beyond a Parliament for to be able to make a King is more than to be a King and as the Original of Majesty is fundamentally in the people a Parliament hath a great dependance on the King being his Subjects the Convention is Absolute and Independent it makes bounds for the Monarch and whereas one Parliament may repeal the Acts of another a Parliament cannot alter the fundamental Constitutions of a Convention when it first constitutes a Monarchy And this hath been the most ancient manner in cases of great Necessity the people assembled in a Folke mote in the several Counties and chose their Wittena Gemote or Meeting of Wisemen Object The King was forced to leave his Kingdom his Subjects failing to assist him against the Invaders Ans The question that comes here to be considered iâ— Whether the Kings departure were voluntary or forced It is certain that the actions of reasonable men are generally influenced by the proposed end for Omnes beati esse volunt nec possunt velle contrarium as all men desire to be happy so they cannot will any thing which they conceive to have a tendency to the contrary These two are generally the Originals of Humane actions viz. Necessity and Choice and Necessity is either that which we draw on ourselves or is imposed on us by others Pharaoh's Oppression of Israel was at first voluntary while he hardned his heart against the Command of God but when God gave him up to that hardness of heart though the execution of what he did became necessary yet the principle that led him to it was voluntarily espoused 'T is a Rule given by Rainaudus a good Casuist Modo preluceat notitia absit coactio intervenit voluntarium Where the understanding is satisfied concerning any design and there be no force to withhold the prosecution of it there our actions are voluntary The end which the late King had long endeavoured and with too much success had by many means well nigh effected was to make Popery the established Religion of the Nation He declared his desire that all his Subjects were of the same perswasion with himself and his actions tended to make them such and doubtless he was not willing to have all his labours frustrated when therefore he was reduced to some straits being such as he wilfully brought on himself he could not properly be said to act by constraint But this was not the King's case that he did deliberate whether to go
the Parliament the King of France would assist him with his Power and Purse to have such a new one as would be for their purpose which was the subduing of a pestelent Heresie that had domineer'd over a great part of the Northern World a long time of which there were never such hopes of success since the death of Queen Mary God having given us a Prince who is become I may say to a Miracle zealous of being the Author and Instrument of so glorious a Work. See the Collection of Letters p. 118. So that by what was designed by the Duke and French King and hath since been jointly and vigorously acted we have full assurance of a League with France for our utter ruin and they are Fools or Mad-men that having such clear light and experience to guide them will suffer themselves to be blindfolded a second time and be led to destruction So that what Joab said to David is much more applicable in our Case Thou lovedst thine enemies and hatedst thy friends for thou hast declared this day that thou regardest neither the Prince nor his Servants for this day I perceive that if the King had prevailed and all they had died then it had pleased thee well So fond was David of his Absolom 2 Sam. 19.6 It is not necessary that abdication of an Office should alway be an act of the will. Lentulus is said to abdicate the Consulship because he could hold it no longer having been one of the Conspirators with Gatiline And Silla abdicated the dictatorship thinking to find a better opportunity be to revenged on his enemies And Dioclesian left the Empire because he could not effect his will against the Christians These were mixt actions partly through constraint and partly voluntary yet were accounted abdications And our King had involved us in so many miseries that nothing but his desertion of us or our opposing of him could deliver us God prevented the latter and the King granted the former Pufendorf de interregno p. 272. determines that if a King abdicates the peace of his Kingdom and be of an hostile mind or departs from the Rules of governing which he expresseth thus Modum habendi potestatem immutare that then the ground of the Subjects obedience is made void And in the Digests l. 49. Tital 15. de Capt. we have this Maxim Qui fuget ad eos cum quibus nulla est amicitia à fide suscepta transfugit and that the late King hath so done is an evident truth And it is as true that to desert a Government rather than to keep it on just and legal terms is to abdicate it for an abdication may be as expresly signified by real deeds as by any form of words whatsoever As to the League with France for making King James as Absolute as King Lewis and inable him notwithstanding his Oaths and Publick Declarations to the contrary to extirpate the Protestant Religion there wants not sufficient evidence of the endeavours of the Court of France for many years together by correspondence with the late K. while he was Duke of York and assum'd on him the chief administration of Publick Affairs Nor of a too fond if not a willing compliance of Charles the Second to that end Some wise men have thought that the great Revenues granted to the Crown the declaring the Militia to be wholly in the King the binding up not only the Subjects but the Parliament by Oaths and Declarations not to resist the King or those that were commissioned by him on any pretence or cause whatsoever by vertue whereof an hundred Irish or French might have come into the House of Parliament and out all their Throats and they not have dared to draw a Sword in their own defence all which things were against or as far besides the Laws of the Land as of Reason and Common Prudence for doubtless had it been proposed whether those Laws might have been so interpreted they would speedily have made an alteration in them All these I say have been observed by wise men to have been the designs of such as designed to introduce an Arbitrary Government and facilitate the bringing in of Popery though they that acted did not intend to serve the ends either of France or the Crown of England so far On this Errand was the Dutchess of Orleance some years since sent into England to assure Charles the Second of the Assistance of the King of France in reducing the Parliament to the King's pleasure to this end were Tolerations and Indulgences granted French Whores admitted with great power and pomp and all things so well prepared though more slowly and secretly in the Reign of Charles the Second that there wanted nothing but James the Second's ascending the Throne to give a Consummatum est to that design of bringing in both Popery and Slavery upon us And that being effected too soon alas for England then notwithstanding the Coronation-Oath the many Publick Protestations to maintain the Church of England and the Protestant Religion and of whose Loyalty he was well satisfied and that he never desired to be more great and happy than he might be by the established Laws yet all these were forgotten and trampled under foot Jesuits and Papists being admitted at Court and into the Privy-Council the King's Conscience submitted to their Conduct the Pope's Nuncio publickly entertained and feasted at the Guild-hall an Embassador sent to Rome Popish Bishops set up with power of Jurisdiction Protestant Bishops put into the Tower the Nobles closetted and such as would not comply to betray their Religion and Country were turn'd out of all the chief Offices by Sea and Land and others put into their room and in all places of Judicature Judges and Juries were adapted for the prosecution of that design there wanted only a complying Parliament and to that end Quo Warranto's were issued out against the Charters and alterations made in them fit for that design Addresses were procured for taking off the Test and Penal Laws i. e. for introducing of Popery by Law an Army of Irish Papists brought in and another prepared in France So that our destruction was much nearer than we believed Monsieur D'Avaux Embassador for the King of France in Holland in his Memorial told the Estates that the Friendship and Alliance between his Master and the King of England did oblige him to assist the King of England and to look on the first act of Hostility by Sea or Land as a Rupture of Peace Coleman's Letters spake to the same effect and the event hath demonstrated the truth of all that was thought to be but groundless fears and jealousies for on the approach of the Prince of Orange these dark mists vanish'd the Nation awaked out of their deep slumber and resum'd their ancient valour and resolution to defend their Religion Laws and Liberties against Popery and Arbitrary Government which seized on us as an armed man. And he that doth not now
prevent that the fault is his own The Murder of Edw. 2. and Rich. 2. was done by private Assassines disown'd by Parliament and punished or if that Age exceeded the limits of Self-defence it will not prejudice such as defend themselves with moderation And in vain are Rights granted and purchased if they may not by any means be defended As to the instance of Marriage the Indissolubility of that no way infers the Indissolubility of the relation between King and people for first Marriage itself in some cases admits a Divorce as in case of Adultery Impotency a vinculo and in cases of Cruelty a mensa toro and in case of Desertion after certain time the Law allows another Marriage 2. The Indissolubility of Marriage springs not from its being a Contract but from a positive Law of God super-added So that unless you can shew the like positive Precept for the Indissolubility of the relation between King and people the argument holds not 3. There ariseth another difference from the nature of the thing a Nation cannot want a present Governour so that if the King will not attend the Government there is an absolute necessity of seeking another which is not so in the case of Marriage for a deserted Woman is not so suddenly destroyed as a deserted Kingdom will be As to the Argument from our own and other Writers concerning Non-resistance c. I answer as formerly That general Rules reach not the particular cases which could not be foreseen or provided against And 2. It may be said without offence that good Divines are not alway good Lawyers and the Law is the measure of our Obedience as appears by the Authors of the Erudition and Bishop Bancroft the former makes the King's Proclamations as binding as a Law the later told King James in the presence of Cooke and other Lawyers that the King might call any Cause and judge it personally in his Chamber And there have been as eminent men in the Church of a contrary opinion Bishop Jewel Bilson Abbot and the Convocation in Q. Elizabeth's reign who contributed to the War which she undertook in behalf of the Hollanders which have been often quoted in the present Case and do all approve of a Defensive War in case of imminent Danger and Destruction contrary to the established Laws As to Dr. Sanderson's Judgment approved by the University i. e. That the Right of Subjection springs from the Right of Protection and the King's neglect of his Office doth not free the Peoples Consciences from the Bonds of Allegiance Ans 1. That besides the Right of Protection an actual Administration of Government is absolutely necessary to prevent Confusion and Anarchy 2. A neglect to perform Duty amounts not to the case in hand viz. visible Attempts to ruine and destroy the people which he should preserve wherein the King doth not abuse his power but acts beyond and without his lawful power 3. The people defending themselves in cases of extream necessity differs from the discharging of them from their Allegiance which the Doctor urgeth yet the discharge of them from their Allegiance may follow if the King will leave them to a state of Nature and Confusion or subject them to such Enemies as seek to destroy them Object 5. The King never dyes therefore when the Right passeth from the King it was immediately to be devolved on the Princess of Orange Ans 1. The descent of the Crown is limitable by the Supreme Authority of the Kingdom as appears first by practice frequently in King Henry the 8th's days and in the Marriage of Q. Mary with King Philip of Spain and in the crowning of Henry the 7th 2. It consists with reason the Right of Succession being but a Humane Constitution is alterable by a Humane Constitution If the Order of Succession had been a Divine Right it must have been so in all Nations and unalterable Nil magis naturale quam quo modo aliquid constituitur eodem dissoluitur And it appears 3. By the Act of Parliament 13 Eliz and whereas the Recognition of King James is pleaded as a bar to that Act. Ans Doth the Recognition say that henceforth the Succession should be as the Laws of Medes and Persians unalterable No they had another intent viz. To silence the Disputes that had been concerning King James his Title upon a Statute enabling Henry the 8th to settle the Succession which Settlement for not observing the forms prescribed by that Statute became void and so there was some cause for making the Recognition And whereas it 's said that the Act 13 Eliz. was made to serve a present turn viz. to secure Q. Elizabeth against the pretences of the Queen of Scots it is clear that it respects the future Succession by making the penalty of a Praemunire the Sanction of that Law for future Ages As for the Maxim viz. That a contrary declaration of the will of the Lawgiver doth abrogate the former Ans Where is the Contrariety The recognizing K. James his Title which had fallen under disputes is not contrary to that Act and besides it is averred that an Act of Parliament cannot be repealed but by express mention of it and as for the omission of it in the late Statute-Books for it still stands in the ancient Books this was rather done to serve a turn than the Act of Q. Elizabeth Anno 13 as is pretended 2ly The present Settlement is made by the Supreme Authority of the Nation for there is the consent of the right Heir and the People fully represented which are essentially the Supreme Authority the calling by Writs being only a formality and forms cease in cases of necessity because forms were introduc'd for common cases to obviate frauds c. But in cases of necessity and where no fraud is used the forms are not necessary 2. In cases of doubtful Succession the extinction of the Royal Line or Lunacy or as the case of restoring K. Charles the Second it is impossible to use all the Solemnities and yet a just Settlement may be made without them Object 6. The next Doubt is concerning the New Oath whether it be assertory or only promissory Ans First it is apparent that this New Oath leaves out the assertory part in the Oath of Supremacy and the alteration in so considerable a part implies an alteration in the matter of the Oath as to that particular 2ly The Law doth not bind the Vulgar to inquire into the Titles of Kings nor indeed are they capable to judge of Titles for we must swear in Judgment and if it be objected that the Law binds us to assert the rightfulness of the King's Title in the Oath of Supremacy that was only in opposition to the Pope's pretences and usurpations which are notoriously apparent therefore we have no reason to presume that the Legislators intended to bind us by this New Oath to assert the legality of the Title of the Governour The ancient Oaths of
Homage and Fealty required of every Lord from his Tenants hath the same expressions as the present Oath yet this Oath was not intended to assert the Lord's Title in point of right nor did it oblige the Tenant in case the Lord should forfeit alienate or be disseiz'd 4. An actual Obedience is sufficient to secure the Government and therefore we cannot presume that it requires more it doth not look backward to what is past but respect only the future time 5. If these reasons make not the case clear yet they render it doubtful and then this Maxim takes place Contra eum qui a pertius potuit loqui facienda interpretatio But of this more hath been said in Bishop Sanderson's Resolution of the Case of the Ingagement against which if it be objected That there is more included in the word Allegiance than in those of being true and faithful I answer There seems to be less required by that word for Allegiance signifies Obedience according to Law and not in illegal cases in which there is no Obedience due because there is no authority to require it Concerning the Lawfulness of Self-Defence 1. If the English people are so far at the Prince's disposal as to have no right to defend their Lives against his illegal Assaults then they are in the state of Slaves and Captives but we are not in such a state but Freemen and Proprietors as the Magna Charta and the Petition of Right do evidence 2. If to preserve our lives c. we may not use a defence then we prefer the means before the end but this is absurd therefore the first is so And if any Government do deprive us of that priviledge which Nature grants us it were better to have continued in a state of Nature and Anarchy then to come under such a Government 3. The Laws cannot be so interpreted as to be illusory but to bound the King's power and to give the people Rights and yet to suffer him to destroy all at his pleasure is a meer illusion of the Laws 4. What hath been publickly done and never been censur'd in the most setled times may be presumed lawful but the Defence of the Peoples Rights as in the Barons Wars was never publickly censured but the matters contended for were confirmed by several Charters ratified by dreadful Imprecations and vindicated by the expence of the Lives of the Nobles and People therefore it may be presumed to be lawful 5. What is permitted by the Law of God and Nature and is not forbidden by the Law of the Land is lawful but Self-defence is permitted c. and is not forbidden by the Law of the Land therefore it is lawful Object The Declaration that says It is not lawful on any pretence whatsoever to take up Arms c. forbids it Ans General Prohibitions must not be extended to such extraordinary Cases as would have been expresly excepted if they had been expresly proposed And they who united into Government and made Laws to preserve their Lives would never have consented to give one man power to cut all their Throats 6. Treason includes Felony and Felony Malice propense but self-defence implies no propense Malice therefore it is neither Fellony nor Treason Consider these Maxims Quod quisque obtutelam corporis sui fecerit jure fecisse videtur quando copiam sibi Judicis qui jus reddat non habet vim vi repellere omnia jura permittunt a jure civile approbatur modenamen inculpatae tutelae So Grotius Si corpus impetatur vi presente cum periculo vitae non aliter vitabili tunc bellum est licitum etiam cum interfectionem periculum inferentis ratio Natura quemque sibi commendat jus est cuilibet se defendendi contra immanem saecutiam So Barcl cont Monarchom l. 3. c. 8. Non sunt expectanda verbera sed vel terrorem armorum sufficere vel minas Of the King's Abrenunciation 1. To destroy the Government is to renounce and disclaim it for Animus perdendi retinendi non consistunt Nolle habere is the same with Renunciare but King James attempted to destroy the Government for to destroy the Essence and Form of a Government and alter its species is to destroy it 2. If the defence be lawful in the People and the Invasion in the Prince then the loss of the Crown or Right to govern doth legally follow But the Defence and Invasion c. therefore the loss of the Crown and Right of Goverment is ceased and consequently so is our Allegiance 3. To forsake a Kingdom and leave it in a state of Nature is to disclaim it but the late King did so therefore he disclaimed it The Major is clear because Government is necessary by an Antecedent Necessity to a particular Person 's being made a Governour and therefore rather than to continue a disbanded Multitude a particular Man's Right or Title must cease The Minor is clear because he suspended the Laws stopt their course carrying away the Broad Seal discharging the Judges and then withdrew leaving us in confusion If it be objected that he was forced to withdraw Answ It was what by many voluntary Acts he had drawn on himself and the last Act partakes of the Nature of those Actions from whence it flowed Object It will be a very great Scandal to the Nation and Church of England to disclaim their lawful King without Treating with him and seeking Reconciliation upon redress of their Grievances Ans The Clergy and Nobles did often Treat by way of Petition and humble Advice but were rejected with Contempt The Prince of Orange began to Treat with the late King's Commissioners who were returning with an Answer but the King left the City the day before and ever since hath put himself out of a Condition to Treat having given up himself to the Conduct of such as are Irreconcileable Enemies to our Nation and Religion None were more fit to Treat with the King than a free Parliament which as the King had made impossible by his Method so if it had been duly called and chosen yet a force would have been pretended while the Prince of Orange had any Army in the Nation And what if the King had complied as Christiern the Second King of Denmark who after his desertion was received again upon renewing his Oath and subscribing to Conditions who not only brake them all but inviting the Nobles and their Children to a Feast caused them all to be slain The King of France shews what Faith may given to the solemn and repeated Acts of Ambitious Princes and the observance of the Coronation Oaths and many publick Declarations by our King. 2. As to the case of Scandal I know not any sort of Christians that can justly be scandalized at such proceedings or condemn that practice in others which they allow in themselves As for the Papists the principles of their Religion oblige them not to endure a Prince of a different perswasion who