particular Species for so the Supreme Power is called whether to the King as Supreme As for the Patriarchal Constitution and a Lineal Descent by proximity of Blood it is so near to an impossibility of finding out the right Heir to the first Father of a People that we must let that alone for ever And as for Conquest Grotius l. 1. c. 4. § 16. says He that doth usurp a Government and afterward enters not into a Compact with the People as it is evident William the Conqueror did who also pretended a right prior to his Conquest nor is there any trust reposed in him but his possession is maintained by force the right of War doth in this case still continue so that it is lawful in all things to deal with him as with an Enemy And l. 1. ch 4. § 7. N. 3. It is to be observed saith Grotius That men did not at first unite in civil Communities by any Command from God but voluntarily and from the experience which they had that private Families were unable to resist any foreign force from hence grew Civil Power which St. Peter therefore calls a Humane Ordinance though elsewhere it is called a Divine Ordinance because God did approve thereof as suitable and convenient for the good of Mankind but when God approves of a Humane Law he must be supposed to do it as Humane and after a Humane manner Concerning the Rise of our Government which is the Second Query I shall search no farther than the Reign of William called the Conqueror who in truth disclaimed that Title pretending a right to succeed by a Grant from King Edward and an Oath of Harold who swore to preserve the Kingdom for him after the death of Edward King Edward being dead many of the Nobles invited William to take the Crown but Harold contrary to his Oath assumes it whereupon he resolves to vindicate his Title by the Sword the Pope sending him a consecrated Banner and approving his Title and shortly after his landing slays Harold in battel and marching to London is proclaimed King and crowned by Aldred Arch-bishop taking the Coronation-Oath which was injoyned by King Edward and is the same in substance with that which is still administred and in the Title of his Laws made in the fourth Year of his Reign he stiles himself Heir and Cousin to Edward the Consessor Spelman's Councils p. 619. and confirmed all St. Edward's Laws And his Son Henry declares his Father's Title thus Qui Edvardo regi Haereditario Jure successit Selden ad Eadmerum p. 211. Henry the First his Son abolished the Norman Laws which his Father added as Cooke in the Proeme to l. 3. of his Reports Afterwards the Barons threatned King John to seize his Castles if he would not confirm their Laws which they did until they got the Magna Charta It appears then that our Government is not an Absolute Monarchy such as that of the Turks and the ancient Emperors of Rome whose Wills declared by Edicts had the force of Laws as is evident from 1. The Manner of Making Laws the Legislative Power being divided between Prince and People And 2. The Mutual Oaths and Obligations that pass between the Prince and People and because * Quas vulgus eligerit no Laws oblige the Subject but what are agreed on by Prince and People in Parliament 3. Nor can any Money without their consent be raised And whatever Laws have been thus made in former Ages and stand unrepealed do respectively oblige both Prince and People in future Ages So that when Laws are thus made it is not in the power of Prince or People to annul them but by the same Authority by which they were made by which it appears that the Legislative Power which is a chief Property of Soveraignty is not solely in the Prince yet may he pardon the Persons of some Offenders and remit the Penalties in some Cases wherein Salus Populi Suprema Lex which Maxim as it leaveth in the Prince a power of dispensing with the rigor of the Law as he shall see it expedient for the publick good so it leaveth also in the Subject a liberty upon just occasions as in cases of great exigency and for preventing of such hazards and inconveniencies as could not be foreseen or prevented and might prove of noisom consequence to the publick to do other wise than the Letter of the Law requireth See Sanderson's Case of the Liturgy p. 170. for which he gives this reason viz. It may well be presumed that the Law giver who is bound in all his Laws to intend the safety of the Publick and of every Member thereof in his due proportion hath no intention by the observation of any particular Law to oblige any person who is a member of the Publick to his destruction or ruine when the common good is not answerably promoted thereby Upon which ground it is generally resolved by Casuists that no Constitution meerly humane can lay such obligation on the Conscience of the Subject but that he may according to exigency of circumstances do otherwise than the Constitution requireth This leads me to the Third Querry The Third Query which is concerning the Obligation of the Coronation Oath and the Oaths taken by the Subjects of which I shall speak joyntly because the Obligations are relative and reciprocal There cannot be a more solemn Oath than that which is taken by our Princes at their Coronation to which the Prince is obliged as to the Matter of it before his Coronation as well as the Subject is bound to the Prince tho' not not crowned the Prince is our natural and liege Lord as we are his natural and liege Subjects i. e. according to Law. The Oath as I find it taken by King Charles First of blessed Memory is this Quest Sir Will you grant and keep and by your Oath confirm to the People of England the Laws and Customs to them granted by the Kings of England your lawful and religious Predecessors and namely the Laws Customs and Franchises granted to the Clergy by your glorious King St Edward your Predecessor or according to the Laws of God the true Profession of the Gospel established in this Kingdom and agreeable to the Prerogative of the Kings thereof and the ancient Customs of this Realm Answ I grant and promise to keep them Q Sir Will you keep Peace and Godly Agreement intirely according to your power both to God and Holy Church the Clergy and People A. I will keep it Q. Sir Will you to your power cause Law Justice and Discretion in Mercy and Truth to be executed in all your Kingdoms A. I will. Q. Will you grant to hold and keep the Laws and rightful Customs which the Commonalty of this your Kingdom have And will you defend and uphold them to the Honour of God so much as in you lieth A. I grant and promise so to do Our Lord the King we beseech you to pardon
the Honour of the Church in some lesser matters as the necessity of their Affairs and Counsels perswaded them yet as to the Fundamentals of both Laws and Religion they resolutely adhered to them yet was there in the People such a ferment of Rebellion infused by Malecontents perswading them of great danger both to their Religion and Laws that the People were alway ready to take fire from the sparks of groundless Fears and Jealousies and at last broke forth into such a flame as well nigh turned the whole Nation into Ashes and this was done against a Prince who as much abhorred Tyranny and Popery as any of his Subjects could it was therefore necessary that when after twenty Years Confusion we were brought as by a Miracle to settle on our first Foundations the strictest Rules and Doctrines for Obedience should be inculcated to the People Thus by an 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 when a Stick is crooked we bend it to the contrary part to bring it strait and the Rule is generally approved Imquum petas ut aequum feras To demand more than is due that we may not receive less See his Sermon on Eph. 5.4 It is observed by Dr. Barrow that both Moral and Political Aphorisms tho' delivered in general Terms do need Expositions and admit Exceptions else they would clash with Reason and Experience The best Masters of such Wisdom interdict things apart by unseasonable or excessive use to be perverted in general forms of Speech leaving the Restrictions which the case may require or bear to be made by the Hearers or Interpreters discretion whence many seemingly formal Prohibitions are to be received only as sober Cautions So far that Learned Doctor So Bishop Usher's Sentences delivered in general terms are not always intended to be taken in their full latitude but to have their commodious restrictions according to the quality and nature of the matter in hand P. 5. of the Power of Princes And in dangerous Causes Abundans cautela non nocet which may serve as a reason for our pressing the Duties of Non-resistance and Passive Obedience in such dangerous times as we lived in in such general terms And if we should collect all that the ancient Fathers have said in the heat of Controversies and Disputations or in their Panegericks and Invectives and compare them with their Dogmata or Opinions when they wrote their mature Judgments of matters of Faith and Doctrine we might find them to contradict themselves more then the present Church doth contradict herself in these Doctrines of Non-resistance and Passive Obedience Thus for instance St. Augustine disputing against the Pelagians who defended Free-will wrote as if he had been a Manachee and defended an irresistible Fate and when he disputed against the Manachees he seemed to be a Pelagian and to defend Free-will And those who are Predestinarians in their Writings in their Sermons to the People agree with the Arminians And the Church of England which ever since the Reformation taught the Doctrine of Non-resistance in any case whatsoever have yet manifested their Judgment that this general Rule may insome cases admit exception as by the Assistance given to the Scots French and Dutch Protestants in defence of their Religion and Liberties as hereafter mentioned may appear God himself reversed the Sentence denounced in general terms against the Ninevites upon their performing of the tacite Condition of returning from their evil Ways and yet there was no variableness in God And if there be any such tacite Conditions in the Laws and Declarations of Men as is confest by many wise and good men the sence of such Law and Declarations may differ from the letter when the state of Affairs doth alter for if it had been foreseen that a King should arise that would exercise Arbitrary Power and subject the Kingdom to the Pope destroy the Religion and Properties of the Subjects a case so odious and improbable that it could not well be supposed the Doctrine of Non-resistance and Passive Obedience would not have been prest to those ends which were intended to the contrary viz. to make way for Popery and Tyranny and Confusion Tempora mutantur non nos We adhere to our first Principles still for Levitas non est destituere si aliquid novi intervenerit eadem mihi Omnia praesta idem Sum. 3ly But as to matter of Fact let it be inquired what have the Clergy acted contrary to those Doctrines While the King continued in the Government they continued their Obedience even when their Liberties and Properties were actually taken away and their Lives were at stake Since the King's departure they have been under restraint and an impossibility of defending him whom the Nobility Gentry and Commonalty and his own Army had generally deserted and joyned with the Invading Army Hitherto then they have been Passive but the grand inquiry is How they ought to behave themselves under the present Circumstances the present King in vindication of his Queen 's Right which was otherwise desparate and not to be recovered by Petition or Bill in Chancery got full possession of the Kingdom and by a National Consent in Parliament they are declared King and Queen Whether our Allegiance be due to the late King or the present Power under whose Protection we live and enjoy our Religion Laws and Liberties which were so near to be lost Some men of great Reputation for Learning and Piety think themselves obliged by their former Oaths And the present Government think they cannot be secure till the Clergy are obliged to them by new Oaths the refusal whereof may draw on Suspension and Deprivation to the undoing not only of themselves and Families but the Established Church at home and the Protestant Interest over all Christendom if any Wars or Divisions should be occasioned by such Refusal for Prevention of which I earnestly intreat my Brethren the Clergy to lay aside all Prepossessions and Prejudices and seriously to consider the Answers given to the following Queries which the Author hath collected from * St. August l. 3. Concerning Order says there are two ways of resolving Doubts either by our own reason or the authority of the most learned Nam qui consiliis pollet nihil ipse nec audit Suadentes alios nullos homo vivit in usus the Writings of men of great Integrity Learning and Experience partly for his own satisfaction but mostly for the satisfaction of others whose welfare is as dear to him as his own that yeilding due Subjection to the King and Queen and all that are now in Authority we may lead a quiet and peaceable Life in all Godliness and Honesty The Original of Government in General GOD is the Fountain of all Government being not the Author of Confusion but of Peace and hath established Order among all his Creatures in the Angelical Nature he hath constituted several Orders Angels and Archangels Principalities Powers and Dominions in the Celestial Bodies the Sun to
rule by Day and the Moon by Night and one Star differeth from another Star in glory And when he made the first man he gave him dominion over all the works of his hands he was to rule his Wife and she to live in subjection to him and when he became a Father his Children were to yield him obedience And when the Families of the Earth were multiplied so that one Father or Family could not claim Authority over the rest and considering the great corruption of Nature it was impossible but Violence and Injustice would be practised Mankind saw a necessity of setting up one Common Father over many Families to suppress Violence redress Injuries and distribute Justice To this purpose Mr. Hooker l. 1. c. 10. Two Foundations there are which bear up Publick Societies the one a natural inclination whereby all men desire a sociable life and fellowship the other an order expresly or secretly agreed on touching the manner of their union in living together for if when there was but one Family in the World the means of instruction Humane and Divine could not prevent shedding of Blood how could it be but when Families were increased each providing for it self strife contention and violence must grow among them To take away such mutual Grievances Injuries and Wrongs there was no way but only by growing unto composition and agreement among themselves by ordaining some kind of Publick Government and by yielding themselves subject thereunto that to whom they granted Authority to Rule and Govern by them the Peace and Tranquility of the rest might be procured No man might in reason take upon him to determine his own right therefore strife and troubles would be endless except they gave their common consent to be ordered by some whom they agreed on without which consent there was no reason one man should take on him to be Lord or Judge over another and over a multitude of Families impossible it is that any one should have compleat power but by consent of men or immediate appointment of God. All publick regiment of what kind so ever seemeth evidently to have risen from deliberate advice consultation and composition between men judging it convenient and behoofful And the corruption of Nature presupposed the Law of Nature doth necessarily require some kind of regiment and men saw that to live by one man's will became the cause of all mens misery this constrained them to come to Laws wherein all men may fee their Duties and know the Penalties of transgnessing them And tho' wise and good men are fit to make Laws yet Laws take not their constraining power from those that make them but from the power which gives them the strength of Laws And by natural Law the lawful power of making Laws whereto all Societies are subject belongs so properly to those entire Societies that for any Prince or Potentate of what kind so ever to exercise the same of himself and not either by express Commission from God or Authority derived from their consent upon whose persons they impose Laws is no better than Tyranny Laws they are not which publick approbation hath not made So far judicious Hooker in as evident a manner as any demonstration in Euclid to which add that observation of Mr. Selden Selden de Jure Nat. l. 1. c. 8. p. 106. By permission of Nature it hath been granted that whatsoever hath been by men joyned in society limited forbidden or constituted that they are bound to keep who have so consented according to the Conditions and Qualifications with which it is prescribed even as many as have and as they have given their consent But whence is it they are so bound from the Authority of a Deity i. e. of man's Superior even in those things the rise of the obligation is derived and therefore from some heads of the obligation of the Law of Nature Lod. Vives on St. Aug. de Civitate Dei l. 4. c. 5 6. takes notice of the first words of Justin viz. That in the beginning the rule of Nations was in the hands of Kings whom not popular ambition but their moderate carriage approved by the good advanced to that height of Honor on which he gives this comment That the People elected those Kings to themselves to be Guides Governors and Overseers of the Publick Interest and they were not compelled to take such a one as hapned any way to them neither did Nobility or the seeking of a party carry it every man 's own private good with the good of the Publick was so dear and near to him that it made him to make choice of none but the best And it is observable from Livy and other Roman Historians that their five first Kings were chosen by the Senate and People and that Tarquinius Superbus was by them deposed Neque enim ad jus regni quicquam praeter vim habe bat ut qui neque populi jussu neque patribus autoribus regnavit to which that of Juvenal agreeth speaking of the People Satyr 10. Qui dabat olim Imperium fasces legiones omnia In our Nation when the Romans invaded the Land the People chose Cassibilane their King. On the death of Hardicanute the third Danish King they chose Edward the Confessor and on the death of William the Conqueror they chose William Rufus and of four that succeeded the Conqueror not one had the right by neerness of descent It is objected against this Opinion of Electing our Governors That the People having no power over their own lives cannot give that power to any other Answ It is not the People that confer this power but God who by his Law hath given this power to all supreme Magistrates That he that sheddeth man's blood by man shall his blood be shed The People are only a Medium of conveying this power of the Magistrate to a particular person God is the Author of the Magistrates power to which the punishment of Murtherers is annexed for the general Rule is That the Magistrate shall bear the Sword for the punishment of evil doers and Capital punishment is in some cases just the People only apply this general Rule and determine the power to be in such a particular person for the terror of evil doers so that though I being a private person have no power over my own or another man's life yet the Magistrate hath by the Institution of his Office from God. St. Paul Acts 25.11 says as much If I have done any thing worthy of death I refuse not to die The Ordinance of Government is from God and Nature but the Species of it whether by one or more is from Men and the Rule for administration is by mutual agreement of the Governor and those that are to be governed from whence probably that which by St. Paul is called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 God's Ordinance as to Government in general is by St. Peter 2.13 called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a Humane Constitution as to the
sin then the breach of a mistaken and erroneous Law is a sin and damnable which is a very hard Sentence But Secondly Although the greater part of the People with their Legislators may judge the Laws made to be for the Common good yet every Man must judge of his own Actions in reference to those Laws whether they be agreeable to the Common good or no for the greater number in Councils may err there is no Infallible Judge in Civil or Religious matters If then the Law-givers may err or my Conscience tells me that they do err I am not bound to do what they Command by a blind Obedience but to use my private discretion in enquiring whether the thing enjoyned be for the Publick good or not for if I am allowed to use the judgment of my private discretion in Religious matters why not in Civil Men are not to go as Beasts where they are driven much less to act contrary to their Reason and Judgment which makes them worse than Beasts who will follow their Senses unless they are hindred by force so that I am not bound to obey a Law meerly Humane for Conscience-sake when I judge that Law contrary to the Publick welfare but I must submit to the Penalty if I cannot honestly avoid it But if a Magistrate that is obliged to govern by Laws do resolutely set himself to destroy those Laws and ruin not only the generality of his Subjects but his own Crown and Dignity we are not bound in Conscience to obey such a Magistrate because of a prior Obligation to preserve the publick welfare which was the end of Government and to which the means are subordinate It now remains that having proved that Scripture and right Reason to be the Rule of Conscience for our Obedience both to Magistrates and their Laws in foro interno that I do also prove that a respect to the Publick good not being contrary to any Law of God is our Rule for Obedience in foro externo One chief Law imprinted by God on the Reason of Mankind is the conservation of it self and for that end vim vi repellere to repel Force by Force for which end Mankind were taught to live in Societies and establish Rules and Laws for the Common Safety therefore homines conspirantes in communem utilitatem are the Subject-matter of a Common-wealth this being the end of all Societies no Civil Constitution can annul this Bond of Nature So Panormitan Quando jus Civile aliquid disponit contra jus naturae standum est Juri naturae So also when the Law makes provision for such things as the Law-givers fore-see and afterwards some things happen which could not be fore-seen and new Reasons and Accidents appear contrary to those Laws here Nature as a common Parent and Protector of Justice and Necessity alters or adds to the Law as when Sextus Tarquinius ravished Lucretia though there were no established Law against that particular sin yet Nature it self directed a severe Punishment And when the Pharisees pleaded their Vows to the Corban in bar to relief of their Parents which is a Law of Nature our Saviour pronounced such Vows null Bishop Taylor p. 296. proves That the Law of Nature cannot be dispensed with by any Humane Power 1. Because God is the Author of it 2. Because this Law of the preservation of the Common welfare is as necessary to the support of Societies as Nourishment is for the support of their Bodies 3. Because Natural Laws are the dictates of Natural Reason and no man hath power to alter Reason which is an Image of the Divine Wisdom and therefore unalterable As to the Law part the Act 11 Hen. 7. c. 1. says That it is not reasonable but against all Laws Reason and good Conscience that Subjects going in War with their Soveraign Lord for the time being should lose or forfeit any thing for doing their Duty and Service of Allegiance and it was Enacted That from thenceforth no Person attending on the King for the time being and doing him true and faithful Service of Allegiance in his Wars should in no wise be convict or attaint of High Treason nor of other Offence for that cause but to be for that Service utterly discharged of any vexation trouble or loss The Lord Bacon p. 144. of his History of Henry VII gives a Reason of this Law For that it was agreeable saith he to reason of State that the Subject should not enquire of the justness of the King's Title or Quarrel and it was agreeable to good Conscience that whatever the Fortune of the War were the Subject should not suffer for his Obedience The Spirit of this Law was wonderful Pious and Noble being like in matter of War to the Spirit of David in matter of Plague who said If I have sinned strike me but what have these Sheep done Neither wanted this Law parts of prudent and deep fore-sight for it did the better take away occasion for the People to busie themselves to prie into the King's Title for that however it fell their Safety was provided for Besides it could not but greatly draw unto him the love and hearts of the People because he seemed more careful for them than for himself The Lord Cook p. 7. in the Third Book of Institutes on the word Le Roy speaking of Treason says That the Act for Treason is to be understood of a King in possession of the Crown and Kingdom for if there be a King regnant in possession although he be Rex de facto only and not de Jure yet is he King within the purview of this Statute And the other that hath Right and is out of possession is not within this Statute And if Treason be committed against a King de facto and not de jure and after the King de jure cometh to the Crown he shall punish the Treason against the King de facto and a Pardon granted by the King de jure that is not also King de facto is void It is the Opinion of all Lawyers that in rebus dubiis melior est conditio possidentis Judge Hales gives the same sense of that Statute in his Remarks on the Pleas of the Crown Chapter of Treason Now both these were great Lawyers and wrote under such as were Kings de jure and in peaceable times The Argument then is this If Treason may be committed against a King in possession or de facto and not against the King de jure being out of the possession then I owe Allegiance to the King in possession and not to the King out of possession though King de jure The Rule of the Law is this I owe Allegiance to him that gives me Protection whether I live at home under a King de facto or live as a Stranger abroad under one that is a King de jure I owe Allegiance unto each while I am under their Protection for thus in Calvin's Case Seventh Book of Cook 's