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
Because if the Imposers had intended to bind to more they might have easily framed the words so as not to be capable of this lower construction 3. Because it is usual for new Governors to abstain from harsh proceedings even against those whom they know to be disaffected to their Government Remissius imperanti melius paretur therefore the Bishops resolution is that when the Imposer chuseth words capable of a double sense it is neither necessary nor expedient that the Promiser do doubt which sense the Imposer doth mean but may in prudence and without violation to his conscience make his advantage of the ambiguity and take it in the laxer sense because since the Faith that is to be given is intended to the behoof of him to whom it is given it concerns him to take care that his meaning be expressed in such words as may manifest his intent which if he neglect the promiser is not bound to lay a greater obligation on himself than he needs to do and though the imposer might intend more under his ambiguous terms yet the promiser is not bound to take notice of it The Reader if concerned may see more in that Case but I think this sufficient and pertinent to the present Case As to the Original of Supreme Power and the Majesty resulting from thence to the person of the King I shall here subjoyn two excellent Discourses of the learned Civilian Pufendorf Of the Original of Supreme Power THat Supreme Empire may have its effect there is required first such natural Strength as may enforce the Subject to obey his Commands and secondly a Title or Authority by which he may enjoyn what is to be done or omitted both these do flow from those Contracts by which Societies are formed for although no man can naturally transfund his strength into another yet that person may possess the strength of others to whose will they are obliged to apply their strength without resistance or disobeying his command and when all do thus submit their wills to the will of one he then hath sufficient power to compel them to Obedience Thus Livy l. 2. c. 59. The Power of Empire consists in the consent of them that are to obey and this Contract gives a clear Title by which the Empire is lawfully constituted by a willing Submission of the Subjects and not by Violence this is the immediate cause from whence Supreme Power as a Moral Quality doth result And evident it is that sound Reason did dictate on the multiplication of Mankind that their Honour Peace and Safety could not subsist without Societies which neither could well be without a Supreme Power Hence it is that the Higher Powers are said to be appointed of God as being the Author of the Law of Nature for not only those things are said to be of God which he doth institute immediately without the intervention of any Humane Act but those also which men by the conduct of right reason as the condition of times and places do require have received in reference to that obligation which lies on them from God 1 Tim. 2.2 That they may lead a quiet and peaceable life c. Hence God in the Scripture approves of Empire as his Institution and by strict Laws establisheth its Sanctity and Veneration Thus Baecler on Grotius l. 1. c. 3. s 6. The Supreme Power is not to be attributed only to the acts of Men but the command of God and the Law of Nature or to such acts of Men as are agreeable to the Law of Nature for he that commanded Society commanded the Order of Society whereof Empire is the soul The true sence whereof is this that the Divine Command doth exert it self by the dictates of Reason whereby Men understood that their peace and welfare which is the end of the Law of Nature cannot subsist without Civil Society nor that without a Supreme Power As to the fifth Commandment injoyning Obedience to Governours that doth not exclude those second Causes by which their Power is produced as the Precept against theft excludes not the Original of Dominion Governours are said to be God's Vicegerents in this sence that because the bare respect of the Law of Nature and its Author did not effect the Peace and Order of Mankind that end is perfected by the efficacy of Civil Empire for that a Society may obtain its end God appointed by the Law of Nature the Order of Commanding and Obeying in which by God's will and the dictates of Nature there must be a Supremacy depending on none but God. But whether this Supremacy should be committed to one or more and by what particular means the state of the Government be constituted this is meerly a Humane act So Grotius l. 1. c. 4. s 7. That men agreed to live in Society not by any express Command of God but of their own accord yet not without the will of God and the dictates of Reason whence arose Civil Power which St. Peter calls the Ordinance of Man 1 Pet. 2.13 Though this might suffice as to the rise of Civil Authority and the Veneration due to it yet some ascribe it to a higher Institution as Hornius de Civit. l. 2. c. 1. That it is so immediately from God that no act of Man contributes to it So that where a free People do choose their King they only design the person on whom there is a Majesty immediately conferred by God as in free Cities the Magistrate is elected by Suffrage of the Chamber but his power derived from the Supreme Governour But this Assertion though it have a fair reception among many doth wholly destroy all the fundamental Laws that are agreed on between the Prince and People for the administration of Government for by this there is a Majesty ascribed only to Kings but denied to free Common-wealths whereas there is the same Supremacy over the Subjects in every Commonwealth Whereas therefore he makes God the only cause of Majesty who immediately on the Election of the People infuseth that Majesty into the King wherein he conceives this Majesty to be a Physical quality as they do who hold that Government is God's Ordinance so intirely that no Creature doth contribute any thing to its Institution which bewrays a gross ignorance of things Moral As for his demand How an extraordinary Splendor should shine forth in him that is advanced to the Throne from an obscure condition unless it came from God let it be considered by them who know not to discern shadows from substances His Argument from God's special Care over Princes proves nothing God having the same care of others and many Kings have perished by Poysons and Treasons His chief Argument is this That seeing neither any individual Person nor the Multitude have this Majesty in themselves they cannot confer it on the King. Ans That a Moral quality such as Empire is may be produced in another by the agreement of them who had it not formally in
obey him that is by what means soever in possession for although his commands for want of a lawful Power have not in themselves the force of Obligation yet the lawful Prince not being able to exercise his Office it is the duty of a wise man so far to consult his own affairs as not to abandon the care of his life and fortunes which if he should vainly resist the Possessour and provoke his wrath he might do without any service to his Country or the ejected Prince And this some do infer from Rom. 13. where the Apostle injoyns Obedience not only for wrath i. e. not contumaciously and unnessarily to provoke the wrath of him that bears the Sword and therefore for our own preservation we ought to obey 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the Powers that are in possession for seeing the Commonwealth cannot subsist without Government and the Possessour doth supply it no good Subject ought to give occasion of imbroyling the Nation by new troubles But this is the greatest scruple How the Subject can at the same time be obliged to the Prince de Facto and only in possession and to the Prince de Jure that is put out of possession when each seeketh the destruction of the other for although the Subject should swear Allegiance to the Prince in possession that can no more make void his Allegiance to his rightful Prince than the right of a Landlord can be made void by an agreement between his Tenant and a Robber to alienate the Landlord's right It is the opinion of Grotius l. 1. c. 4. s 15. That the Acts of him that exerciseth the power of the Empire have the vertue of obliging the Subject not by any authority of his own which is none but because it is probable that he who hath the right of Government had rather have the coommands of the Possessour's to be valid than that the Laws and Justice being suspended Confusion should follow See Grotius l. 2. c. 6. s 5. And it is to be presumed that every Prince hath so much Humanity that he would rather have his Subjects preserved by whatsoever means then by striving in vain and shewing their impotent affections out of season to be destroyed without any good effect Compare 2 Sam. 15.25 26. and 1 Kings 3.26 Thus in Livy The Romans being desired by the Petellines to give them assistance declared that they could not protect them who were so remote from them advising them to return home and consult for their own safety See also the Oration of Ferdinand flying out of Naples in Guittardin l. 1. near the end In this case nothing appears more probable than that if the lawful Prince be reduced to such a condition that he cannot afford such defence to his Subjects as he ought and the strength of his Subjects is not so great as to resist the Invader without evident destruction it may be presumed that the expelled Prince doth so long release the obligation of his Subjects until there be a way opened for the regaining his Kingdom and such as is necessary for their preservation and to avoid destruction and thus far only the Faith promised to the Invader seems to oblige So that this Faith is only temporary and expires when the lawful Prince hath an opportunity to recover his right And this Faith proceeds not from any intrinsical obligation of the Conscience which is under a present fear See Grotius l. 3. c. 7. s 6. Yet where an external Right and Dominion is admitted I see no cause why an external Obligation which doth not touch the Conscience may not also be admitted See 2 Kings 11. 2 Cron. 23. on which place Hobbs rightly observes that Athaliah was justly cast out of the Government not by any right that the Priest had as a Priest but in right of the Child that was to succeed as King. All which things being considered there is scarce any case wherein private men may oppose an unjust Possessour of an Empire especially considering what experience doth shew viz. that by such Conspiracies the Invader is more exasperated to oppress the people See Justine l. 16. c. 5. at the end The only thing considerable in this Discourse is whether such Subjects as have been deserted and left in confusion by their King are bound to reserve and pay their Allegiance to him in case he should return or whether they are bound by their former Oaths to assist him in the recovery of his Dominions To which I answer That the case seems much like as if a man living in a City among his innocent Neighbours should set his own House on fire intending thereby to destroy his Neighbours Houses and though he flyes for this fact yet still imploys his Agents and Boutefeus to continue that fire to an utter destruction of the whole City Whether are the Citizens in reason or conscience obliged to receive such an ill Neighbour or to confide in him The resolution of this case will be a good answer to the Doubt proposed of which I shall speak more hereafter As to the Original of the English Government it is evident that the Saxons who subdued the Britains were descended of the Germans who were governed by such Kings as had their Comites i. e. Counts or Companions who were to hear and determine the Grievances of the people complained of against their Kings and Edgar the First was chosen by such Counts to be their Monarch and to defend the Rights of the people as Wigoniensis p. 355. Nor can it be thought consistent with the Divine Goodness and Wisdom that he should ever set up such an order of Men their corruptions and passions being considered as should have an uncontrolable power to kill and destroy whom and as many as they pleased the end of Government being the Welfare of the people and the Magistrate being appointed to be the Minister of God for the peoples good Sir Orlando Bridgman in his Speech to the Grand Jury of Middlesex p. 12 13. says That the Crown of England is an Imperial Crown as depending on no Earthly Potentate but on God onely yet it is not so Absolute says he but that the Subjects as to their Properties Liberties and Laws have as good a right as the King. And Sir Tho. Smith Privy Counsellor to Q. Elizabeth distinguisheth between the Concessions which the King makes That they are either of Right or of Grace The way of asking any thing in Parliament is by Petition yet the Petition of Right in K. Charles the First shews that the people had a right to the things they petitioned for and they have undoubtedly a right to petition for the confirmation of their Rights when they have been invaded and hence it is that Bracton l. 1. c. 17. says Superiores habet Rex Deum legem per quam factus est Rex item Curiam suam Comites Barones qui cùm viderint Regem sine fraeno fraenum sibi ponere tenenter And Chancellour
it was in his power and was perswaded by his Men to have taken it away to whom he thus answers 1 Sam. 26.10 The Lord shall smite him or his day shall come to die or he shall descend into battle and perish i.e. he will assault me and may perish in that attempt which he wilfully attempting may be slain and then I shall be innocent but if I should slay him in cold Bloud and with an intention to destroy him I should be guilty nor was David affrighted from joyning himself with the King of Achish in a Battle against Saul in which Battle Saul perished which was more than his self-defence that so Saul's Army might be weakned or diverted from the pursuit of him Whence it follows that although we hold the King's Person be inviolable yet if he shall unjustly expose himself in a War to destroy his Subjects they may justly raise an Army to defend themselves and though the King should casually perish they are innocent The Blessing pronounc'd by Amasas on David shews Gods approbation of his intended Defence 1 Chron. 12 18. It follows also that a Prince in such a case as David was may joyn himself with the Enemies of his oppressing Soveraign which doubtless will hold in the case of our present King's uniting himself with the confederate Protestant Princes in Defence of their Religion Laws and Liberties which are in danger Albericus Gentilis Professor of Civil Law in Oxford under Queen Eliz. distinguisheth of a threefold lawful Defence 1. Necessary 2. Profitable 3. Honest and says He is necessitated against whom an Enemy comes Armed or prepares Arms on which the War against Methridates was accounted just because of his preparations which their Adversaries accounted a more real Declaration of War than any words Pia arma quibus nulla nisae in armis relinquitur spes He who would keep himself out of Danger must meet and prevent it which is a point of greater Wisdom and Courage than to expect it and revenge it it is also more safe and easie to prevent a future than to redress a present Evil. Turpius ejicitur quam non admittitur Hostis We presently slay a Serpent at sight not staying till he hurt us and suffer not noxious Weeds or Thorns to grow up but grub them up by the roots while they are young if we expect the first stroke it may kill or disable us Venjenti occurrite morbo is good advice to a body politick as well as natural If our Adversary have declared his will and is preparing a power to hurt us we may not carry to receive the first blow but anticipate the evil as Gladiators are wont to do Yea it hath been always practised to put a stop to the ambition of great Monarchs who have unjustly invaded one Man's Dominions lest he should attempt the like upon others and hence the Princes of Christendom have been careful to preserve an equal balance between growing Empires Posse nocere sat est quodque potest alios perdere perde prior We may as justly remove impendent evils as those that are actually befallen us The whole World is but one great City and tho some part of Mankind is nearer than others yet our Charity should extend to all Si non homini tamen humanitati Thus Baldus and both Civilians and Canonists determine That it is a fault to omit the defence of another but of ourselves a treachery Siracides Eccl. 4. Free him to whom injury is done out of the hand of the Injurious Constantine says We ought to account of the injuries done to others as our own And if this be the duty of private men much more of Princes and if in the other cases much more in the case of Religion Thus Justine answered the Persians That he ought to defend the Christians whom they would compel to forsake their Religion Thus Constantine helped the Christians that were oppressed by Maxentius and Q. Elizabeth assisted the Hollanders against the Spaniards who sought not only to destroy the Protestant Religion there but having broken down that Pale of Europe as Lipsius called it they should have extended their Tyranny farther Dr. Ferne pleading the Cause of King Charles the First grants That Personal Defence against the sudden Assaults of the King's Messengers if illegal tho' the King be present is lawful even to warding of the King's blows and to restrain his hands and rescue their innocent Brethren out of his hands as the People did Jonathan from the hands of Saul And if a King should joyn with Robbers or Pirates by Land or Sea the Subjects might lawfully defend themselves tho' the King were in their company It is well known that the Emperour the Pope and almost all the Princes in Christendom do joyn to prevent the ambitious Designs of the King of France insomuch that they will rather assist England and Holland than suffer them to fall into the hands of the French and if Popish Princes agree in this for the preservation of their Dominions from an ambitious and aspiring Monarch tho' of their own Religion much more may a Protestant Prince for the recovery of his own Right and for the preservation of the just Rights Laws Liberties and Religion of his Allies and Confederates Aeneas Sylvius If a King contemn the Laws and Subjects all to his Lust will not the States in such a case depose him and chuse another who shall swear to govern by Law as reason tells us it ought to be Aquinas speaking of deposing Tyrants says They are not guilty who do it though obliged to them by Oath for he deserves the People should not trust him who transgresseth the Duty of a King. Object The people of Israel might as well judge David to have abdicated his Kingdom as the people of England King James for great complaints were made against David by Absolom concerning the Male-administration of Government and his Adultery and Murther are in the Sacred Record besides upon the approach of Absolom's Army he fled out of the Land. 2 Sam. 19.9 Ans As to David's personal miscarriages they were done in secret scarce two or three made privy to those designs whence that expression in Ps 51. Against thee only have I sinned intimating that it was not known to his people So Nathan told him 2 Sam. 12.12 Thou didst it secretly but I will do this before all Israel And Uriah being dead and his Wife consenting there was none against whom David had sinned as some do Comment but these personal sins did not make him obnoxious to the censures of his people As for the Administration of the Kingdom it was a forged Accusation of Absolom to steal the hearts of the people from his Father for the Holy Ghost beareth witness to the contrary Ps 78. ult He fed them according to the integrity of his heart and ruled them prudently with all his power And Absolom's Conspiracy was secret and a sudden surprize the men that followed him went
or not appears by his first departure and returning again and then by departing still under his own Guards a second time when he was by contrary Winds driven into Feversham he still resolved to quit the Land So that if the late King had thought his carrying would have promoted his Interest he would have staid but being guided by better hopes of compassing his designs abroad it follows that he voluntarily and I may say maliciously deserted us destroying the Writs for calling a Parliament concealing the Broad-Seal leaving us under the power of an Army of Irish Papists whom he ordered to be Disbanded without Pay whereby he probably thought we would have crumbled into several Factions and sought it out among ourselves All men count those actions voluntary which were in their power to do or not to do and though after deliberation the will be for a while in equilibrio yet when other Reasons and Circumstances are added to make the Scales turn the Resolution and Actions that follow are our choice 2dly If it had been the present King's Design or Will to have hindred the late King's departure he might have done it and perhaps it might have been for his Interest to have so done but by not doing it he manifested that it was not his will to restrain him but the late King's choice for there was a Treaty offered and accepted by the late King who sent his Commissioners to treat with the Prince but being as by the event it appears resolved on his departure he tarried not for the return of his Commissioners and though he had appointed to meet his own Council in the Morning yet he deserted them in the Night before to which it is said he had engaged himself by Oath to the Queen So that all these pretences of his being willing to remain in his Kingdom were but to facilitate what he was more peremptorily resolved to do i. e. to forsake it So that tho' the consequents of his own Actions which were undoubtedly wilful as his raising a standing Army which revolted from him his abrogating the Laws submitting the Kingdom to the Pope and all those Grievances summ'd up by the Lords and Commons Feb. 12. brought a necessity on him to depart yet seeing that necessity was the effect of his own Voluntary Actions it must be imputed to his will and choice as the cause of it And doubtless the King deserted the Nation on some such deliberations as these He had followed such evil and rash Counsels as had involved him in unextricable Troubles his Counsellors were not able to defend him or themselves and by flight shifted for themselves The Army in which he confided forsook him the Affections of the People were generally alienated from him so that the only Refuge that was left him was his trusty Confederate the King of France to whom he chose to commit himself rather than to submit to a Treaty Object But it may be Objected That the Lords and Commons were too hasty in declaring that the late King had Abdicated his Kingdoms and that they ought to have treated with him and proposed such Terms as might have secured their Religion Laws and Liberties to which if he had consented all our Grievances might have been redressed Answ To this it is answered That the Parliament by their Votes against the Bill of Exclusion had done as much as in them lay to engage him to a Faithful Execution of the Trust reposed in him viz. To Govern according to the Established Laws And his Promise to the Privy-Council immediately on his Brother's Death did manifest what then was or at least ought to have been his Resolution for he declared That he would make it his Endeavour to preserve the Government both in Church and State as it was then established That he knew the Principles of the Church of England were for Monarchy and that the Members of it had shewed themselves good and Loyal Subjects therefore he would always take care to defend and support it I know said he that the Laws of England are sufficient to make the King as great a Monarch as I can wish and as I shall never depart from the just Rights and Prerogatives of the Crown so I shall never invade any man's Property I have often adventured my Life heretofore in Defence of this Nation and I shall still go as far as any Man in preserving it in all its just Rights and Liberties These were Solemn Promises to the performance whereof not only his Honour of which he boasted that he never had broken his Word with any Man but his real Interest should have obliged him I cannot omit that Observation of Job Chap. 34. ver 30. That God in his righteous Judgment will not that an Hypocrite Reign lest the People be ensnared These were Divine Sentences in the King's Lips but his Actions declared what was in his Heart namely to pull down and destroy all that he had promised to preserve and defend with his very Life to which the hope of salvation being then a resolved Papist so pre-ingaged him that in the perswasion wherein he then was his conscience must tell him he must perish eternally if he should perform his promises God only knows how to treat with such Princes It was not in the wisdom or power of men to confine such an Angel of light for if by a Treaty the late King under the circumstances to which he was reduced should have yielded to all the demands of his Subjects his Allies abroad might whenever they had an opportunity to assist him have made all void on pretence that he was under force all the time of such Treaty And if he had been re-admitted with that freedom honor and power which became a King of England who could not foresee that as long as the Jesuits had the guidance of his Conscience he would a second time have renewed his Promises of establishing our Religion Laws and Liberties only until he found another opportunity to destroy them to which the Name of a King and his Presence among his Subjects and the Subtil Counsels and Devilish Arts of the Jesuits the Credulity of some and the Discontents of many others for under the best Governments there will be Malecontents would have made plausible pretences and arguments for disturbance of our peace which our too powerful Neighbour the King of France hath for a long time had incouragement from the late King to do and only waited for an opportunity and now declares he will endeavour to effect by open War. Thus Coleman's Letter to Sir William Throgmorton Febr. 1. 1673 / 4. You well know that when the Duke comes to be Master of our Affairs the King of France will have reason to promise himself all things that he can desire And in another Letter to L' Cheese that his Royal Highness was convinced that his interest and the King of France 's were the same and if his Royal Highness would endeavour to dissolve
believe the French League for introducing of Popery and Arbitrary Government is worse than an Infidel Object But the King forsook the Land because his Subjects had first forsaken him contrary to their Duty Ans The peoples duty was to be governed according to the Law which is the measure of their Obedience and they being sensible that the King's design was to subvert the Laws and to that end had armed Irish and English Papists contrary to Law they could not joyn with such men in such a design The Papists themselves alway opposed their Kings in the reigns of King John Henry the Third and others that would have submitted the Kingdom to the Pope And if the Subjects had fought for the King in this Cause they had fought for the Pope and for Slavery against the Crown and Dignity of the King against their Religion and Liberties and against the Oaths of Supremacy and Allegiance which bound them pro posse as far as they were able to resist the Usurpations of the Pope by what means soever they should be introduced In brief let this Dilemma be considered either the King was forced to flye or else he deserted the Government willingly if he was forced then there was a Conquest and the Conqueror had right to what by lawful Arms he did obtain if he fled willingly then there was a renouncing of the Government that is an Abdication and so the Crown became void and our Allegiance to the late King ceased Object But the Subjects of England entred into an Association with the Prince and though they fought not yet were in Arms. Ans The Magna Charta granted by King John as well as the Law of Nature and confirmed by many Parliaments doth warrant such an Association for preserving their Lives Laws and Liberties when they are in imminent danger and such was the Case of England at that time Object If Subjects have Power to resist their Princes why then did the Primitive Martyrs cast away their Lives died Abner as a fool dieth Ans They had no Laws for establishing their Religion no Votes in choosing the Senators the Laws were against them and their Religion obliged them to submit to the present Powers who had an Absolute Command over them and if these Christians had such Oaths from their Emperors as we have it might be well questioned whether they would not have held him to the performance Object If we may not resist a King acting contrary to the Laws of God and Nature then neither when he acts contrary to the Laws of the Land. Answ The Laws of the Land do grant to Subjects more particular Rights and Liberties than the Law of God doth and the Law of God doth not destroy the Civil Constitutions of a Land which the People may claim and defend it is therefore observable that Queen Mary did not put any to Death for their Religion untill she had procured a Parliament that made void the Laws made on behalf of the Protestants and had reinforced the ancient Laws which were made in times of Popery and procured new ones against Protestants as Hereticks It is a strange account which Ecclesiastical Histories gives of the Primitive Christians that they were Candidati Martyris offered themselves to their Persecutors not only when they were accused and brought before Magistrates but when the Inimicum vulgus invaded them and they might have resisted such as had no Authority against them it was a Rule with Tertul. Quodcunque non licet in Imperatorem nec in quenquam licet By which Rule it was as unlawful to resist a Robber or Murtherer as the Emperor and in his opinion if the Emperor had been a Christian he might not have resisted any violent person but he was a Montanist and had his Errors as in matters of Doctrine so also of Fact as in his Account that the number of Christians were sufficient to have vanquished the whole Roman Empire that it was not lawful to fly in times of Persecution to which end he wrote a Tract De fuga c. which was contrary to our Saviours direction to his Disciples Matth. 10.23 And in truth if it be not lawful to resist a Persecutor neither is it lawful to fly when we are summoned to appear before a persecuting Magistrate for that is determined to be a kind of Resistance But the true Cause of the Non-resistance of the Primitve Christians was that which Tertul. observes Nos externi sumus We are Aliens from the Common-wealth of Rome they had no Laws no Votes in choosing the Senators but were accounted of as Out laws and Enemies to the Government by their Religion it was with them as with such Protestants as live under the Tyranny of the Pope who being apprehended and cast into the Inquisition had neither Power nor Right to defend themselves but it was their duty to give Testimony to the Truth by laying down their Lives for it They were under an Arbitrary Power in the nature of Slaves and Vassels and lookt on as Enemies to the Roman State being of a Religion contrary to what was established but we are Freemen that have our Religion and Properties established by Law and such as act contrary to the Government resist the Ordinance of God and oppose it and may be resisted And the Oaths by which we are obliged bind us primarily to the Government and to the Governours for the sake thereof and if the Government be not Arbitrary neither is our Allegiance due to one that would govern Arbitrarily So that suffering for the Faith of Christ is a distinct thing from suffering for the frame of the Government for if I may not resist I am overcome and yield consent to a change of the Government i. e. to an Arbitrary and Illegal Power contrary to the Constitution under wich I live and so promote the ends of an Oppressing and Usurping Governour and I cannot expect with comfort a Reward from God for casting away my own Life and endangering the Lives of many others when a Government is duely established God approves of it as his Ordinance and the People ought by all lawful means to preserve it for the Gospel of Christ doth no more destroy the priviledges of the People than of the Prince but if the Prince would destroy the Rights of the People they may contest them for in vain are Laws made and Liberties granted if they may not be defended And this may serve to answer the Objection concerning the behaviour of the Primitive Christians who as Bishop Abbot observed when they were armed with publick Laws and Priviledges under Constantine did not submit as when they lived under Dioclesian and Licinius but fought in their own Defence and would rather kill than be killed From the Death of Nero the Christians until Constantines Reign thought it a great happiness to injoy their Religion with Persecution they served the present Emperours fought their Battles and took the Military Oaths though the Emperor made
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