says the same of the Empire That Caesar is bound by the Laws And Bodine concerning France Principem contra leges nihil posse rescriptis ejus nullam rationem haberi debere nisi aequitate perinde ac veritati consentanum sint The Historian may be satisfied from these Men that much more than hath been practised by our Nation hath its Approbation in such a Case as we were reduced to But to return home that saying of King James is very memorable That the King is for the Common-wealth and not the Common wealth for the King. Albericus Gentilis Professor of Civil Law saith That he that 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 If our Adversary have declared his Will and is preparing a Power to hurt us we may not tarry to receive the first blow but anticipate the Evil as Gladiators do Yea it hath been always the Practice to put a stop to the Ambition of great Monarchs who have unjustly invaded one Man's Dominions lest he should attempt others hence the Princes of Christendom have been careful to preserve an equal Pallance between growing Empires Thus Baldus says It is a fault to omit the defence of another but of our selves a treachery And Siracide Eccles 4. Free him to whom Injury is done out of the hand of the injurious And Constantine says We ought to account of the Injuries done to others as our own Thus Justine answered the Persians That he ought to defend the Christians whom they would compel to forsake their Religion And Queen Elizabeth defended the Hollanders against the Spaniards who if they had broken down that Pale of Religion as Lipsius calls it would have extended their Tyranny farther King Charles the First in answer to the Nineteen Propositions says The Lords being trusted with Judicatory Power are an excellent skreen between the Prince and the People by just Judgment to preserve the Law Therefore the Power legally placed in Both Houses is more than sufficient to prevent and restrain the power of Tyranny Dr. Ferne pleading his Cause 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 off the King's blows and to restrain him and to preserve the innocent Peter Martyr on Rom. 13. We may not anxiously dispute by what Right or Wrong Princes have obtained their Power but rather make it our business to obey the present Magistrates Judge Vaughan In Cases that depend on Fundamental Principles Millions of Presidents to the contrary are to no purpose Judge Jenkins says We hold only what the Law holds the King's Prerogative and the Peoples Liberties are both determined by Law. And so King Charles the First 's 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 some Lords-Lieutenants he tells them If they would have him grant more Power than by the Law of the Land was in him it was fit that the same should by some Law be first vested in him with full Power to transfer the same The same Judge Jenkins speaking of the Oath of Supremacy says We do not swear that the King is above all Laws nor above the safety of the People but his Majesty and we will swear to the contrary The Law and the Safety of the People are the King's Honour and Safety and Strength And when Hobbs extended the Power of the Prince above the Law the Earl of Clarendon answers That in dangerous Circumstances Men are not to resort so much to the Words of Submission as to the Intention of the Law Givers 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 This may serve in answer to the Declaration That it is not lawful on any pretence whatsoever c. which was past the House not without great opposition by a mercinary Party of Pensioners and was destructive of many ancient Laws and an alteration of the Government making it absolute and in itself null For as Sherringham who learnedly defended Charles the First says Those Laws which are made for the benefit of the Prince and People are Fundamental and Foundations cannot be altered without the Ruine of the whole Building If therefore that Declaration or any other Act is contrary to the Fundamental Laws it is invalid And now we come to that Declaration of the Lords and Commons who as it became the Masters of the Assembly have fixed our Government as a Nail in a sure place They found us as Sheep without a Shepherd and in the midst of many grievous Wolves ready to devour both them and us they considered that the late King had exercised a Power of suspending Laws committed the Bishops for Petitioning to be excused from concurring to that Power That he erected a Court for Ecclesiastical Causes by Commissioners Levied Money without Consent of Parliament kept up a Standing Army disarmed Protestants and armed Papists and Quartered them contrary to Law violated the Elections of Parliament broke the Seal or cast it away and deserted the Government and Kingdom and did thereupon declare that he had abdicated the Kingdom and left the Throne vacant they being assembled in Parliamentary manner did for the Redress of those Grievances other means being denyed them as their Ancestors had done in like Cases declare the Prince and Princes of Orange to be King and Queen of England c. And appointed the present Oath to be taken instead of the Oaths of Supremacy and Allegiance which Methods have been taken in the like Cases by all Nations as well as our own And I know not what Authority or Reason should determine our Judgments if these cannot for let us suppose that the late King at his departure whetherit were forced or voluntary had left behind him in Writing under his own hand a Declaration to the following effect which consisting of undeniable Matter of Fact is no less Authentick We do declare to all the World That the the Church of England as by Law Established hath on all occasions signally manifested all due Loyalty to Our Royal Father and Brother as well as to Our self particularly in opposing the Bill for Excluding Us from the Throne and assisting Us in suppressing the Rebellion of Monmouth for which Reasons we thought fit and just at Our coming to the Crown solemnly to declare Our Royal Intention to support and defend it in all its Rights and confirmed our Declaration by our Coronation-Oath but having wholly devoted Our Self to the Romish Religion and Papal Authority We were absolutely resigned to the Conduct of such as by that Authority were appointed to Counsel and Direct Us who having convinced Us of a Power to
at Arms were not obliged to fight for the one or against the other in this Juncture their Duty was to stand still and wait for the salvation of God which they did and God wrought Deliverance for them as he did for David and they sate down peaceably every Man under his own Vine as free from sin as from danger Rumpatur quisquis rumpitur Invidia Now to remove the Prejudices which the Historian hath insinuated into the minds of some to make them of his own Opinion that such of our Clergy as have taken the late Oath are as wicked as he represents them And to state the present Case aright I shall premise these things to consideration There are Two Extream Opinions which some Men have espoused concerning Monarchy The First Sort hold I. That Monarchy is Jure Divino which would infer that all other Species of Government are unlawful II. That the Monarch hath such an indelible Character of Majesty and Soveraignty inherent in his Person as cannot be erazed or dissolved but by his Death III. That every Supreme Monarch hath an Absolute and Arbitrary Power over his Subjects independent on the People and paramount to all Laws which he hath Power to dispense with as he shall think fit and that the Laws are only Acts of Grace and Condescentions granted by the King. And consequently IV. That though at his Coronation he have Sworn to maintain such Laws yet he is not obliged by his Oath when he shall see cause to do otherwise The Second Sort would depress the Majesty of Kings too low And they hold I. That the Original of all Power is from the People and that they may resume it on Male-Administration The Papists hold That there is such a Power in the Pope who in Case of Heresie may depose one Prince and set up another in Ordine ad Spiritualia And some of the Presbyterial Perswasion affirm the same Power to be in their Synods That Democracy or the Government of the People by a Common-wealth is more eligible than that of Monarchy The Church of England walks in a middle way between these and holds That though the King be not strictly Jure Divina i e. so as to make other Species of Government unlawful yet is he the Minister of God and not of the People though the Power be conveyed Medias Populo That he is in all Causes and over all Persons both Ecclesiastical and Civil Supreme Governor That though he be Supreme yet he is not Absolute to do whatever he shall please That Kings are generally limited either by certain Laws and Agreements with their People or those Ends for which Government was appointed by God. That the Parliament of England have part of the Legislative Power without whose concurrence no Acts of the King do bind the Subject That Kings are bound by those Oaths which they have taken at their Coronation to defend the Religion Laws and Liberties of the People And that our Laws and Oaths are the Measures as well of Government to the King as of Obedience to the People That though the King may dispense with a particular Law pro hic nunc for the Publick welfare wherein Salus populi Supreme Leâ—â— yet he cannot ordinarily dispense with Fundamental Laws to alter Religion and the Species of Government and destroy the Liberties and Priviledges of the People particularly when by Law it is agreed how the Members of Parliament and Officers Militery and Civil ought to be qualified it is not in the Power of the King to dispense with unqualified Members and Officers That although no Degrees of Subjects have Power to co-erce resist or depose the King for Male-administration yet Cases may happen whereby he may exuere personam Regis cease to be King and the Obligation of his Subjects be made void As first in Case of Conquest in a just War when the Conqueror protects the People in their Laws and Liberties and is in a plenary possession especially if the conquered King flies to a professed Enemy of the Nation and seeks to subject or enslave his People to such a Forreign Power 2. In Case of Lunacy and a setled Distraction of Madness which makes him utterly unfit to Govern himself he hath only nomen fine Re no Power of Administration 3. In Case a King obstinately persists to Subvert the Species of Government to alter the Religion to subject his Dominions to the Pope or French King and for want of Power to effect it wholly deserts the Government and not only leaves his People in a state of Anarchy and confusion but he himself enters into a state of War and procures the assistance of Forreign Princes to spoil and destroy the People That no Precept of the Gospel nor any Law of God doth interfere with or annul the Constitutions of a Nation or the general Ends of Government viz. the welfare of the Community for as King James said The King is for the Commonwealth and not the Common-wealth for the King And the End is more Noble and Valuable than the Means That if any Laws be made on an emergent occasion which may prove destructive to the Fundamental Laws and the Publick Welfare such Laws are not obligatory by reason of a previous obligation for the preservation of our selves and of the Community These are the leading Rules which we of the Church of England have followed and which we hope will in the judgment of all sober Men excuse us from those black Characters of Time-Servers Apostates c. which the Historian would brand us with only for transferring our Allegiance from the late King upon whom the Jesuits had practised their Power of Transubstantiating and made him of a King to be No-King to the present King and Queen wherein only for ought I yet see the Historian differs from us for as to the Authorities and Reasons by him alledged we are very near of the same mind And because he says in the conclusion of his Preface That he should be sorry that he hath lost his Labour viz If we be not perswaded to deny and withdraw our Allegiance from King William and Queen Mary I do assure him I am as sorry that his Labour should be lost as he himself can be and to think with how much greater sorrow he may be overwhelmed if his Labour be not lost For what can follow if his Design should take the desired effect i. e. If the late King should return with full Power to execute his whole pleasure in such an arbitrary manner as he began but the total Destruction of our Religion Laws and Liberties in which Case if the Historian be yet a Protestant he must turn Apostate and declare for an arbitrary independant Power in the late King or prepare himself to suffer whatever that King and his Instruments shall think fit to inflict on him which will be no cause of Joy to him though his Labour be very successful Wherefore I desire him to consider whether
bring back James the Second which is by the Law of the Land made Treason against the present King and Queen and if the Historian think himself so bound I suppose he is as faulty in not endeavouring the Restoration of the one as he hath been too Industrious to exclude the other besides those Oaths bound us not only to the defence of the King as if the Government were excluded but expresly to withstand all such as should offer any violence to any of His Majesty's Subjects much more to the whole frame of our Government which too many without any Lawful Commission did with great violence and injustice and we were sworn to defend to our power all Jurisdictions Priviledges c. granted or belonging to the King's Highness not such as were neither granted or belonging as the Claim and Exercise of an Arbitrary Power and dispensing with Fundamental Laws and altering the established Religion as many other actions of the late King were and lastly I suppose that by the plain letter of the Oath of Allegiance which says That neither the Pope of himself nor by any other means with any other hath power to annoy the King's Countries License any to bear Arms raise Tumults or offer any violence or hurt to His Majesty's State or Government or any of his Subjects All which things the Pope by any means or in conjunction with any other the King himself not being excepted hath no power to do by this Oath but having so done the Oath binds the Subjects rather to resist than to assist and doth certainly permit the Subjects if not oblige them to defend themselves against all Opposers In a promissory Oath the matter whereof doth respect things future that matter is subject to change and uncertainty and so is the Obligation also which ceaseth with the matter for then it may not be in the power of the person to perform what he swore to and really intended rebus sic stantibus and no Man is bound to do an impossible thing nor is any Oath so absolute when it is made that it may not admit of some tacite Conditions So Bishop Sanderson in his Praelect 7. § 7. There is Solutio vinculi per cessationem materiae aut mutationem aliquam notabilem factam circa causam Juramenti principalem When the state of things is so changed from the time of swearing to that of fulfilling that if at the time of taking the Oath that change which afterward followed had been fore-seen the person would not have taken such an Oath Thus when Solomon promised Bathsheba to grant her Request and she desired that Adonijah might Marry Abishag one of King David's Concubines which was a kind of Treason for any one to attempt except the Successor Solomon notwithstanding his Solemn Promise instead of performing it swore that Adonijah should dye yet Solomon brake not his Promise because there was a tacite Condition that Adonijah should ask nothing that was unlawful Thus in the Oaths above mentioned we swore to defend the King's Person and the Privilidges and Prerogatives granted and belonging to the Crown this tacite Exception is plainly to be understood that if the King should attempt to subject his Kingdom to a Foreign Power and leaving us in Confusion should put himself under the Power of the French King which is diminutio Capitis a kind of Civil Death and by his Arms seek to destroy the Community and Government which by those very Oaths we were bound to defend the Obligation of those Oaths doth cease upon his attempting such things which if they had been fore-seen and expressed in those Oaths the Subjects would never have taken them Now although some Divines in their occasional Discourses of Government particularly of this of England seem to make it Absolute and indefesable and inseparable from the person of the Prince yet when they come to consider particular cases which they could not foresee or for the odiousness of them and the almost impossibility of happening they omitted the same Divines do agree to the Heads above-mentioned and make Exceptions to their own General Rules as will appear in what followeth hereafter In the mean time I doubt not but the Reader hath observed that as well Divines when they Treat of Law-matters and Moot-cases as Lawyers when they handle Points and Controversies in Divinity are guilty of many Blunders as particularly the Authors of the Erudition who affirm that the Proclamations of the King are as binding as a Law and Bishop Bancroft who told King James in the presence of Cook and other Lawyers That the King might call and Judge any Cause personally in his Chamber But of this we need no other instance than the present Historian who after so great a Deliverance as he must confess the Nation hath had and of which such ungrateful Murmurers as the Historian are unworthy to partake After that the Great Assembly of the Nation have declared their Judgments by their Oaths and many thousands of the Clergy joyned with them presumes after an Histrionical manner to bring them on the Stage and represent them as Rebels Traytors and perjured Persons not without Reflections on their present Majesties as Usurpers to say no worse is a most uncharitable if not an unrighteous deed seeing he stands in a manner Solus contra omnes Had he differed through a doubting Conscience he should have by the Apostle's Rule Rom. 14.22 kept his perswasion to himself and with all Humility and Modesty sought satisfaction and not have published his Opinion against the more mature Judgment not only of our own Nation but of all Christian Princes who do approve of our present Settlement And if my Account fail me not there is not one of an hundred that consent with him and before the Six Months be expired there may not be more then one of that hundred that will stand off and then our Historian may stand alone as Tom of Ten Thousands The PREFACE Considered THE first Paragraph of the Epistle which shews that the Doctrine of Non-Resistance and Passive-Obedience are founded in Scripture c. is admitted as Orthodox and the Doctrine of the Church of England but being delivered in general Rules they admit of some Exceptions and carry with them certain tacite Conditions and Qualifications which in case of great alterations would appear to be necessary and justifiable And I suppose that if such a case as ours now is had been thought of or proposed that Declaration viz. That it is not lawful on any pretence whatsoever to take up Arms c. would certainly be excepted or provided against as in the Case of Edward the Fifth when Richard Duke of Gloucester seized on his Person raised War and granting Commissions in the King's Name it might have been lawful for the then Queen Elizabeth having the Broad Seal brought to her by the Archbishop of York to raise an Army to rescue the King from the Usurper's Power notwithstanding he had raised an Army
One King to Reign over them to Govern the People of God and to maintain the Christian Faith and defend their Goods and Persons in quiet by the Rules of Right and to be obedient to the Rules of Right if he did not so he should lose the Name of a King. Old Fleta speaking of the King's Oath says The King by Vertue of his Oath is especially obliged to the preservation of the Laws and he is therefore Crowned that he may Rule the People committed to him per Judicia by the Laws 15 Edw. 3. Stat. 1. We considering how by the Bond of our Oath we are bound to the observance and defence of the Laws and Customs of the Realm c. And 20 Edw. 3. Moâ—e at large the King declares We perceiving that the Law of the Land which we by our Oath are bound to maintain is less well kept and the execution of the same disturbed we greatly moved in Conscience in this matter desiring as much for the pleasure of God and ease of our Subjects as to save our Conscience and to keep our said Oath c. The like is in the Statute of Provisors King James told his Parliament the same March 21. 1609. That the King is bound by a double Oath to preserve the Laws tacitly as being King and so bound to protect his People and the Laws and expresly by his Coronation-Oath So as every just King is bound to observe that Paction made with his People by his Laws framing the Government thereunto And a King leaves to be a King. and degenerates into a Tyrant as soon as he leaves off to Govern by Law in which case the King's Conscience may speak to him as the poor Woman to Philip of Macedon Either Govern according to Law or cease to be King. And else-where he says If he should not keep the Laws to which he was Sworn he should be perjured But I proceed to the Statute of 11 H. 7. That from thence-forth no Person attending on the King for the time being and doing him true and faithful Service of Allegiance in his Wars should in any-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. Hist of Hen. 7. gives a Reason of this Law as agreeable with 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 King were the Subject should not suffer for his Obedience The Spirit of this Law saith he was wonderful Pious and Noble being like in matter of War to the Spirit of David in matter of the Plague who said If I have finned strike me but what have these Sheep done Neither wanted this Law parts of Prudence and deep fore-sight for it did the better take away from the People occasion to busie themselves to pry into the King's Title for that however it fell out their Safety was provided for besides it could not but greatly draw to him the love and hearts of the People because he seemed more careful for them than for himself To this purpose the Lord Cook p. 7. of his third Book of Institutes 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 de Facto only and not de Jure yet is he within the purview of this Statute and the other which 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 afterwards 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 Lawyers That Melior est conditio possidentis And Judge Hales gives the same sense of that Statute in his Remarks on the Pleas of the Crown Chap. of Treason The Lord Cook says 'T is against all Reason that the King 's Politick Capacity may not be separated from his Personal seeing his private Will is distinct from his publick Will exprest in the Law. Littleton in his Tenures Title of Homage Sect. 85. says Allegiance is due to every one in Possession that becomes King and to no other And Judge Popham in his Reports fol. 16 17. mentioneth a Case to our purpose Richard the Third granted certain Priviledges to the City of Gloucester with a Salvo to him and his Heirs And in Queen Elizabeth's days it was questioned whether the Salvo did pass to her she not being Heir to King Richard and all the Judges did Resolve that the Salvo did pass to her Sir Edward Cook 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 manner as the Parliament by special Acts hath prescribed And p. 147. That the Right of Electing Sheriffs was anciently in the People as in London York Bristol c. So the Heretochs or Lord-Lieutenants in every County were chosen by a Folkmote in their Counties Lambard Arch. p. 135. And Spelman on the word Legiantia says it is Archius vinculum inter principem subdites It would be tedious to relate all that Grotius hath said though very pertinently and rationally I shall name a few of such Observations as come home to our Case l. 1. c. 4. § 7. n. 3. It is to be observed that Men did not at first unite in Civil Communities by any Command from God but voluntarily and from the experience they had that private Families were unable to resist Foreign Force from hence grew Civil Power which St. Peter calls a Humane Ordinance though elsewhere it be called a Divine because God approved it as convenient for the good of Mankind but when God approves of a Humane Law he must be supposed to do it after a Humane manner L. 2. c. 14. § 4. That Promises fully made and accepted do naturally transfer a Right and this holds as well in Kings as in private Persons L. 2. c. 13. n. 16. If a Promise confirmed by Oath be grounded on a Condition whereto it related that Condition not being performed makes the Promise void or if the Quality of the Person cease the Oath sworn to that Person in relation to his Quality doth cease also L. 2. c. 13. n. 18. Every Contract though sworn is to be understood with this reserved Condition That matters continue in the same state A wise Man saith Seneca changeth not his Resolution all things continuing as they were when he made it nor can he be said to repent because at that time no better Counsel could be followed than that he resolved on l. 2.