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
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
incipit bellum And it is to be considered that the Bishop wrote this in the Case of Charles the First from which this of James the Second differs toto caelo To those that are not yet reconciled to the now Established Government I shall offer these Considerations First Whether the present King had not a just cause for Invading the Kingdom Secondly Whether having Invaded it and obtained a full and peaceable Possession by a general consent of the People he hath obtained a rightful Title The Causes that do justifie the Invasion are these 1. The Vindication of his Lady's Title which was in a manner endeavoured to be ravished from her by a Prince whose Birth was so much suspected and whereof the Nation was so generally convinced 2. The Invitation of the Subjects Lords Spiritual and Temporal with many Commons groaning under an Arbitrary Power Popery and Slavery for which cause many Lords and Commons had left the Kingdom and sought protection from the present King and came in with him 3. The present King was made the Head of the Protestant Party by those Princes who undertook the Defence of the Reformed Religion against the Popish Princes that had confederated to root it out and a better method could not be taken than to begin with England where if the designs for Popery had succeeded the Protestant Cause had been almost desparate which is now in a hopeful way of Establishment These Causes are so sufficient to justifie the Invasion that I think no good Protestant will doubt of them and as little doubt can be made of the second Consideration that he who on such just Grounds Invades a Kingdom and having gotten a full and quiet Possession is by the general Consent of the People accepted and declared their King hath a lawful Right and Title for first Ubi desinunt judicia incipit bellum and as Law Suits so War may be waged for prevention of Injuries not yet done As Livy says Justum est bellum quod necessarium est pia Arma quibus nulla nisi in armis relinquitur spes When it is manifest our sitting still will make our Condition worse we may adventure on the danger of War. The War was begun by the French King and his Confederates against the Prince England was like to be in the Confederacy by what the King acted and endeavoured against the Protestant Religion And Tune tua res Agitur This is the first Cause that Justifies the War on the present King's part the second Cause is the Recovery of the Right which his Lady and himself had to the Succession which was in a manner taken from them Grotius de Jure Belli l. 2. c. 1. sect 2. De rebus repetendis proves this at large in a considerable Paragraph to which I refer the Reader And of this I shall give but one or two Instances among many in the Scriptures Abraham's War on the King of Elam who had spoiled Sodom was just Gen. 14. And so were the Wars of Israel against the Assirians and other Nations that invaded their Dominion and would have kept them from them of this there can be no doubt nor can secondly the Vindication of a People oppressed by their Prince against the Laws of God and the Land if a Father seek the destruction of an innocent person his Son may piously restrain his Father from that act which would not only ruine the innocent in this World but himself in the World to come So that this War for the asserting the Title of the Prince and Princess to the Crown and for the defence of our Religion against the Confederacy of Popish Princes to extirpate it which is matter of Fact may appear most Just for tho' Religion may not be propagated by Arms yet it may be defended where it is Established by Law against forreign Powers that conspire the destruction of it Grotius l 2. c. 25. n. 4. approves a War on behalf of Confederates For he that doth not repel an Injury from his Confederates if he can is as much in fault as he that doth the Injury He commends Constantine for making War on Maxentius and Licinius who persecuted such of their Subjects as were Christians only for their Religion Grotius l. 2. c. 20. n. 39. Injuries begun only are not to be vindicated by Arms unless the matter be both very weighty and be already proceeded so far that from what is already done either a certain mischief tho' not yet what was intended hath already befallen or some extraordinary danger do threaten thereby If an Enemy hath once assaulted me and comes armed with a resolution to kill me I am not to tarry till he comes within reach of me and receive his Weapons upon my naked breast but seasonably to prevent him And l. 2. c. 25. n. 8. Those Princes who are free may make War for themselves or others And tho' we should grant that Subjects might not take Arms for their own Defence against their Prince no not in case of greatest necessity which yet is doubted even by those whose purpose it was to defend Regal Power yet it follows not that other Princes may not take Arms in their defence that which is unlawful for one to do for himself by reason of a personal impediment may be lawful for another to do for him As in Affairs of the Church the Bishops are said to take on them the care of the Vniversal Church so beside the care of their particular Dominions Kings assume the general care of Humane Societies Seneca resolves Bello a me peti potest qui a mea gente sepositus suam exagitat And Cicero That War should be undertaken only that we may live in Peace and not be injured It will be objected That God will take care of our Religion Deorum injuriae diis curae perjurium satis habet deum ultorem Answer So it may be said of other Sins which God will punish yet the Laws are justly executed on the Offenders by the Magistrate as all grant And if it be objected That such Offences are punished not so much as committed against God as for the damage done to men Ans It is observed that not only such Offences are punished by men as are directly committed against other men but such as by consequence may be prejudicial to others as Self-murder Sodomy c. for tho' the principal end be to procure God's favour by punishing such Crimes yet it is done also to prevent the influence and notable effects on Humane Societies See l. 2. c. 20. n. 44. It may be farther objected That if we wholly forsake the King we shall justifie the Rebellion against King Charles the First who was charged with designs of bringing in Popery and Arbitrary Government Illegal Impositions Evil Counsellors c. Ans I suppose the Objectors that are so tender of committing any act of Disloyalty against King James the Second will by no means approve of what was done against
Oaths to do so for they are not Kings unless they govern and they cannot expect Obedience unless they tell the measures by which they will be obeyed and these measures cannot be any thing but Laws which are the will of the Prince which when published to the People then they are Laws If Kings be not bound to govern the People by Laws why are they made By what else can they be governed By the will of the Prince The Laws are so which are published that wise men may walk by them and that the Prince may not govern as Fools or Lions by chance or violence and unreasonable passions Ea quae placuerunt servanda saith the Law l. 1. de Pactis If this had not been the will of the Prince it had been no Law but being his will let it be stood to And p. 143. Whatsoever the Prince hath sworn to to all that he is obliged not only as a single person but as a King for though he be above the Laws yet is he not above himself nor above his Oath because he is under God and he cannot dispense with his Oath and Promises in those cases in which he is bound Although the King be above the Laws that is in cases extraordinary and matters of Penalties yet is he so under all the Laws of the Kingdom to which he hath sworn that although he cannot be punished by them yet he sins if he breaks them And p. 149. he says The Prerogative of Kings is by Law and Kings are so far above their Laws as the Laws themselves have given them leave And p. 143. The great Laws of the Kingdom do oblige all Princes though they be supream The Laws of the Medes and Persians were above their Princes as appears in Daniel And such are the Golden-Bull of the Empire the Salic and Pragmatical Sanctions in France the Magna Charta and Petition of Right in England That great Emperour C. de Legibus l. 4. Digna vox est Majestatis regnantis legibus allegatum se principem profiteri A Sentence worthy of the Majesty of a Prince to profess himself tied to his Laws Pareto legi quisquis legem Sanxeris was the wise saying of Pittacus And the distinction of the Directive Power of the Laws and the coersive is futilous for a Directive Power is no power and a Law doth not only direct but oblige Thus the Emperour Theodosius Tantum mihi licet quantum leges licet Augustine l. 4. c. 4. De Civitate Dei Quid sunt Regna nisi magna latrocinia remota justitia quae est legum effectus The intention of the Coronation-Oath is to oblige the King not to invade the Rights of the Subjects and the Established Clergy and it is sworn to the Bishops by whom the Oath is administred And St. Aug. Epist 225. says Expectationem eorum quibus Juratur quisquis decipit non potest non esse perjurus Whoever deceives the expectation of him to whom he hath sworn is guilty of Perjury It may be said that by the Church and Bishops the King might intend such as were of the Roman Communion but the express letter of the Oath is contrary viz. With a willing and devout heart I promise and grant that I will preserve and maintain to you and the Churches committed to your charge all Canonical Priviledges and due Law and Justice and that I will be your Protector to my power by the assistance of God c. To this Evasion St. Augustine gives a check Epist 224. Quacunque arte verborum quis juret Deus tamen qui Conscientiae testis est ita hoc accipit sicut ille cui juratur intelligit By whatever art of words any one sweareth God who is Witness of the Conscience doth so take it as he to whom he sweareth doth understand it And Bishop Sanderson blackneth such a practice with the Sin of Perjury Alterum perjuris Genus est ubi recte juraveris non sincere agere sed novo aliquo excogitato commento salius tamen verbis vim juramenti declinare evadere Praelet 6. de Juramento s 7. Such a practice is contrary to the qualifications of an Oath Jer. 4.2 Thou shalt swear The Lord liveth in truth in judgment and in righteousness And in a Prince that so sweareth the Nations shall bless themselves and in him shall they glory But how can they hope that he will punish Perjury in others that is guilty of it himself To this I shall onely add what Grotius says l. 2. c. 14. s 4. de Jure belli That Promises fully made and accepted do naturally transfer a right and this holds as well in Kings as in private men Their Opinions therefore that hold that a King promising without a good cause is not obliged are not to be allowed It was nobly done of Henry the First when the Pope offered to Absolve him of his Oath answered Who will ever trust another when they see by my example that an Absolution can make void the highest Bond of Faith. See Eadmer's Hist p. 126. And where there are mutual Stipulations between Parties with Conditions expressed if either Party fail in performing the Condition sworn to on his part the other Party is not bound to perform what he was sworn to So Bishop Sanderson p. 177. de Jurament If Caius swear to give Titius an hundred Pounds on condition that Titius assign to him such a parcel of Ground at a certain day which Titius refuseth to do Caius is disobliged And p. 216. De Cons A Subject is not ordinarily bound to obey a Law that is very greivous to the certain ruine and destruction of himself and Family unless some great Necessity or publick Danger do appear And p. 202 he shews That when the subject matter of the Oath ceaseth the Obligation also ceaseth as when the state of Affaires between the time of swearing and of performing the Oath is so changed that if he that swore could have foreseen such a change he would not have sworn As if a Father swear never to alter his Will wherein he had made his Son to be his Heir and afterward his Son attempts to poyson him the Father may appoint another Heir notwithstanding his Oath the reason is because the root of the Obligation which gave occasion to the Oath being taken away the Obligation also is taken away And it is a Maxim in the Civil Law Cessante Causa cessat Lex Grotius l. 2. c. 5. n. 17. thinks no question but a King by a long continued permission may warrant a People to recover their Liberty on a presumption that the King hath left it to them Grot. l. 12. c. 4. n. 14. Bishop Andrews gives us these short but useful Rules concerning Oaths 1. If what we swear to be simply evil the Rule is Ne sit Sacramentum pietatis vinculum impietatis 2ly If it hinder a greater good then Ne sit sacramentum pietatis impedimentum pietatis 3ly If the Oath be
Heirs without respect to the right Heir whom he had not yet married and for ought they knew never intended of which his strange carriage towards that good Lady whom he confined to live with the Queen Dowager her Mother in London but he kept Edward Plantagenet the Son and Heir of George Duke of Clarence close Prisoner in the Tower might give the Nation just cause of suspicion that he intended to Reign by his own Title as Heir of the House of Lancaster or as Conqueror without any respect to the Title of the House of York And he intended faith the Lord Bacon that it should be so believed for to the Act of Parliament he added the Pope's Bull for confirmation But in our Case much more Justice Wisdom and Moderation did appear the Title of the right Heir being united to that of our Deliverer and the Crown intailed on the right Line the present Administration being by consent and in the name of the King and Queen which was not observed in the Case of Henry the Seventh and the consent of the Princess Anne being also obtained who hath now a nearer prospect of the Crown than otherwise she could have hoped for Nor is the making of the Convention a Parliament without a President for in the year 1660 when General Monk had summoned several Members in the like manner but not so free there being many of the King's Party excluded yet they were made a Parliament by the King notwithstanding any want of the King's Writs Anno Car. 2di 12o. And as to the Rational Part of the Answer let it be considered That a Nation must unavoidably run into Confusion unless such a means may be used for suppose the Royal Line should be extinct there can be no fitter means to settle a Government than by such a Convention duly chosen and the Agreement of the Lords Spiritual and Temporal who want only the Royal Writ to Summon them and that not being to be had the Nation may do what is in their power to prevent that Confusion which the King 's deserting them and carrying with him the Broad-seal leaving two Armies in the midst of the Nation by reason whereof it might in a short time have been as ill with us as it is now with our distressed Brethren in Ireland made necessary and Necessity hath no Law superiour to it This therefore may be an Answer to those that object against the too great hast in proceeding to a Settlement before a Parliament could be regularly called by Writ for considering the great Destraction of the Nations and the ill Circumstances wherein this and the Kingdom of Ireland were The delay of a speedy Establishment might have unsettled us for ever for the King having either deserted the Government or being driven from it and another being fully possessed of the Kingdom the common Safety would soon be destroyed if either the prevailing Power should be resisted or some person not be admitted for the Administration of Justice and Prevention of Violence As when a Ship master forsakes his Ship in a Storm and his Mate thrusts himself into his Office to guide the Ship if the Mariners will not presently obey him as long as he guides the Ship towards the Harbor the Ship must likely perish and the Mariners in it Or if the right Master should be utterly disabled by Sickness or Destraction to perform his Office may not another assume his Office by consent of the Mariners 'T is King James the First 's saying The King is for the Commonwealth and not the Commonwealth for the King The end is alway accounted more noble than the means And unless it should be granted that a King in plenary Possession ought to be acknowledged and obeyed I cannot see on what ground our Saviour commanded Tribute to be given to Caesar or the Apostle injoyned Subjection to the Higher Power The Powers then in being being such as usurped on the Senate and were set up as Emperours by a part of the Souldiary their best Title being the Approbation of the Senate Ex post facto The Usurpation of Julius Caesar is too well known to need a Relation and that could not give a sufficient Title to Augustus against the Claim of the Senate the Argument of our Saviour for paying him Tribute was because the Money bore his Image as also the Money in the days of Julius Caesar bore his and so may be an argument for paying Tribute to any Prince whose Money is current in a Nation But this will be more evident by considering who was the Prince in being when the Apostle wrote his Epistle to the Romans which was either Claudius Caesar or Nero and the most credible Historians inform us that on the death of Caligula the Consuls and Senate advised how they might restore their Commonwealth to its ancient Freedom taken from them by the Caesars but being too slow in their Resolutions because of Dissentions among themselves it hapned in the interim that Claudius having hid himself being frighted with the news of Caligula's death was discovered by a common Souldier who knowing him saluted him Emperour and led him forth to his fellow-Souldiers with whom he remained a part of the night Minore spe quam fiduciâ saith Suetonius the Consuls and Senate then sitting in the Capitol consulting for their common Liberty sent for him by the Tribune of the People to have his Advice therein the Souldiers and People assembled desired that one might be forthwith named for their Emperour on which Claudius took courage and promising Rewards to the Souldiers being also pittied by the People who thought him designed to suffer punishment they saluted him Emperour Tacitus gives alike relation of Nero his Successor Annal l. 12. That Agrippina his Mother concealing for a time the death of Claudius kept the Palace Gates shut and pretended great kindness to Britanicus the eldest Son of Claudius until she had contrived to make Nero Emperour and having gotten the Praefect of the Bands then on the Guard to her Party sends out Nero accompanied by Burrhus to the Guards where while some expected Britannicus to follow the Praefect and Souldiers to whom Rewards were promised saluted Nero Emperour Now one of these thus advanced to the Empire by the Souldiers was undoubtedly the Emperour then in being when the Epistle to the Romans was written to whom Obedience is required for Conscience sake as to the Ordinance of God if it be replied that the Senate did afterwards confirm them in the Empire that will not vary the present Case the present King and Queen being also confirmed by Parliament That which hath been said leads me to consider these Scriptures which seem to confine our Obedience only to the lawful Powers yet some learned and good men have given such a sence of them as may raise a doubt whether they speak of a King de Jure only or de Facto and if of a King de Jure only then of such a
true Mother of the Child had greater tenderness of its life than the pretended Mother so the true Prince may be presumed to have a greater regard to the welfare of the People than the Vsurper Claudian to Honorius Tu civem patremque geris tu consule cunctis Non tibi nec tua te moveant sed publica vota As a Mariner is supposed to intend the guiding of his Ship to a safe Harbor and a Physician to intend the Health of his Patient so is a Prince presumed to intend the prosperity of his People which is the great end of Government Bishop Bilson goes farther speaking of the Roman Cruelties says They are such as are able to set good men at their wits end and make them justly doubt since you refuse the course of all good Laws Divine and Humane whether by the Law of Nature they may not defend themselves against such barbarous blood suckers For whatever is attempted on us without Law is force and we may vim vi repellere as in the case of a Sheriff taking possession on a Judgment if a Prince should commission armed men to oppose him in the execution of his Office he may lawfully resist them and the Law doth indempnifie him the Princes Private Will cannot make void his Publick Will formerly declared and published in his Laws This hath been the sence and practice of our own and other Protestant Nations of our own in the Case of the Queen of Scots who brought French Forces into Scotland to withstand the Reformation endeavoured by the Nobles the Clergy of England gave a Subsidy of 6 s. in the Pound to defray the Charge of that War and call it her using all prudent and Godly means 5 Eliz. ch 24. ch 27. The Temporalty call it The princely and upright preservation of the Liberty of the Realm and Nation of Scotland from eminent Captivity and Desolation And for abating Hostility and Persecution within the Realm of France there were Forces sent under the Earl of Warwick to New-haven to assist the French Protestants which was then accounted a Godly and prudent means to abate Hostility and Persecution practised against the Professors of God's Holy Gospel And in the 35 of Eliz. ch 12. was another Subsidy granted by the Clergy for the Queen's Charges in the prudent and needful prevention of such Attempts as tended to the Extirpation of the sincere Profession of the Gospel both here and elsewhere And Ch. 13. the Temporalty gave this Reason for their Subsidy Besides the great and perpetual Honour which it hath pleased God to give your Majesty abroad in making you the principal Support of all Just and Religious Causes against Vsurpers besides the great Succours in France and Flanders which we conceive to be most Honourable in regard of the ancient League the Justice and Equity of the Causes c. And in 39 Eliz. ch 27. they say This Land is become since your Majesty's days both a Port and Haven of Refuge for distressed States and Kingdoms and a Rock and Bulwark of Opposition against the Tyranny and ambitious Attempts of mighty Vsurping Potentates And in 43 Eliz. ch 17. The Clergy say Who hath or should have a livelier sense or better remembrance of your Majesty's Princely Courage and Constancy in advancing and protecting the free Profession of the Gospel within and without your Majesty's Dominions than your Clergy And we cannot doubt but they would have acted the same thing for their own Preservation which they approved and encouraged others to do The Protestants of Saxony and Lantgrave being seven Princes and Twenty four Cities declare That the Emperor was reciprocally bound to them as they to him and that he had dissolved their Obligation of Allegiance by casting them out of their Possessions and endeavouring to destroy their Religion which unjust Attempts have not God for their Author Nor are we otherwise bound to Caesar than on his performing the Conditions on which he was created Caesar Sleidan lib. 18. The Magdeburg Divines affirm the same Sleidan l. 22. Where the Laws and Constitutions of a Government allow of a defence the Gospel doth so too for it doth not alter the Laws of a State which may be an Answer to what is urged from Rom. 13. for the Obligation of all Subjects is such as the Laws under which they live do require The Oath of the Subjects of the King of Poland hath this Salvo in the Oath of the King Quod si Sacramentum meum violavero incolae Regni mei nullam nobis obedientiam praestare tenebuntur In Richard the Second's time the Parliament declared in a Statute of Praemunire That the Crown of England hath been so free i. e. from the Incroachments of the Pope at all times that it hath been in no Earthly Subjection but immediately subject to God in all things touching the Regalty of the Crown and God defend say they that it should be submitted to the Pope and the Laws and Statutes of the Realm be by him defeated and avoided at his pleasure in perpetual destruction of the Soveraignty of the King his Crown and Dignity and of all the Realm and therefore they declare That they and all the Leige Commons of the Realm will stand with their Lord the King and his Crown and Regalty in the cases aforesaid viz. purchasing of Bulls from Rome executing Judgments given in that Court Translating of Bishops c. and in all other cases attempted against him and his Crown and Regalty in all points to live and to dye And they pray the King and him require by way of Justice to Examine all the Lords in Parliament as well Spiritual as Temporal severally and all the Estates of the Parliament how they think of the causes aforesaid which be so openly against the King's Crown and in derogation of his Regalty and how they will stand with the King in upholding the Rights of the said Crown and Dignity And we find by a Letter of King John's to the Pope That if the King would yet the Barons would not submit to King or Pope in those cases How contrary to this Statute of Praemunire did they act that instead of a strict enquiry after such as endeavoured to subject the Nation to the Usurpations of Rome did closely and particularly examine both Lords and Commons whether they would submit to the introducing that Usurpation and upon their Refusal were presently discharged of their respective Offices and excluded from the Prince's favour Was not this to subvert a Fundamental Constitution of the Government And by that Act to incur a Praemunire Carpzorius an approved Author de Capital Caesarea says c. 1. p. 15. There is no King or Supreme Prince in the Christian World whose Power some certain Compact made with the several Orders of the People may not restrain and limit and which are not bound by the Capitulation Reinkinck says the same of the Emperor de Reg. Secul l. 1. Class 3. p. 76. That Caesar
King Charles the First but they are afraid of the reproach and scandal as if they did allow of that by doing the like But the Case is extreamly different the one King being a well-resolved Protestant the other a seduced Papist Charles the First gave as great assurances of his constancy in the Protestant Religion by taking the Holy Sacrament publickly and purposely for the satisfaction of his Subjects by disputing for it against Papists by charging his Children against it a little before his death and even then giving a full Testimony of dying in it But James the Second contrary to his Education and his Royal Father's Charge deserted that Religion espoused Popery and resolved to introduce it to his Kingdom which he deserted rather then he would forego that design His Father lost his life to preserve the Church and the Established Religion which King James industriously sought to destroy and in fact he had destroyed the Government Established before he deserted the Kingdom 2ly There was a great disparity in their actions tho' Charles the First was unhappily forced from the full Administration of the Government and Protection of his Loyal Subjects yet he kept within the Kingdom and endeavoured to assert his and his Peoples Rights not by the Sword only but by many Treaties and gracious Condescentions such as satisfied all sober persons even among his Adversaries as by their too late Votes on that behalf appeared He did not declare that he was Absolute and expected Obedience to his Commands without any Reserve he did not Imprison his Bishops only for Petitioning in a matter of Conscience as James the Second and the Enemies of Charles the First did Fears and Jealousies or very light Impositions on the People for urgent Necessities were made the Ground of the War against Charles the First but real and intollerable Greivances such as the Subjects could not bear nor knew how to remove 3ly There is a great disparity in the adverse Parties Charles the First was opposed by his Subjects James the Second by a free Prince to assert a just Right the better part of Charles the First 's Subjects adhered to him and dyed for him and at length the whole body of the Nation being convinced of the Injustice of the War recalled Charles the Second to succeed his Father And I hope no man will compare the Benefits we have received by the present King's proceedings with the Mischiefs that we endured and expected greater not only from the Vsurpers on Charles the First but the transactions of James the Second And such persons do as surely deserve as they will draw on themselves that Popery and Slavery which they abhor who are not satisfied with that happy Deliverance which they now injoy and by their Thankfulness and Obedience to God and the King may be confirmed to them and their Posterity so that I am well perswaded that they who ingaged against Charles the First were highly criminal and that they who since James the Second deserted the Kingdom shall ingage for him are really peccant The second Consideration is Whether the King having on these grounds begun a War and gotten quiet possession of the Kingdom and by the People acknowledging the Right of his Lady to the Succession on the Vacancy by Desertion are proclaimed King and Queen have a just Title and such as we ought to swear Allegiance to As to the Vacancy of the Government I have said enough already and all will grant that if a Crown be Forfeitable ours was forfeited Now in case of this Vacancy the Right of Succession by our Laws is in the next Heir which is the present Queen and that she ought immediately to succeed because by a Maxim in our Laws the King never dies and the sole Administration is to be in her and therefore it is objected That we cannot swear Faith and true Allegiance to any other Answ Seeing all Oaths and Acts that oblige the Subjects are in the name of the Queen as well as of the King we pay our Obedience where it is due and this may satisfie the Conscience of every one as to our present Condition at least until there be a separation made And if the sole Power should be devolved on the present King the consent of the next Heir being obtained to whom is the Injury done Not to the Princess Anne for velenti non fit injuria not to the People for the same reason they having expressed their consent but this hath its President in the Case of Henry the Seventh as is already said If in discussing the Right of Succession a question do arise concerning the Primary Will and Intention of the People at the first Institution of a Kingdom it is not amiss to take the Advice of the present People i. e. of the Nobles Clergy and Commons as Cambden says of England Anno 1571 1572. Grotius l. 2. c. 7. n. 27. And the Equity of it seemeth apparent that he who redeemed the Crown may wear it by consent of the People and the consent of the right Heir nor can the People be blamed for joyning in such consent because it hath been thought a Duty in Gratitude that such Heroes as have vindicated a People from Thraldom and become great Benefactors to them have been by consent of the People acknowledged their Kings So Aristotle Polit. l. 3. c. 10. n. 89. And in such a juncture of Affairs the whole Protestant Cause lying at stake the Kingdom of Ireland being possessed by Papists and many Divisions in our own Nation there is need of more than the Authority of a single person The Act of 13 of Eliz. asserts it to be in the Power of the Parliament to alter or limit the Succession And as to matter of fact such alteration hath been made for in the Cases of Queen Mary and Queen Elizabeth the Succession was altered because one of them was Illegitimate Again Quod fieri non debuit factum Valet The necessity of Affairs that inforc'd it may speak much in defence of it As Josephus says of the Jews submitting to the Roman Emperours That having submitted to them they ought not to make resistance And if by tract of time an Empire which was unjustly acquired may justly be submitted to because of an implicite Consent of the People to such an Empire I see no cause but the express actual Consent of a People to a Prince may justly oblige them Such a Consent of the Senate and People to the Roman Emperours was the ground of our Saviour's Injunction for paying Tribute and of the Apostles requiring Subjection to them And so we may conclude as Hushai did 2 Sam. 16.18 Whom the LORD and this People and all the Men of Israel shall choose his will I be and with him I will abide FINIS