Constitution I think it will not be deny'd me that where-ever there has been a direct contravention to either of those fundamental Supports of our Government it hath caused a subversion of the Government it self I must now apply what I can of this to the late King and see whether One or Both of those Fundamental Supports of our English Government were not sorely shook or subverted by Him. As to the First That all the Laws the People of England are governed with be made in Parliament it is as plain as the Sun at Noon-day that this was subverted by the late King Notwithstanding at his first taking his Chair at the Council-board upon his Brother's Death He declar'd He would Govern by Law and that the Laws of the land had made the King as great as He desir'd to be yet he did certainly change his Mind within less than six Months and set up for an Arbitrary Power over the Laws by dispensing with them Now that dispensing with the Laws of the Land is to all intents and purposes the Making of Laws by his own Authority without Concurrence of Parliament is what your Lordship heard so learnedly and so clearly proved at the Seven Bishops Tryal by your Council and what may be shewn in a very few words I will instance only in the Recusants Who were not only made uncapable by the Laws of the Realm of Civil and Military Commands but of keeping their Conventicles here This was the Recusants Condition by the Laws and they could not be deliver'd out of this Condition but by a Law which should annul the former Laws against them and make them as capable of Places of trust as any of the Members of the Church of England Now did not the late King by his Dispensing Power and his Sole Authority make such a Law for them Did He not annul all the Laws in force against them and qualifie the Recusants and put them into Places of Trust What could any Law made by the true Legislative Authority a King with his Parliament have done more for them than the King himself without a Parliaments Concurrence did I think my Lord this Instance sufficient to shew that the Dispensing Power which King James used was to all intents and purposes a Legislative Power since as I have prov'd it no Law could have done more for any persons aggrieved than this Power and therefore that This was a direct Subversion of our Government the chief Fundamental of which was that the Laws should be made by the King and Parliament And if our Constitution was subverted I cannot see how his Legal Kingly Power was not subverted with it nor that our Oaths to Him were not at an end when the Constitution we swore to was dissolved and He had of himself divested himself of and laid aside that Authority which we only swore to submit to and defend If your Lordship should ask me when this Dissolution of Government happen'd I think I should be able to fix the Time Your Lordship does remember that upon the Duke of Monmouth's Rebellion the late King gave Commission to several Popish Officers this was the Forerunner of it but when upon the sitting down of the Parliament in October afterwards He not only in his Speech told his Parliament that He had done it but that He was resolved to stand by it and thereupon dismist his Parliament for their opposition to it He finisht his Design and our Ruin and from that Moment I look upon the English Constitution to be altered and must lay my finger upon this as the compleat Subversion of our Legal Government I know some will be offended at my urging this Practice of a Dispensing Power so far as to make it a Subversion of our Government and will not endure to hear that a King of England can forfeit or fall from his Authority I am very ready my Lord to beg these Gentlemens Pardon if they would but allow me one satisfactory Argument to prove that a Dispensing Power is not of that fatal consequence to the Legal Power of Legislature that I have suppos'd it to be Non est Rex ubi dominatur voluntas non Lex Bracton but till that is proved to me I think I should deserve very great blame if I did not make the Dispensing Power to be what in reality it is a Subversion of our Constitution And for a forfeiture I would only know why such a thing must be lookt as monstrous intolerable nay impossible in England Suppose the late King besides his letting Papists into all Places of Trust against the plainest and the severest Laws and his subverting all the Laws made in defence of the Church and Government of England by laying them aside for the Dissenters sakes had been pleased to impose what Taxes He pleased upon his Subjects and had levyed them either by his own Army or by Dragoons borrow'd from France and had for the furniture annull'd all the Laws made in Defence of the Church of England or the Rights and Properties of the Subject and had laid every other Law aside by his Royal Edicts which all men should obey without reserve as much as he had done those made for the security of the Church of England by his Declaration I would only know by what name to call such Practices and whether our business in such a case is only with patience to suffer a King wholly to alter the frame of Government and to make Bondslaves of those who were his Freeborn-Subjects born to the Protection and Priviledges of Laws This is my Lord no wild or unreasonable Supposition I am afraid that we should have been able had the late King continued but a year or two longer upon the Throne not to have been put to the trouble of making these Supposals but to have instanced in them as we now do in the Declaration for Liberty of Conscience One would think that such Practices which seem to be the plainest Instances of the Subversion of a Government should be so most especially of his share in it who was guilty of them and he that will not allow any forfeiture or destruction of a King's share in a Government by such a subversion of it will find it hard to maintain That a Government subsists tho' it be destroy'd and that a King hath not destroy'd his own Power tho' he hath quite ruin'd that Government in which and by which He enjoy'd it My Lord I am not willing to aggravate the Faults of any nor to make the Consequences of them look more ghastly than they are of themselves much less would I be guilty of such a thing towards Crowned Heads however I am not able to alter the appearance of this That the Publick Safety and Happiness can never be secured in any Constitution whatever and that the Ends of Governments are quite lost if that Person who subverts any particular Government do not at the very same time destroy or forfeit let Men
because He was resolved to come back to destroy our Religion and to be reveng'd of the Nation My Lord I think such an Animus revertendi to be so far from making the Dereliction lame and void that is is as good a Proof of making the late King's Action a compleat Dreliction as if He had left it attested under his Hand and Great Seal that He would never return to us or this Government more For my own part I am perswaded that the late King withdrew himself voluntarily and by the Advice of popish Counsels out of this Kingdom I am perswaded that He went off with an Animus revertendi and I am as fully perswaded that the Inâ—ention of his returning was to ruine our â—roperties and Laws and to destroy our Reformed Religion or to put it into the Popish Dialect to have his Ends of us From the first of these to wit his withdrawing voluntarily I am satisfind that the late King James's Government and our Allegiance to Him are fâ—llen and the last of them the Intention of his Return will I hope satisfie all others as much as it has done me that we have no tempting reasons either to wait for the lat King's Return or to accept of his Government if He should get back I must now my Lord go on to another Consideration for there are some who are little satisfied notwithstanding all the Evidence that can be offered about the King 's voluntary withdrawing himself as they were at his misgovernment being urged as the destruction of his Royal Dignity And tho' these Gentlemen have not agreed with me thitherro yet in this last Consideration they must concur with me and that is That the late King was conquered by the Prince of Orange and driven away involuntarily at least So that if by this Conquest He was was put out of the condition of Governing and Protecting us we were as much depriv'd of the liberty of paying Obedience to him who was now driven from us The Business to be examin'd here is What sort of a Conquest this was and whether it was a just one such a one as by reason of which the People of England might lawfully submit to the Conquerour of their King To begin with the Expedition of his then Highness the Prince of Orange there appears to be all the Reasons in it that could justifie such an Invasion or make a Conquest just and good The Prince was no Subject of England but a Sovereign Prince who made this Descent into our Nation against our late King in defence of his own Rights as well as of ours and therefore his Action could upon no account be still'd a Rebellion But the Cause of his Expedition is above all other things to be enquired after for that must be the chief thing that can justifie the Revolution here and ought to be highly reasonable and such as can give satisfaction to all wise and indifferent Men since tho' the Prince of Orange were never so much a Sovereign Prince yet if he had not a very justifiable Reason of coming hither with an Army his Expedition had been altogether a most unaccountable Action and his Conquest unjust Now to give all the satisfaction requisite to this justest Scruple the Princes Reasons for coming hither in that manner appear to be as just and as good as his Success was great and if ever one Prince's Invasion of another Prince's Kingdom were to be justified the Prince of Orange's was For to instance in one or two of these Reasons He himself as well as his Princess had most undoubted Right to the Succession of the Crown of England and the Dominions belonging to it after the death of the late King James This Right was notoriously set aside or made wholly useless to Them by the Arts and Counsels of those Papists who were about the King and did influence him The Imposture of a pretended Prince of Wales was thought of and pitcht upon as the most effectual Bar to either of Their Titles and did set Them as well as Her Royal Highness the Princess Ann of Denmark aside and deprive All Three together of their Rights of Succession and provide effectually against a Protestant Successor the only Person the People then in Power at Court were afraid of But to wave the Instance of the setting up a pretended Prince of Wales betwixt these Protestant Princes and their Right of succession because the Proof of that Imposture has not been laid open as it might have been to the World and therefore cannot so strictly be insisted upon tho' most people even those who are dissatisfied about the present Settlement are satisfied of the Imposture the Right of Succession which was in the Two Royal Princesses and the Prince of Orange was made wholly useless to Them by the late King 's putting the Government of part of the Dominions of the Crown of England into such hands as would not deliver them up or submit to any Protestant Successor Ireland is an evident proof of this where all Offices Civil and Military contrary to the Laws of the Land were put into Popish Hands and such a biggoted Irish Papist was made their Governour as that whatever Rogueries or violences the Papists should be guilty of towards the British Protestants among them they should never need to fear being call'd to account being certain that his own management of the Government as well as his Religion would keep him from ever delivering up Ireland to any Protestant while He had the Sword in his hands and such a throughly Popish Army at his Command Now in this case when Ireland was wholly given up into such hands and Scotland was almost in the same condition and England ready to be put into the same it was high time for the Prince of Orange to assert his own and his Princesses Right and it was most reasonable for Him by all justifiable Ways and Means to prevent their being debarr'd their Right of Inheritance of these Kingdoms by bringing the late King to reasonable Terms or by depriving Him of the power of doing Them or their Right any further Mischief herein This therefore together with the Prince's Concern for our Religion and our Laws which were violated in so high a degree by the late King and with which His own Right of Succession was interwoven was a most just Reason for the prince of Oranges coming with an armed Force and if the King would rather put things to the hazard of Battels than the decision of a free and legal parliament no body else could help it and if his Army would neither fight for nor stand by him but suffer Him to be driven out of his Dominions it was because He had taken sufficient care to let all of them as well as the rest of the Nation know how very unjust the War would be on his part and how very unreasonable it would be for them who were the greatest part of them protestants to assist
said deed and true duty of Allegiance He or They be in no wise convict or attaint of High-Treason ne of other offences for that Cause by Act of Parliament or otherwise by any process of Law whereby he or any of them shal lose or forfeit Life Lands Tenements Rents Possessions Hâ—reditaments Goods Chattels or any other thing but to be for that deed or service utterly discharg'd of any Vexation Trouble or Loss This Law doth authorise any Subject to pay his Allegiance to the King in being and does secure him against all Penalties for the same and therefore reaches our Case where there is not a bare Possession but all the Right that Conquest can give And in the famous Act of Parliament concerning Treasons Coke's Institutes Part 3. ch 1. of High-Treason the 25th of Edward III. my Lord Coke says that by the King against whom Treason is committed in that Statute Is meant the King in possession of the Throne whatever his Right to it be These my Lord are his own words This Act 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 non Rex de jure yet is He Seignior le Roy within the purview of this Statute And the other that hath right and is out of possession is not within this Act. Nay if Treason be committed against a King de facto non de jure and after the King de Jure cometh to the Crown He shal punish the Treason done to the King de facto and a Pardon granted by a King de Jure that is not also de facto is void This is sufficient to shew the sence of our Laws in this case and for its being agreeable to Reason to transfer our Allegiance in the Circumstances mentioned I have already in part proved this and I think it may be fairly deduced further from the Writings of that great and excellent Casuist Bishop Sanderson whom all will allow to be a very competent Judge of the Dictates of Reason Whoever will read his Case of the Engagement may find a great deal to this purpose but I intend only to insist on what he hath delivered in his Fifth Prelection concerning the Obligation of Conscience where he disputes for and gives several reasons for the paying obedience to the Laws and submitting to the Government even of an unlawful Usurper and he puts this very case that where any one having driven away by violence the lawful Prince and true Heir of the Kingdom or having opprest him so far as that he is unable to stand up for his own Right doth while the other is still living take the Government upon him and act as King when he is in reality rather an usurper than a King and it is past doubt that downright Injury is done to the oppressed Prince If it be askt says he what I think a good Subject should do in this case who hath taken an Oath of Fealty to his lawful Prince or if he have not taken such an Oath yet is as much obliged to the Prince as if he had swoâ—n it My opinion is that it is not only lawful for a good Subject to pay obedience to the Laws made by him that has the Supâ—eme Power only de facto and not de jure and to do what other things are commanded by him so that nothing base or unjust be commanded but that it is necessary oftentimes for him to do these things and that he should be wanting to his own Duty if he did not Praelectio â—ta de Oblig Conscientiae XVI p. 176. What I could gather from this Case put by the Great Bishop is that if such obedience be lawful and very often necessary to one who is a meet Uâ—urper by unlawful Violence the least he would have determined in our circumstances must have been that Obedience might lawfully be paid to our present King and Queen who come to the Throne either by its being left empty by the last King or by a lawful and just Conquest And what the Bishop has afterwords urged in the Case of his Violent Usurper that notwithstanding the obedience to him the Fealty due to the lawful Prince must be preserved inviolate and nothing done in prejudice of his Right can have no place here since the late King fell perfectly from all Soveraignty here by deserting his Government and the Prince of Orange had a most just Cause of War against him and made as plain a conquest over him neither of which can be brought within the Bishops Case and therefore if Subjects may to keep to the Bishops Reasons upon the Case for their own sakes for the preservation of their Lives and Estates and for the protection they receive under those who have possession of the Government and for the publick sake for the Trade and Commerce of the Nation upon which the publick must subsist live quietly under and pay obedience to an usurped power every one of these Reasons is more forcible upon us to pay our Obedience to their present Majesties who have Right of just Conquest Right of Lawful Succession and the Consent and Recognition of the Nation in Convention on their side And as Reason has directed in such Circumstances to transfer Obedience to the Conquerour under whom we can live safe and in quietness so does the Scripture it self the best Rule we can desire in our Case As the Scripture commands under the greatest penalties Subjection to the Supreme power so it does not put men upon the Rack about the Right of Governours or upon examining who has or who has not the true Right to a Crown but directs obedience to the powers in beeing to those who are in possession of the Supreme power how small soever their claim to it may be This I can make evident my Lord from the Instances of some in the Old Testament and of those to whom our Lord Jesus himself and his Aposties did so strictly command Obedience in the New. Upon the death of Josiah King of Judah the people of Judah took Jehoahaz who was the fourth and youngest Son of Josiah and anointed him which was done by the chief priest and made him King in his Father's stead setting aside the Right of his Three Elder Brothers 2 Kings 23.30 Now that Jehoahaz was Shallum no one will doubt that will compare this place our of the 2d Book of Kings with Jeremiah 22. Ver. 11. and that Shallum was the youngest Son of four he can no more doubt that will consult 1 Chron. 3 15. In this Instance we do not find the Scripture condemn the peoples paying Allegiance to this prince thus set up but on the contrary God calls upon them by the prophet Jeremiah Jerem 22.10 11 12. to weep sore for him that goeth away who was to return no more nor see his native Countrey that is to lament for their King Shallum or