call it what they please his own share in it To this Argument from the Dispensing Power it may be answer'd That the Practice of it as to the Instances which I have been able to mention does not amount to a Subversion of our Government if those Laws were unjust and void in themselves which the King dispensed with As for the Laws about Offices Civil and Military from which Papists were excluded They say the Observator has prov'd it often enough that they were null and void since no Laws can preclude a King from making use of his Subjects And for all the Laws against Conventicles the Author of a Paper publish'd very lately and licens'd too call'd The Case of the Protestant Dissenters Represented and Argued p. 2. tells us very roundly that they are void also and that the Dissenters must be excused if they have in their Practice exprest less Reverence for Laws made by no Authority received either from God or Man and complains that They are injuriously reflected on when it is imputed to them that They have ☞ by the use of their Liberty acknowledg'd an Illegal Dispensing Power We have says he done no other thing herein than we did when no Dispensation was given or pretended in Conscience of Duty to Him that gave us breath Nor did therefore practise otherwise because we thought those Laws dispens'd with but because we thought them not Laws So that the result is that the Late King ought not to be accus'd of Subverting the Government by setting aside those Laws which were void of themselves But I need not trouble your Lordship with any answer to such an Objection since I know your Lordship nor any of those for whose sakes I write this do not believe a word of what these two do so dogmatically and yet most unjustly assert I suppose the Observator will not be fond of standing by his Assertions and that the Author of the Dissenters case ought to have shewn some more Manners than to cast such saucy and bold Slanders upon our Parliaments while one is actually sitting It is sufficient for my vindication that the present Parliament believes those Laws which the Late King dispensed with not only to be true but necessary Laws whatever these two Gentlemen with so much confidence have said to the contrary I will pass now to the other Fundamental of our Constitution which is that the Government be administred according to the Laws of the Land. It is equally evident that this Fundamental was subverted by the Late King as well as the former for so far was he from governing according to Law that his whole Government from the time of his claiming his Dispensing Power seems to be a downright opposition to the Laws He was pleas'd to make Privy-Counsellors against Law Judges against Law Sheriffs against Law Lord-Lieutenants and their Deputies against Law and Justices against Law to have Men hang'd up for deserting in time of Peace against Law to have Popish Chappels Jesuit-Schools and the Conventicles open'd against Law In a word his Resolutions as well as his Practice did shew that the Laws were not intended to be made the Rule of his Government This is the True State of King James's Government and This is inconsistent with that Essential of our Constitution of Governing according to Law. Now if my Lord it be the Essence and the Definition of the King in our Government that He is One who governs the People committed to his charge according to Law how can we reckon in this Rank the late king from the time He was resolutely set upon governing against Law In our Constitution He that does not govern by Law does not govern at all and he that does not nor will not govern at all cannot nor will not be King but ceases to be such from the time He makes his Own Will or his Evil Counsellors Advice the Rule of his Government and not the Laws I had almost forgot another Instance of the late King 's Dispensing Power and that was his laying aside those Oaths of Allegiance and Supremacy which yet are the grounds of most Mens scruples How can this be lookt upon otherwise than as a Condemnation of the Oaths as unlawfull and if they were so we have the late King's Judgment also against the Obligation of these two Oaths for if He to whom the Oaths were taken thought them unlawful then are they certainly fallen as to Him. This is as if a Person who had a Bond from another which he lookt upon as unjust should give it him up and consent to the cancelling of it So that My Lord if the breaking One of our Fundamentals by not governing according to Law do not make such a person cease being King yet that breach of the Other the assuming a Legislative Power which quite alters and tears up the whole Frame of our Constitution cannot do less than shake his Right to the Government who was so solicitous to destroy it He that will not govern as King of England See the Laws of K. Edw. the Confessor Sect. 17. Rex autem ad hoc est Constitutus ut Regnum terrenum populum Domini regat ab injuriosis defendat quod nisi fecerit nec nomen Regis in eo constabit will not govern at all and if He continue in this humour as the late King did from the time of assuming his Arbitrary Dispensing Power how can he be longer King and if he ceased to be King by his leaving off to govern the Oaths to him were as much at an end as if he had ceased at the same time to live And as the Oaths could certainly have no further Obligation to him when he had divested himself of his Kingly Power by destroying that very Government whereby and in which he was King so did the Declaration about taking up Arms upon no pretence against the King fall with them That Declaration every one will grant me was made for the preservation of the Government which the late King took such indefatigable care to destroy That Declaration was never intended for the destruction and ruin of our Government and yet it must be the ruin of the Government if it puts it into a King's hands to turn Tyrant without controul and to subvert our Legal Constitution and undo a Nation without gainsaying and therefore that Declaration was intended for the security of and was to be made to a King governing by Law and therefore did not concern the late King from the Hour he set up his own Will against the Laws and his own Power against that of the whole Kingdom in Parliament This my Lord is the first Case whereby a King ceases to govern or to be a King for they are synonymous I think by the Instances I have produc'd and the Arguments I have offered it may reasonably appear that the late King had subverted our Government and destroyed his own share of enjoying his Kingly Authority in
Him in depriving his Children of the Hereditary Rights of Succession and ruining the Church of England and the happy Constitution of our English Government Such Considerations as these made the late King's Army so useless to Him and the prince's Victory so easie to Him whose business was not to Conquer here but to do Himself and his Princess Right and to preserve ouâ— Government in Church and State which if he He had tamely lookt on and suffer'd to be destroy'd His own Right would most infallibly have sunk with them being so entirely linkt with them Here some will be ready to call upon me and tell me that if the Prince was a conquerour then all our Rights and our possessions are in his hands and at his disposal and that our condition is far from being mended since we are by this Conquest in that state which the late King was labouring to bring us to subjected absolutely in our Persons and Fortunes to the Arbitrary Will of a Conquerour But it is very easie to answer this fearful Suggestion by shewing them that the King alone was conquered and not the Nation with him The Prince in his Declaration had assured the Nation that his only design of appearing in Arms here was to secure his own and Their R ghts and He did thereupon conjure them to assist Him in so good and so just a Design which the Nation did either by not aiding the King or by Rising up in several parts of the Kingdom for him so that here was a True Contract betwixt the Prince of Orange and the Nation which hath been faithfully observed the Rights of the Nation being entirely preserv'd to them and not one of them invaded nor the least pretence to a Conquest over the Nation made by Him. Thus my Lord we see our Rights are secure notwithstanding the late King lost his by bringing upon himself the necessity of being driven out of his dominions and conquer'd rather than he would do the Prince and the Nation that Right which He was obliged to by the Lâ—ws and by his Coronation Oath Now since the late king did lose his kingdom by these means and these accounts and was put out of the capacity of either Governing or Protecting those who were his Subjects it is become as impossible for us to perform Allegiance to Him as it is for him to Govern us and since the Prince and Princess of Orange by reason of this Conquest of the King and by Vertue partly of their own Hereditary Right and partly of the Consent of the Nation assembled in Convention are in Possession of the Crown of England and do Protect and Govern the Nation according to the Laws of the Realm and have taken the Coronation Oath that they will alwayes continue to do so the only Question is Whether our Allegiance in such a case is not transfer'd from the late King Who was justly conquered who does not govern us and can no further protect us unto those Persons who are now invested with the Regal power and in possession of the Government and do protect the Nation The Resolution of this Case would have been very readily made by an of us had providence placed us upon the Continent in those Countries which have lately been and now are like to be the Seat of War and not in an Island so happily secured from the sudden Descent of Enemies Had we lived in Germany or Flanders for example we should have learnt how far Allegiance is necessary and when it may be transferr'd from the prince conquered to the Conqueror No prudent Man thinks the people of any Town in Flanders perjur'd because notwithstanding their former Oaths to their Hereditary prince the King of Spain the fortune of War necessitates them to take new Oaths of Allegiance to a Conqueror And I think Men ought to make the very same Judgment of things here That since the Government of King James is at an end the Oaths to him have no further force and that since He was fairly conquered by that prince whom He was endeavouring to deprive of his Right of Succession to the Crown of England and is by that altogether incapacitated from governing and protecting us our Allegiance either wholly ceases or is susperceded as to Him and We may in our Circumstances give security to the Government and pay Allegiance for that protection we enjoy from it This my Lord is agreeable to the Laws and practice of all Countries to the Laws of our own Nation to Reason and which is more unto Scripture it self I need not trouble your Lordship much with shewing its agreement with the Laws of Nations since almost every days practice doth give Instances of iâ— whereby people and Countries that were under their own Sovereign princes and had taken Oaths of Fealty to Him are by the Fortune of War made another prince's Subjects and may lawfully according to the Law of Nations transfer their Allegiance to their new Lord. The Reason of all this is founded upon the Nature and End of Government it self upon that mutual Obligation which is supposed to be betwixt a prince and his people who upon his power and his promise of protecting them in their Lives and in their properties do engage to perform Allegiance and to bear Faith to Him now this stipulation does naturally fall when such a prince is no longer Able or no longer Willing to protect them and the same Reason which obliged them to pay their Allegiance to that prince does direct them now to transfer it from Him who is by the Fortune of War disabled from affording protection to the Conqueror who will engage to protect them and does preserve them in their persons and their Estates and in all their antient Legal Securities And as this cannot be denied to be the practice and the Law of all Countries abroad so the Laws and Customs of our own Kingdom do not only countenance such a transferring of Allegiance to a Conqueror but do indemnifie the paying Allegiance to a meer King de facto who may be an Usurper and the defending Him in his Government Thus in the Statute made the Eleventh Year of Henry 7. Chap. It is declared to be against all Laws Reason and good Conscience that Subjects going with their Soveraign Lord in Wars attending upon Him in his person or being in other places by his commandment within the Land or without any thing should lose or forfeit for doiâ—g their Duty and Service of Allegiance and it is Enacted by the King by the Advice and Assent of the Lords Spiritual and Temporal and the Commons in parliament assembled that from henceforth no manner of person or persons whatsoever He or They be that attend upon the King and Soveraign Lord of this land for the time being In his person and do Him true and faithful service of Allegiance in the same or be in other places by his command in his Wars within this Land or without that for the
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