Populi the Preservation of three Kingdoms is concern'd and in danger and the more by the Colour of our pretended Allegiance I think there is much weight in the words of a late Author I can be sure saith he of nothing if I am out in this Notion That no Oath can bind any longer than the Obligation thereof is consistent and reconcileable with Salus Populi the Welfare the Spiritual and Temporal Welfare of the People which is the sole End of all Government And seeing the Safety and Preservation of the Community depends upon the Promise of Allegiance to the supream Governor for the time being and the Subjects are under a plain necessity either to hazard or ruine the Publick or to transfer their Allegiance they may certainly do it lawfully yea are bound to do it by the Law of Laws Salus Populi suprema Lex Secondly So much briefly for the Law of Nature Now do not the Holy Scriptures warrant the same Do we find any either in the old or new Testament that scrupled or were question'd for their Obedience to the Powers in being I think the present Reverend and Learned Dean of Sarum Dr. Pearse hath a Sermon in print to prove Submission to Governments a Fundamental of the Christian Religion I am sure our Saviour and more largely St. Paul require our Obedience to the Powers that are without any Consideration of their Title merely because of their Authority and Administrations in which the Apostle expresly founds the Duty of Subjection for Conscience sake The Arguments to this purpose lately urged from Romans 13. by several worthy Authors I despair of ever seeing tolerably answered to whom I refer my Reader only let us meditate those notable Counsels of God by the Prophet Seek the Peace of the City Babylon where the People were Captives to their Tyrannical Enemies and pray unto the Lord for it for in the Peace thereof ye shall have Peace Jer. 29. 7. Thirdly Lastly Is there not sufficient in our own Laws to justify our Allegiance to a King regnant without our being satisfied touching his Title Have we not the Authority of former Ages Is not our Statute-Book a clear Testimony of it In what time was it ever denied Who was ever censured or punished for granting it Are not all such Kings who reign'd without Right recorded as Kings of England and their Laws as authentick and obligatory Is it not evident then that Allegiance due to a King regnant with right or with none is agreable to the State and Principles of this Monarchy and founded in the Usage and Common Law of England But that which methinks should put the matter beyond Question is the known and often mentioned Stat. of 11 Hen. 7. 1. grounded as it speaks the sense of the Nation upon Reason Law and good Conscience And though the worthy Author of Considerations and others have with a great deal of strength argued hence to satisfy the Scruples of our Brethren and it cannot be expected that I should add any thing very considerable yet I shall very briefly observe a few things for our purpose from it 1. 'T is thereby acknowledged that a King de facto hath the Name and Stile of a King of England 2. We are to recognize such a one as our Soveraign Lord. 3. That Allegiance is due to such a King from all his Subjects 4. That by reason of the same Allegiance they are bound to serve him even in his Wars 5. That they are never hereafter to be question'd tho the lawful King should recover his Right for so doing their true Duty and Service of Allegiance as the Words are 6. That War made against such a King by his Subjects is Rebellion All these things are plain in the Letter of that Law which hath continued unrepealed or unquestion'd for above two hundred Years and consequently so long hath been the approved sense of the whole Nation That Allegiance and true and faithful Service is due to our soveraign Lord for the time being whatever his Title be Hence it follows that in the sense of the Law a King de jure only is not King. The Statute saith the King for the time being and seeing we can have but one King he that hath only right to be King is no King in being or for the time being Hereupon I suppose the great Lawyers inform us that the King de jure only is not within the Purview of the Statute of Treason is not as they say Seignior le Roy. Consequently if Treason cannot be committed against a King de jure while he is out of Possession Allegiance cannot be due to him which is a Duty we owe to the King as our Soveragin Lord and none in the Eye of the Law is so but the King in Possession thus the formal reason of the Oath of Allegiance to the late King ceasing if he be no King in Law because out of Possession the Obligation of that Oath with respect to him ceaseth also besides much of the matter of our former Oath is gone too for we were sworn to bear true Allegiance to him in revealing and preventing Treasons against him and now he is not an Object capable of Treason But they also tell us Treason may be committed against a King regnant without Right and if so 't is thence evident that Allegiance is due to him against which Treason is directly contrary Treason is an Offence against our natural Allegiance which appears from the form of Endictments the words are Contra debitum Fidei Ligeantiae suae against the Duty of Faith and true Allegiance so near are they to the very Words in the Oath of Allegiance In a word to apply it Are not William and Mary now regnant and in full Possession of the Government To deny this is to impose upon our Senses Are they not our Soveraigns also to whom we owe Allegiance This to question is against all kind of Law May we be guilty of Treason against them Then supposed Allegiance to their Enemy seems to be a degree towards that Treason and to be a treasonable Principle if brought into Act it tends apparently to the Death of the King and Queen and how far the very Opinion is from Imagination and consequently from the Formality of Treason should be soberly considered at least to abate our consure of the Government that with some Severity requires our Allegiance and if it may be to perswade us to timely Conformity therein The Sum is I think we cannot justify our refusing to take the new Oath of Allegiance to King William and Queen Mary without destroying Acts of Parliament changing the Laws of England and razing the Principles and Laws of Nature The Words of II Hen. 7. cap. 1. bearing to our Purpose are these The King our Sovereign Lord calling to his remembrance the Duty of Allegiance of the Subjects of this his Realm and that they by reason of the same are bound to serve their Prince
for the time being for the defence of him and the Land against every Rebellion Power and Might reared against him And that 't is not reasonable but against all Laws Reason and good Conscience that the said Subjects any thing should lose or forfeit for doing their true Duty and Service of Allegiance It be therefore ordained that from henceforth no Persons 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 be in no wise convict c. POSTSCRIPT IF in the foregoing Discourse I have abused the Law in Terms or otherwise as 't is not unlikely being out of my way I beg pardon of the Learned in that Faculty I have nothing to plead in Excuse but an honest Intention FINIS ERRATA Page 58. for Chap. VIII read Chap. IX Page 60. for Chap. IX read Chap. X. Books lately Printed for Awnsham Churchil at the Black Swan at Amen-Corner THE late Lord Russel's Case written by the Right Honourable Henry Lord De la Mere. fol. An Historical Account of making the Penal Laws by the Papists against the Protestants and by the Protestants against the Papists By Samuel Bluckerâ—… Barrister of Grays-Inn fol. Obedience due to the Present King notwithstanding our Oaths to the Former Written by a Divine of the Church of England 4 to A modest Enquiry Whether St. Peter was ever at Rome and Bishop of that Church 4 to The Spirit of France and the Politick Maxims of Lewis XIV laid open to the World. 4 to Memorials of the Method and Manner of Proceedings in Parliament in Passing Bills 8 o. Dr. Burnet's Tracts in Two Volumes 12 o. A Collection of Texts of Scripture with short Notes upon them And some other Observations against the Principal Popish Errors 12 o. Dr. Daniel Whitby's Treatise of Worship of Images Of Communion in one kind His Treatise of Tradition in two parts His Consideration for taking the Oaths to King William and Queen Mary Dr. Worthington of the Resurreâ—… 8 o. Mr. Masters of Submission toâ—… Providence 8 o. Foxes and Firebrands 8 o. 1st and 2d parts A Third Part in the Press Mr. Bold's Sermon on occasion of the Brief for Irish Protestants An Answer to Bishop Lake's late of Chichester Declaration of his dying in belief of the Doctrine of Passive Obedience c. Sir William Temple's Observations on Holland 8 o. Miscellania 8 o. Dr. Carswel's Assize Sermon at Abingdon August 6. 1689. Mr. Selden's Tabl 〈…〉 4 to A List of the present Parliament Lords and Commmons Present Cases stated about Allegiance to King William and Queen Mary Debates of the late Oxon and Westminster Parliaments 8 o. Monsieur Jurieu's Accomplishment of Scripture-Prophecies compleat New System of the Revelations 12 o. Voyage to Syam 8 o. Vid. Cron. Ecl. Licti Seld. 171. Fortise de Leg. Brad. Gloss p. 38. In Vit. Hen. 1. Rigâ—â—â—â—â—â— Royal Family Next Heir 25 Ed. 3. Stat. 6. Praemunire Provisors Ed. 1. Letter to the Pope Vid. Blounts Law dict Fâ—â— All Land in Abeyance or in Fie of some Man. Rule in Law. Edgar was set aside being neither in Body or Mind fit to govern Ingulph With full consent in Parliament the Queen of Scots was desired to be disabled Burl. Letter And of late the Duke of York Noted before Walsingham Hist As they did in Rich. 3. that famous Case Dr. Brad. p. 390. Vid. Dr. Brady p. 386. As Hen. 8. did Necessitas Pracepti Necessitas Medii Dr. Donne Oliver's Vsarpation answers not our Case 1. Nature Calv. Case By Sanderson Case of Engag p. 109 Lect. 5. de leg S. 19. Exod. 31. 13. 2. Scripture 3. Our Laws
natural Allegiance Yea it is not questioned by those that most scruple about the present Settlement but now there are positive Laws requiring those Oaths yet before they are taken the respective Duties both of King and People are to be observed by force of the radical nature of our Monarchy and the fundamental Constitution of Government in our Common Law. 2. For a further Answer we must remind what hath been said of our Hereditary Monarchy which if understood in no other sense than these very Persons are eager to maintain methinks supercedes this Objection For if the Government in their own sense be hereditary then in consequence of it when the Throne is vacant of the Predecessor it is in the same instant fill'd by the next Heir as to Right and Title in Analogy with all other Cases of Inheritance and even from the nature of Inheritance We need not here speak over again what we have about the late King's Abdication and leaving the Throne void we may be allow'd here to suppose it and then 't is evident that upon this ground upon that avoidance without any intervention or Act of the People either in a Convention or Parliament the Crown immediately descended to the next Heir of the Royal Family by Right of Blood or Birth-right 3. So far for their Right As to their Entry and Possession of the Government tho in all such extraordinary Revolutions it hath been safest to be admitted with the Consent of the People yet 't is evident from the same Concession that it is their Inheritance that the next Heir may claim and take possession of himself without the Consent or Act of the People that is he hath right to do so and if he be hindred and kept by force from his lawful Entry without just Cause or his own Consent he is apparently injured And this seems to follow irresistibly from the nature of an Inheritance 4. Accordingly the Duke of Lancaster came into the Parliament and claimed and challenged the Crown as descended unto him by the right Line of the Blood of Hen. 3. and his Claim and Challenge without any Dispute was immediately admitted Upon the Resignation of Edw. 2. his Son Edw. 3. as the first-born and Heir of the Kingdom declares that upon his Father's Concession by the Counsel and Advisement no other Act of the great Men he assumed and took upon him the Government 5. But I need instance in no more when we have considered what passed in Parliament 1 Edw. 4. They declare the King was in Right from the Death of the King his Father very just King and that they take and repute the said Edw. 4. according to his said Right and Title declaring his Title was just and lawful as grounded upon the Laws of God and Nature and also upon the ancient Laws and laudable Customs of the said Realm Agreeable hereunto was the Recognition of King James before-mentioned 6. Now if we apply this to our own Case may I demand What was there left for the Convention to do King James had relinquish'd the Government and left the Throne vacant thereby there was an immediate Descent of the Crown by inherent Birthright to his Daughter if willing to accept it I say what had we to do more than to recognize and declare her to be Queen of England Indeed they did join in their said Declaration the Prince her Husband with her but they seem not to pretend to make either him or her King or Queen their words are these The Lords Spiritual and Temporal and the Commens assembled at Westminster do resolve that William and Mary Prince and Princess of Orange be and be declared King and Queen of England c. Object But why do they not then declare the Princess as immediate Heir to be Queen only or at least before the Prince Sol. This I hope hath been fairly accounted for before Consensus tollit-Errorem especially Consent grounded upon invincible Reasons of State in that Juncture or rather Confusion of Affairs And if we look back upon former times we are not without instances in this particular not much unlike it 2. Edward the 2d denied himself of his Right and actually relinquish'd the Government 't is not material here upon what Motives and his Son with the Father's liking and the Advice of the great Men was King of England during his Father's Life tho before he had sworn invito Patre he would never accept of the Crown yet when he doth accept it he declares he takes it not as the Gift of the People nor any other way but as Primogenitus Regis Haeres 3. Somewhat like it we read concerning Richard Duke of York he was permitted by the true Heir to the Crown tho his own Title to it was upon examination sound defective to possess the Throne for the honour of the King and to maintain Peace during his Life and the true Heir did cedere de jure suo with assurance to enjoy the Crown after the Decease of the King de facto 4. It was indeed enacted 15 Edw. 2. that the things which shall be establish'd for the Estate of the King and of the Realm and People may be treated moved and established by the King and by the Assent of the Prelates Earls Baerons and Commonalty of the Kingdom And there is no doubt but this is the proper course in ordinary Cases 5. But that there is a necessity for a Convention that is no Parliament in some extraordinary Cases to meddle in these high Matters none I think can question Namely if we can suppose the Royal Family extinct at least so far as there is no Heir appears to claim and take the Government upon the demise of the King. Is there not a plain necessity now to preserve all from Confusion for the great Men c. to meet and to consider where to place the Government according to Right or Merit 6. Again we may suppose two or more Rivals for the Crown upon the King's Death when there can be no Parliament that if in being before dying with the King should not the Great Men meet and prevent the Ruin of the Kingdom by Civil Wars by acknowledging and assisting the right Heir as they are bound by their natural Allegiance Yea I may add If a Pretender excluded by the Limitations of the Law should by violence invade the Government what Remedy if the People may not meet especially being invited thereunto by the next Heir qualified by the Law to keep out the Pretender and admit the lawful Heir to take the Government 7. That there may be Limitations put to the Descent of the Crown methinks lies not only in the Nature of Government but hath been the declared sense of the Kingdom i. e. of King Parliament upon all occasions and never denied And if those Limitations are necessary for the preservation of the Whole and our very Constitution as they may be or are clearly expressed in an
Principle against Treason a faithful and loyal Mind keeping Treason out of its Seat which we know is not so much in our Actions as in the Mind and Imagination 2dly If Treason cannot be committed against the King that is out of Possession as he is not King according to Law so we cannot be thought to owe him our Allegiance that is Obedience according to Law for he is not King so as to rule or command us and then there is wanting the very Reason of Duty or of Fidelity to that Duty 5. It may not be unworthy our observation That if any one yet can be so weak or blind as to imagine that since the late King's Abdication the Crown is in Abatement and the Right lies somewhere else even in that case they say the Common Law favours the Abator and looks upon his Title to be good until the Right of the Heir be proved and the Matter of the Title be decided by Law and consequently all Duties in the mean time are to be paid by the Tenants to the Abator as if he had Right as well as Possession I need not apply it 6. However there is nothing in the Law of the Land or the Word of God that necessitates the Subject to trouble his Conscience with Scruples about the Titles of Princes or beyond the actual Possession and Administration of the Government 1. For the Word of God that supposeth Christians to be under the present Powers and strictly enjoins them peaceable and unscrupled Submission and Obedience to the Powers that are but this Argument hath been sufficiently enforc'd by others even to Demonstration 2. For the Law of the Land this justifies our Obedience to the present Power yea requires it and punisheth the contrary and will not endure any Scruples about the Right when the Possession of the Crown is once settled and terminates all Doubts of that kind in an Act of Parliament which is the publick Judgment and Sense of the Nation 'T was said by the Parliament of Richard the 3d after they had cleared his Title as grounded upon the ancient Laws and laudable Customs of the Realm according to the Judgment of all such Persons as were learned in those Laws and Customs they proceed and say Yet nevertheless forasmuch as it is considered that the most part of the People is not sufficiently learned in the aforesaid Laws and Customs whereby Truth and Right in this behalf of likelihood may be had and not clearly known to all People and thereupon put in doubt and question and over this how that the Court of Parliament is of such Authority that a Declaration made by the three Estates and by the Authority of the same maketh before all other things most faithful and certain quieting of Mens Minds and removeth the occasion of Doubts and seditious Language therefore they declare that he was the undoubted King. Whence 't is evident that the Reason of this Law supposeth that the Subjects in general are not capable of understanding the Laws and Customs upon which the Titles of our Kings depend and that the best Satisfaction that the Generality of the People can possibly have in those high Matters is the Sense and Judgment and Determination of the Kingdom by Act and Authority of Parliament wherein they should acquiesce for the preventing Sedition so much as in Language But to be short here the Law allows a King de facto the Name and Dignity and Authority and Defence of a King And doth it not require our Duty according to Law Was 't ever known the King being acknowledged to have the actual Government that the Subject was excused from Allegiance or an Oath of Fidelity as occasion required it Yea If Obedience according to Law be acknowledged due to the present Government as it now it seems is generally granted is not the Oath of Allegiance at this time required by Law as well as by the Relation of Subjects and so made a plain part of our Obedience according to Law Yet if the King in Possession be really our King do not our own Laws return upon us requiring Loyalty and Fealty forbidding Sedition and Scandalum Magnatum and all Endeavours to alter the Government that is at least by our peaceable and dutiful Carriage to acquiesce in the Work of Divine Providence in our late Revolution and the Acknowledgment of our Subjection due to William and Mary who as we have heard by the Laws of the Land heretofore made are our undoubted King and Queen because in possession of the Government their Right also is unquestionable by private Subjects being a Point determined according to the ancient Laws and laudable Customs of this Realm and their Right as well as Possession openly declared by the highest Authority of the Kingdom in Acts of the present Parliament Object But some are apt to say This is to prove that the Sun shines who denies that the present King and Queen are such de facto or that we ought to obey them Sol. 1. This is so far well But do we obey them without reserve for the late King Do we acknowledg that the Laws of the Land oblige us to give them our Obedience Or do we mean only that they have the Name of Soveraigns and a Power in their Hands to defend themselves against and to punish Disturbers of their Possession If it be so we do not take right Measures of their Authority or of our own Duty according to Law. 2. For they are really King and Queen by being in Possession and invested by the Laws with Regal Authority as well as Power otherwise they could not be within the purview of the Statute of Treason 3. Consequently all their Actions that are politick and for the matter agreable to Law are as valid and of as good Authority as the Acts of the most rightful Kings They have Authority and do effectually execute and make Laws while they are in Possession as they do protect us so they administer Justice dispose of Offices coin Mony make Peace and War punish all kind of Offences as well against the Subjects as the Government 4. And such Acts of a King de facto only without Right as concern and have Influence upon the Kingdom have ever been allow'd and reputed good and valid though the Title to the Crown hath been question'd and denied in after-Ages as we noted before 5. That very Parliament that condemned the Usurpations of Hen. 4 5 6. and all Acts that had entailed the Crown contrary to the course of Inheritance yet add these remarkable Words Howbeit that all other Acts and Ordinances made in the said Parliament since been good and sufficient against all other Persons I would infer hence that Obedience is due to the present King c. in his Authority by Law acknowledged as well as Power and therefore not only for Wrath but for Conscience sake Conscience I say not of their Title but of their Authority and our own plain Duty
due in the same sense to any other because the same Allegiance cannot be due to two Kings at once but King William c. are the Supreme Power in Being To this what can be replied but either that King William and Queen Mary are not the Supreme Power in Being against all sense or that Allegiance is not due to the Supream Power in being against all kind of Law as I shall shew presently Object But may it not be supposed that there may be a King de jure that is not so de facto And is there no Allegiance due to such a King especially if we have sworn it to him Answ But was he not King de facto as well as de jure when we swore Allegiance to him Was that Oath ever taken but to the King and under that very consideration as actually our King We suppose a King de jure but what 's that He hath Right to be King And doth not that very thing prove that he is not King as he hath Right to be And consequently he hath Right to our Allegiance no otherwise but as he hath Right to be King and dependently upon it that is remotely and upon the supposition that he obtain his Right and be actually King again as he was when we first sware Allegiance to him Here the Rule seems to have place Rebus sic stantibus we owe Allegiance to the King while he is actually so if he ceases to be so we do not owe him that Allegiance that is due to a King in Possession if he have a Right to be King we do not therefore owe him actual Obedience until he recover and enjoy or have that Right indeed upon which depends our Obebedience Our Oath at first included that known Condition Si res in eodem statu permanserint Object But we have sworn to King James and who can absolve us or how can our Obligation to him cease or be dissolved Answ The strict Question here is not whether that Obligation be suspended only or wholly taken off that is Whether there remains no Obligation upon us to King James but whether the Obligation be such as prevents or hinders our lawful swearing Allegiance to the Powers in being There is a Duty owing to the present Government which must be first allowed and then the supposed Obligation to the late King what ever it be must be such as may consist with that Duty I need not here mention how many Ways our Allegiance to the late King is ceas'd From the removal of the Object he ceasing to be King From the Rule of all Allegiance the present Laws the Reason and End of Government or the like 'T is enough to my present purpose to prove that Allegiance is due and consequently we may lawfully take the new Oath to our present King and Queen And therefore no consideration of any former Oath should make us deny or delay the performance of our Duty to them This is the Point I am come to prove which seems to me very easy to be done From the Law of Nature the Law of holy Scripture and the Laws of the Land. First Obedience to our Parents civil as well as natural is a Law of Nature Our actual Governours are our nursing Fathers and nursing Mothers this is of moral and eternal Reason and the Obligation thence upon us is antecedent to any Obligation that we can be supposed to contract by our Oath to any particular Person contrary thereunto which as our Law saith is but of human Provision Our Law-Books ground our Allegiance upon the same Reason Protectio trahit Subjectionem Allegiance is founded in Protection upon moral Arguments of Justice and Gratitude And the Casuist affirms Allegiance is intrinsecal and so essential a Duty and as it were fundamental to the Relation of a Subject qua talis as that the very Name of a Subject doth after a sort import it The Consequence is that Allegiance is not due to one that hath not Possession and therefore hath not power to protect us whatsoever his Right may be but it is due to the present King c. that doth in fact protect us without any Consideration of his Right to the Crown 2. Allegiance faith the Bishop again is a Duty that every Subject by the Law of Nature owes to his Country and consequently to the supreme Power thereof that is to his Country as the End to the King as the Means of that End. Now the End being more noble than the Means for which the Means hath both its Use and very Being as such if that which is ordained to be a means of Preservation of our Country change its Nature and proper Intention and becomes a Means and Instrument of its Destruction we cannot in the Reason of things be bound any longer to use it For as he saith in another place Whatsoever is done for any End is so far to be done as it doth seem necessary and profitable for that End. Now 't is not denied but that the Government in the hands of King James was used not for the Preservation of our Country but its Destruction and contrary to the Ends of all Government Yea such as pretend some Allegiance yet due to him do they not rather fear than hope for his Return to the Government which in all moral Assurance they know would be more pernicious to us than it was before he left us Besides we are now under Powers that do actually and happily serve the Ends of Government We must hence conclude that by virtue of our Allegiance due to our Country which is of first and greater Consideration our Allegiance to our late King as contrary or inconsistent therewith is dissolved and become due to the present Government 3. Further By the Law of Nature Salus Populi is both the supreme and the first Law in Government and the Scope and End of all other Laws and of Government it self Now how this can be preserved by our Allegiance to any other but the Government in being is I think unintelligible Perhaps some are yet to learn what that meaneth I will have Mercy and not Sacrifice What Sacrifice Why God's own Service What Mercy Why to save Life either of an Ox fallen into a Ditch or a sick Man. Now what was that Service of God that must yield to that Mercy to Man and Beast Was it the Observation of the Sabbath And what was that but as it were an Oath of Allegiance to God It is saith God a Sign between me and you yet this Oath binds not this Testimony is invalid this Service is no Duty when it comes in competition with Charity or Mercy to Man or Beast The Reason is There is a prior and eternal Obligation to those moral Duties Is not then the Service of the King though sworn in the Oath of Allegiance that Sign or Testimony between King and Subject is not this discharg'd or dispenc'd with when Salus
from this because the Vacancy was made by K. James and he could not make it further than he could He could not prejudice his Heirs or leave the Throne empty in all respects for the Statute of K. James the First declares agreeable to all times The Imperial Crown by inherent Birth-right doth immediately descend to the next Heir of the Blood Royal upon the Decease of the Predecessor The Royal Family have Jus ad Rem but the next in Blood if without just Exception hath Jus in Re and wants nothing but Livery and Seisin 3. This carries a plain Analogy with the Interest of others and if it be a Priviledg cannot be denied to our Princes The Estate is in the Heir immediately upon the Death of the Possessor and if the Estate be forfeited 't is immediately in the next Tenant though in neither case they may have yet got Possession And we use to say the Heir to the Crown is King before either the Coronation or Proclamation i. e. The Throne upon Demise is instantly fill'd and there is no Vacancy in that sense 4. If the right Heir before entry be kept out of Possession the Estate is not in Obeyance or in Nubibus but as the Lawyers say in Abatement the Estate is really in the Heir though they say the Law favours the intruder as the lawful Possessor till the Right of the true Heir is proved which I have no reason to apply 5. However 't is plain enough that the Convention supposed the late King by Abdication left the Throne void in some respect and what that was must certainly respect himself and not his Heirs he left the Throne void as to his own Person and as to his Possession and as to his own Right by relinquishing the Government 6. Yea he left it void as to any present Administration or Administrator and therefore it being so void ipso facto the great Men of the Kingdom first desired the Prince of Orange to take upon him the Administration of the Government till the Convention should meet This he did and this Vacancy was the natural Effect or Consequence of his Abdication but we may not strain the Word to the altering the nature of our Government neither may we imagine a Papist's Abdication should bar or prejudice his Protestant Children or change our Constitution 7. I hope I have said nothing in prejudice of any Limitations or Conditions of the Crown either in Law or from the necessary Nature of Government or by Act of Parliament if according to such Conditions the next in Blood be not qualified the Throne may be filled by the Right or the next When the Throne was declared void upon the Deposition of Rich. the 2d his Son was instantly admitted as were before the Sons of Edw. 1. and Ed. 2. upon their removal 8. We are told that before the Stat. 25. Edw. 3. de natis ultra mare it was a received Maxim that the next in Blood born beyond the Sea should not be King and by that of Eliz. 23. c. 1. Persons opposing the Execution of that Act are thereby disabled for ever Yet we still conceive that the next Heirs after them better capacitated and not guilty or defective as they might claim the Crown otherwise all other Persons are under the same Penalty though not at all guilty and the Penalty is not restrained to the Person offending or to the Crime mentioned in the latter or in the Incapacity in the former Instance The Statute of the Queen plainly supposeth that some may claim which cannot consist with an Elective Government and if the next in Blood are disabled by Law to claim it follows the Right is some where else and by Virtue of that Right the Throne is so far fill'd and Possession may be claimed Quest 2. Whether we have reason to think that the Convention did suppose a Vacancy in any other sense Sol. We may receive full Satisfaction in this from what hath been said upon the first Query For what reason can we have in Justice or Charity to imagine the Constitution intended any further Vacancy than was or could be made by the late King's Abdication what reason is left us to think that they intended such a Vacancy as was inconsistent with the nature of our ancient Hereditary Monarchy or the Interest of the Persons that are now advanced to the Throne in their own Right of which we have given account before or why should we impose a groundless and an unreasonable sense upon the Proceedings of our Superiors as may forestal or prejudice our quiet and due Submission to the Government 2. For our further Satisfaction we ought to consider first the Persons whom they admitted to the Crown namely such as upon Avoidance upon their Inherent Birth-right might have claimed the Crown Secondly The Words of the Declaration by which they were admitted The Throne being thereby vacant we do resolve that William and Mary be and be declared King and Queen They do not say they make them so but resolve that they are so and then declare them to be what indeed they were 3. And now I must have leave to admire the Wisdom Foresight and Caution of that great Assembly they do not lay hold of a Forfeiture of K. James they do not pretend to depose him they do not insist upon his Resignation but they suppose and alledg strong Grounds of that Supposition that he had abdicated the Government so far as that with respect to him to all Intents and Purposes the Throne was void and therefore to maintain the Hereditarines of this Monarchy they allow the Right of the next Heirs viz. William and Mary and accordingly upon that their Title they declare them King and Queen Quest 3. Whether the sense of Vacancy thus explained imply an Interregnum This can be a Question no longer if we consider the Premises for such a Vacancy we have upon every Demise of the Crown yet no Interregnum CHAP. VII Of the Convention and how it became a Parliament The Third Maxim considered Obj. WE are arrived to the Consideration of the third great Exception viz. That it is a Maxim that nothing binds the People of England but an Act of Parliament But the present Government was made by a Convention and not by a legal Parliament therefore we are not bound to own it Sol. 1. To this first it may be replied That tho this Maxim be generally allowed yet not without some Exceptions For is not Custom and the Common Law the Rule of Right and Justice betwixt Man and Man yea and betwixt the Prince and the People Were there no Statute or Act of Parliament about Government and Subjection Yea were there no Coronation-Oath or Oath of Allegiance to be taken by the King or the Subject Yet from the nature of our Government and by Common Law the King ought to govern according to the Laws and Customs of the Kingdom and we ought to pay him our
at least for Conscience sake with respect to the publick Good to take the Oath of Allegiance which is part of our Obedience it being required by Law and therefore our Duty Obj. Your arguing seems to perswade us only to Obedience which we do not much scruple in the sense you explicate it The Swearing to bear true Allegiance is that which troubles us not knowing well the intended sense or meaning of it Sol. The Government hath given us reasonable Satisfaction in this Particular though not so clear as may be wish'd the very Title of the Oath even in this new Law is the Oath of Allegiance or Obedience Now if Allegiance in the sense of the Law as explained by the Law-makers be nothing but Obedience and Obedience in England is to be measured by the Laws what can Allegiance import more than Obedience according to Law which you say you are willing to yield and why now should you refuse to add this Sign and Security of such your Obedience by taking your Oath to do so 2. Moreover you find the Government insists not upon the Word Allegiance nor intends any strange or obscure Obligation upon us by it for in the Declaration they require of Quakers who refuse to swear they express Faith and Allegiance by those plainer Words I will be true and faithful to King William and Queen Mary 3. And as one lately hath very well observed the Parliament have avoided all occasion of Offence in wording this Oath that might consist with the Security of the Government for by omittting the assertory part of the former 't is evident they do not require us by this Oath to assert the Title but to secure the Possession and Peace of the Crown in King William and Queen Mary by our Obedience according to Law. Indeed we may perceive in the whole Proceeding of our late wonderful Revolution so much Sweetness Tenderness and Condescension to the Prejudices that the former state of things might leave in us both with respect to our late King and our own Obligations as if the Government had industriously studied to avoid all occasion of Offence as much as the nature of the Change suffer'd to be possible I have I think noted before that the Convention did not depose the late King did not declare the Crown forfeited did not require him to make a Resignation of it and tho they justly charge him with many intolerable Grievances yet they did not call the King to an Account for them Nay they did not so much as declare that the King is accountable so that the Minds of such as boast of excessive Loyalty have ease as to all these things that bear so hard a Contradiction to their Principles and as for our selves we have noted some Kindness and Condescension with respect to the Oath required thereby it it is neither required that we should abjure the Title of the late King nor assert the Title of the present God forbid therefore that there should be left any Prejudice in us from the hard Proceeding of the Government in either kind if it should it is plainly as false in its ground as 't is like to be evil in its Consequence especially if we stiffen our Disloyalty with the Continuance of a scandalous Impeachment of our Rulers and Legislators for Severity intended against the Church and a designed Alteration or Change of the ancient Constitution of this Hereditary Monarchy the one I hope is as true as the other Obj. The Statute of Hen. 7. so much depended on was made by a King that had no Title to the Crown himself Answ What then Doth it follow that the Statute is not of force Upon that ground we must blot out a great part of our Statute-Book which is full of Laws made by such Kings and the best of our Laws have no force if the Observation hath any truth that the worst Kings made the best Laws Object But 't is a Law mischievous to the Right of our Kings Answ It is much this Mischief hath not been discovered by our former Kings or Parliaments that so mischievous a Law should continue through so long a tract of time unrepealed 't is confess'd it may be inconvenient and prejudice the Interest of a King de jure but we ought in reason to set this against it that it is a Law at all times convenient and serving the Ease Quiet and Safety of the Kingdom for whose sake Kings themselves are 't is hereupon that the Lord Bacon tells us that the Spirit of this Law was wonderfully pious and noble upon this ground as one saith well because they who had no hand in the Sin should bear no share in the Punishment And the Lord Bacon adds That this wanted not Prudence and deep Foresight for it did the better take away occasion for the People to busy themselves to pry into the King's Titles for that however it fell their Safety was already provided for And as the late Author that cites my Lord Bacon for these Words adds very well The meanest Capacity will not be wanting for a Rule of that Subjection which every Soul owes to the higher Powers but if the Subject ought first to satisfy himself touching the Right of his Prince especially in such a time of contest as there was many Years betwixt York and Lancaster certainly every Soul could hardly be so well satisfied as to be subject for Conscience sake CHAP. VIII Whether a King can make Laws limiting the Crown Obj. THough it be acknowledged that a King de facto hath Power to make other Laws viz. Laws for Peace and Justice yet it is a Doubt whether a King that hath no right to the Crown can make Laws for limiting the Succession of the Crown as is now to be done Answ It is confess'd that when it was pleaded against the Title and Claim of the Duke of York that there were divers Entails made to the Heirs Males of Hen. 4. It was answered There had been none made by any Parliament heretofore as it is surmised but only in the seventh Year of K. Henry the Fourth But that Act taketh no place against him that is right Inheritor c. Howbeit all other Acts made in the said Parliament since have been and are sufficient against all other Persons Upon this Law the foresaid Distinction seems grounded but I think very weakly for these Reasons 1. Because this very Law mentions Henry the Fourth with the Addition and Title of King without any Diminution as appears in the Words cited 2. The ground upon which that Entail was declared Null was not a want of Power in King and Parliament to make a Law about the Succession but as they declare in the Dukes first Answer That no Oath being the Law of Man ought to be performed when the same is against the Truth and the Law of God implying as afterwards they speak out it was a Law though of Man it faileth not for want of Authority
being made by a King de facto with his Parliament but the reason why it could not oblige was taken from the matter of it it diverted the Descent and Succession of the Crown according to Right of Inheritance 3. The Argument that a King de facto hath no Power to make Laws to limit the Crown because he is supposed to have no Right to the Crown himself I say this seems not cogent 'T is true 't is supposed he had no Right at first and his Usurpation cannot be thought to create any just Title to the Crown yet when he hath it hath not he Right or rather Authority in Law by his Possession to use it that is to make Laws If not then all the Laws he makes even those for Peace and Justice are void for want of Authority which this very Law against the Entail of Hen. 4. denies I grant all positive Laws made by a rightful King or by an Usurper are equally voidable i. e. repealable But if we speak of such Laws as are void of themselves it seems to me they must be so one of these two ways Either for want of due Authority to make Laws Or with respect to something in the Matter of such Laws as is destructive of them For the first way 't is granted me that a King de facte only hath Authority enough to make Laws generally speaking if his Laws therefore be not of force to limit the Succession 't is for another reason mention'd before taken from that special Matter of the Right of Inheritance which it is thought cannot be infringed by any Law of Man. Hence 't is still a doubt with me whether a King de facto hath not an equal Power with the most rightful King to make any Law even touching the Crown as any thing else Suppose a King de facto after some Contests about the Succession settle the Crown as it ought to go Is not such a Law a good Law Wherein can it fail neither in Matter nor Authority Again the most rightful King in and by his Law limits the Crown as it ought not to be Is that Law a good Law No Power can make a Law that is malam in se to be bonam I confess I see no difference in the Legislative Power of a King regnant whether with or without Right especially seeing the Parliament which is the Body of the Kingdom choose the Matter and give Authority to the Laws as well as the King. But this Nicety need not trouble us under their present Majesties whose Title to the Crown I hope is unquestionable as well as their Possession of it Besides there is no room for this Objection among all our Scruples about the Oath of Allegiance for in our private Capacity we are not to answer for Errors in Government If the Succession can be supposed to be limited in any Point amiss how can we help it What 's that to our Duty how are we concerned The Law doth not require us to assert or swear to the Act of setling the Crown for the future it requires only our Obedience to our present gracious King and Queen and we do our Duty if we look no further CHAP. IX The Honour of the Church of England no just Objection against our taking the new Oath Obj. I Have heard it offer'd by some that tho it be lawful to submit to the present Government and to take the new Oath of Allegiance yet by our doing it the Church of England suffers in her Honour and her distinguishing Character of Loyalty Sol. I have some Reason to hope that with several Persons not perfectly reconciled or satisfied this is the last Objection that remains unanswered I shall therefore briefly with all the Strength I have at present set my self to remove it and so conclude 1. I confess Loyalty hath been reckoned the Character of the Church of England and in a great measure very deservedly but if we mean such Loyalty as doth distinguish her from all other Churches of Christians in the World it may be an Argument of Singularity and Reflection upon all other Protestant Churches as well as Popish Principles and Practices as some lately have made manifest demonstration And how honourable or laudable that is I determine not but it may be considered 2. I perceive the Movers of this Objection do not say that 't is unlawful to take the new Oath and indeed that is granted in the nature of the Objection for if the Oath be refused only because 't is dishonourable to take it 't is supposed to be in it self lawful tho not expedient And indeed the Argument would have force enough if there were not some heavier Thing than Honour to be put into the other Scale 3. And thus the present Argument is not directly Matter of Conscience but of Prudence For the Matter in genere and in its first Consideration is granted to be indifferent and 't is to be determined to be good or evil by the Addition of something to it in our special and secondary Consideration Now here you lay Honour and Reputation in the Scale and this hath its Weight but if we put Necessity against Honour and Reputation the Weight of these is inconsiderable and what is the Consequence Why that which we thought was not to be done because it was dishonourable we see it must be done because 't is necessary This is the Law of Prudence and Expediency changeth sides that which was expedient not to be done for the sake of Reputation 't is now expedient it should be done when the Necessity of it appears with its greater Weight 4. You already perceive how easily this applies it self to the Case in hand admitting something of Dishonour may in general and prima facie attend the Action for the very granting it to be an indifferent thing in it self whether I take this Oath or not plainly determines the Case and puts an end to the Controversy 5. For I boldly and peremptorily pronounce that if it be indifferent it hath such Additions and Circumstances as cannot but make it an indispensible Duty Rebus sic stantibus from the Argument or Ground of Necessity viz. both Precepti Medii 6. First There is a necessity of the Precept or Law that makes it to be our Duty to take this Oath which is but the Security of our Allegiance 't is required by the Nature of our Constitution and immemorial Custom which is our Common Law 't is required from the Paction betwixt Prince and People to secure each other by their respective Oaths 't is required by virtue of the Statute of Hen. 7. whereby we are to acknowledg the King regnant to whom alone we owe Allegiance and must secure it And lastly 'T is expresly required in the Laws of our own making by our Representatives in the present Parliament in and by which Parliament the King and Queen have equally sworn and plighted their Troth to us Whence Protection and