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
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
it and that by a real as well as by a formal Abdication as before explain'd Government according to Law is essential to our Government otherwise our Lawyers are much out that generally tell us our Government is a Legal Regal or as Fortescue a Political Government in opposition to Despotical Absolute Arbitrary or Tyrannical Government Now though a King do not intend absolutely to abandon all kind of Government yet when he leaves the proper Government and assumes another kind of Government abhor'd by our Constitution he plainly ceaseth to be our Governour in any sense he refuseth to govern politically he would bring in another Species of Government that is destructive of our Constitution and begins in many odious Instances the Execution of Tyranny contrary not only to the Laws that make and limit our Government but contrary to the ends of all Government and instead of protecting destroys his People what can be plainer than that this is to abdicate the Government as King of England A King may kill himself and not intend it To this purpose we have several notable Collections made by others I shall note a few of them Among the Laws of K. Edward C. 17. de Regis Officio the Liberties of the People being mention'd it is said that the King is constituted for the Preservation of them which if he do not nec nomen Regis in eo constabit he doth not retain the Name of a King. Bracton says l. 2. c. 24. Est enim Corona Regis facere Justitiam Judicium pacem tenere sine quibus consistere potest nec tenere i. e. The Crown of the King is to do Justice and Judgment and to preserve Peace without which he cannot subsist But above all the Words of K. James to his Parliament March 21. 1609. are remarkable The King is bound by a double Oath to preserve the Laws tacitly as being King and expresly by his Coronation-Oath So as every just King is bound to observe the Paction made with his People by his Laws framing the Government thereunto and a King leaves to be King and degenerates into a Tyrant as soon as he leaves off to govern by Law in which case the King's Conscience may speak to him as the poor Woman to Philip of Macedon Either govern according to Law or cease to be King. Answerable hereunto is the Civilians Maxim Tyranni in Exarcitie decidunt Jure sue Haereditario i. e. Tyrants by their Tyranny lose their Hereditary Right of Government for the Ill of Monarchy is Tyranny K. Charles's Answ to 19. Prop. From what hath been said it seems plain that a King by relinquishing the Legal and usurping an Arbitrary or Tyrannical Government does as effectually abdicate the Government as King as a Merchant that turns Pirate abdicates his Trade or a Husbandman that leaves off his Husbandry and resolves to cast the fortune of his Life upon robbing on the High-way abdicates his Plough Lastly 't is so evident in those that give us the sense of the word that there is a real Abdication as we have considered it in distinction to a formal that no body that will take the pains to examine can doubt it Not only Grotius de Jure Belli Pac. lib. 2. c. 4. s 4. Non tantum verbis sed re potest but Calvin in his Lexic Jurisd tells us Generum abdicat qui Sponsam repudiat he that divorces his Wife doth abdicate his Son. So Homo liber qui seipsum vendit abdicat se statu suo saith Brissonius de verb. sign that is he which sells himself abdicates himself from his former state And Budaeus Comment de Origine Juris Abdicare se Magistratu est idem quod abire penitus Magistratu 1. For the Application of the Word so explained And to all that had been said to prove the late King's Abdication compleat and undeniable it ought to be remembred that in the very times of Popery here a submitting to Papal Usurpations and Authority contrary to our Laws was deem'd a Disinherison of the Crown What shall we say of the late King 's voluntary studied and deliberate invading his own Authority and subjecting the whole Ecclesiastical State to a forreign Power to the utter Extirpation of our Reformed Constitution so firmly settled in the special Laws of the Land to that purpose Considering also how this in a little time must inevitably ruin the Civil State which is intimately inter woven with the Ecclesiastical in their just Liberties and true Religion their very Consciences and Lives not being safe from the Snares and Inquisitions and even Massacres of the most cruel tyrannical and barbarous Religion in the World. 2. This in conjunction with the late King's Proceedings in civil Matters needs no Aggravation The Crown of England is glorious in a threefold Excellency the Legislative Executive and Military Power Now sor one of our own Kings to do that industriously and by many designed deliberate Acts which is rank Treason against the King and Kingdom which at least hath a tendency to destroy the King with respect to his Crown and Dignity what is this but to destroy himself For a King to divest himself of the Legislative Power by the use of all Artifices of Fraud and Force to destroy the fundamental Priviledges of Election and consequently the very Being of a legal Parliament his executive Power by refusing to govern by Law and setting up an arbitrary tyrannical Government Lastly his legal standing military Power laying aside the Militia and resolving to stick to an illegal Army what is this but to relinquish the Government of England to throw away all Regal Authority to violate break in pieces and trample upon the Crown to declare to all the World he will be King no longer and to abandon the Authority which he had to govern by Law according to the Constitution of the Kingdom his Duty to his People as King and the special Bond upon his Soul in his solemn Coronation-Oath 3. But at last to crown all when the Noise of the Prince's Coming had brought him a little to himself and he begins to feel the danger that his late daring Pranks of Tyranny had brought him into he adviseth with his wise Council what to do Should he trust his People in Parliament No Should he trust his melting Army No Should he trust his dreadful Son in Law No. What then as the evil Spirit rent and tore the Body when he was forc'd to leave it so he did all the mischief he could by calling in his Writs for a Parliament dismissing his Judges carrying away the Broad Seal and putting an end to all kind of Government among us as before and then leaves us in absolute Anarchy and a way of Confusion upon a necessity apprehended of his own creating of dispossessing us he flies to his trusty and wel-beloved the French King thus at once delivering his Person and in consequence directly betraying his Kingdom into the Power of
Act of Parliament if any one would break thrô and invade the Government he must be prevented by a Convention or the Foundation of the Government is subverted 8. Lastly The Throne being left empty of an Administrator lately in our own Case and we put into a state of Anarchy and great Confusion upon the late King's Departure Did not every Man that had any sense of our Danger and that is all that were not concern'd in the late methods of our Ruin Did not they see then a plain necessity to meet together and apply to the Author of our Deliverance desiring that he would take upon him the Administration of the Government till the Convention should meet and to give out his Summons for a Convention And was not that Convention regularly peaceably and freely chosen and assembled And what did they do but consider where the Right of the Crown now lay and with the Consent of all Parties as before is noted declare WILLIAM and MARY our King and Queen 9. True as yet they were no Parliament but as soon as there was a Possessor of the Throne the Lords and Commons so freely chosen by the subsequent Consent of the King of Themselves proceed into a Parliament and being so recognize the King and Queen and cause Proclamations thereof to be made throughout the Kingdom Which being done we have a King and Queen de facto and no room left to dispute their Title according to Reason 10. Give me leave to resume the Matter fair and plain All saw a necessity that the great Men should meet and some perhaps that now scruple and desire the Prince of Orange to take the Administration of the Government and summon a Convention and in that Exigence what could they do more seasonable and wisely and how could the Prince proceed more regularly and nearer to our Constitution having the Exercise of the Government than by summoning a Convention Or how could the People transact the Election to represent them more freely and quietly than they did And what had the Convention of Lords and Commons so elected to do but to consider where the next Title to the Crown lay and to declare and recognize the present King and Queen with consent of all parties concern'd as before was observed by which Act of the People of England they took and now have as evident a Possession of the Throne as ever any King of England had 11. I say now especially because since the Declaration of the Convention the Body of the Kingdom in Parliament have solemnly again recognized the present King and Queen and they have been since acknowledged by the People at large by Universal Proclamations throughout the Kingdom Obj. But the Assembly at Westminster may be thought but a Convention still and no Parliament because not at first summon'd by the King's Writs Answ However they truly represent the whole Body of the People and the Representers of the Commons and University of the People together with the Lords all concur'd to the Proclamations of the King and Queen and that 's enough certainly to render the Possession of the Throne by them undoubted besides the Solemnities of it at their Coronations by the usual Methods and all Formalities of Law. But let us consider this matter a little nearer 2. I do not say a Parliament can make it self but methinks 't is evident enough that the Persons elected by the People on purpose to be their Representatives in Conjunction with the Lords whose Right it is to sit in Parliament with the consent of the King sufficiently express'd should have both the matter and form of a Parliament 't is true we cannot conceive a proper Parliament in England without a King in Being or Possession but the Writs before can reasonably be supposed to have no further Influence into the being of a Parliament than only for the orderly Proceeding of the Election and signifying the King's Pleasure to have a Parliament To be short if we find the Name and Power of a Parliament given by the Law to Conventions not chosen by the People if we find the Definition of a Parliament given by a Statute to agree exactly to the present Parliament and lastly if we have a Precedent in the case why should we doubt whether the present be a Legal Parliament First That the Name and Power of Parliament hath been formerly given by Law to Conventions of the great Men and the Community of the People without any Election of the People at all and consequently not chosen upon Writs from the King this the learned Dr. Brady labours much to prove in favour of the Crown before as he saith Parliaments were settled as now they are He saith Colloquium Parliamentum Conference and Parliament were expressive one of another and in those great Conventions sometimes only the great Men of the Kingdom as at Runnemede are called a Parliament sometimes also with them the Communitas Populi but these he saith did not include the common sort much less imply the issuing out of Writs and thereupon the Peoples electing their Representatives p. 72. Answ to Mr. Petit. Whence I argue If a Convention heretofore without the Election of the People upon Writs from the King had the Name of a Parliament and concurred with the King to make Laws binding upon the People certainly now a Convention freely chosen by Summons from a Person that had the Administration of the Government in his hand and was in the place of the King though the late King had call'd in his Writs and left the Kingdom and that Exigence of Affairs could not possibly admit any other Remedy I say such a Convention when allowed by the King doth much rather deserve the Name and challenge the Authority of a Parliament The Argument receives much strength if we consider that now the Election of our Representatives so essential to our Parliaments is the great fundamental Priviledg of the People and consequently the King's Writs to that purpose that we may have frequent Parliaments is the Peoples Priviledg also besides the present King cannot be supposed to suffer any thing in his Prerogative who though in another Capacity did in effect send out such Writs and since he took the Crown hath allow'd the Election upon his own Summons for a Convention to serve in order to their being a Parliament what can be thought wanting to the making them a Parliament The People have their Priviledg and the King his Prerogative and while we have the Substance 't is vain to complain of the want of a mere Formality impossible to be had to the Unsettlement of a whole Kingdom Secondly The Definition of a Parliament agrees well enough with our present Parliament as we have it in 1 K. James the first A Parliament is where all the whole Body of the Realm and every particular Member thereof either in Person or by Representation upon their own free Elections are by the Laws of this Realm deemed to
us that the Testamentary Heir that is one that comes to the Crown by the last King's Will tho not next in Blood is said to inherit But to apply this distinction methinks it doth two great things it first plainly yields the Cause so far as to the necessary descent of the Crown in Proximity of Blood Secondly It gives a shadow at least of Election if not in the People yet in the King if by his last Will he might pass by the next in Blood and name that is properly to chuse another to succeed him in the Throne Besides if this was anciently done both frequently and lawfully where shall we found hereditary Government in the strict sense of it in the Constitution of the Kingdom or how shall we defend it from being in no wise elective Yea if the King himself upon some considerations might chuse his Successor and set aside the next in Blood without wronging him certainly upon great Considerations the like may be done by both the King and People And we find that Testamentary Heirs of the Crown tho they were indeed named by the King are said to be chosen by the People and yet are also said to inherit and if we observe it narrowly we shall easily note that the words Hereditary and Elective with respect to the Government are some-times confounded in History Successione Haereditariâ eligere was no contradiction The Testament of Ethelwoph Florence of Worcester calls it Epistola Haereditaria by which it is said he set aside his own two Sons as the Doctor notes p. 363. where he tells us moreover what the Law of Succession as well as the Practice then was the Saxon Kings saith he might appoint a Brother's Son or a Bastard to succeed them before their own lawful Issue But to come a little closer I may demand where when or how this Maxim that the Crown of England is necessarily annex'd to Proximity of Blood in the Royal Family came to be of the Foundation or Constitution of our Government That it was never made so by Custom or any other Law or by any other means the learned Doctor yields us by his Refuge in a Testamentary Heir I am assured under the hand of a very learned Lawyer who is a great Friend of the Hereditary Monarchy that this Maxim in contradiction to the former the Crown was alienable and devisable was retained and never contradicted until the Resignation of K. John and since that time how hath it been contradicted or denied either in practice or the declared Judgment of the Kingdom It is evident enough what the sense of the King and Parliament was in Henry 8th's time and since in Queen Elizabeth's and since that in our late Parliaments And nothing to the contrary can I think be fairly inferr'd either from that Act of 7 Hen. 4. that limited the Succession of the Crown to his Sons in order and their Issue or that of Hen. 7. that limited to the Heirs male of his Body and no farther Or the Recognition of K. James the first for by that of Hen. 7. it is plain the Parliament thought they had power to limit the Succession otherwise they would not have meddled with it besides they limited it indeed by extending it only to the Issue male of his own Body And as for the Recognition made to K. James it seems to be the clearest and fullest acknowledgment of an hereditary Succession yet we may observe how it is expressed 't is indeed declared that the Imperial Crown did belong to him and his Royal Progeny and Posterity for ever but 't is not said of necessity notwithstanding any Reason to the contrary it shall actually descend to the next in Blood in order for ever Besides they say in the same Act that this their Recognition could not be perfect or remain to Posterity without the King's Consent that is to make it an Act of Parliament And doth not that imply that hereditary Succession of the Crown was not accounted to be fundamental to our Government before For then it would have been perfect in it self without the King's Consent Besides it seems evidently to follow that the Kingdom at that time judg'd that the Succession of the Crown was limitable by Act of Parliament Yet lest after all this I should be mistaken I make this observable from our own Histories that tho sometimes the next in Blood hath been set aside and for ought I find to the contrary upon Reasons of State may be so again yet it seems the Royal Family have Jus ad Rem and have Right thereunto before any other if any Member of the Royal Family are capable of Government so I think we find it generally carried that is when the next in Blood hath been omitted generally some one either really or in pretence of the Royal Family hath been advanced to the Throne This general Right to the Crown by Blood hath been sometimes pleaded by our Kings and allowed by the People and Parliaments but never denied and tho we cannot say the next in Blood hath an uncontroulable and immediate Right beyond all exception to enjoy the Crown tho we cannot find this Right in the constant usage as Common Law and a Fundamental of our Government yet we may grant that in all Turns and Temptations to the contrary the Right of the Royal Family seems to have countenance if not plain and general Acknowledgment and to pass unquestionable with the silent Testimony of many Ages I am sorry to observe with Daniel that before this last Age seldom or never the third Heir in a right Descent enjoyed the Crown of England It cannot be denied but that our Parliaments have frequently concern'd themselves about the Succession and that our Kings both such as came to the Crown by proximity of Blood as well as those that came to it otherwise have often applied themselves to the Parliament not only for their own Security but to limit and qualify the Succession after them Yea further I think it must be granted as one saith smartly enough That 't is a most dangerous thing to have an Opinion prevail that the King in concurrence with his Parliament should not have power to change the direct Order of Succession though the Preservation of him and his People did depend upon it Yet after all this if Common Vsage be Common Law and continued Practice be our Rule of determining this great Point I think the Royal Family have a radical Right in the Government of England and bids fair for an Interest in the Constitution of the Kingdom for it seems to have governed the Disposition of the Crown all along both before as well as since William the first and that generally with our several Kings and Parliaments ever since we had any I shall leave this easy Observation only take notice of two Concessions which I apprehend considerable The first is that of Dr. Br. he saith the Saxon Kings might appoint a Brother's
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
Allegiance are both the natural and legal Results of the Relation betwixt King and Subject which very Titles do after a sort import so much 7. Nor is the taking this Oath necessary only by the Law of Nature and by the Common Law of the Land and Acts of Parliament but by the Law of God. If we should grant it to be perfectly indifferent without it yet we must grant that if it be determined by the Word of God it thereby becomes necessary Now I should think that to obey the Powers in Being is as clearly commanded by the Law of God in the Holy Scriptures as by any other Law whatsoever And that we cannot or do not obey the Powers in being if we refuse to take the Oath which we say is in it self indifferent when expresly required by the Laws of the Land. 8. I think it is the Sense not only of the Church of England but of all good Christians that the Word of God makes it our Duty to obey the Government in all indifferent things made necessary by our own Laws And that we are bound to such Obedience not only for Wrath but Conscience sake Conscience towards God his Ordinance and Command let us not misjudg it for our Honour or Reputation to change our boasted Loyalty into Disobedience which is scarce to be avoided without obeying the Laws of God and Man and taking the Oath Secondly But were there no other Law requiring us to take this Oath Doth not the necessity of it as it is a Means make it our Duty What if Reputation weigh something with us doth not the Danger of the Publick continued by our Stiffness weigh more Do we talk of Honour when the Commonwealth lies at stake Is it comely for a Souldier to be playing with a Feather in his Cap when Hannibal is at the Gates 1. Pardon me if Zeal hath eaten me up and I cannot contain O Jerusalem for my Brethren and Companions Sakes I will now say Peace be within thee yea because of the House of the Lord our God I will seek to do thee good 2. Who considers how much is owing to niceness and strangeness to the Government for the Hazards and Blood of Ireland and Scotland already Who weighs the further Consequences of it both at home and abroad Where is our Compassion to our Protestant Brethren our Concern for the Reformation our Charity to the Kingdom our Justice to our Protectors our Kindness to our Friend our Gratitude to our Deliverer from Popery and Tyranny These are substantial and weighty Things And what are the Colours of a pretended Reputation in comparison of these 3. What do we mean upon a point of Honour to throw a Glove to the Government Is it reasonable or fit for us to provoke the King to a quarrel who hath so many Enemies already and must stake three Kingdoms to our little Reputation Yea the Interest of the Protestant World too of which he is made the Protector 4. Is it not Satisfaction enough for you that you have plaid the Men and stood it out as long as there was the least hopes of serving the Interest of the late King and so long vindicated your Loyalty to him Is is not now become morally impossible he should ever return but by the Assistance of the French King that is without inslaving us openly to the Antichristian Powers of which he is the Head under a haughty cruel and most barbarous Conqueror 5. Besides how unaccountable are Principles that engage a Man against his own as well as the publick Interest as if a Man were bound to oppose and fight with himself and all about him certainly this is a miserable strait and such as one cannot imagine the wise and good Providence of God should bring us into 6. By disobeying the Law and our Distance with the Government we continue a Breach at which a common Destruction may enter then we know we are lost in the common Calamity If God in Mercy prevent that and preserve us with wonder against our own Averseness as he hath done then there is yet a Breach betwixt the Government and us If we do not destroy the Publick and our selves that way yet we may destroy our selves when we might help it A man may be Felo de se by destroying himself by our Law and Fur de se by depriving and stealing himself from him to whom his Service is due by the Imperial Law and Proditor de se by the Law of Nature if he descend from the Dignity of Humanity and submit to the danger which he might avoid I speak as to wise Men judg ye what I say 7. 'T is a plain thing I am about to speak which if duly pondered must needs put an end to the whole Controversy at least I think so 'T is this None can be ignorant that the late King hath put himself into that condition that the French King is now actually endeavouring to serve himself of him for the Conquest of these Kingdoms he hath put himself absolutely into the Monsieurs Power he truckles under him in the Irish Commissions he hath either sold his Dominions to that King or so delivered up his Interest in them to his Management that 't is a piece of Madness to imagine but that the French will reap the Advantage of any Success God may suffer to be obtained against us Perhaps we may think the poor King James was forced to it but I know you will say you had no hand in that force and you could not help it and is not the thing de facto so Is it any thing to you by what means or upon what Motives this came to pass but it being certainly so you cannot now think but that seeing the State of things is such your Allegiance to King James is ceased unless you owe it also to the King of France which God forbid for while you continue to discountenance the Government you cannot do more to further the Designs and Methods of our Ruin. 8. The Apostle makes Expediency the Rule of our Practice in things indifferent so that some things are to be done or not to be done because expedient or not expedient upon which this Objection is urg'd Now if it be indifferent in it self to take or refuse the Oath I hope what hath been said is enought to satisfy us where the Expediency lies All things are not expedient Why Because all things edify not much more if they ruine and destroy It is something Non promovent publicum Ecclefiae bonum if they do not promote the publick Good of the Church much more si magis destruant if they tend to its Destruction as Authors gloss upon the Text. 9. One would think this Consideration might fully convince us that our Obligation to the present King c. is widely different from that which lay upon the People during Oliver's Usurpation they had reason to refuse or at least to suspend the
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