Allegiance which I have promised by Oath to him cease though he hath the same right to it 2dly When we say a King out of Possession hath righ tto the Allegiance of his Subjects we mean not an immediate right but mediate i. e. our meaning is That first he hath right to Possession and actual Government and by that to Allegiance he therefore must be first in Possession before we can exert the Allegiance due to him Accordingly though Edward the Fourth is by Act of Parliament in the First Year of his eign declared to have been in Right See Bagot's Case 9 H. 4. Term Trin. from the Death of the Right Noble Prince Richard Duke of York very just King of the Realm of England yet because he only took upon him to use his Right and Title to the said Realm of England on the Fourth of March A. D. 1460. and entered only then into the Exercise of the Royal Estate Dignity Preheminence and Power of the same Crown and to the Governance of the said Realm of England by the amotion of Henry the Sixth till then King in Deed though not of Right therefore is he said by the Act of Parliament to have been only on the Fourth day of March in the lawful Possession of the same Realm with the Royal Power Preheminence Estate and Dignity belonging to the Crown thereof and then only to be lawfully seized and possessed of the Crown of England in his said Right and Title and of all Prerogatives belonging to it Now what is only thus of Right may be both promised and performed to another whilst this other is in Possession though he be not de jure so provided he be so according to the Course of Law or the accustomed Rights of giving and receiving Possession as is apparent in the Case of a Lord of a Manor who is thus in Possession of what is the Right of another who is by Fraud or corrupt Verdict or Judgment outed of his Right for the Homage due of Right to the true owner is here by Law as occasion offers it self to be sworn to the unjust Possessor Nay we read of divers Acts of Parliament continuing the Name and Honour of a King to him who by their own Confession had not the just Title and only proclaiming him who had the right Title Heir apparent to the Crown as in the very Case of * In ipsa autem vigilia capta fuit conclusio differentiae hujusmodi viz. Quod Dux Filii sui Edvardus Comes Marchiae ac Edmundus Comes Rutlandiae qui ambo discretionis annos attigerant jurarent ipsi Regi fidelitatem quodque ipsum recognoscerent eorum Regem quamdiu ageret in humanis id enim Parliamentum ipsum jam decreverat addendo de ipsius Regis consensu quod quamprimum Rex ille in fata discesserit licebit dicto Duci suisque Haeredibus coronam Angliae vendicare possidere Hist Croyl Ed. Oxon. p. 550. Richard Duke of York and Henry the Sixth and in the Case of †Theobaldus Cantuariensis Utrosque demum ad concordiam emollivit in tantum quod Rex Juvenem Ducem in filium susceperit adoptivum juramenti attestatione Regni sui constituit Haeredem Regi tamen honorem debitum fidemque dum viveret Dux ipse promiserat se conservaturum Ibid p. 451. Vide Dunelm continuat p. 282. King Stephen and Henry Duke of Normandy Not to mention the Treaty of Peace made afterwards for the avoiding the shedding of Christian Blood ‖ Daniel 's Hist pag. 91. That Henry the First being invested with the Crown by the Act of the Kingdom should enjoy the same during his Life though the just Title was in Robert. This Assertion n. 17. Obj. 3. That actual Possession makes a Sovereign Lord the King for the time being destroys all Hereditary Successions in which the Heir is the power in being without farther Act done by him or passed by the People or others and without actual Possession Since it is certain that no person can now claim by a Paternal Authority uninterrupted from the beginning Answ 't is certain that all Kingdoms are now Hereditary by virtue of their own Consent and Compact or by their own Establishment that the Crown shall be continued in such a Line it therefore is Hereditary because they have consented and agreed it should be so If then all Parties concerned have consented also to a Law that a King in quiet Possession of this Government shall be looked upon for th etime being as the Heir that is shall be to all intents and purposes as much our Sovereign Lord the King as if he were so Cook 's Instit par 3. c. 1. p. 7. This Law can bear no Contradiction to such an Hereditary Succession but only be a wise Provision that in the interruptions of the Regular Succession Justice should never fail there being by the Law always a King in whose name the Laws are to be maintained and executed and therefore they who have the least acquaintance with our History must know that tho' our Kings de facto were more numerous before the Union of the two Houses than those de jure yet are they equally placed in the Catalogue of the Hereditary Kings of England and Allegiance was sworn to them by their subjects without any Scruple as well as to the Kings de jure 2dly That the Heir is of Right the Power without farther Act done by him than claiming of the Crown may be granted but that he is actually the Power in Being whilst he is uncapable by being out of Possession to exercise any Act belonging to the Supreme Power is denied For we find throughout the whole History of the Kings of England Vide Knighton Chron. l. 2 c. 5 8. That they who had the Right by Proximity of Blood but wanted Possession See the whole Pedegree of them in Bagot's Case 9 Ed. 4. Term. Trin. were never owned as Kings and Queens of England as is visible in the Case of Robert the Eldest Son of the Conqueror of Maud the Empress of Germany Prince Arthur and Elenor his Sister and of all the Issue of Lionel Duke of Clarence who by the Judgment of the High Court of Parliament in the Eighth of Richard the Second were declared Heirs Apparent to the Crown in case King Richard should die without Issue as he did On the other hand they who were Kings de facto and not of Right as unquestionably were King Stephen and King John Ed 4. 1º c. 1. and as Henry IV V and VI. by Act of Parliament were declared to be were always reckoned as true Kings of England and Allegiance was sworn and paid to them as such An Inferior Magistrate is not to be obeyed or owned as our Superior in opposition to a Superior Magistrate's Command n. 18. Obj. 4. because in such things he hath no lawful Call Warrant or Commission and for the same
saith That no person or persons shall take any benefit or advantage by this Act which shall hereafter decline from his or their said Allegiance So can they from our Doctrine have no advantage so to do Lastly Our Principles do not concern themselves either with the supposed Title of the Prince of Wales or the supposed defect of Title in King William for do but grant what is plain matter of Fact that neither King James nor the Prince of Wales are in Possession of the Crown of England and that King William and Queen Mary are in Possession of it by the consent and approbation of the Parliament and Faith and true Allegiance for the time being must by our Principles be due unto the latter whatsoever Right or Title may being unto the former FINIS ERRATA PAge 18. line 16. for displeased read displaced p. 31. l. 32. dele of p. 46. l. 5. add resist Books lately Printed for Awnsham Churchill at the Black Swan at Amen-Corner THE Late Lord Russel's Case with Observations upon it 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 Wherein the true Ground and Reason of Making the Laws is given the Papists most barbarous Usage of the Protestants here in England under a Colour of Law set forth and the Reformation Vindicated from the Imputation of being Cruel and Bloody unjustly cast upon it by those of the Romish Communion By Samuel Blackerby 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 4º A modest Enquiry Whether St. Peter were ever at Rome and Bishop of that Church wherein I. The Arguments of Cardinal Bellarmine and others for the Affirmative are considered II. Some Considerations taken Notice of that render the Negative higstly Probable 4º The Spirit of France and the Politick Maxims of Lewis XIV laid open to the World. 4º Memorials of the Method and Manner of Proceedings in Parliament in Passing Bills Together with several Rules and Customs which by long and constant Practice have obtained the Name of Orders of the House Gathered by Observation and out of the Journal Books from the time of Edward VI. 8º Dr. Burnet's Tracts in Two Volumes Vol. I. Containing 1. His Travels into Switzerland Italy and Germany with an Appendix 2. Animadversions on the Reflections upon the Travels 3. Three Letters of the Quietists Inquisuion and State of Italy Vol. II. 4. His Translations of Lactantius of the Death of Persecutors 5. His Answers to Mr. Varillas In Three Parts 12º A Collection of Texts of Scripture with short Notes upon them And some other Observations against the Principal Popish Errors 12º The Fallibility of the Roman Church Demonstrated from the manifest Error of the Second Nicene and Trent Councils which Assert That the Veneration and Honorary Worship of Images is a Tradition Primitive and Apostolical 4º A Demonstration that the Church of Rome and her Councils have Erred by shewing That the Councils of Constance Basil and Trent have in all their Decrees touching Communion in one Kind contradicted the Received Doctrine of the Church of Christ with an Appendix in Answer to the XXI Chapter of the Author of A Papist Misrepresented and Represented 4º A Treatise of Traditions Part I. Wherein it is proved That we have Evidence sufficient from Tradition 1. That the Scriptures are the Word of God. 2. That the Church of England owns the true Canon of the Books of the Old Testament 3. That the Copies of the Scripture have not been corrupted 4. That the Romanists have no such Evidence for their Traditions 5. That the Testimony of the present Church of Rome can be no sure Evidence of Apostolical Tradition 6. What Traditions may securely be relied upon and what not 4º A Treatise of Traditions Part II. Shewing the Novelty of the pretended traditions of the Church of Rome as being 1. Not mentioned by the Ancients of their Discourses of Traditions Apostolical truly so called or so esteemed by them Nor 2. In their Avowed Rule or Symbol of Faith. Nor 3. In the Instructions given to the Clergy concerning all those things they were to teach the People Nor 4. In the Examination of a Bishop at his Ordination Nor 5. In the Ancient Treatises designed to instruct Christians in all the Articles of their Faith. 6. From the Confessions of Romish Doctor with an Answer to the Arguments of Mr. Mumford for Traditions and a Demonstration That the Heathens made the same Plea from Tradition as the Romanists do and that the Answer of the Fathers to it doth fully justifie the Protestants 4º All these four Books Written by the Reverend D. Whitby D.D. An Exhortation to Charity and a Word of Comfort to the Irish Protestants Being a Sermon Preached at Steeple in Dorsetshire upon occasion of the Collection for Relief of the Poor Protestants in this Kingdom lately fled from Ireland By Samuel Bold Rector of Steeple 4º THE END
181. viz. It is worthy the Note that we find no execution of blood except in open battel in all these combustions nor any Nobleman to die on a Scaffold either in this King's Reign or any other since William the First which is now almost Three hundred years SECT III. NOW as the strength of this Argument seems to me greater than is that of many others which are produced in this Cause so are there many singular advantages which it hath above them For instance First Whereas 't is said n. 1. That we cannot take this Oath upon the Grounds which commonly are offered to move us so to do without condemning the Doctrine of Non-resistance allowing Subjects in some cases a Power to Depose their Prince asserting that our Allegiance to him may cease even whilst he doth continue to Govern or to sway the Sceptre and so we cannot upon those Motives comply with the Act enjoining us to take it without condemning our ancient and avowed Doctrines our Subscriptions to our Homilies and Canons if not the Doctrine of the Ancient Church and that which once was counted the Glory of the Church of England and consequently we cannot do it on those Principles without the scandal of Hypocrisie and Mutability and so of being Ecclesiastical Weathercocks that turn with every wind that blows and Men of such flexible Consciences as will permit us to swear backwards and forwards or any ways for our interest which scandal would cause ur Persons to be despised and our Doctrine not to be regarded Whereas I say some of the other Grounds of taking the Oath of Fealty and Allegiance to King William seem to subject us to these and many other inconveniencies this way entirely avoids them all For 1. We may still honestly declare as do our Statutes n. 2. 3. Jam. 1. c. 1. Can. 36.60 Can. 1. 1640. our Canons and our Convocations That the King's Highness is the only Supreme Governor of this Realm and of all other his Dominions and Countries That the Kingly Authority within his Dominions and Countries is immediately and after God Chief and Supreme and that all Subjects by divine Law stand bound to yield all Faith and Obedience to it above all Earthly Power whatsoever For this Doctrine doth not in the least diminish any Privileges or meddle with any Prerogatives of our Sovereign Lord the King but only tells us who for the time being is that Sovereign Lord to whom these Prerogatives belong 2. n. 3. We may still honestly declare That it is not lawful upon any pretence whatsoever to take up Arms against the King Stat. Car. 2 A. 14. cap. 2.12 Car. 2. cap. 10. And that by the undoubted fundamental Laws of this Kingdom neither the Peers of this Realm nor the Commons nor both together in Parliament nor the People collectively or representatively nor any other persons whatsoever had have hath or ought to have any coercive Power over the Kings of this Realm And with our Convocation still assert A. D. 1640. Can. 1. That for Subjects to bear Arms against their King offensive or defensive upon any pretence whatsoever is at the least to resist the Powers which are ordained of God. We may still subscribe these Doctrines of our Homilies as wholsome and godly Doctrines and Doctrines to be embraced by all men 2d Par. of the Serm. of Obed. p. 72. That it is not lawful for Subjects and Inferiors in any case to resist and stand against Superior Powers that Christ hath taught us plainly that even the wicked Rulers have their Power and Authority from God and therefore it is not lawful for their Subjects to withstand them Although they do abuse their Power That if they would command us to do any thing contrary to God's Commandments in that case we may not in any wise withstand them violently P. 74 75. or rebel against Rulers or make any Insurrection Sedition or Tumults either by force of Arms or otherwise Against the Anointed of the Lord or any of his Officers but we must in such case patiently suffer all wrongs and injuries referring the Judgment of our Cause only to God. Hem. of Rebel Par. 2. p. 301. And that though Multitudes not only of the Rude and Rascal Commons but sometimes also Men of great Wit Nobility and Authority have moved Rebellions against their lawful Princes whereas true Nobility should most abhor such villanies though they should pretend sundry Causes as the Redress of the Common-wealth which Rebellion of all other mischiefs doth most destroy or Reformation of Religion whereas Rebellion is most of all against true Religion yet were the multitude of the Rebels never so great the Captains never so noble politick and witty the pretences feigned to be never so good and holy yet the speedy overthrow of all Rebels of what number state or condition soever they were or what colour and cause soever they pretend is and ever hath been such that God thereby doth shew that He alloweth neither the dignity of any person nor the multitude of any people nor the weight of any cause as sufficient for the which Subjects may move Rebellion against their Prince For this Doctrine only adds to these Particulars this That the King Regnant in possession is the King whom we may not resist in any case 3. We are not obliged for the justification of our selves n. 4. and of our Doctrine to appeal from the Homilies themselves to those who composed or subscribed them to prove their Actions towards others and the Sayings of one or two of them elsewhere were inconsistent with the plain import of the words which they subscribed and taught as good and wholsome Doctrine when it served to defend the Protestants against the Insurrections of the Romanists the chief Adversaries of that Doctrine which England knew of in those times or to insinuate to their disparagement that they held this to be good Doctrine when it was useful to secure them against the Romanists but that the Doctrine of the Lawfulness of Resistance was as good when it was useful to preserve the Protestants in England or beyond the Seas against the Romanists But can fairly account for that assistance which they gave to their oppressed Brethren from the difference betwixt the constitution of their Government and ours this being one of the chief Laws by which the liberty of the Netherlands was long maintained and justified If any Prince hath disturbed the State of the Republick either by violence wrong dealing or treachery Oration of the Lawfulness of the Netherlandish War p. 14. then all the States and Burghers may deny him Obedience and shall be free and discharged of their Oaths they shall appoint a Chief in his place until he be reduced to a better Mind and more easie Government From the Observation of Dr. Hammond out of Bodinus L. 2. de Rep. c. 5. That in France Spain England and Scotland Reges sine
reason a King de facto is not to be owned or obeyed as our Superior in opposition to a King de jure because he cannot be supposed to have a lawful Call or Warrant to Exercise the Kingly Government If an Inferior Magistrate hath a Law to warrant his Commands Answ he is to obeyed even against the verbal commands of his Superior without law Now a King de facto in quiet Possession hath a Law to warrant his Acting as our Sovereign Lord the King and requiring our Faith and true Allegiance ot him for the time being he therefore is to be owned and obeyed as having a legal Call to the Government for the time being Secondly To give a satisfactory Answer to this and many Objections of the like nature it will be proper to consider what a Call or a Commission to be the Governor of any Nation doth import and for the Resolution of this Enquiry let it be noted 1. That God doth not now as in the Case of Saul and David by himself appoint and nominate the Person who shall sway the Sceptre in any Nation of the World. We see by plain Experience God doth not interpose in this extraordinary manner in the Election or Constitution of Superiors The Roman Emperors had no such Appointment but were Elected by the roman Armies or chosen and confirmed by the Senate whence it must follow That an immediate Appointment or Designation of the Person by God cannot be necessary to render any Prince God's Ordinance 2. By virtue of God's general Appointment or Ordinance that all Nations shall have some Government placed over them no Individual Person can claim a Right to be the Higher Power in any Nation moe than Others nor are the People tied to yield Subjection by it to this Man rather than to that As then the former Designation was more so this is less than reasonably can be required to make a Man the Individual Person who is God's Civil Ordinance in reference to such a Nation 3. It cannot be said of any Person or Family at present in the World That he or it claimeth or holdeth the Throne in any Nation by a Right of Fatherhood or Primogeniture derived from Adam I know no Prince on Earth who thus pretendeth to derive his Pedigree and am perswaded that if any hath the Vanity to make such an Extravagant pretence he cannot thus make out his Title It remains therefore 4. That Government be conveyed to this or that Individual Person or Family by Compact or Consent and Choice of the Persons governed that such a Person or Family shall Exercise the Government over such a Nation it therefore must be that Choice Consent or Contract of the Persons to be governed which renders any person the Ordinance of God to such a Nation that is it must be granted that all the present Governors of any Nation become God's Ordinance to them by the Consent of the Community Where therefore any person is invested with the Supemacy by them to whom God hath committed the Choice of a Superior or by their consent to have such Persons for their Superiors there is the Ordinance of God. And if they do admit that person to the Government who by Constitutions and antecedent Compacts hath a right to be so he is to them the Ordinance of God de jure If in this Choice they deviate substantially from these Constitutions he only is the Ordinance of God de facto but yet he truly is the Ordinance of God because he is so by the only means which God hath left for the Investing any Individual Person with that Office. Hence do we find throughout the History of our Kings that the Election of or else a Compact with the People hath generally been looked upon as a thing proper either to satisfie the People or to strengthen their Title to the Crown thus v. g. Of the Conqueror Dunelm p. 195. Hoved. par 1. p. 258. Simeon Dunelmensis and Hoveden inform us That Foedus pepigit he made a Covenant with his People and at his Coronation took an Oath to defend the Holy Church f God and the Rectors of the same to govern the Vniversal People Subject to him justly to establish equal Laws and see them duly executed Daniel p. 36. William the Second held the Possession of the Crown of England by the Will of the Kingdom Ibid. p. 52. the Succession in Right of Primogeniture being none of his * Dan. p. 61. Rich. Hugust p. 310. Henry the First was invested in the Crown by the Act of the Kingdom concilio Communi Baronum Regni Angliae saith the King. King Stephen declares himself to be chosen King †Assensu populi Cleri in Regem electum Malmesb. Hist Nov. l. 1. f. 101. b. Rich. Hugust p. 314. by the consent of the People and the clergy as he had good reason to do having no title at all saith Daniel but as one of the Blood by meer Election advanced to the Crown p. 69. King John received the Crown by way of Election as being chosen by the States saith Daniel The Succession of Edward the Second saith 1 Pag. 127. Non tam jure haereditario quam unanimi assensu procerum Magnatum Ed. Franc. 1602. P 95. Walsingham was not so much by Right of Inheritance as by the unanimous Assent of the peers and Great Men. Edward the Third was Elected 2 Dan. p. 217. Cui electioni consensit populus universus id p. 126. with the Vniversal consent of the People upon his Fathers Resignation Edward the Fourth on his entrance on the Government makes a solemn declaration 3 TRussel p. 179. of his Right to the Crown of England challenging it to belong to him by a double Right The first as Son and Heir to Richard Duke of York the Rightful Heir of the same The second as Elected by Authority of Parliament upon King Henry 's forfeit thereof And Henry the Seventh to all his other Titles by 4 Lord Bac. Hist of H. 7. p. 12. Marriage Conquest and from the House of Lancaster adds that of the Authority of Parliament This Principle makes Authority and Supreme Power inseparable from Actual Regency n. 19. Obj. 5. or Command investing him with the Supreme Power who hath it for the time being and making him incapable of being the Higher Power who is out of Possession whilst he so continues which seems clear contrary to the decision of the Holy Scriptures for though all Israel chose Absalom to be their King 2 Sam. xix 10. and anointed him over them though he had for the time the Kingdom in possession and David fled out of the Land leaving no Governor behind him yet the Power was in David he was even then the Supreme Governor and Higher Power to whom Subjection was due 2 Sam. xx 2. 2 Chr. xxij 12. So he was also when all Israel followed Sheba And though Athaliah possessed the