Orange And they do pray the said Prince and Princess of Orange do accept the same accordingly And that the Oaths hereafter mentioned be taken by all Persons of whom the Oaths of Allegiance and Supremacy might be required by Law instead of them and that the said Oaths of Allegiance and Supremacy may be Abrogated A. B. Do sincerely Promise and Swear that I will be Faithful and bear true Allegiance to their Majesties King William and Queen Mary So help me GOD c. I A. B. Do Swear That I do from my Heart Abhor Detest and Abjure as Impious and Heretical this Damnable Doctrine and Position That Princes Excommunicated or Deprived by the Pope or any Authority of the See of Rome may be Deposed or Murdered by the Subjects or any other whatsoever And I do Declare That no Foreign Prince Person Prelate State or Potentate hath or ought to have any Jurisdiction Power Superiority Preheminence or Authority Ecclesiastical or Spiritual within this Realm So help me GOD c. Now if in the Judgment of the Great Counsel after mature Deliberation these evident Matters of Fact did amount to a just Cause to pronounce the Crown Void I cannot perceive what in Justice they could do otherwise then to lodge it where it is the present Circumstances in which the Nation was requiring a speedy Settlement For which end it was provided after the Vacancy of the Roman Empire the Electors were to agree in the Choice of another within thirty Days or else to be allowed only Bread and Water until they had agreed If it be objected That the Crown ought to be set only on the Queen it may be thus answered That there is as little Deviation made as possibly could be and that the present King might have claimed it by Conquest with as much reason as either William called the Conqueror or Henry the Seventh but he had also a better Title than either of those being nearer in Bloud then either of them and the Title of his Lady being undoubtedly the next in Succession but by a suspected Child was endeavoured to be excluded ought to be as happily it is vindicated by her Royal Consort whereupon the Administration of the Government being by general Consent conferred on him during Life it is no more than what he might have claimed nor less than what they could have granted And therefore there is no cause can be given why we should not transfer our Allegiance to him at least in conjunction with the Queen in the case of Henry the Seventh the Nation did so before his marrying the Queen in whom the right Title was and much rather may we when the Queen's Title is acknowledged and the Test of all publick Acts and Writs are in both their Names so that during the joynt Lives of the King and Queen supposing that King James hath forfeited the Crown our Allegiance is undoubtedly due as by the new Oath is required But if yet any man should scruple the taking this Oath as not being satisfied that the right of Title is in the present King I say that this is more than appears to be required either by the Letter of the Oath or the intention of the Authority that imposed it And first as to the intention of the Legislator let it be considered what other intent they could have in laying aside the Oaths of Supremacy and Allegiance wherein the right Title of the Prince in being was so punctually asserted to make room for this wherein the assertory part is wholly omitted but to prevent the objection of such as should pretend this too nice scruple of Conscience to which there being in the Nation so many Pretenders to a Liberty of Conscience which cannot be forced I do rationally believe that the present Authority had a respect in penning the Oath so cautiously for the Oath doth not say as without gross Nonsence it can be supposed I do promise that King William and Queen Mary are lawful King and Queen c. but only that I will bear Faith and true Allegiance to King William and Queen Mary which may be done supposing that King William is only King de Facto and Queen Mary de Jure as in the Case of Henry the Seventh before mentioned And as to the Letter of the Oath though the Comparison be odious yet the Resolution of Bishop Sanderson in the case of subscribing the Engagement may determine such scrupulous Consciences the words of the Engagement are I do promise to be True and Faithful to the Common-wealth of England as it is now Established without King or Lords The words of the present Oath are I do sincerely Promise and Swear that I will be Faithful and bear true Allegiance to their Majesties King William and Queen Mary Where first observe that the Swearing doth no more add an Obligation to the Matter sworn to in the Oath than the Promise and Subscription doth to the Matter of the Engagement Secondly The Ingagement was for altering of the Species of the Government from that which was most Noble to that which was most Ignoble and indeed to an individuum vagum there being then no Government established Thirdly The King then in being had in no case made a Desertion or Forfeiture of his Crown but endeavoured with the hazard of his Life to vindicate his just Title Fourthly The Invader then was a Subject and a notorious Usurper who by fraud and force had driven him from his right All which considerations made a great difference between the legality of taking this Oath and subscribing that Ingagement But here I must premise that I do not insist on this Instance as if I thought the present King and Queen were only so de facto for I am rationally and fully perswaded that they are rightfully King and Queen of England c. as ever any of their Predecessors were That learned Casuist gives a higher and stricter or a lower and laxer sence of the Engagement the lower and laxer sence he thus expresseth Whereas for the present the Supreme Power under which I am is actually possessed by the House of Commons without King or House of Lords I promise that as long as I live under their protection I will not contrive or attempt any act of Hostility against them but living quietly and peaceably will endeavour faithfully in my Place and Calling to do what every good Member of a Common-wealth ought to do for the safety of my Country and preservation of Civil Society therein And our Casuits says p. 106. There want not greater probabilities of reason to induce us to believe that this sense is to be accounted the immediate and declared intent of the imposers who though they might have a more secret reserved and ultimate intent the ingager is not concerned in it the Equivocation if any lieth on the Imposers score not on the Subscribers Because 1. Many both Divines and Lawyers took it which they would not have done in another sense 2.
the Laws to which he was Sworn he should be Perjured And by what reason can a man be obliged to observe his Oath to a person that being mutual obliged to him hath notoriously violated his Oath and becomes a perjur'd Person it is well resolved by Amesius de Juramento l. 4. c. 22. Quum aufertur ratio Juramenti Juramentum cessat ratione eventus Qui easus est eorum qui Juraverunt se obedituros domino aut prinoipi alieui qui postea cessat esse talis When the reason of an Oath doth cease the obligation of the Oath ceaseth also by reason of the event which is the case of such who have sworn to obey a Lord or Prince who afterward ceaseth to be so King John's Confirmation of an Original Contract Anno 1214. upon granting the great Charter and that of the Forest it was enacted at Running-Mead That 25 Barons should be elected as Conservators of the Liberties thereby granted who upon Violation of them might no redress being made within 40 days after notice enforce the King by seizing his Castles and Lands and as a Security the four chief Captains of the Castles of Northampton Kenelworth Nottingham and Scarborough were sworn to the Barons and that none should be placed in them but such as the Barons thought to be faithful and also the Castles of Rochester and others which of right belonged to the Archbishop of Canterbury were delivered up and others to the Barons But the King by help of some Forreigners regain'd them all and was Master of all England except the City of London whose Suburbs he burnt And then the Bishops and Barons swore at St. Edmonds on the high Altar That if King John did not observe his Grants they would compel him to it by withholding their Allegiance and seizing his Castles and when the King would not restore their Liberties and Properties they raise an Army under Robert Fitz-Walker and regain all their Castles enter London and resolved never to desist until their Charters were better secured The King being generally forsaken having not above seven Knights with him whereas the Barons and Knights were reckoned 2000. besides Esquires of good Note He sent to the King of Morocco offering the Kingdom to him who having enquired into the difference between the King and his People despised the offer as Matthew Paris relates it He offered it also to Pope Innocent to be made Tributary to him if he would excommunicate the Archbishop of Canterbury and the Barons that he might be revenged on them all which notwithstanding they maintain the War and they elect Lewis of France for their King and their Actions were approved by the Peers of France assembled at Lyons I have read that in the Clause of the Charter confirm'd by H. 3. it was provided that if the King should invade those Rights it was lawful for the Kingdom to rise against him and do him what injury they could as owing him no Allegiance And much to this purpose is quoted out of King John's Charter in these words Et illi Barones cum communa totius terrae destringent gravabunt nos modis omnibus quibus poterint scilicet per captionem Castrorum terrarum possessionem aliis modis donec fuerit emandatum secundum arbitrium eorum And the practice of the Nobles and Commons in those days do evidence that they had some such Grants from their Kings for their justification and perhaps much more then doth now appear for it was made an Article against Richard the Second that he had erazed and imbezled the Records to the great dammage of the People and the disinherison of the Crown But this King Henry the Third upon a grant of the thirtieth part of his Subjects Goods ratified their Charters and Swore to preserve them inviolably as he was a Man a Christian and a King crowned and anointed and the Archbishop of Canterbury with the other Bishops denounced a Sentence of Excommunication against all such as should invalidate the Priviledges granted by the Charters throwing down on the ground the lighted Candles which were in their hands and saying So let every one who incurs this Sentence be extinct in Hell. And here I cannot forbear to repeat that Article of the Magna Charta which yet appears in the original Grant or Confirmation which the Bishop of Salisbury says he hath in his own hands under the great Seal See the Bishop of Sarum 's Pastoral Letter p. 27. whereby it is provided That in case the King should violate any part of the Charter and should refuse to rectifie what be had done amiss it should be lawful for the Barons and the whole People of England to distress him by all the ways they could think on such as the seizing on his Castles Lands and Possessions provision being only made for the safety of the persons of the King and Queen and their Children Now this being a fundamental Law and Contract and never repealed may abundantly justifie all that hath been done by the People of England in the late Revolution For whereas it is objected that the late Laws and Declaration That it is not lawful on any pretence whatsoever to take up Arms and that it is unlawful for both Houses of Parliament to levy War offensive or defensive against the King and the Recognition made the first of King James do supersede all former Laws I answer That such fundamental Laws cannot be abrogated without a particular recital of them and an express abrogation so that those Laws mentioned in the Charters for the restraint of illegal Actions and those that gave the Heretochs the power of the Militia and Officers by Sea and Land not being particularly repealed cannot be abrogated by those hasty Acts which have been since made for though the Militia be by those hasty Acts granted to the King yet it must be understood that they were so granted in trust and confidence that it should be imployed for the protection and safety of the People and Sir Edward Cooke in his Institutes on Magna Charta alloweth that the King hath no power over the Militia to Muster his Subjects but only in such cases and in such manner as the Parliament by special Acts hath prescribed and therefore those Heretochs or Lord-Lieutenants which had the power of the Militia for the word Heretoch by Selden in his Titles of Honour p. 603. is compounded of Here which signifies Exercitus and Togen ducere signifies Dux exercitus sive navalis sive terrestris and signifies a Commander of an Army by Sea or Land. See Spelman p. 232 348. That the Sheriffs of every County who had the Posse Comitatus or the power of raising the Militia were to be chosen by the People in the County-Courts is evident by express words of King Edward the Confessor's Laws Cap. de Herotochiis as Lambard's Arch. p. 135. and Sir Edward Cooke 3 Edw. 3. c. 17 19. And by the Articles against Richard the Second
the Election of Sheriffs and anciently the disposing of the Militia and many great Offices both by Sea and Land and the Judicial part was left to the King confined by certain Methods the King in Person not being able to decide the least Cause 3. I thus except against the Minor. The subjection required in the Text is due to the King's Person for the sake of the Power and therefore is not to be extended farther than the Power wherewith he is invested and with a Salvo to that part of the Power which is vested in another so that we owed no such subjection to King James as did derogate from anothers Right beyond the extent of his own Power which was not absolute but limited by Law. And let this be considered from the Objection Those actions which will produce mischeivous consequences should not be ingaged in without most clear evidence of being our duty But to refuse Submission to the present Government will produce c. therefore they are not to be ingaged in without most clear evidence which as things now stand cannot be accounted clear and undubetable in relation to King James Object 2. The King can do no wrong and therefore is not to be dealt with as a Malefactor Ans As to your Maxim The King can do no wrong if it be understood of the King 's private or personal capacity it may be thus retorted The King can do no wrong but he that oppresseth ravisheth or murders an innocent person doth wrong therefore he is not King i. e. in such actions he is not to be considered as a King. But this Maxim as many others is to be understood of the King 's political capacity in which respect the Law is his Will and the execution of the Laws are his Actions in which sence he can neither do wrong nor suffer wrong nor ever dyes The true sence of the Maxim is this as Sir Edw. Cooke Id potest quod jure potest and this he says is the King 's greatest priviledge which makes him like unto God who cannot act but agreeably to the eternal Rules of Justice but the King acting by his own Will against Law may do wrong and Judgment hath been given against him for unjust and illegal Actions And doubtless King John and Henry the Third that would have subjected the Kingdom to the Pope as King James also would cannot be exempted from doing wrong though as it was necessary he must use many Instruments therein Ahab did wrong Naboth in taking away his Vineyard as well as his Instruments that did act under colour of Law. Object 3. That King that is not accountable to his people for any wrong done is not by them Coercible into a private estate but the King of England is not accountable c. therefore he is not Coercible Ans The Argument is besides the Business for the People of England do not Coerce the King to a private Estate but if he attempt to alter the Government and Religion and enslave and destroy the People they may use the remedy which the Law of Nature allows Moderamen inculpatae tutelae The Law not having appointed a legal remedy against the unjust oppressions of Princes doth not render it sinful to use the remedies allowed by the Law of Nature for the Laws grew up gradually and legal remedies were introduc'd occasionally before the institution of which remedies it was not sinful to use extraordinary remedies as to kill se defendendo to pull down Houses in case of Fire c. 2. The Law provides remedies for cases within its own compass but not for cases that may happen when the Law itself shall be subverted it is unreasonable to expect from written Laws any directions how Subjects must behave themselves when the authority of the Laws ceaseth If our Laws have not provided for the cases of the King's Lunacy Extinction of the Royal Line wilful Desertion doubtfulness of Title c. but leave us to the general Rules of Prudence and Discretion the same may be affirmed in the present case 3. What is not prohibited is lawful the cases of extraordinary nature are not included in general Prohibitions according to that Maxim Consensus in rebus magni prejudicii ex verbiis quantumvis generalibus non presumitur And Concessione generali nemo presumitur ea concessisse quae in specie vere similiter non esset concessurus And it cannot be presum'd that the Law would consent that the King might at his pleasure destroy their Lives as well as their Laws considering how tender the Laws have been to preserve the Lives and Liberties of the Subjects who have been always accounted a free People Object 4. If the whole Executive Power of the Law is in the King then all Laws to Coerce the King are in effect null because Execution is the life of the Law But the whole Executive Power c. therefore c. To the minor it is already shewn in what cases and respects the Executive Power of the Law is in the People and in other cases the King cannot suspend the Execution of the Laws by his personal Command the Officers being bound by their Oaths as well as Law to the due Execution of them So that if the King in person should make unlawful Entries hinder the Execution of Writs and Judgments break the Peace head a Riot c. Sheriffs and other Officers are bound to suppress and oppose such by their Oaths If it be objected that the case of the King's presence makes an exception I answer Neither the Oaths nor the Laws makes any such exception And ubi Lex non distinguit non est distinguendum Again the Defence made against the King's illegal Assaults is not an act of the Executive Power which is in the King but of Natural Right for in cases where the Law hath not provided a remedy and particularly and expresly prohibited Self-preservation there we may recur to natural and moral Remedies and every man is allowed to be his own Judge in case of imminent danger when there is no time allowed nor any Judge to be appealed to You say that if the King will pervert the great end for which he was appointed and pervert the Laws c. then as Bracton says Datur petitioni locus licet ei fraenum ponere i. e. as you expound it to curb him by Petitions with holding Taxes and questioning his Ministers there is no ense recidendum in our Law. Ans To curb by Petition is to bind with Ropes of Sand to question Ministers if the Executive Power be in the King is to no purpose and so to with-hold Taxes if the King in the head of an Army may compel them nor yet is there any need of deposing or cutting off for Henry 3. was not so dealt with If a King mix himself with Outlaws and Cut-throats against which we may and in some cases are bound to rise and expose himself to Casualties the people cannot
Homage and Fealty required of every Lord from his Tenants hath the same expressions as the present Oath yet this Oath was not intended to assert the Lord's Title in point of right nor did it oblige the Tenant in case the Lord should forfeit alienate or be disseiz'd 4. An actual Obedience is sufficient to secure the Government and therefore we cannot presume that it requires more it doth not look backward to what is past but respect only the future time 5. If these reasons make not the case clear yet they render it doubtful and then this Maxim takes place Contra eum qui a pertius potuit loqui facienda interpretatio But of this more hath been said in Bishop Sanderson's Resolution of the Case of the Ingagement against which if it be objected That there is more included in the word Allegiance than in those of being true and faithful I answer There seems to be less required by that word for Allegiance signifies Obedience according to Law and not in illegal cases in which there is no Obedience due because there is no authority to require it Concerning the Lawfulness of Self-Defence 1. If the English people are so far at the Prince's disposal as to have no right to defend their Lives against his illegal Assaults then they are in the state of Slaves and Captives but we are not in such a state but Freemen and Proprietors as the Magna Charta and the Petition of Right do evidence 2. If to preserve our lives c. we may not use a defence then we prefer the means before the end but this is absurd therefore the first is so And if any Government do deprive us of that priviledge which Nature grants us it were better to have continued in a state of Nature and Anarchy then to come under such a Government 3. The Laws cannot be so interpreted as to be illusory but to bound the King's power and to give the people Rights and yet to suffer him to destroy all at his pleasure is a meer illusion of the Laws 4. What hath been publickly done and never been censur'd in the most setled times may be presumed lawful but the Defence of the Peoples Rights as in the Barons Wars was never publickly censured but the matters contended for were confirmed by several Charters ratified by dreadful Imprecations and vindicated by the expence of the Lives of the Nobles and People therefore it may be presumed to be lawful 5. What is permitted by the Law of God and Nature and is not forbidden by the Law of the Land is lawful but Self-defence is permitted c. and is not forbidden by the Law of the Land therefore it is lawful Object The Declaration that says It is not lawful on any pretence whatsoever to take up Arms c. forbids it Ans General Prohibitions must not be extended to such extraordinary Cases as would have been expresly excepted if they had been expresly proposed And they who united into Government and made Laws to preserve their Lives would never have consented to give one man power to cut all their Throats 6. Treason includes Felony and Felony Malice propense but self-defence implies no propense Malice therefore it is neither Fellony nor Treason Consider these Maxims Quod quisque obtutelam corporis sui fecerit jure fecisse videtur quando copiam sibi Judicis qui jus reddat non habet vim vi repellere omnia jura permittunt a jure civile approbatur modenamen inculpatae tutelae So Grotius Si corpus impetatur vi presente cum periculo vitae non aliter vitabili tunc bellum est licitum etiam cum interfectionem periculum inferentis ratio Natura quemque sibi commendat jus est cuilibet se defendendi contra immanem saecutiam So Barcl cont Monarchom l. 3. c. 8. Non sunt expectanda verbera sed vel terrorem armorum sufficere vel minas Of the King's Abrenunciation 1. To destroy the Government is to renounce and disclaim it for Animus perdendi retinendi non consistunt Nolle habere is the same with Renunciare but King James attempted to destroy the Government for to destroy the Essence and Form of a Government and alter its species is to destroy it 2. If the defence be lawful in the People and the Invasion in the Prince then the loss of the Crown or Right to govern doth legally follow But the Defence and Invasion c. therefore the loss of the Crown and Right of Goverment is ceased and consequently so is our Allegiance 3. To forsake a Kingdom and leave it in a state of Nature is to disclaim it but the late King did so therefore he disclaimed it The Major is clear because Government is necessary by an Antecedent Necessity to a particular Person 's being made a Governour and therefore rather than to continue a disbanded Multitude a particular Man's Right or Title must cease The Minor is clear because he suspended the Laws stopt their course carrying away the Broad Seal discharging the Judges and then withdrew leaving us in confusion If it be objected that he was forced to withdraw Answ It was what by many voluntary Acts he had drawn on himself and the last Act partakes of the Nature of those Actions from whence it flowed Object It will be a very great Scandal to the Nation and Church of England to disclaim their lawful King without Treating with him and seeking Reconciliation upon redress of their Grievances Ans The Clergy and Nobles did often Treat by way of Petition and humble Advice but were rejected with Contempt The Prince of Orange began to Treat with the late King's Commissioners who were returning with an Answer but the King left the City the day before and ever since hath put himself out of a Condition to Treat having given up himself to the Conduct of such as are Irreconcileable Enemies to our Nation and Religion None were more fit to Treat with the King than a free Parliament which as the King had made impossible by his Method so if it had been duly called and chosen yet a force would have been pretended while the Prince of Orange had any Army in the Nation And what if the King had complied as Christiern the Second King of Denmark who after his desertion was received again upon renewing his Oath and subscribing to Conditions who not only brake them all but inviting the Nobles and their Children to a Feast caused them all to be slain The King of France shews what Faith may given to the solemn and repeated Acts of Ambitious Princes and the observance of the Coronation Oaths and many publick Declarations by our King. 2. As to the case of Scandal I know not any sort of Christians that can justly be scandalized at such proceedings or condemn that practice in others which they allow in themselves As for the Papists the principles of their Religion oblige them not to endure a Prince of a different perswasion who