the Head of the Empire is bound by the Laws and how should the King of England be above all the Christian Kings It was too much for him to aspire to be like the most Christian King. Henry the First acknowledged That if he would submit to the Pope his Nobles would not permit it And the Lords and Commons under Edward the First signified to the Pope concerning his claim to Scotland that they neither ought nor would permit it although the King should attempt it And under Henry the Third it is recorded That if the King and Nobles should agree to it yet the Commons would not permit the entrance of Adomer the Pope's Legate into England Bodmin treating of the King of France says Principem contra leges nil posse rescriptis ejus nullam rationem haberi debere nisi aequitate perinde veritati consentanea sint Bracton of the King of England says Rex est sub lege quia Lex facit Regem This Bracton who lived in the Reign of Henry the Third was of the judgment That the Barons had a power to restrain the Kings Exorbitances lib. 3. ch 26. Rex habet superiorem deum item legem per quam factus est Rex item Curiam suam viz. Comites Barones suos The Barons proceeded in their Wars on this Principle That they had a power to restrain their Kings from subverting the Laws and Religion established And what Opinion the Religious Men of that Time had of those Wars may appear by the Opinion that the Chronicle of Mailros had of Simon of Monfort of which I have spoken before This may suffice to resolve the Conscience in respect of the Law. Thus have I given an Account of the Judgment of many learned Men concerning the Queries proposed How far they may prevail with others I cannot presage But I plainly perceive that many very learned and good Men are yet of another Opinion and indeed there are many very difficult Arguments both from Scripture and Laws which by the several Interpretations given of them by learned Men of this and former Ages may confirm them in their prejudices Therefore my humble Request to them that are yet unsatisfied is That laying aside all Prejudices they would maturely consider of the Arguments Pro and Con and after diligent Enquiry and hearty Prayers follow the dictates of a well-informed Conscience Si quid novisti rectius istis Candidus imperti si non his utere mecum In the mean time let the Apostle's Rule be observed by the Parties of different Persuasions Rom. 14.1 c. which he gives in the Chapter immediately after the Rules for Obedience Him that is weak in the faith receive but not to doubtful disputations for one believeth that he may eat all things another who is weak eateth herbs Let not him that eateth despise him that eateth not And let not him that eateth not despise him that eateth Who art thou that judgest another mans servant Let every man be fully perswaded in his own mind POSTSCRIPT THE Arguments that have been proposed may prevail with some persons to alter their Judgements concerning their Obligations to the late King and if so they will be sensible of the necessity of transferring their Duty to the Established Government which they may do with all cheerfulness and confidence of Acceptation and Favour for their present Majesties cannot but judge that they who were so conscientiously Dutiful to the late King while he kept his Station among them tho' he industriously sought to Ruine them as to their Civil and Religious Interests and were doubtful how they might Desert him when he had abandoned and deserted them I say they cannot but judge upon their ingaging to be true and faithful to them who have redeemed them from Slavery and Popery and have adventured all their Substance and their very Lives that they might secure to them their Laws Liberties and Religion which doubtless they will make their chief business because it is their interest so to do As to such who having weighed these Arguments are yet in Aequilibrio and doubt whether the late King or their present Majesties have the better right in such a case a man is to act according to his reason and discretion and then tho' he may be mistaken yet his mistake is pardonable now his discretion will teach him to recollect all the inconveniencies and Miseries that will most probably follow on his refusal to submit to the present Government if he still adhere to the interest of the late King and he should prove successful then in all probability he will intail Popery and Slavery not only on himself and Family but on the whole Nation for succeeding Ages and on the Protestant Nations throughout all Europe whereas if he live in due Obedience to the Established Government in conjunction with the Body of the Nation and study to be quiet and to do his own business following Peace and Holiness all those Evils may be prevented and the Lord will bless our Sion and we may see the good of Jerusalem all the days of our Life yea we may see our childrens children and peace upon all the Israel of GOD. These Considerations ought to turn the Scales which hung in equal ballance before To such a doubting person I shall propose this Case Suppose a person that hath been given to Quarrels and Brawels found dead and some wounds and bruises found by Inquest on his body whereby it is presumed that he was murdered and a Neighbour of his a person of a sober and peaceable conversation being known to have been in his company near the time and place where he was found dead is arrained for the Murder but no Evidence of the matter of Fact produced against him only some probable Circumstances the question is whether a Jury man that hath only some Circumstances to guide him in his Verdict may find such a person Guilty of that Murder which if he do he may draw the Guilt of shedding Innocent Blood on himself and undo a Neighbour's Family I think an Ignoramus would be more justifiable than a Sentence of Guilt Where the case is dubious we should choose that part which infers the least danger in case we should err as Aristotle says and thence he concludes It is much better to Absolve the Guilty than to Condemn the Innocent And Minus malum rationem induit boni In rebus dubiis pars tutior eligenda I know that Bishop Sanderson in his Judicium Ox. p. 44. hath determined That when a King is hindred from protecting his People Culpa non sua sed alienâ nec voluntatis defectu sed potestatis for want of Power we are not freed from our Allegiance but in case there is not only a defect of Power to protect us but a plain declaration of a Will to destroy us this will plainly overthrow that determination as the Bishop himself hath in other of his Writings done Ubi desunt judicia
incipit bellum And it is to be considered that the Bishop wrote this in the Case of Charles the First from which this of James the Second differs toto caelo To those that are not yet reconciled to the now Established Government I shall offer these Considerations First Whether the present King had not a just cause for Invading the Kingdom Secondly Whether having Invaded it and obtained a full and peaceable Possession by a general consent of the People he hath obtained a rightful Title The Causes that do justifie the Invasion are these 1. The Vindication of his Lady's Title which was in a manner endeavoured to be ravished from her by a Prince whose Birth was so much suspected and whereof the Nation was so generally convinced 2. The Invitation of the Subjects Lords Spiritual and Temporal with many Commons groaning under an Arbitrary Power Popery and Slavery for which cause many Lords and Commons had left the Kingdom and sought protection from the present King and came in with him 3. The present King was made the Head of the Protestant Party by those Princes who undertook the Defence of the Reformed Religion against the Popish Princes that had confederated to root it out and a better method could not be taken than to begin with England where if the designs for Popery had succeeded the Protestant Cause had been almost desparate which is now in a hopeful way of Establishment These Causes are so sufficient to justifie the Invasion that I think no good Protestant will doubt of them and as little doubt can be made of the second Consideration that he who on such just Grounds Invades a Kingdom and having gotten a full and quiet Possession is by the general Consent of the People accepted and declared their King hath a lawful Right and Title for first Ubi desinunt judicia incipit bellum and as Law Suits so War may be waged for prevention of Injuries not yet done As Livy says Justum est bellum quod necessarium est pia Arma quibus nulla nisi in armis relinquitur spes When it is manifest our sitting still will make our Condition worse we may adventure on the danger of War. The War was begun by the French King and his Confederates against the Prince England was like to be in the Confederacy by what the King acted and endeavoured against the Protestant Religion And Tune tua res Agitur This is the first Cause that Justifies the War on the present King's part the second Cause is the Recovery of the Right which his Lady and himself had to the Succession which was in a manner taken from them Grotius de Jure Belli l. 2. c. 1. sect 2. De rebus repetendis proves this at large in a considerable Paragraph to which I refer the Reader And of this I shall give but one or two Instances among many in the Scriptures Abraham's War on the King of Elam who had spoiled Sodom was just Gen. 14. And so were the Wars of Israel against the Assirians and other Nations that invaded their Dominion and would have kept them from them of this there can be no doubt nor can secondly the Vindication of a People oppressed by their Prince against the Laws of God and the Land if a Father seek the destruction of an innocent person his Son may piously restrain his Father from that act which would not only ruine the innocent in this World but himself in the World to come So that this War for the asserting the Title of the Prince and Princess to the Crown and for the defence of our Religion against the Confederacy of Popish Princes to extirpate it which is matter of Fact may appear most Just for tho' Religion may not be propagated by Arms yet it may be defended where it is Established by Law against forreign Powers that conspire the destruction of it Grotius l 2. c. 25. n. 4. approves a War on behalf of Confederates For he that doth not repel an Injury from his Confederates if he can is as much in fault as he that doth the Injury He commends Constantine for making War on Maxentius and Licinius who persecuted such of their Subjects as were Christians only for their Religion Grotius l. 2. c. 20. n. 39. Injuries begun only are not to be vindicated by Arms unless the matter be both very weighty and be already proceeded so far that from what is already done either a certain mischief tho' not yet what was intended hath already befallen or some extraordinary danger do threaten thereby If an Enemy hath once assaulted me and comes armed with a resolution to kill me I am not to tarry till he comes within reach of me and receive his Weapons upon my naked breast but seasonably to prevent him And l. 2. c. 25. n. 8. Those Princes who are free may make War for themselves or others And tho' we should grant that Subjects might not take Arms for their own Defence against their Prince no not in case of greatest necessity which yet is doubted even by those whose purpose it was to defend Regal Power yet it follows not that other Princes may not take Arms in their defence that which is unlawful for one to do for himself by reason of a personal impediment may be lawful for another to do for him As in Affairs of the Church the Bishops are said to take on them the care of the Vniversal Church so beside the care of their particular Dominions Kings assume the general care of Humane Societies Seneca resolves Bello a me peti potest qui a mea gente sepositus suam exagitat And Cicero That War should be undertaken only that we may live in Peace and not be injured It will be objected That God will take care of our Religion Deorum injuriae diis curae perjurium satis habet deum ultorem Answer So it may be said of other Sins which God will punish yet the Laws are justly executed on the Offenders by the Magistrate as all grant And if it be objected That such Offences are punished not so much as committed against God as for the damage done to men Ans It is observed that not only such Offences are punished by men as are directly committed against other men but such as by consequence may be prejudicial to others as Self-murder Sodomy c. for tho' the principal end be to procure God's favour by punishing such Crimes yet it is done also to prevent the influence and notable effects on Humane Societies See l. 2. c. 20. n. 44. It may be farther objected That if we wholly forsake the King we shall justifie the Rebellion against King Charles the First who was charged with designs of bringing in Popery and Arbitrary Government Illegal Impositions Evil Counsellors c. Ans I suppose the Objectors that are so tender of committing any act of Disloyalty against King James the Second will by no means approve of what was done against
Oaths to do so for they are not Kings unless they govern and they cannot expect Obedience unless they tell the measures by which they will be obeyed and these measures cannot be any thing but Laws which are the will of the Prince which when published to the People then they are Laws If Kings be not bound to govern the People by Laws why are they made By what else can they be governed By the will of the Prince The Laws are so which are published that wise men may walk by them and that the Prince may not govern as Fools or Lions by chance or violence and unreasonable passions Ea quae placuerunt servanda saith the Law l. 1. de Pactis If this had not been the will of the Prince it had been no Law but being his will let it be stood to And p. 143. Whatsoever the Prince hath sworn to to all that he is obliged not only as a single person but as a King for though he be above the Laws yet is he not above himself nor above his Oath because he is under God and he cannot dispense with his Oath and Promises in those cases in which he is bound Although the King be above the Laws that is in cases extraordinary and matters of Penalties yet is he so under all the Laws of the Kingdom to which he hath sworn that although he cannot be punished by them yet he sins if he breaks them And p. 149. he says The Prerogative of Kings is by Law and Kings are so far above their Laws as the Laws themselves have given them leave And p. 143. The great Laws of the Kingdom do oblige all Princes though they be supream The Laws of the Medes and Persians were above their Princes as appears in Daniel And such are the Golden-Bull of the Empire the Salic and Pragmatical Sanctions in France the Magna Charta and Petition of Right in England That great Emperour C. de Legibus l. 4. Digna vox est Majestatis regnantis legibus allegatum se principem profiteri A Sentence worthy of the Majesty of a Prince to profess himself tied to his Laws Pareto legi quisquis legem Sanxeris was the wise saying of Pittacus And the distinction of the Directive Power of the Laws and the coersive is futilous for a Directive Power is no power and a Law doth not only direct but oblige Thus the Emperour Theodosius Tantum mihi licet quantum leges licet Augustine l. 4. c. 4. De Civitate Dei Quid sunt Regna nisi magna latrocinia remota justitia quae est legum effectus The intention of the Coronation-Oath is to oblige the King not to invade the Rights of the Subjects and the Established Clergy and it is sworn to the Bishops by whom the Oath is administred And St. Aug. Epist 225. says Expectationem eorum quibus Juratur quisquis decipit non potest non esse perjurus Whoever deceives the expectation of him to whom he hath sworn is guilty of Perjury It may be said that by the Church and Bishops the King might intend such as were of the Roman Communion but the express letter of the Oath is contrary viz. With a willing and devout heart I promise and grant that I will preserve and maintain to you and the Churches committed to your charge all Canonical Priviledges and due Law and Justice and that I will be your Protector to my power by the assistance of God c. To this Evasion St. Augustine gives a check Epist 224. Quacunque arte verborum quis juret Deus tamen qui Conscientiae testis est ita hoc accipit sicut ille cui juratur intelligit By whatever art of words any one sweareth God who is Witness of the Conscience doth so take it as he to whom he sweareth doth understand it And Bishop Sanderson blackneth such a practice with the Sin of Perjury Alterum perjuris Genus est ubi recte juraveris non sincere agere sed novo aliquo excogitato commento salius tamen verbis vim juramenti declinare evadere Praelet 6. de Juramento s 7. Such a practice is contrary to the qualifications of an Oath Jer. 4.2 Thou shalt swear The Lord liveth in truth in judgment and in righteousness And in a Prince that so sweareth the Nations shall bless themselves and in him shall they glory But how can they hope that he will punish Perjury in others that is guilty of it himself To this I shall onely add what Grotius says l. 2. c. 14. s 4. de Jure belli That Promises fully made and accepted do naturally transfer a right and this holds as well in Kings as in private men Their Opinions therefore that hold that a King promising without a good cause is not obliged are not to be allowed It was nobly done of Henry the First when the Pope offered to Absolve him of his Oath answered Who will ever trust another when they see by my example that an Absolution can make void the highest Bond of Faith. See Eadmer's Hist p. 126. And where there are mutual Stipulations between Parties with Conditions expressed if either Party fail in performing the Condition sworn to on his part the other Party is not bound to perform what he was sworn to So Bishop Sanderson p. 177. de Jurament If Caius swear to give Titius an hundred Pounds on condition that Titius assign to him such a parcel of Ground at a certain day which Titius refuseth to do Caius is disobliged And p. 216. De Cons A Subject is not ordinarily bound to obey a Law that is very greivous to the certain ruine and destruction of himself and Family unless some great Necessity or publick Danger do appear And p. 202 he shews That when the subject matter of the Oath ceaseth the Obligation also ceaseth as when the state of Affaires between the time of swearing and of performing the Oath is so changed that if he that swore could have foreseen such a change he would not have sworn As if a Father swear never to alter his Will wherein he had made his Son to be his Heir and afterward his Son attempts to poyson him the Father may appoint another Heir notwithstanding his Oath the reason is because the root of the Obligation which gave occasion to the Oath being taken away the Obligation also is taken away And it is a Maxim in the Civil Law Cessante Causa cessat Lex Grotius l. 2. c. 5. n. 17. thinks no question but a King by a long continued permission may warrant a People to recover their Liberty on a presumption that the King hath left it to them Grot. l. 12. c. 4. n. 14. Bishop Andrews gives us these short but useful Rules concerning Oaths 1. If what we swear to be simply evil the Rule is Ne sit Sacramentum pietatis vinculum impietatis 2ly If it hinder a greater good then Ne sit sacramentum pietatis impedimentum pietatis 3ly If the Oath be
true Mother of the Child had greater tenderness of its life than the pretended Mother so the true Prince may be presumed to have a greater regard to the welfare of the People than the Vsurper Claudian to Honorius Tu civem patremque geris tu consule cunctis Non tibi nec tua te moveant sed publica vota As a Mariner is supposed to intend the guiding of his Ship to a safe Harbor and a Physician to intend the Health of his Patient so is a Prince presumed to intend the prosperity of his People which is the great end of Government Bishop Bilson goes farther speaking of the Roman Cruelties says They are such as are able to set good men at their wits end and make them justly doubt since you refuse the course of all good Laws Divine and Humane whether by the Law of Nature they may not defend themselves against such barbarous blood suckers For whatever is attempted on us without Law is force and we may vim vi repellere as in the case of a Sheriff taking possession on a Judgment if a Prince should commission armed men to oppose him in the execution of his Office he may lawfully resist them and the Law doth indempnifie him the Princes Private Will cannot make void his Publick Will formerly declared and published in his Laws This hath been the sence and practice of our own and other Protestant Nations of our own in the Case of the Queen of Scots who brought French Forces into Scotland to withstand the Reformation endeavoured by the Nobles the Clergy of England gave a Subsidy of 6 s. in the Pound to defray the Charge of that War and call it her using all prudent and Godly means 5 Eliz. ch 24. ch 27. The Temporalty call it The princely and upright preservation of the Liberty of the Realm and Nation of Scotland from eminent Captivity and Desolation And for abating Hostility and Persecution within the Realm of France there were Forces sent under the Earl of Warwick to New-haven to assist the French Protestants which was then accounted a Godly and prudent means to abate Hostility and Persecution practised against the Professors of God's Holy Gospel And in the 35 of Eliz. ch 12. was another Subsidy granted by the Clergy for the Queen's Charges in the prudent and needful prevention of such Attempts as tended to the Extirpation of the sincere Profession of the Gospel both here and elsewhere And Ch. 13. the Temporalty gave this Reason for their Subsidy Besides the great and perpetual Honour which it hath pleased God to give your Majesty abroad in making you the principal Support of all Just and Religious Causes against Vsurpers besides the great Succours in France and Flanders which we conceive to be most Honourable in regard of the ancient League the Justice and Equity of the Causes c. And in 39 Eliz. ch 27. they say This Land is become since your Majesty's days both a Port and Haven of Refuge for distressed States and Kingdoms and a Rock and Bulwark of Opposition against the Tyranny and ambitious Attempts of mighty Vsurping Potentates And in 43 Eliz. ch 17. The Clergy say Who hath or should have a livelier sense or better remembrance of your Majesty's Princely Courage and Constancy in advancing and protecting the free Profession of the Gospel within and without your Majesty's Dominions than your Clergy And we cannot doubt but they would have acted the same thing for their own Preservation which they approved and encouraged others to do The Protestants of Saxony and Lantgrave being seven Princes and Twenty four Cities declare That the Emperor was reciprocally bound to them as they to him and that he had dissolved their Obligation of Allegiance by casting them out of their Possessions and endeavouring to destroy their Religion which unjust Attempts have not God for their Author Nor are we otherwise bound to Caesar than on his performing the Conditions on which he was created Caesar Sleidan lib. 18. The Magdeburg Divines affirm the same Sleidan l. 22. Where the Laws and Constitutions of a Government allow of a defence the Gospel doth so too for it doth not alter the Laws of a State which may be an Answer to what is urged from Rom. 13. for the Obligation of all Subjects is such as the Laws under which they live do require The Oath of the Subjects of the King of Poland hath this Salvo in the Oath of the King Quod si Sacramentum meum violavero incolae Regni mei nullam nobis obedientiam praestare tenebuntur In Richard the Second's time the Parliament declared in a Statute of Praemunire That the Crown of England hath been so free i. e. from the Incroachments of the Pope at all times that it hath been in no Earthly Subjection but immediately subject to God in all things touching the Regalty of the Crown and God defend say they that it should be submitted to the Pope and the Laws and Statutes of the Realm be by him defeated and avoided at his pleasure in perpetual destruction of the Soveraignty of the King his Crown and Dignity and of all the Realm and therefore they declare That they and all the Leige Commons of the Realm will stand with their Lord the King and his Crown and Regalty in the cases aforesaid viz. purchasing of Bulls from Rome executing Judgments given in that Court Translating of Bishops c. and in all other cases attempted against him and his Crown and Regalty in all points to live and to dye And they pray the King and him require by way of Justice to Examine all the Lords in Parliament as well Spiritual as Temporal severally and all the Estates of the Parliament how they think of the causes aforesaid which be so openly against the King's Crown and in derogation of his Regalty and how they will stand with the King in upholding the Rights of the said Crown and Dignity And we find by a Letter of King John's to the Pope That if the King would yet the Barons would not submit to King or Pope in those cases How contrary to this Statute of Praemunire did they act that instead of a strict enquiry after such as endeavoured to subject the Nation to the Usurpations of Rome did closely and particularly examine both Lords and Commons whether they would submit to the introducing that Usurpation and upon their Refusal were presently discharged of their respective Offices and excluded from the Prince's favour Was not this to subvert a Fundamental Constitution of the Government And by that Act to incur a Praemunire Carpzorius an approved Author de Capital Caesarea says c. 1. p. 15. There is no King or Supreme Prince in the Christian World whose Power some certain Compact made with the several Orders of the People may not restrain and limit and which are not bound by the Capitulation Reinkinck says the same of the Emperor de Reg. Secul l. 1. Class 3. p. 76. That Caesar