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
quotes Barclay l. 3. c. 16. p. 212. saying that a Prince seeking the ruin of his People is no longer King. Se omni dominatu principatu exuit atque ipso jure sive ipso facto Rex esse desiit l. 6. c. 23. With whom he joyns Grotius l. 1. c. 4. n. 11. Si Rex vere hostili animo in exitium totius populi feratur to resist such a one is not to resist a soveraign King but him who ceaseth to be such Consistere simul non possunt voluntas imperandi voluntas perdendi quare qui se hostem totius populi profitetur eo ipso abdicat regnum And p. 531. Falkner says On yielding such suppositions to be true I shall grant the Answer given to be true To this purpose speaks Grotius l. 1. c. 4. § 7. n. 2. treating of Resistance This Law seems to depend on the intention of those who first entred into Civil Society from whom the right of governing is transferr'd Now if such had been asked whether they intended to impose a Yoak equal to Death upon all that should resist the Tyrannies of a superior Magistrate upon any account whatsoever I know not how they could willingly answer in the affirmative for what in this case Charity would recommend that may be received as a Law. 7. But another Query is Whether the King being destitute of the assistance of his Subjects leaving the Land in confusion two Armies being in its bowels hath vacated the Government and so it is necessary that some other to avoid Anarchy and Confusion be appointed to succeed To this I answer 1. That the King even before his leaving the Kingdom had deserted the Government for it is undeniably affirmed by Civilians whose practice is agreeable That nolle habere and renunciare are terms equivalent as when a man conveyeth an Estate with a Charge and Incumbrance upon it he that will not accept of the Estate with the Incumbrances and Charge though he would gladly enjoy the Estate doth in the judgment of the Law and in all Equity renounce his Title to it for he must accept it modo forma debitis or not at all whence I thus ground my Argument He that is not willing to hold the Government of England as constituted with certain Limitations and Conditions annexed doth constructively renounce it But the late King was not willing to accept or hold the English Government as constituted and limited Ergo the sequel of the Major is clear because Onus transit cum emolumento and both Law and Equity do preclude a right to the one without the other an entrance into the Government without the observance of the Condition modo formâ is so far from giving a right to it that it is a renunciation of it And the Minor is as clear because it is not possible for a Popish Prince such as ours was to be willing to govern the English Nation without one or more Popish Priests without many Papists in Office Civil and Military and without subjection to the Pope of Rome and holding correspondence with him So that if it should be demanded of the King which yet needs not the having sufficiently declared the contrary whether he would accept of the Government as by the Laws and Statutes against Papists is provided his refusal is a renunciation And of this we have had plain demonstrations The King declaring to the Scots that he had an Absolute Power and practising the same in England by entertaining the Pope's Nuntio setting up of Popish Bishops imprisoning the Protestant Bishops entertaining Jesuits and Papists in his Privy Council and chief Offices Military and Civil the Charters generally taken away Magdalen Colledge emptied of its Students to make way for Papists these were manifest indications of the subversion of the Government for as Aristotle l. 5o. Polit. n. 112. Tyrannus efficitur qui vi dominatur Regnum est Imperium voluntate Civium delatum at si quis vel fraude vel violentia Dominatur manefesta Tyrannis est l. 3. n. 87. Reges solùm volentibus imperant si nolentibus imperatur regnum esse desinit So that the King having first deserted the People and lost their affections and for this and other causes deserted the Kingdom and left it in confusion giving order to his General to disband his Army without Pay many of which were Papists and known Enemies to the Nation from whom they feared great mischiefs to themselves There being also another Army in the Nation which became successful it was highly necessary that the Nation to avoide utter ruine should by their Representatives freely chosen convene to consult and agree upon a fit person for the administration of the Government and whereas the person that headed the prevailing Army was by good Providence married to the Heir apparent of the Kingdom if he not only by his own merit in preserving the Crown which otherwise had been lost but by Marriage of the right Heir and with her and the Kingdom 's consent be chosen to a Consortship in the Administration of the Government it is no more than what Necessity and Right did require Nor is it more than what was done in the Case of Henry the Seventh who having overthrown Richard the Third in Battel was in a Parliament called by him acknowledged their King of which I shall give you the History as related by my Lord Bacon p. 10. of his History which may serve as a President to authorize what is now done and leads me to the Eighth Quere to which I shall answer first Historically and then Rationally in Justification of the late Proceedings The Coronation of Henry the Seventh was on the 30th day of October 1485 and on November the 7th the Parliament met in which without respect to his Queen's Title whose Coronation was deferred till almost two years after when danger taught him what to do he obtained that the Inheritance should rest remain and be in the King and the Heirs of his Body not mentioning his right Heirs so that the Entail seemed rather a personal Favour to him and his Children then a Disinherison of the House of York and this being obtained he married the Lady Elizabeth on the 18th of January which was celebrated with greater Triumph and Demonstrations of Joy and Gladness than either his Entry or Coronation which the King rather noted than liked and he shewed himself no very indulgent Husband to her though she were Beautiful Gentle and Fruitful So great an Enemy he was to the House of York that he caused Sir Will. Stanly who had saved his Life and set the Crown on his head in Bosworth-field to be executed for saying That if he were sure that young man Perkin Warbeck were King Edward's Son he would never bear Arms against him This Case seems much more unjustifiable than ours for here the King and Parliament did not only set the Crown on the head of the Conqueror but intailed it on his
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