Stanly was gained to that Party which cost him his Life And they went so far as to conclude it Treason to stand by the Possessor against the next lineal Heir Which I take to have been the true Occasion of the Statute 11 H. 7. which doth certainly Indemnify those who adhere to the Possessor although another may claim a better Right and thereby declares a Possessory Right to be a sufficient Ground of Allegiance as far as that Act goes There are three sorts of Persons may be said to have Possession of the Crown an Vsurper a King de jure and a King de facto and because the distinction between these doth not seem to be well understood I shall briefly explain it An Usurper is one who comes in by Force and continues by Force A King de jure is one who comes in by lineal Descent as next Heir and whose Right is owned and Recognized by the Estates of the Realm A King de facto is one who comes in by Consent of the Nation but not by Virtue of an immediate Hereditary Right but to such a one being owned and receiv'd by the Estates of the Realm the Law of England as far as I can see requires an Allegiance Or else the whole Nation was perjur'd in most of the Reigns from the Conquest to H. 8. for the two Williams six at least of the seven Henries King Stephen and King Iohn were all Kings de facto for some time at least for they came not in as next Heirs in a lineal Descent But still Oaths of Allegiance were taken to them and no such Scruples appear to have been made all that time nor any charge of Perjury on those who did what our Law and Constitution required Was the Nation perjured in the Time of H. 7. who as all know had no Pretence of an Hereditary Right Yet being received and Crowned the Oaths of Allegiance were taken to Him before he was Married to the Daughter of E. 4. For he was Crowned 30 Octob. 1485. Had the Crown entailed in Parliament Nov. 7. and was Married Ian. 18. But the first Parliament of R. 3. endeavoured to make void the Title of the Children of E. 4. upon pretence of a Precontract with the E. of Shrewsburies Daughter and of George Duke of Clarence by his Attainder thereby to make R. 3. Right Heir to the Crown but lest these things should fail to his Claim of Inheritance they join their own Election and desire him to accept the Crown as to him of Right belonging as well by Inheritance as by lawful Election It seems they would have made him a King de jure as well as de facto but the excluding the Children of E. 4. never gave Satisfaction since the Lady Lucy her self disowned it to the Mother of E. 4. And if such an Allegation would hold the whole Succession both of York and Lancaster might be questioned for both derive from H. 3. whose Mother was believed at that Time to have been precontracted at least to Hugh le Brun before She was married to K. Iohn and was married to Him whilst his former Wife was living And if Q. Eleanor's Divorce from the K. of France were not Good as it is hard to prove it so what becomes of all the Line of H. 2. who married Her after She had two Children by her former Husband But if Mens Consciences are tied to a strict legal and lineal Descent they must be satisfied in all these Points But supposing the Right of the Children of E. 4. to have been never so Good what doth this make towards the justifying the Oaths of Allegiance which were made to H. 7. whom some will not allow to have any Claim by the House of Lancaster since they say the same Act which legitimated Iohn of Gaunt's Children by Kath. Swinford did exclude them from any Title to the Crown Yet the Oaths of Allegiance were taken by the whole Nation in the time of H. 7. and no Dispute was then made about it because it was then believed that quiet Possession was a sufficient Ground for Allegiance It is objected That it cannot be agreeable to the Law of England to swear Allegiance to a King de facto when the Duke of Northumberland suffered by the Law for adhering to a Queen de facto A King de facto according to our Law as I said is one in quiet Possession of the Crown by Consent of Parliament without Hereditary Right such as H. 4 5 6 7. were all thought to be by those who made this Distinction For as far as I can find the Distinction of a King de facto and de jure was then started when the House of York so much insisted on their Hereditary Right and so many of our Kings had governed the Kingdom by Consent without it Therefore the Lawyers to find a sufficient Salvo for the Kings of the House of Lancaster framed this Distinction of Kings de facto and de jure but still they meant Kings Regnant as they called them or in full Possession of the Royal Dignity by a National Consent The Distinction had been better of a two-fold Right viz. Possessory and Hereditary But this was far from being the Case of Queen Iane who was set up by a particular Party against the General Sense of the Nation as soon appeared for the main Point her Title stood upon was this Whether the King by his Grant could dispose of the Crown against an Act of Parliament which setled the Succession and that this was the true Point appears evidently by Judge Mountague's Papers who was imployed against his Will in drawing up the Grant. So that the Duke of Northumberland's Case doth by no Means reach the Point of a King de facto But it is further urged from our Homilies That our Church therein condemns those English who did swear Fidelity to the Dauphin of France breaking their Oath of Fidelity to their Natural Lord the King of England To which I answer 1. That King Iohn was only a King de facto himself if a Legal Succession makes a King de jure For 1. His eldest Brother's Son Arthur was then living as all confess 2. He was convicted of Treason against his Brother R. 1. and the Sentence pronounced against him by Hugo de Pudsey Bishop of Durham as the King of France pleaded to the Pope's Legat who came to solicit for him 3. Hubert Archbishop of Canterbury declar'd at his Coronation that he came not in by Hereditary Right but by Election and he accepted of it so 4. What Right he had after the Death of his Nephew he gave up by the Resignation of his Crown to the Pope He could have no Hereditary Right while Arthur's Sister lived who survived him and was kept in the Castle at Bristol But supposing it I do not understand how he that gave up his Right of Dominion to the Pope could still retain it And if he was
must give an equitable sense of these Oaths or there must be Perjury on all sides For those who had first sworn to Maud could not transfer their Allegiance on any other account either to Stephen or H. 2. during her Life For we never read that she was present at the Agreement or resigned her Right to the Crown The next Instance I shall produce is in the Oaths that were taken during the Controversies between the Houses of York and Lancaster Which was not so plain a Case as Men commonly imagin and in Truth if the just legal Title be the only Rule of Conscience in this Case it was hard to take the Oaths on either side For as on the one side a lineal Descent was pleaded from the Daughter of the Duke of Clarence who was elder Brother to Iohn Duke of Lancaster from whom by Marriage the Duke of York claimed his Title so on the other side it was objected that there was no sufficient Evidence of the Legitimacy of Philippa Daughter to the Duke of Clarence because as Fortescue observes the Duke of Clarence was abroad from before the time of her Conception till after her Birth and that he never owned her Mother after that she never assumed the Arms of the Duke as her Father nor those descended from her till the Duke of York pretended to the Crown that E. 3. made an Entail of the Crown upon his Heirs Male of which I have seen a written Account as old as the time of H. 6. which not only affirms the Absence and Divorce of the Duke of Clarence but that E. 3. seized all his Lands into his Hands and in Parliament soon after entailed the Crown on his Heirs Male and that his Daughters there present agreed to the same But besides they pleaded that so long a Prescription as the House of Lancaster had of above threescore years was allowed by the Ius Gentium to purge the Defects of the first Title These are things which deserved Consideration against such a meer lineal Descent as the House of York insisted upon And against the House of Lancaster the Intrusion of H. 4. upon the Deposition of R. 2. is an invincible Objection to such as found Allegiance on the Right of Succession But that which I lay the greatest weight upon is the Way of ending this Difference in Parliament which hath several remarkable things in it 1. That the Duke of York notwithstanding his Title takes an Oath of Allegiance in Parliament to H. 6. during his Life reserving to himself the Right of Succession after him For he swears to do nothing to the Prejudice of his Reign or Dignity-Royal nor against his Life or Liberty and that he would to the utmost of his Power withstand all Attempts to the contrary The same Oath was taken by his Sons Edward Earl of March afterward E. 4. and Edward Earl of Rutland Was this a lawful Oath or not To say it was unlawful is to reflect on the Wisdom of the Three Estates who looked on this as the best Expedient for the Publick Good as being the way to prevent the Effusion of Christian Blood. And it is not easy to prove such an Oath unlawful as containing nothing unlawful nor to the Prejudice of a third Person when he who was chiefly concerned voluntarily took it If it were a lawful Oath then an Oath of Allegiance on the account of Possession is a lawful Oath For the matter of Right is not mentioned in it and Richard Duke of York did not renounce the opinion of his own Right hereby whether true or false but did bind up himself to do nothing to the Prejudice of the Royal Dignity of H. 6. and yet he look'd on him as meer Possessor of it therefore in his Judgment and the Parliament's an Oath of Allegiance may lawfully be taken on the account of the Possession of the Crown although Persons be not satisfied of the Right of it The Words of his Agreement are remarkable to this Purpose as they are to be found in the Parliament-Rolls The said Title notwithstanding and without Prejudice of the same the said Richard Duke of York tenderly desiring the Weal Rest and Prosperity of this Land and to set apart all that might be trouble to the same and considering the Possession of the said King Henry the sixth and that he hath for his time be named taken and reputed King of England and France and Lord of Ireland is content agreeth and consenteth that he be had reputed and taken King of England and of France with the Royal Estate Dignity and Preeminence belonging thereto and Lord of Ireland during his Life natural and for that time the said Duke without hurt or prejudice of his said Right and Title shall take worship and honour him for his Sovereign Lord. Here was certainly an Oath taken to a King whom the Person taking it looked on only as a King de facto and not de jure and yet this Oath was taken and allowed nay contrived in Parliament and that for no less an end than for the Weal Rest and Prosperity of the Land i.e. for the Publick Good. It may be said That the Case is different for Richard Duke of York parted with his own Right but we cannot with anothers which we have sworn to preserve I answer That he did not look on such an Oath as parting with his Right but as a thing fitting to be done on the account of Possession for the Publick Good. And so many others taken such another Oath of Allegiance wherein there is no Declaration as to Right but the same things required which the Duke of York promised in his Oath to Hen. 6. But Allegiance is not due but where there is a Right to claim it and that cannot be where there is no Right to the Crown I answer That an Oath of Allegiance may be twofold 1. Declarative of Right and in that case none can be owned to have Right but he that hath it 2. Submissive Allegiance where no more is required than is contained in the Duke of York ' s Oath and yet he declared this was no Prejudice to his Right But it may be said He declared so much before he took the Oath and so gave the Sense in which he took it I answer That His putting in his Claim and his Title being allow'd after the King in being had been sufficient but in our case there is no need of a Declaration since the declaratory part is left out which is a fuller Declaration of the sense of the Oath than our Words can make But to proceed 2. The first Objection the Parliament made to the Duke of York's Claim was from the Oaths they had taken to H. 6. To which the Duke of York gave a large Answer that Oaths must not bind against Truth and Iustice. But this was to take it for granted that he had the Truth and Justice of his side whereas there was a long Possession
A DISCOURSE Concerning the UNREASONABLENESS OF A New Separation On account of the OATHS WITH An ANSWER to the HISTORY of PASSIVE OBEDIENCE So far as relates to THEM LICENS'D October the 25th 1689. LONDON Printed for Richard Chiswell at the Rose and Crown in St. Paul's Church-Yard MDCLXXXIX THE CONTENTS SOme general Reflections upon the New Separation on account of the Oaths p. 1 c. Of Oaths in general p. 3. Whether the Obligation of the former Oaths continues ibid. The general Good the Measure of Obligation p. 5 Of the State of Slavery p. 6 No such thing as absolute Power in Nature p. 7 Of a State of Vsurpation p. 8 Allegiance to be measured by the Laws ibid. No Apostasie from the Church of England by taking the present Oaths The History of Passive Obedience considered and the Force of the whole resolved into three Points viz. p. 9. 1. That the present Oath is to the Prejudice of a third Person 2. That it is contradictory to our former Oaths p. 11 3. That the Person who had the Right hath given no release p. 12 Dr. Hammond's Arguments considered ibid. Our Constitution considered and that it is a Branch of it for the three Estates to limit the Succession and determine the Oaths of Allegiance p. 13 So it was under the British and Saxon Government ibid. England a true successive Monarchy and yet Reason of State and the publick Good was wont to overrule p. 19 And it was lawful to transfer Allegiance accordingly ibid. Of the Norman Line p. 20 The Case of Maud and Stephen ibid. of York and Lancaster p. 23 The Agreement of Richard Duke of York and Hen. vi ibid. An Oath of Allegiance declarative of Right or Submissive p. 25 Of a King in Possession according to our Constitution and the difference between a King de Jure de Facto and an Vsurper p. 28 29 30 Of the Rise and Reason of that Difference de facto de jure p. 32 The Case of the Lady Jane p. 31 The Case of K. John and Lewis The Homilies considered p. 32 The Case of Tiberius p. 34 and of the Jews under him p. 36 ERRATA PAge 8. line 21. read of England P. 10. l. 24. r. to preserve the Right of c. P. 18. l. 8. r. tied P. 27. l. 28. But it may be said Our P. 36. l. ult after place r. P. 37. l. 1. r. as at that and after state r. P. 38. l. ult for can r. such Marg. l. 6. r. confestim A DISCOURSE Concerning the Unreasonableness of a New Separation On account of the OATHS SIR YOur former Letter gave me an Account of Your own and others Dissatisfaction about the Oaths but your second carries the Point a great deal farther for therein you tell me Those who are unsatisfied think themselves bound to separate from the Communion of those who have taken them and that if Ease be not given to the Scrupulous new Congregations will be immediately formed and therefore you beg my Assistance in clearing these Points in order to the preventing a New Separation I was not a little surprized at the reading these Passages and I soon apprehended the mischievous Consequence of a new Schism especially among the Members of the Church of England But I can hardly think it possible that those who have expressed so great a Sense of the Mischief of it in others should be so ready to fall into it themselves and that upon the meer Account of Scruples when the Difference is only about the Resolution of a Case of Conscience wherein Wise and Good Men may easily differ But it cannot be a Mark either of Wisdom or Goodness to separate from those who do so Some think the Oaths lawful and therefore take them others do not and therefore forbear But is taking the Oaths made a Condition of Communion with us Is it required of all who joyn in our Worship at least to declare That they think the taking of them to be lawful If not what Colour can there be for breaking Communion on the Account of the Oaths Suppose those who take the Oaths are to blame If they act according to their Consciences therein what Ground can there be of Separation from them for so doing unless it be lawful to separate from all such who follow the Dictate of an Erroneous Conscience And so there can be no End of Separations till all Men's Consciences judge alike for a Man's Conscience in his practical Judgment concerning Moral Actions and there are so many Circumstances which vary the Nature of such Moral Actions as Oaths that I do not wonder to see Men differ about them but I should wonder and lament to see them separate from each other for the sake of such a Difference But there is a great deal of Difference between a Tenderness and a Sowreness of Conscience There is a natural Tenderness in the Eye which makes it apt to be offended with Mores and in that Case it is to be gently dealt with But when an ill Humour falls into it there seems to be greater Tenderness but from a worse Cause and then the best way of Cure is to sweeten or remove the bad Humor which caused it I cannot imagine why because some Men's Consciences are so tender in the Point of Loyalty that they cannot take the Oaths that they must be so tender too as not to joyn in Communion with those who do it This seems to come from another Cause and not from the Original Scruple Are they afraid of joyning with others not so tender as themselves This is the Scruple about mixt Communion which hath been so long exploded among us What then Have we hereby changed the Standard of our Communion or are there in this Case imposed any new Terms of Communion with us How then comes a Scruple about the Oaths to lead men to think of a Separation How come they to make so much Conscience of one and so little of the other Is a Separation from our Church become a Duty with those who so lately looked on it as so great a Fault in others But I perceive a tender Conscience is like a tender Constitution it is soon put out of Order So much greater Care then ought those to have who forsake any worldly Advantages for the sake of their Consciences lest that which begun with a Scruple at last end in Humour and Faction and the Ruine of that Church which they have alwaies pretended to value But to leave these general Reflections I shall now apply my self to the main Point Whether there be any Reason for these Scruples about the Oaths for if there be not it will be granted that there can be no Reason for a Separation on the Account of them If there be any Reason it must arise either from the continuing Obligation of the former Oaths or from the Nature of the present Oaths And therefore I shall enquire into two things First The Nature