which he hath no great reason to thank him for nor we to admit when the Court of Parliament have declared That the Three Kingdoms and all the Dominions thereunto belonging that the Royal State Crown and Dignity of the said Realms with all Honours Stiles Titles Regalities Prerogatives c. to the same belonging are most fully rightfully and intirely invested incorporated united and annexed in and to his Princely Person So that according to our Laws he is rightful King of England as well as de facto and by Virtue of his Possession and providential Promotion to the Crown nay they See the Act of Recognition viz. The Lords and Commons assembled in Parliament did recognize and acknowledge that their Majesties were are and of right ought to be by the Laws of this Realm our Sovereign liege Lord and Lady King and Queen of England c. Now W. S. p. 54. Case of Allegiance makes this demand viz Is it not saith he most reasonable to think that to be the Sense of the Law which learned Judges and Lawyers have agreed to be the Sense of it Is it not reasonable to take that to be the Sense of the Law which hath been the Sense of Westminsâ—â—â—-Hall Let him give me also leave to aâ—k one Quâ—stion and that is Whether that be not the Sense of the Law which the Judges and Lawyers learned in the Law have declared in Parliament nay which in that High Court of Parliament have been declared to be * The Law of Man that is not contrary to the Law of Reason nor the Law of God but that is super-added unto them for better ordering the Commonwealth shall rule the Conscience and he that despiseth this Law of Man despiseth the Law of God See Dr. and Stud. Cap. 4. Cap. 19. Cap. 26. To fill up a vacant Throne is not contrary to the Law of God or Reason that our Throne was vacated is declared to be Law by our highest Court that we have in England That a King may abdicate the Realm Grotius saith is not to be doubted and Barclay saith cited by Grotius that if a King shall aliene his Kingdom and subject it to a Foreigner or leave it or act as an Enemy to the Destruction of the Community he looseth his Kingdom di jure Bell. Lib. 1. Cap. 4. Law And that I am sure it was as we have already heard viz. That King William is King de jure and according to the Laws of this Realm whose Declaration and Decree will bind the Subject in fâ—ro Conscientiae where it is not contrary to any moral Precept though they should be mistaken in their Judgment which is not to be supposed till a Court of equal Authority for there 's none Superior repeal their Act or reverse their Decree Obj. But perhaps it may be said that the Title of the Prince is a Matter above and no way cognizable in any â—â—mane Court it being said of Kings that they judge all things but are judged of none especially as to Matters criminal for which they are only accountable to him who is the Judge of all the Earth for when Courts do sit and act by the King's Commission and Authority it can be scarce thought that any Prince should be so Trayterous to himself as to grant a Power to censure his Person or his Actions So that whatever the Parliament may have delared or enacted with respect to the late King's Actions however they may affect the Ministers of State who were the Advisers or Transactors of them yet all must be void with regard to the Person or Title of K. J. because they have interposed in that which is no way within the compass or purview of their Jurisdiction Res The House of Lords I take to be the Supreme Court of Judicature in England which though it be convened by the King 's Writ yet needs no special Commission to empower them to act that being a Right inherent in them and by the original Compact or Custom immemorial inseparable from them But suppose there be no King in our Israel the Master of the Ship fled the Waves run high must the Vessel sink all that are on board perish lest they should intrench upon the Prerogative of their Master Must they not consult their own safety for fear they should meddle with or consider the Actions of their Governour as being above their Cognizance Must the Community perish and Nation sink in Compliment to him that hath fled from them and left none to exercise his Authority over them Is not the universal Safety the Supreme Law But my last Reply to this Objection is that the Parliament of England hath not adjudged the Royal Succession or Title of the Crown a Matter above their Authority nor is it beyond the Sphere of their activity Let us hear what my Lord Cooke saith in the 4th Part of his Institutes Cap. 1. Of the Powers and Jurisdiction of Parliament for making Laws in proceeding by Bill it is so transcendant and absolute as it cannot be confined either for Causes or Persons within any bounds Of this Court it is truly said Si antiquitatem spectes est vetusatissima si dignitatem est honoratissima si jurisdictionem est capacissima Huic ego nec metas rerum nec tempora pono Virg. of which we have divers eminent Instances to induce In the 8th of Hen. 4. as my Lord Cooke hath it Instit Part. 4. Cap. 1. But I find it rather in the 7th of Hen. 4. Cap. 2. the Succession of the Crown was intailed to Hen. 4. Was not the Crown settled upon Hen. 7. by Act of Parliament and upon his Heirs before his Marriage with Elizabeth eldest Daughter and Heir of Edw. 4. of the House of York notwithstanding the Judgment formerly given in Parliament as we are about to take notice of for establishing the Title of the Crown in that Family Cook 's Institutes Part 4. Cap. 1. Many more Examples may be given to prove that the Title and Succession of the Crown is not a thing beyond the Notice and Authority of Parliament to intermeddle with But he who desires a more particular Information let him consult these Statutes 25 Hen. 8.22 28 Hen. 8.7 35 Hen. 8.1 1 Eliz. 3. 1 Jac. 1. Yet give me leave to mention one Case which happened in the Reign of Hen. 6. whose Crown whilst it was upon his Head was challenged by Richard Duke of York whose Claim was received and Plea heard in Parliament The Council alledged many and great Arguments in defence of the King's Title too many here to be inserted but that high Court upon a full Hearing on both sides gave Judgment for the Duke of York against the King though in actual Possession of the Government in these Words That Hen. 6. should reign during his Life the remainder to rest in Richard Duke of York and the lawful Heirs of his Body in general Tail King Henry 's Heirs to be excluded
Nation satisfied in the Belief of the Truth all future Claims and Pretences to the Crown annulled and quasht which their own Interest if no other Argument might have prevailed with the Court to have condescended to And when this be answered I 'll believe as the then Rampant Roman Faction would have me believe But things of so great concern being every where questioned and disputed one would have thought that if the P. of O. had askt a greater thing then to have a Parliament freely called to have sit upon and considered these weighty Affairs it would not have been denied by the late King as a thing unreasonable who at last condescending Writs were issued some Members chosen (a) Vbi judicia deficiunt ibi incipit bellum Grot. de jure Bell. pac Lib. 2. Cap. 1. But all of a suddain those which were not yet issued were supprest those sent abroad superseded and the Parliament in its birth annulled and stifled the Broad-Seal of England he vilely cast away into the Thames and at last betaking himself to (b) Si rex aut alius quis imperium abdicavit ant ma ifeste habet pro derelicto in â—um post id tempus omnia licent que in privatum Idâ—m Lib. 1. Cap. 4. flight turned his Back upon the Nation leaving it without any Provision for its Government to shift as well as it could for it self Obj. But is it not very unjust to drive him away by force and then charge his flight as a Crime upon him when he durst stay no longer Res This is the common Objection which those who are back Friends to their Country Men who are satisfied neither full nor fasting frequently make use of to banter and if it could be bafle those who assert the Legality of our present Setlement But ' â—will be no hard matter to evade the dint of it for as to his Fear it was but rational there being none that was not more stupid than a Stoick but in so great a Convulsion of State must exceedingly fear and tremble as to the Force pretended to be up on him we utterly deny it for when the Posture of Affairs had made it necessary for the P. of O. to come to London and the King himself had invited him to St. James's it could not be thought safe for the King to continue at Whitehall lest any justle betwixt the Guards might occasion Bloodshed and hazard his Person wherefore he was desired to withdraw to Ham-house or any other place he should choose But finding the Fire he had kindled had made the Nation too hot for him he deserted and fled into France But he that hath raised a Storm cut off the chief * The Parliament Anchor which should secure the Vessel hath as little reason to alledge his hazard in defence of his sliting the Vessel and abdicating his trust to the Mercy of the Sea as to blame the Ship 's Crue for electing a new Pilot in the absence of the former to manage it in it's danger and steer it into the Harbour In this great and eminent Conjuncture and Emergency the States of the Realm assemble to consult Methods and concert Measures for the publick Safety which High-Court beyond which we have no appeal did upon mature deliberation great Debate and weighty Arguments declare resolve and decree (a) For this reason the Crown was setled upon the Prince and Princess of Orange The Words mentioned in the Instrument of Setlement are these viz. And whereas the late King James II. having abdicated the Government and the Throne being thereby vacant c. Act. 1st William and Mary That the King 's leaving of the Realm in such a manner was an Abdication of the Kingdom whereby the Throne was vacated and consequently the Government was dissolved Which Resolution and Judgment was by this present Parliament confirm'd ratified and recognized in these Words viz. We do recognize and acknowledge your Majesties were are and of right ought to be by the Laws of this Realm our Sovereign liege Lord and Lady King and Queen of England c. By Virtue of which repeated Judgment and Decree he is King not only de facto but de jure according to the Laws of our own Country which Judgment is either according to Truth or mistaken if the first by all Mens Opinions it ought to be obey'd but if mistaken yet we are bound to observe it and I think may do it with a good Conscience because we are no Judges of Law especially in so intricate and difficult a Case Suppose an Estate be decreed in Chancery to A. when perhaps according to right it belongs to B. as afterwards may appear by a Reverse of that Judgment given in Parliament upon an Appeal made thither yet A. may lawfully hold the Possession of the Estate against B. till the Decree be reversed for though the Decree was not made according to Law yet according to Law it binds till it be corrected by another Judge or annulled by a Superior Court Now this Judgment of Parliament concerning the Abdication of the Realm and Vacancy of the Throne though we should suppose it mistaken yet that Court being Judge of the Law we are bound by the Judgment they give because they and not we are Judges of such Matters Now the Author of the Case of Allegiance doth grant Pag. 54. That what Prince we must obey and to what particular Person we must pay our Allegiance the Law of God doth not tell us but this we learn from the Laws of the Land Now the Law of our Land saith we must pay our Allegiance to King William So that according to this Rule he is King of right as well as of fact Now his Question is whether if a King de jure be dispossessed of his Throne and a King de facto be possessed of it without a legal Right to which of these two the Subjects are bound to pay their Allegiance But I take this not to be our present case for according to the Judgment and Decree of the highest Court of Judicature the late King (a) Obj. But King James was King de jure Res So was Charles II. but both their Rights are extinct one being naturally the other dead in Law as is decreed by the highest Court in England And he that sits upon the Throne declared by the same to have as good right to the Crown he wears as his Predecessor before he gave up the Ghost I mean his Kingdom to provide for it self is not the King de jure for this Act of Abdication is declared by our Law not to be a bare Dispossession of the Throne but a total Extinguishment of his Right And that if he should be ever restored to these Kingdoms again he must receive a new Investiture or else he cannot be King And whereas he seems to suppose our King William only to be King de facto and without legal right possessed of the Throne
By which Judgment the King's Title was condemned and the Crown translated from the House of Lancaster to York in which Line it continued till (a) The best Title saith my Lord Cooke of Hen. 7. to the Crown was by Elizabeth his Wife eldest Daughter of Edw. 4 yet before his Marriage the Crown was by Act of Parliament intailed to Hen. 7 and to the Heirs of his Body the Right of the Crown then being in the said Elizabeth eldest Daughter of Edw. 4. Instit 4. Part pag. 37. Hen. 7. who marrying the Heir of that House the Families were united and that fatal Controversie effectually ended But all this may perhaps be thought not only too great a Dâ—scent and Deviation from our first Undertaking but also too unâ—haritable a Reflection upon a Person who it may be not only acted sincerely and according to the Dictates of his Conscience in refusing but likewise hath observed the same Measures in submitting to swear Allegiance to K. William As to the first I know that Church and State are like the Body and the Soul very distinct and different in the Nature of them yet do very much affect and influence the Affairs and Concerns of each other That an absolute and illimited Power in the State have been planted and watered by the Principles and Practices of our great Sticklers for Hyper-conformity and Innovations in Religion hath been already proved by what they have transmitted to the World from the Press and Pulpit For whilst the Wind of Law hath been too scant for them to maintain their course in Ecclesiastical Matters they have endeavoured to tide it up by the Fluxes of Prerogative giving the same Advice that was once the Opinion of the Flatterers of Cyrus That though what he did was not justifiable by Law yet the Kings of Persia might to what they pleased As for the latter I thank God I was never troubled with the overflowing of the Gall It being a thing always contrary to my Inclination to have any Man exposed to the Censure of the Civil or Ecclesiastical Magistrate when any other Measures can be taken to prevent the Mischief of his Error And if our Consciences do not accuse us then may we have confidence towards God and towards Man too Though I could have wisht the Author's Justification had been maintained from some other Medium than that its lawful to swear Allegiance or Fidelity to a King de facto though he may want a civil Right to the Establishment of his Throne And for such who out of meer Conscience to their former Oath cannot do so much I wish them Salvo juri regni as much Indulgence as I could desire for those whose Consciences are gauled though the Cases be vastly different by the Yoak of Conformity in Matters of Religion To perswade which I can urge no better Arguments than what Charles II. alledges to this purpose and with which I shall conclude viz. We do conjùre all our loving Subjects to acquiesce and submit to this our Declaration concerning those Differences which have so much disquieted the Nation at home and have given so much offence to the Protestant Churches abroad and brought so much Reproach upon the Protestant Religion in general from the Enemies thereof Which are very great Truths witness the Complaints that have been made by those of the Reformed Churches without us viz. Of Calvin Zanchy c. And the Judgment of the Divines of Transilvania who have concluded concerning things of this nature thus viz. That if the Observation of indifferent Ceremonies cannot be maintained without the loss of Christian Charity those Ceremonies rather should be laid aside than Charity violated by maintaining them Nor have the Mischiess which have been occasioned by Differences about these Rites at home been a less Evidence of the Truth averred in that Royal Declaration I mean the Ruine of many poor Families Disgrace Poverty Enmity and irreconcilable Hatred which have been bred and brought forth by the late vigorous Prosecution of Dissenters for Conscience sake stretching the Laws straining nay perverting the Design and Intent of them that they might be the better furnished with Weapons of despite A Spirit which hath long since been complain'd of to actuate malicious and ill-disposed Men as may appear by a Letter which I have seen as copied out of the Register written by the Lords of the Council in the Reign of Q. Eliz. upon the like Subject in these Words AFter our hearty Commendations Whereas we are informed that heretofore at your Assizes in your Circuits divers good Preachers and others Godly disposed have been indicted by colour of Law for things not so much against the Matter and Meaning of the Law as in some shew swerving from the Letter thereof namely for not using the Surplice resorting to Sermons in other places for want at home leaving out same Collects on Days of Preaching for using private Parâ—er in their Houses and such like all which we suppose came to pass by the Practice of some Informers not so well disposed in Religion as also Men returned upon the great Inquest Many times such as be still in Ignorance cannot brooke the Gospel and being in â—eve with the License of former times cannot so well endure the present plain Teachers who by laying open their Faults would draw to a more precise and Gospel-like Life These are therefore to require you and heartily to pray you that in every sitting of your Circuit you sift and examine the Affection of such Informers touching Religion and thereafter give ear to them As also to have a special regard that the Inquest at large may be Religious wise and honest And if notwithstanding our diligence in such behalf such Jurors nevertheless creep in as by like Information molest good Men that yet your Speech and whole Proceedings against them at Bar or elsewhere before you may be according to their Quality not * Matching rather watching them at Bar or in the Indictment with Rogues Felons or Papists but rather giving apparent Note in the Face of the Country what difference you hold betwixt Papists dissenting from us in the Substance of Faith to God and Loyalty to our Prince and these other Men which making some Conscience of these Ceremonies do yet diligently and soundly Preach true Religion and Obedience to her Majesty maintaining the common Peace in themselves and their Auditory so shall the Country thereby learn at the Assizes better to reverence the Gospel and love the Ministers and Professors thereof Thus promising our selves thus much at your Hands we bid you heartily farewel From c. To prevent such Mischiefs or rather effectually to cure such Distempers for the time to come I know no better Remedy then what hath been prescribed by that Physician of very great value I mean the Project or Proposition of that incomparable and pious Man Sir Matthew Hale Lord Chief Justice of the King's Bench viz. An Act of Comprehension to enlarge