sunt quatenus permitteret sibi leges proprias consuetudines Antiquas habere in quibus vixerant Patres eorum ipsi in eis nati nutriti sunt scilicet leges Sancti Edwardi Et ex illo die magna Authoritate veneratae per universum Regnum corroboratae conservatae sunt prae caeteris Regni legibus leges R. Edwardi Chron. Eccl. Lichsield apud Seld. ibid. p. 171. Chronicle of Lichfield doth informus That the whole Community of England sued to the Conqueror that he would permit them to have the proper Laws and ancient Customs in which their Fathers had lived and under which they were born and educated viz. the Laws of St. Edward and that the King consented to their Petition 2dly When they had fought for the Empress Maud against King Stephen and placed her upon the Throne they (h) Interpellata est a civibus Londinensibus ut liceret eis uti legibus Sancti Edwardi non legibus Patris sui H. quia graves erant sed illa non adquievit inde populus commotus illam capere Statuit Chron. Job Brompton p. 1031. Chron. Gervas p. 1355. Henr. de Knyght p. 2387. requested her to Grant to them the Laws of King Edward and upon her denial of that request they again thrust her from the Throne and forced her out of the Kingdom 3dly (i) Cum autem haec Charta perlecta Baronibus audientibus intellecta fuisset gavisi sunt gaudio magno valde juraverunt omnes in praesentia Archiepiscopi saepe dicti quod viso tempore congruo pro his libertatibus si necesse fuerit decertarent usque ad mortem M. Paris p. 167. When the Archbishop of Canterbury in the days of King John produced the Charter of Henry the First by which He granted the ancient Liberties of the Kingdom of England according to the Laws of King Edward with those Emendations which his Father by the Counsel of the Barons did ratifie this Charter being read before the Barons they much rejoiced and swore in the presence of the Archbishop That for those Liberties they would if need required spend their blood And 4thly They made this one part of the (k) Sequitur forma juramenti soliti consueti praeftari per leges Angliae in eorum Coronatione quod Archiepiscopus Cantuariensis ab iisdem Regibus Exigere recipere consuevit Concedis justas leges consuetudines esse tenendas promittis per te esse protegendas ad Honorem Dei corroborandas quas vulgus elegerit Resp Concedo promitto Vid. Book of Oaths H. de Knyght p. 2746. Coronation Oath of the Kings of England That they should consent to the observation of the just Laws and Customs which the Community of the Realm had chosen and especially of the Laws of King Edward And in the time of Richard the 2d it is declared That the usual and customary Oath which the Kings of England took at their Coronation and which the Archbishop of Canterbury was wont to exact of them and receive from them was That they should grant that the just Laws and Customs which the Community had chosen should be observed and confirmed by them All which things put together seem to conclude an Original compact or establishment of Laws by which the Kings of England were to Govern and the Kingdom to be Governed and the Continuance and the Renewal of that Original Establishment by our succeeding Kings Add to this that Rule of Grotius That * Successio non est titulus imperii qui imperio formam assignet sed veteris continuatio jus enim ab Electione coeptum familiae succedendo continuatur quare quantum prima Electio tribuit tantum defert successio De jure Bell. l. 1. c. 3. §. 10. Succession is not a Title of Empire which gives the form to it but is only a continuation of the old Title the Right begun by the Election of the Family being continued by Succession and thence with him we reasonably may inferr That Succession only brings down to Kings what the first Election gave and makes them only Kings according to the Compact and with the Conditions agreed on at the first admission of their Progenitors to the exercise of the Royal Authority To this Historical Account of the present subject I add these words in the preamble of the Statute made 25. of H. 8. to forbid Impositions paid to the See of Rome Cap. 21. Your Grace's Realm recognising no Superior under God but only your Grace hath been and is free from Subjection to any Man's Laws but only to such as have been devised made and obtain'd within the Realm for the Wealth of the same or to such other as by sufferance of your Grace and your Progenitors the People of this your Realm have taken at their free liberty by their own consent to be used among them and have bound themselves by long use and custom to the observance of the same not as to the Laws of any Foreign Prince Potentate or Prelate but as to the customed and ancient Laws of this Realm Originally Established as the Laws of the same by the said Sufferance Consent and Cisstom and none otherwise In which words 1. There seems to be a plain distinction between ancient and accustomed Laws of this Realm which the People enjoy by Susferance of our Kings or were induced into it by the said Sufferance Consent and Custom and Laws made devised and obtained within this Realm for the wealth of the same these latter being Statute-Laws Leges istae vocatae sunt leges Sancti Edvardi non quia ipsas primo invenerat sed quia quasi sub modio positae in oblivione derelictae a tempore R. Edgari avi sui qui primo manum suam misit ad ipsas inveniendas statuendas Henr. de Knyght de Event Ang'l l. 1. c. 15. Chron. Lichfield ubi supra Sir Robert Atkyns Enq. into the Disp Power p. 9. the other being Laws Originally Establish'd and Ancient Customs of the Realm which the People of this Realm have taken at their free liberty by their own consent to be used among them and our Kings finding thus established suffer'd them to enjoy And these the Histories and Records I have cited tell us were the Laws of St. Edward or rather of King Edgar renewed and confirmed by St. Edward which the Community of England desired of King William and his Successors that they might enjoy by his and their sufferance or permission and which accordingly He and they consented that they should enjoy as their proper Laws and ancient Customs swearing also at their Coronation to maintain protect and to corroborate them and which the Archbishop of Canter bury at his Coronation of them always exacted to be granted to the People To which may be added the Laws contained in Magna Charta which though they run in the stile of a Grant from the King
in the word Concessimus for the honour of the King yet were they saith Sir Edward Coke the Common Laws and Rights of the People before 3dly It plainly is asserted That the whole Realm is subject to these Laws and to be Governed by them and no otherwise And agreeable to this Statute is that excellent Resolution of King James when his Subjects desired to know of him Whether he would Rule according to the Ancient form of this State and the Laws of this Kingdom or if he had an intention not to limit himself within these bounds but to alter the same when He thought convenient by the absolute Power of a King. Fourth Speech at White-hall A. 1609. p. 530 531. He Answers That the King was Lex loquens after a sort binding himself by a double Oath to the observation of the fundamental Laws of his Kingdom tacitly as by being a King and so bound to protect as well the People as the Laws of his Kingdom and expresly by his Oath at his Coronation So as every just King in a setled Kingdom is bound to observe that paction made to his People by his Laws in framing his Government agreeable thereunto And therefore a King governing in a setled Kingdom leaves to be a King and degenerates into a Tyrant as soon as He leaves off to Rule according to his Laws therefore all Kings that are not Tyrants or perjured will be glad to bound themselves within the limits of their Laws and they that perswade them to the contrary are Vipers and Pests both against them and the Common-wealth CONSIDERATIONS Humbly offered for Taking the Dath of Allegiance TO King WILLIAM and Queen MARY SECT I. BEFORE I produce the particular Arguments which may be urged for taking of this Oath it may be useful to lay down some general Considerations relating to this matter viz. 1st That through the whole Series of our Kings it hath often happened that Ground sufficient hath been given to question the Right of their Succession and in the Cases of Edward the Second and Richard the Second the lawfulness of their Deposition and yet no scruple ever hath been made till now of taking an Oath of Allegiance to the King who had Possession of the Government That ever the Bishop of Carlisle refused the Oath of Allegiance I do not remember 2dly That all the Interests of the Protestant Religion plead for the taking of the Oath if lawfully it can be done it being reasonable to conceive that from the present King we may expect the Preservation of that Religion and the Defence of it to the utmost of his Power not only here but in the Neighbouring Nations against the Malice of the French King against it He being chosen the Head of the Protestant League for that effect whereas we cannot reasonably expect King James should by French Interests return to sway the Scepter without the outmost hazard of the Interest of Protestants in this and all the Neighbouring Nations 3dly If we comply with those who take this Oath we shall prevent that Division of the Church of England which may if it be not prevented give great Advantage to her Enemies we shall strengthen the Hands of King William and of the Kingdom against the Adversaries of Church and State we shall contribute to the Peace of the Nation which all good Men are bound to pray for and seek by all means lawful If we refuse compliance we shall accidentally at least give Advantage to Dissenters who generally comply against the Church we by our Example shall cause others to refuse compliance and so shall strengthen the Hands of the Papal Party and Minister to those Divisions which may cause our Ruine 4thly By refusing to take this Oath we shall deprive our selves of our Subsistence and of the ordinary means of providing for our Family which without absolute necessity we cannot do 1 Tim. v. 8. for saith the Apostle If any provide not for his own and especially for those of his own house he hath denied the faith and is worse than an Infidel We shall deprive our selves of the capacity of exercising our ministerial Function which without like necessity we cannot justifie 5thly We seem not well able to Answer the Question What it is we would have or what we would be at for if we be asked whether we would have King James return a Conqueror or whether we would have him put in statu quo we must in Conscience Answer No unless we would have Popery and Slavery entailed upon us And that he should return any otherwise as matters now stand is next to impossible Since then we cannot be willing that we should be reduced to a capacity of yielding him ctual Allegiance upon those sad terms we seem upon the matter to have renounced the Allegiance we swore to him which was 1st That we were then willing and inclined to yield him true Allegiance and 2dly That we hereafter would act suitably to that Inclination 6thly We all conceive it reasonable that we should live peaceably and quietly under the Government of King William that we should never be active to introduce King James or to disturb the Possession of King William and that whilst we enjoy his Protection we should pay him the Taxes imposed on us Now this is all that many of those who write for taking of the Oath and many of those who take it for taking of the oath and many of those who take it think is meant by swearing Faith and true Allegiance to King William and therefore according to the ordinary Sence imposed upon the Oath by many Wise Judicious Persons we our selves think it reasonable to take it and surely then there concerns of the Protestant Religion at Home and Abroad our love to the Church of England to the Peace of the Nation to our selves to those Souls to whom we minister must weigh much with us to engage us to do that which in the ordinary import put upon the words by many Wise and Judicious Persons we own we cannot rationally refuse to do SECT II. HAving premised these general Considerations I now proceed to those Arguments which seem to prove it lawful in our Circumstances to take the Oath imposed by the said Act. And First This seems to be self-evident That a legal Oath n. 1. or an Oath imposed by Law ought to be understood in a sence reconcilable to the Law and consequently no Man by virtue of a legal Oath can be obliged first to transgress the Laws and then to suffer for so doing It is also evident from the nature of the thing Cowel verbo ligeance and the determination of our ablest Lawyers that Ligeance or Allegiance is such a kind of duty as no Man may owe to more than one Lord. It is that duty which no man owes or by the Law should pay but to his Sovereign who in one Imperial Kingdom can be but one and it is agreeable unto our Saviour's
Duty of Allegiance promised and sworn doth differ from it before those Engagements The Substance and Effect thereof is due by the Law of Nature the Form and Addition of the Oath is of humane Provision So that legal Allegiance contains the Natural and adds the confirmation of an Oath unto it Where then the legal Obedience is suspended and ceaseth for a time the natural Obedience must much more cease to be exerted Again the Allegiance which all Subjects owe unto their Sovereign is natural or that which is required of them by the Law of Nature whether they live under an absolute or mix'd Monarchy under a Government which in no case allows them to resist to take up Arms against the Sovereign or under such Governments as that of Poland that of the King of the Romans See Bodin 1.2 de Republ c. 5. Grot. de jure belli annot ad l. 1. c. 4. Sect. 14. Sleid. Comment l. 8. p. 195. See Sect. 3. Numb 4. and of Arragon and that of the Emperor over the Princes of the Empire where if they violated their Oaths if they did not preserve their Laws and Liberties their very Contract was Their Promise of Allegiance should go sor nothing the Inhabitants of the Kingdom should not be bound to shew them any Obedience but they should be impowered to resist them sine Rebellionis aut infidelitatis crimine without the guilt of Rebellion or breach of Faith. Whence it is plainly evident that all natural Allegiance is not immutable and indispensable Thirdly To this Objection I answer by Explanation n. 11. and Distinction of a natural Right or a Right grounded on the Law of Nature and by Application of these things to the present Subject 1. The Law of Nature is that which the Dictate of Reason from Principles known and approved from their own evidence obligeth me to judge sit to be done or lest undone by reason of that Moral honesty or turpitude which is apparent in the Action 2. Nature may be esteemed to dictate any thing either directively as a thing consentaneous to the Laws of Reason sit and agreeable to natural Principles as perhaps Kingly Government in opposition to Aristocracy or Democracy or else Preceptively as necessary to be done or be omitted by virtue of some evidence which clearly shews the Equity or Turpitude of the performance or omission of it 3. Of these Laws of Nature some are Principles and those either general as that what is good is to be chosen what evil is to be avoided that I am to do or avoid any thing out of respect unto some good or evil to my Soul or Body That which I judge to be fit due and meet by the Laws of Humanity and Justice to be done to me in the like cases I must do to others that the publick Good is to be preferr'd before my private Good of the same kind Or secondly relating to Particulars viz. That I ought to do good to all as far as I can do it without Spiritual or great Temporal damage to my self 2dly That I am to do no hurt or damage to any innocent person if I can avoid it 3dly That I am to be true to my Word and faithful to my Promise especially when I have for the more assurance of another confirmed it with an Oath 4thly That I ought to do my best endeavour that he who hath deserved well of me should receive well from me And against these Laws of Nature God himself cannot dispense i. e. he cannot grant liberty to any one to act against the Tenor of these Laws even in those circumstances in which they would have otherwise been obliging and therefore they are truly called immutable and are the same in all who are endowed with the exercise of Common Reason Some are Conclusions resulting from these Principles and they do only bind as we may clearly see the natural connexion of them with these Principles and when no Laws of a more strict connexion with them intervene to hinder their obliging force 4. Some Laws of Nature continually do oblige under all circumstances and so their Obligation never ceaseth as the Laws forbidding the hatred of God and Idolatry Others oblige only under such circumstances as Thou shalt not kill viz. except when it is necessary for thy own preservation and desence Thou shalt not take away what is thy Brothers viz. unless extream necessity compel thee to it In these latter there must be a comparison of Duties and of Circumstances that we may know the better when they are to us Laws of Nature and when not Now to apply these things It seemeth hard to say n. 12. that by any dictate of Common Reason clear by its own native Light or any first Principle of Nature we in these circumstances are still obliged to yield natural Allegiance to King James and cannot without violating these Common Principles of clearest Reason afford it to King William and Queen Mary for then that great Assembly of the Nation those Reverend Bishops and that numerous Clergy which believe they may and therefore actually have done the contrary and either have obliged or exhorted others so to do must sin against the clearest light of Common Reason which sure we cannot charitably think or say then must this Law of Henry the Seventh which hath so long obtained and all those Judgments which have been made so solemnly by the great Sages of the Law have been Laws made and Judgments given and Sentences pronounced against the clearest light of Nature Then thirdly all persons of other Nations who in like cases have done the like in Swedeland Portugal and Germany and other places and all those learned Persons who in their Writings have expresly or by just consequence allow'd the transferring of our Allegiance in these circumstances must both have acted themselves and authorized others to act in contradiction to the plain light of humane Reason which yet seems a plain contradiction to that property of a true Law of Nature that it is the same in all who are endowed with the exercise of Common Reason 2dly n. 13. When it is said that Allegiance from the Subject is due by the Law of Nature to his Soverign this is none of those Laws of Nature which oblige under all Circumstances For when I am subdued by the Power of another who hath conquered me and hath my life at his mercy no Man doubts but that I may engage for preservation of my life that I will not be active against him that gives it That is that I will no further bear Allegiance to my former Sovereign When a Nation or part of it is subdued by a Conqueror without visible hopes of recovering Freedom they may swear Allegiance to the Conqueror Upon Frontiers saith the Seasonable Discourse P. 47. all Men are most strictly obliged to the destruction one of another according to their several Allegiances yet it happeneth daily that by Sieges and other
reason a King de facto is not to be owned or obeyed as our Superior in opposition to a King de jure because he cannot be supposed to have a lawful Call or Warrant to Exercise the Kingly Government If an Inferior Magistrate hath a Law to warrant his Commands Answ he is to obeyed even against the verbal commands of his Superior without law Now a King de facto in quiet Possession hath a Law to warrant his Acting as our Sovereign Lord the King and requiring our Faith and true Allegiance ot him for the time being he therefore is to be owned and obeyed as having a legal Call to the Government for the time being Secondly To give a satisfactory Answer to this and many Objections of the like nature it will be proper to consider what a Call or a Commission to be the Governor of any Nation doth import and for the Resolution of this Enquiry let it be noted 1. That God doth not now as in the Case of Saul and David by himself appoint and nominate the Person who shall sway the Sceptre in any Nation of the World. We see by plain Experience God doth not interpose in this extraordinary manner in the Election or Constitution of Superiors The Roman Emperors had no such Appointment but were Elected by the roman Armies or chosen and confirmed by the Senate whence it must follow That an immediate Appointment or Designation of the Person by God cannot be necessary to render any Prince God's Ordinance 2. By virtue of God's general Appointment or Ordinance that all Nations shall have some Government placed over them no Individual Person can claim a Right to be the Higher Power in any Nation moe than Others nor are the People tied to yield Subjection by it to this Man rather than to that As then the former Designation was more so this is less than reasonably can be required to make a Man the Individual Person who is God's Civil Ordinance in reference to such a Nation 3. It cannot be said of any Person or Family at present in the World That he or it claimeth or holdeth the Throne in any Nation by a Right of Fatherhood or Primogeniture derived from Adam I know no Prince on Earth who thus pretendeth to derive his Pedigree and am perswaded that if any hath the Vanity to make such an Extravagant pretence he cannot thus make out his Title It remains therefore 4. That Government be conveyed to this or that Individual Person or Family by Compact or Consent and Choice of the Persons governed that such a Person or Family shall Exercise the Government over such a Nation it therefore must be that Choice Consent or Contract of the Persons to be governed which renders any person the Ordinance of God to such a Nation that is it must be granted that all the present Governors of any Nation become God's Ordinance to them by the Consent of the Community Where therefore any person is invested with the Supemacy by them to whom God hath committed the Choice of a Superior or by their consent to have such Persons for their Superiors there is the Ordinance of God. And if they do admit that person to the Government who by Constitutions and antecedent Compacts hath a right to be so he is to them the Ordinance of God de jure If in this Choice they deviate substantially from these Constitutions he only is the Ordinance of God de facto but yet he truly is the Ordinance of God because he is so by the only means which God hath left for the Investing any Individual Person with that Office. Hence do we find throughout the History of our Kings that the Election of or else a Compact with the People hath generally been looked upon as a thing proper either to satisfie the People or to strengthen their Title to the Crown thus v. g. Of the Conqueror Dunelm p. 195. Hoved. par 1. p. 258. Simeon Dunelmensis and Hoveden inform us That Foedus pepigit he made a Covenant with his People and at his Coronation took an Oath to defend the Holy Church f God and the Rectors of the same to govern the Vniversal People Subject to him justly to establish equal Laws and see them duly executed Daniel p. 36. William the Second held the Possession of the Crown of England by the Will of the Kingdom Ibid. p. 52. the Succession in Right of Primogeniture being none of his * Dan. p. 61. Rich. Hugust p. 310. Henry the First was invested in the Crown by the Act of the Kingdom concilio Communi Baronum Regni Angliae saith the King. King Stephen declares himself to be chosen King †Assensu populi Cleri in Regem electum Malmesb. Hist Nov. l. 1. f. 101. b. Rich. Hugust p. 314. by the consent of the People and the clergy as he had good reason to do having no title at all saith Daniel but as one of the Blood by meer Election advanced to the Crown p. 69. King John received the Crown by way of Election as being chosen by the States saith Daniel The Succession of Edward the Second saith 1 Pag. 127. Non tam jure haereditario quam unanimi assensu procerum Magnatum Ed. Franc. 1602. P 95. Walsingham was not so much by Right of Inheritance as by the unanimous Assent of the peers and Great Men. Edward the Third was Elected 2 Dan. p. 217. Cui electioni consensit populus universus id p. 126. with the Vniversal consent of the People upon his Fathers Resignation Edward the Fourth on his entrance on the Government makes a solemn declaration 3 TRussel p. 179. of his Right to the Crown of England challenging it to belong to him by a double Right The first as Son and Heir to Richard Duke of York the Rightful Heir of the same The second as Elected by Authority of Parliament upon King Henry 's forfeit thereof And Henry the Seventh to all his other Titles by 4 Lord Bac. Hist of H. 7. p. 12. Marriage Conquest and from the House of Lancaster adds that of the Authority of Parliament This Principle makes Authority and Supreme Power inseparable from Actual Regency n. 19. Obj. 5. or Command investing him with the Supreme Power who hath it for the time being and making him incapable of being the Higher Power who is out of Possession whilst he so continues which seems clear contrary to the decision of the Holy Scriptures for though all Israel chose Absalom to be their King 2 Sam. xix 10. and anointed him over them though he had for the time the Kingdom in possession and David fled out of the Land leaving no Governor behind him yet the Power was in David he was even then the Supreme Governor and Higher Power to whom Subjection was due 2 Sam. xx 2. 2 Chr. xxij 12. So he was also when all Israel followed Sheba And though Athaliah possessed the