in any Constitution whatever and that the Ends of Governments are quite lost if that Person who subverts any particular Government do not at the very same time destroy or forfeit let Men call it what they please his own share in it To this Argument from the Dispensing Power it may be answer'd that the Practice of it as to the Instances which I have been able to mention does not amount to a Subversion of our Government if those Laws were unjust and void in themselves which the King dispensed with As for the Laws about Offices Civil and Military from which Papists were excluded They say the Observator has prov'd it often enough that they were null and void since no Laws can preclude a King from making use of his Subjects And for all the Laws against Conventicles the Author of a Paper publish'd very lately and licens'd too call'd The Case of the Protestant Dissenters Represented and Argued p. 2. tells us very roundly that they are void also and that the Dissenters must be excused if they have in their Practice exprest less Reverence for Laws made by no Authority received either from God or man and complains that They are injuriously reflected on when it is imputed to them that They have by the Use of their Liberty acknowledg'd an Illegal Dispensing Power We have says he done no other thing herein than we did when no Dispensation was given or pretended in Conscience of Duty to Him that gave us breath Nor did therefore practice otherwise because we thought those Laws dispens'd with but because we thought them not Laws So that the result is that the late King ought not to be accus'd of Subverting the Government by setting aside those Laws which were void of themselves But I need not trouble your Lordship with any Answer to such an Objection since I know your Lordship nor any of those for whose sakes I write this do not believe a word of what these two do so dogmatically and yet most unjustly assert I suppose the Observator will not be fond of standing by his Assertions and that the Author of the Dissenters Case ought to have shewn some more Manners than to cast such saucy and bold Slanders upon our Parliaments while one is actually sitting It is sufficient for my vindication that the present Parliament believes those Laws which the late King dispensed with not only to be true but necessary Laws whatever these two Gentlemen with so much confidence have said to the contrary I will pass now to the other Fundamental of our Constitution which is that the Government be administred according to the Laws of the Land. It is equally evident that this Fundamental was subverted by the late King as well as the former for so far was he from governing according to Law that his whole Government from the time of his claiming his Dispensing Power seems to be a downright opposition to the Laws He was pleas'd to make Privy-Councellours against Law Judges against Law Sheriffs against Law Lord-Lieutenants and their Deputies against Law and Justices against Law to have Men hang'd up for deserting in time of Peace against Law to have Popish Chappels Jesuits Schools and the Conventicles open'd against Law in a word his Resolution as well as his Practice did shew that the Laws were not intended to be made the Rule of his Government This is the True State of King Iames's Government and This is inconsistent with that Essential of our Constitution of Governing according to Law. Now if my Lord it be the Essence and the Definition of the King in our Government that He is One who governs the People committed to his charge according to Law how can we reckon in this Rank the late King from the time He was so resolutely set upon governing against Law In our Constitution He that does not govern by Law does not govern at all and He that does not nor will not govern at all cannot nor will not be King but ceases to be such from the time He makes his Own Will or his Evil Councellors Advices the Rule of his Government and not the Laws I had almost forgot another Instance of the late King 's Dispensing Power and that was his laying aside those Oaths of Allegiance and Supremacy which yet are the grounds of most Mens scruples How can this be lookt upon otherwise than as a Condemnation of the Oaths as unlawful and if they were so we have the late King's Judgment also against the Obligation of these two Oaths for if He to whom the Oaths were taken thought them unlawful then they are certainly fallen as to Him. This is as if a Person who had a Bond from another which he lookt upon as unjust should give it him up and consent to the cancelling of it So that my Lord if the breaking One of our Fundamentals by not governing according to Law do not make such a Person cease being King yet that breach of the Other the assuming a Legislative Power which quite alters and tears up the whole Frame of our Constitution cannot do less than shake his Right to the Government who was so solicitous to destroy it He that will not govern as King of England will not govern at all and if He continue in this humour as the late King did from the time of assuming his Arbitrary Dispensing Power how can he be longer King and if He ceased to be King by his leaving off to govern the Oaths to Him were as much at an end as if He had ceased at the same time to live And as the Oaths could certainly have no further Obligation to Him when He had divested himself of his Kingly Power by destroying that very Government whereby and in which He was King so did the Declaration about taking up Arms upon no pretence against the King fall with them That Declaration every one will grant me was made for the preservation of the Government which the late King took such indefatigable care to destroy That Declaration was never intended for the destruction and ruin of our Government and yet it must be the ruin of the Government if it puts it into a King's hands to turn Tyrant without controul and to subvert our Legal Constitution and undo a Nation without gainsaying and therefore that Declaration was intended for the security of and was to be made to a King governing by Law and therefore did not concern the late King from the hour He set up his own Will against the Laws and his own Power against that of the Whole Kingdom in Parliament This my Lord is the first Case whereby a King ceases to Govern or to be a King for they are synonymous I think by the Instances I have produc'd and the Arguments I have offered it may reasonably appear that the late King had subverted our Government and destroyed his own share of enjoying the Kingly Authority in it and thereby ceased to be King and if
once He ceased to be such no body will deny that the Obligation of all Oaths to Him as King did expire at the same time But since my Lord we have commonly receiv'd a very transcendant Notion of our Monarchy which will not allow the Destructive Practices I have now mentioned nor worse than these to make a forfeiture of the Kingly Power here or to be the Subversion of our Monarchs Rights whatever they be of the Peoples I shall wave the insisting further upon this Head. Let it then be supposed for that Opinion's sake that the King does not destroy his own Right or the Exercise of his Royal Authority tho' He does destroy our Constitution by ruling directly against the Laws and making Laws by his own Power The next Enquiry is Whether a King can lay down his Government and divest himself of all Authority and whether King Iames did not voluntarily leave his Government by withdrawing himself out of the Kingdom and making no provision for the Publick No body will dispute with me that a King cannot lay down his Government The Case of the Emperour Charles the Fifth and which comes nearer our own concern that of the Queen Christina of Sweden are Instances of it beyond opposition And I think it would be as little disputed that the late King Iames did by a voluntary withdrawing himself out of the Kingdom recede as fully from his Government if these few things were fairly consider'd First That He was at that time of withdrawing himself actually upon a Treaty with the Prince of Orange and had Three Lords Commissioners with Him who gave the King such an account of their Negotiation in a Letter brought to Him the very night He withdrew that He himself could not but give this Just Character of the Prince's Proposals as to say of them that they were fairer than he could or did expect so that the King had no reason then to be afraid of his Person but might have continued with security in his Palace and taken care of the Government and called such a Parliament as both Himself and the Prince desired which might have quietly and effectually setled this Nation and prevented all ill consequences to his Person or to his Affairs Secondly That it was the Design of the Popish Party to persuade him to withdraw himself their End in it being to put us thereby into Confusion This they did not boggle to speak out the Lord Dover and Mr. Brent made no secret of it but said it more than once that the King would withdraw himself out of the Kingdom above a Fortnight before He did it Nor were these Two the only Persons in this Secret and of this Opinion In the Letter that was sent down to the King while He was at Salisbury with his Army and can be produced He was told that it was the Unanimous Advice of all the Catholicks here at London that He should come back from thence and withdraw Himself out of the Kingdom and leave us in Confusion assuring Him that within Two Years or less we should be in such Confusions that He might return and have his Ends of us as their phrase was Now if the King was pleas'd to take such desperate Councellors Advice and thereupon to withdraw Himself out of the Kingdom and command his Army to be let loose upon the People by disbanding them at such a Juncture I can see nothing herein to make his going away involuntary If then his withdrawing Himself out of the Kingdom was done out of design and willingly He did as effectually divest Himself pro tempore of the Government as if He had left a formal Resignation of the Kingdom behind him attested by all his Privy-Councellors hands and our Allegiance to Him did fall with it and our Oaths did no more oblige now than the Oaths taken to Christina Queen of Sweden did when she resign'd and went to Rome since in both Cases the Government of these Two Princes was equally at an end but our condition the worse of the two since Queen Christina left the Government to her Kinsman but our King left us to the Rabble and his disbanded Army There is one Objection my Lord which I have often heard made against this that tho' the late King out of a groundless fear or for any other reason or design whatsoever did voluntarily withdraw himself out of the Kingdom yet this ought not to be accounted a compleat Cession or Dereliction of the Government unless it could be proved withal that there was not Animus revertendi that he never intended to return to us more But this Objection is of no weight in the Case of a Kingdom For whether the King intended to return back any more or no signifies nothing herein since the withdrawing Himself and making no manner of Provision for the Government and Safety of the Nation did actually put an end to his Government at least for that time and our Constitution can no more than any other Government in the World be left in such a Condition or can be said to subsist in such a Case and it is against all the sence and reason of Mankind to think that any Nation either will or ought to continue without a settlement till the Governor who hath left it unawares and in confusion will be pleased to think of returning Does any one believe that if the late King when He withdrew intended not to return these ten Years that we of this Nation should have continued in the Anarchy He left us and have no Government till He would come back Among all our Discontents I hope none can be found so weak to imagine this and the same reason I am sure holds as fully against his leaving us one Month as ten Years So that whether the late King intended to return or no when He went away He ceased to govern us and the very same moment He was pleas'd to leave off governing by withdrawing himself He cancell'd the Obligation of all Oaths and Allegiance to Him as King. But beyond all this I can grant my Lord that the late King from the very time of his withdrawing nay from the very minute of resolving to do it had Animum revertendi did intend to return to us I do believe that those Papists which advised him to withdraw did design that He should return and that He himself did concur in both resolutions But what was He to return for Was it not to have his Ends of us What those Ends are I suppose no Protestant needs be told none of those who make this Objection can doubt of it since his late coming to Ireland Should we have waited then till the late King could return with his borrowed Forces from France to destroy our Protestant establisht Religion and our Civil Constitution because He had Animum revertendi and therefore not have setled and provided for the Nations safety Was the King's Government not at an end tho' He had withdrawn himself
without that for the said deed and true duty of Allegiance He or They be in no wise convict or attaint of High-Treason ne of other Offences for that Cause by Act of Parliament or otherwise by any Process of Law whereby he or any of them shall lose or forfeit Life Lands Tenements Rents Possessions Hereditaments Goods Chattels or any other thing but to be for that deed or service utterly discharg'd of any Vexation Trouble or Loss This Law doth authorise any Subject to pay his Allegiance to the King in being and does secure him against all Penalties for the same and therefore reaches our Case where there is not a bare Possession but all the Right that Conquest can give And in the famous Act of Parliament concerning Treasons the 25th of Edward III. my Lord Coke says that by the King against whom Treason is committed in that Statute is meant the King in possession of the Throne whatever his Right to it be These my Lord are his own words This Act is to be understood of a King in possession of the Crown and Kingdom for if there be a King Regnant in possession although he be Rex de facto non Rex de Jure yet is He Seignior le Roy within the purview of this Statute And the other that hath right and is out of possession is not within this Act. Nay if Treason be committed against a King de facto non de Jure and after the King de Jure cometh to the Crown He shall punish the Treason done to the King de facto and a Pardon granted by a King de Jure that is not also de facto is void This is sufficient to shew the sence of our Laws in this case and for its being agreeable to Reason to transfer our Allegiance in the Circumstances mentioned I have already in part proved this and I think it may be fairly deduced further from the Writings of that great and excellent Casuist Bishop Sanderson whom all will allow to be a very competent Judge of the Dictates of Reason Whoever will read his Case of the Engagement may find a great deal to this purpose but I intend only to insist on what he hath delivered in his Fifth Praelection concerning the Obligation of Conscience where he disputes for and gives several reasons for the paying obedience to the Laws and submitting to the Government even of an unlawful Usurper and he puts this very case that where any one having driven away by violence the lawful Prince and true Heir of the Kingdom or having opprest him so far as that he is unable to stand up for his own Right doth while the other is still living take the Government upon him and act as King when he is in reality rather an Usurper than a King and it is past doubt that downright Injury is done to the oppressed Prince If it be askt says he what I think a good Subject should do in this case who hath taken an Oath of Fealty to his lawful Prince or if he have not taken such an Oath yet is as much obliged to the Prince as if he had sworn it My opinion is that it is not only lawful for a good Subject to pay obedience to the Laws made by him that has the Supreme Power only de facto and not de jure and to do what other things are commanded by him so that nothing base or unjust be commanded but that it is necessary oftentimes for him to do these things and that he should be wanting to his own Duty if he did not What I would gather from this Case put by the Great Bishop is that if such obedience be lawful and very often necessary to one who is a meer Usurper by unlawful Violence the least he would have determined in our circumstances must have been that Obedience might lawfully be paid to our present King and Queen who come to the Throne either by its being left empty by the last King or by a lawful and just Conquest And what the Bishop has afterwards urged in the Case of his Violent Usurper that notwithstanding the obedience to him the Fealty due to the lawful Prince must be preserved inviolate and nothing done in prejudice of his Right can have no place here since the late King fell perfectly from all Soveraigny here by deserting his Government and the Prince of Orange had a most just cause of War against him and made as plain a conquest over him neither of which can be brought within the Bishop's Case and therefore if Subjects may to keep to the Bishops Reasons upon the Case for their own sakes for the preservation of their Lives and Estates and for the Protection they receive under those who have possession of the Government and for the Publick sake for the Trade and Commerce of the Nation upon which the Publick must subsist live quietly under and pay obedience to an usurped Power every one of these Reasons is more foreible upon us to pay our Obedience to their Present Majesties who have Right of Just Conquest Right of Lawful Succession and the Consent and Recognition of the Nation in Convention on their side And as Reason has directed in such circumstances to transfer Obedience to the Conquerour under whom we can live safe and in quietness so does the Scripture it self the Best Rule we can desire in our Case As the Scripture commands under the greatest Penalties Subjection to the Supreme Power so it does not pur men upon the rack about the Right of Governours or upon examining who has or who has not the true Right to a Crown but directs obedience to the Powers in being to those who are in possession of the Supreme Power how small soever their claim to it may be This I can make evident my Lord from the Instances of some in the Old Testament and of those to whom our Lord Iesus himself and his Apostles did so strictly command Obedience in the New. Upon the Death of Iosiah King of Iudah the People of Iudah took Iehoahaz who was the fourth and youngest Son of Iosiah and anointed him which was done by the Chief Priest and made him King in his Father's stead setting aside the Right of his Three Elder Brothers 2 Kings 23. 30. Now that Iehoahaz was Shallum no one will doubt that will compare this place out of the 2d Book of Kings with Ieremiah 22. Ver. 11. and that Shallum was the youngest Son of four he can no more doubt that will consult 1 Chron. 3. 15. In this Instance we do not find the Scripture condemn the peoples paying Allegiance to this Prince thus set up but on the contrary God calls upon them by the Prophet Ieremiah Ierem. 22. 10 11 12. to weep sore for him that goeth away who was to return no more nor see his native Countrey that is to lament for their King Shallum or Iehoahaz who was carried by Pharaoh Nechoh into Egypt and was
from us and left no Provision because He was resolved to come back to destroy our Religion and to be reveng'd of the Nation My Lord I think such an Animus revertendi to be so far from making the Dereliction lame and void that it is as good a Proof of making the late King's Action a compleat Dereliction as if He had left it attested under his Hand and Great Seal that He would never return to us or this Government more For my own part I am persuaded that the late King withdrew himself voluntarily and by the Advice of Popish Counsels out of this Kingdom I am persuaded that He went off with an Animus revertendi and I am as fully persuaded that the Intention of his returning was to ruin our Properties and Laws and to destroy our Reformed Religion or to put it into the Popish Dialect to have his Ends of us From the first of these to wit his Withdrawing voluntarily I am satisfied that the late King Iames's Government and our Allegiance to Him are fallen and the last of them the Intention of his Return will I hope satisfie all others as much as it has done me that we have no tempting reasons either to wait for the late King's Return or to accept of his Government if He should get back I must now my Lord go on to another Consideration for there are some who are little satisfied notwithstanding all the evidence that can be offered about the King 's voluntary withdrawing himself as they were at his misgovernment being urged as the destruction of his Royal Dignity and tho' these Gentlemen have not agreed with me hitherto yet in this last Consideration they must concur with me and that is that the late King was conquered by the Prince of Orange and driven away involuntarily at least So that if by this Conquest He was put out of the condition of Governing and Protecting us we were as much depriv'd of the liberty of paying obedience to Him who was now driven from us The Business to be examin'd here is what sort of a Conquest this was and whether it was a just one such a one as by reason of which the People of England might lawfully submit to the Conquerour of their King. To begin with the Expedition of his then Highness the Prince of Orange there appears to be all the reasons in it that could justifie such an Invasion or make a Conquest just and good The Prince was no Subject of England but a Soveraign Prince who made this Descent into our Nation against our late King in defence of his own Rights as well as of ours and therefore his Action could upon no account be stil'd a Rebellion But the Cause of his Expedition is above all other things to be enquired after for that must be the chief thing that can justifie the Revolution here and ought to be highly reasonable and such as can give satisfaction to all wise and indifferent men since tho' the Prince of Orange were never so much a Soveraign Prince yet if he had not a very justifiable reason of coming hither with an Army his Expedition had been altogether a most unaccountable Action and his Conquest unjust Now to give all the satisfaction requisite to this justest Scruple the Prince's Reasons for coming hither in that manner appear to be as just and as good as his Success was great and if ever one Prince's Invasion of another Prince's Kingdom were to be justified the Prince of Orange's was For to instance in one or two of these Reasons He himself as well as his Princess had most undoubted Right to the Succession of the Crown of England and the Dominions belonging to it after the death of the late King Iames. This Right was notoriously set aside or made wholly useless to Them by the Arts and Counsels of those Papists who were about the King and did influence him The Imposture of a Pretended Prince of Wales was thought of and pitcht upon as the most effectual Bar to either of their Titles and did set Them as well as Her Royal Highness the Princess Ann of Denmark aside and deprive All Three together of their Rights of Succession and provide effectually against a Protestant Successor the only Person the People then in Power at Court were afraid of But to wave the Instance of the setting up a pretended Prince of Wales betwixt These Protestant Princes and their Right of Succession because the Proof of that Imposture has not been laid open as it might have been to the World and therefore cannot so strictly be insisted upon tho' most people even those who are dissatisfied about the present Settlement are satisfied of the Imposture the Right of Succession which was in the Two Royal Princesses and the Prince of Orange was made wholly useless to Them by the late King 's putting the Government of Part of the Dominions of the Crown of England into such hands as would not deliver them up or submit to any Protestant Successour Ireland is an evident Proof of this where all Offices Civil and Military contrary to the Laws of the Land were put into Popish Hands and such a Bigotted Irish Papist was made their Governor as that whatever Rogueries or Violences the Papists should be guilty of towards the British Protestants among them they should never need to fear being call'd to account being certain that his own management of the Government as well as his Religion would keep him from ever delivering up Ireland to any Protestant while He had the Sword in his hands and such a throughly Popish Army at his Command Now in this case when Ireland was wholly given up into such hands and Scotland was almost in the same condition and England ready to be put into the same it was high time for the Prince of Orange to assert his own and his Princesses Right and it was most reasonable for Him by all justifiable Ways and Means to prevent their being debarr'd their Right of Inheritance of these Kingdoms by bringing the late King to reasonable Terms or by depriving Him of the Power of doing Them or their Right any further Mischief herein This therefore together with the Princes Concern for our Religion and our Laws which were violated in so high a degree by the late King and with which his own Right of Succession was interwoven was a most just reason for the Prince of Orange's coming with an armed force and if the King would rather put things to the hazard of Battels than the decision of a free and legal Parliament no body else could help it and if his Army would neither fight for nor stand by him but suffer Him to be driven out of his Dominions it was because He had taken sufficient care to let all of them as well as the rest of the Nation know how very unjust the War would be on his part and how very unreasonable it would be for them who were the greatest part of
them Protestants to assist Him in depriving his Children of the Hereditary Rights of Succession and ruining the Church of England and the happy Constitution of our English Government Such Considerations as these made the late King's Army so useless to Him and the Prince's Victory so easie to Him whose business was not to Conquer here but to do Himself and his Princess Right and to preserve our Government in Church and State which if He had tamely lookt on and suffer'd to be destroy'd His own Right would most infallibly have sunk with them being so entirely linkt with them Here some will be ready to call upon me and tell me that if the Prince was a Conquerour then all our Rights and our Possessions are in his hands and at his disposal and that our condition is far from being mended since we are by this Conquest in that state which the late King was labouring to bring us to subjected absolutely in our Persons and Fortunes to the Arbitrary Will of a Conquerour But it is very easie to answer this fearful suggestion by shewing them that the King alone was conquered and not the Nation with him The Prince in his Declaration had assured the Nation that his only design of appearing in Arms here was to secure his Own and Their Rights and He did thereupon conjure them to assist Him in so good and so just a Design which the Nation did either by not aiding the King or by rising up in several parts of the Kingdom for him so that here was a True Contract betwixt the Prince of Orange and the Nation which hath been faithfully observed the Rights of the Nation being entirely preserv'd to them and not one of them invaded nor the least pretence to a Conquest over the Nation made by Him. Thus my Lord we see our Rights are secure notwithstanding the late King lost his by bringing upon himself the necessity of being driven out of his Dominions and conquer'd rather than he would do the Prince and the Nation that Right which He was obliged to by the Laws and by his Coronation-Oath Now since the late King did lose his Kingdom by these means and upon these accounts and was put out of the capacity of either Governing or Protecting those who were his Subjects it is become as impossible for us to perform Allegiance to Him as it is for Him to Govern us and since the Prince and Princess of Orange by reason of this Conquest of the King and by Vertue partly of their own Hereditary Right and partly of the Consent of the Nation assembled in Convention are in Possession of the Crown of England and do Protect and Govern the Nation according to the Laws of the Realm and have taken the Coronation-Oath that they will always continue to do so the only question is whether our Allegiance in such a case is not transferr'd from the late King who was justly conquered who does not govern us and can no further protect us unto those Persons who are now invested with the Regal Power and in possession of the Government and do protect the Nation The Resolution of this Case would have been very readily made by any of us had Providence placed us upon the Continent in those Countries which have lately been and now are like to be the seat of War and not in an Island so happily secured from the sudden Descent of Enemies Had we lived in Germany or Flanders for example we should have learnt how far Allegiance is necessary and when it may be transferr'd from the Prince conquered to the Conquerour No prudent Man thinks the People of any Town in Flanders perjur'd because notwithstanding their former Oaths to their Hereditary Prince the King of Spain the fortune of War necessitates them to take new Oaths of Allegiance to a Conquerour And I think Men ought to make the very same Judgment of things here that since the Government of King Iames is at an end the Oaths to Him have no further force and that since He was fairly conquered by that Prince whom He was endeavouring to deprive of his Right of Succession to the Crown of England and is by that altogether incapacitated from governing and protecting us our Allegiance either wholly ceases or is superseded as to Him and We may in our Circumstances give security to the Government and pay Allegiance for that Protection we enjoy from it This my Lord is agreeable to the Laws and Practice of all Countries to the Laws of our own Nation to Reason and which is more unto Scripture it self I need not trouble your Lordship much with shewing its agreement with the Laws of Nations since almost every day's Practice doth give Instances of it whereby People and Countries that were under their own Soveraign Prince and had taken Oaths of Fealty to Him are by the Fortune of War made another Prince's Subjects and may lawfully according to the Law of Nations transfer their Allegiance to their new Lord. The Reason of all this is founded upon the Nature and End of Government it self upon that mutual Obligation which is supposed to be betwixt a Prince and his People who upon his Power and his Promise of protecting them in their Lives and in their Properties do engage to perform Allegiance and to bear Faith to Him now this stipulation does naturally fall when such a Prince is no longer Able or no longer Willing to protect them and the same Reason which obliged them to pay their Allegiance to that Prince does direct them now to transfer it from Him who is by the Fortune of War disabled from affording Protection to the Conquerour who will engage to protect them and does preserve them in their Persons and their Estates and in all their ancient Legal Securities And as this cannot be denied to be the Practice and the Law of all Countries abroad so the Laws and Customs of our own Kingdom do not only countenance such a transferring of Allegiance to a Conquerour but do indempnifie the paying Allegiance to a meer King de facto who may be an usurper and the defending Him in his Government Thus in the Statute made the Eleventh Year of Henry VII Chap. 1. it is declared to be against all Laws Reason and good Conscience that Subjects going with their Soveraign Lord in Wars attending upon Him in his person or being in other places by his commandment within the Land or without any thing should lose or forfeit for doing their Duty and Service of Allegiance and it is enacted by the King by the Advice and Assent of the Lords Spiritual and Temporal and the Commons in Parliament assembled that from henceforth no manner of Person or Persons whatsoever He or They be that attend upon the King and Soveraign Lord of this Land for the time being in his person and do Him true and faithful service of Allegiance in the same or be in other places by his command in his Wars within this Land or