says the same of the Empire That Caesar is bound by the Laws And Bodine concerning France Principem contra leges nihil posse rescriptis ejus nullam rationem haberi debere nisi aequitate perinde ac veritati consentanum sint The Historian may be satisfied from these Men that much more than hath been practised by our Nation hath its Approbation in such a Case as we were reduced to But to return home that saying of King James is very memorable That the King is for the Common-wealth and not the Common wealth for the King. Albericus Gentilis Professor of Civil Law saith That he that would keep himself out of danger must meet and prevent it which is a point of greater Wisdom and Courage than to expect it and revenge it If our Adversary have declared his Will and is preparing a Power to hurt us we may not tarry to receive the first blow but anticipate the Evil as Gladiators do Yea it hath been always the Practice to put a stop to the Ambition of great Monarchs who have unjustly invaded one Man's Dominions lest he should attempt others hence the Princes of Christendom have been careful to preserve an equal Pallance between growing Empires Thus Baldus says It is a fault to omit the defence of another but of our selves a treachery And Siracide Eccles 4. Free him to whom Injury is done out of the hand of the injurious And Constantine says We ought to account of the Injuries done to others as our own Thus Justine answered the Persians That he ought to defend the Christians whom they would compel to forsake their Religion And Queen Elizabeth defended the Hollanders against the Spaniards who if they had broken down that Pale of Religion as Lipsius calls it would have extended their Tyranny farther King Charles the First in answer to the Nineteen Propositions says The Lords being trusted with Judicatory Power are an excellent skreen between the Prince and the People by just Judgment to preserve the Law Therefore the Power legally placed in Both Houses is more than sufficient to prevent and restrain the power of Tyranny Dr. Ferne pleading his Cause grants That personal Defence against the sudden Assaults of the King's Messengers if illegal tho' the King be present is lawful even to warding off the King's blows and to restrain him and to preserve the innocent Peter Martyr on Rom. 13. We may not anxiously dispute by what Right or Wrong Princes have obtained their Power but rather make it our business to obey the present Magistrates Judge Vaughan In Cases that depend on Fundamental Principles Millions of Presidents to the contrary are to no purpose Judge Jenkins says We hold only what the Law holds the King's Prerogative and the Peoples Liberties are both determined by Law. And so King Charles the First 's Declaration at York says That his Prerogatives are built on the Laws of the Land And when the Parliament would have him grant an extraordinary Power to some Lords-Lieutenants he tells them If they would have him grant more Power than by the Law of the Land was in him it was fit that the same should by some Law be first vested in him with full Power to transfer the same The same Judge Jenkins speaking of the Oath of Supremacy says We do not swear that the King is above all Laws nor above the safety of the People but his Majesty and we will swear to the contrary The Law and the Safety of the People are the King's Honour and Safety and Strength And when Hobbs extended the Power of the Prince above the Law the Earl of Clarendon answers That in dangerous Circumstances Men are not to resort so much to the Words of Submission as to the Intention of the Law Givers which could not be that the Prince should have Power to take away the Lives of his innocent Subjects nor could such a Submission be ever supposed to be the mind of the Contractors This may serve in answer to the Declaration That it is not lawful on any pretence whatsoever c. which was past the House not without great opposition by a mercinary Party of Pensioners and was destructive of many ancient Laws and an alteration of the Government making it absolute and in itself null For as Sherringham who learnedly defended Charles the First says Those Laws which are made for the benefit of the Prince and People are Fundamental and Foundations cannot be altered without the Ruine of the whole Building If therefore that Declaration or any other Act is contrary to the Fundamental Laws it is invalid And now we come to that Declaration of the Lords and Commons who as it became the Masters of the Assembly have fixed our Government as a Nail in a sure place They found us as Sheep without a Shepherd and in the midst of many grievous Wolves ready to devour both them and us they considered that the late King had exercised a Power of suspending Laws committed the Bishops for Petitioning to be excused from concurring to that Power That he erected a Court for Ecclesiastical Causes by Commissioners Levied Money without Consent of Parliament kept up a Standing Army disarmed Protestants and armed Papists and Quartered them contrary to Law violated the Elections of Parliament broke the Seal or cast it away and deserted the Government and Kingdom and did thereupon declare that he had abdicated the Kingdom and left the Throne vacant they being assembled in Parliamentary manner did for the Redress of those Grievances other means being denyed them as their Ancestors had done in like Cases declare the Prince and Princes of Orange to be King and Queen of England c. And appointed the present Oath to be taken instead of the Oaths of Supremacy and Allegiance which Methods have been taken in the like Cases by all Nations as well as our own And I know not what Authority or Reason should determine our Judgments if these cannot for let us suppose that the late King at his departure whetherit were forced or voluntary had left behind him in Writing under his own hand a Declaration to the following effect which consisting of undeniable Matter of Fact is no less Authentick We do declare to all the World That the the Church of England as by Law Established hath on all occasions signally manifested all due Loyalty to Our Royal Father and Brother as well as to Our self particularly in opposing the Bill for Excluding Us from the Throne and assisting Us in suppressing the Rebellion of Monmouth for which Reasons we thought fit and just at Our coming to the Crown solemnly to declare Our Royal Intention to support and defend it in all its Rights and confirmed our Declaration by our Coronation-Oath but having wholly devoted Our Self to the Romish Religion and Papal Authority We were absolutely resigned to the Conduct of such as by that Authority were appointed to Counsel and Direct Us who having convinced Us of a Power to
THE HISTORIAN VNMASK'D OR SOME REFLECTIONS On the Late HISTORY OF Passive-Obedience THE HISTORIAN VNMASK'D OR SOME REFLECTIONS On the late HISTORY OF Passive-Obedience WHEREIN The DOCTRINE of Passive-Obedience and Non-Resistance Is truly Stated and Asserted By one of those DIVINES whom the Historian hath Reflected upon in that Book And late Author of the Resolution of several Queries concerning Submission to the present Government As also of an Answer to all the Popular Objections against the taking the Oath of Allegiance to their present Majesties Licensed and Entred according to Order LONDON Printed and are to be Sold by Richard Baldwin in the Old-Bailey 1689. SOME REFLECTIONS On the late HISTORY OF Passive-Obedience TWO great Advantages the Established Church of England hath gain'd by those severe Tryals which in the late King's Reign it was severely exercised with The first is that she hath delivered her self from the Imputation and Jealousie of being too much affected to Popery of which she manifested so great an Abhorrence even when Popery was in its Ascendant and made too near an approach to the Throne And the Controversie was managed with so much Learning and Success that she hath acquired deservedly the Title of More than Conqueror The next is the Calumny of her being of a Persecuting Spirit which not only her readiness and bounty for the Relief of such Protestants as were under Persecution though in many things they differed from her perswasions but her exposing her self to suffer for the Protestant Religion all those Afflictions which were actually executed on some and intended against all the Members of that Church hath well-nigh silenced And lest she should fall under that Woe which our Saviour hath denounced against those of whom all Men shall speak well Luke 6.26 A late Historian hath represented the greatest part of that Church as a Generation of Men that have renounced their first Principles of Loyalty and acted contrary to their Solemn Oaths and Declarations Whether the Author be a Papist or some such Journy-man of theirs I shall not enquire but that he hath done a very acceptable work to them is very manifest for if all those Persons which he names and consequently all others that have taken the Oath of Allegiance to our present Soveraigns be Apostates from their Loyal Principles and Publick Declarations and Oaths we can never upbraid the Papists with their Equivocations Dispensations of Oaths and Plots and Conspiracies against our Princes Now though I doubt not among so many learned Men of more Abilities and Advantages than my self who are concern'd in these Reflections of the Historian will vindicate themselves and their Brethren yet I think my self particularly obliged having already asserted that to be our Duty which he imputes as our Crime to wipe off that filth which he hath endeavoured to fasten on us It was an excellent Defence which the Noble Earl of Ossory made in the House of Lords for his Renowned Father the Duke of Ormond against the unworthy Reflections of the E. of S. First saith that Noble Earl I will tell you what my Father hath done He hath faithfully served the Crownwith his Life and Fortunes in all Conditions as well Adverse as Prosperous He acted for him at home and suffered with him abroad he endured the loss and sequestration of his Estate for many years without any reparation by beneficial Offices And now I will tell what my Father hath not done My Father did not advise the shutting up of the Exchequer he did not contrive the breaking of the Triple League nor did my Father encourage the seizing of the Smirna Fleeâ— he never hâ—â—e Arms against his Soveraign or was found in any Plot or Conspiracy against the Crown The like Defence I shall make against the virulent Accusations of the Historian and shall first instance in what they have done They have Preached up Loyalty on all occasions against the Principles and Practices of Papists and Fanaticks they have suffered Sequestrations and Imprisonment for their Loyalty in the days of Charles the First they have defeated the Plots and Attempts of all dis-affected Persons in the Reigns of Charles and James the Second They have stoutly withstood the united strength of Papists and Sectaries which conspired their Ruine They suffered under the late King for refusing to Obey him in things unlawful and never failed to Obey him according to the Laws they prayed for him and in humble manner Petitioned him and gave him such wholsome Counsel as might make him Happy both here and hereafter And now let me tell you what they have not done They have not Preached up an Arbitrary and Absolute Power in their Prince to dispence with the Laws established They have not encouraged a standing Army nor Addressed their Thanks for a Toleration and Indulgence of Papists and Sectaries They have not promised Obedience without a Reserve they have not taken Arms under him to fight for Popery and Slavery nor yet to resist him or expose him to his Enemies Yet these are the things which the Historian expects we should have done and submitted our Religion Laws and Liberties yea our very Lives to those who were prepared to devour them all All this the Historian expected as the necessary Consequences of our Doctrine of Non-Resistance and Passive Obedience though neither Parker nor Cartwright would ever have inferred such a conclusion from those premises nor were ever intended by those Doctrines as by the mature determinations of some of those Reverend Divines which he hath quoted will hereafter appear If therefore our not doing those things above-mentioned be the Crimes which are laid to our charge we shall plead Guilty and use the like Defence for our selves as St. Paul did Act. 23.6 when he was smitten contrary to Law Men and brethren concerning the resurrection of the dead are we called in question For our Deliverance from so great a Death as was prepared for us was a Miracle next to the Resurrection of the Dead and was not done but by God's own power And the wonderful Providence of God in contriving our Deliverance so as at the same time to fall into no sin and to be delivered from all danger Is the Lord's doing and marvellous in our eyes It was a great straight that David was in when being persecuted by Saul he fled to Achish and being kindly entertained by him and made Captain of his Guards he offered to fight for him against Saul whereby he was engaged either to fight against Saul or to betray Achish his Benefactor But by the Providence of God the Lords of the Philistines having conceived a jealousie that David would betray them prevailed with Achish to dismiss him and so he retired to his own City Ziglag 〈◊〉 and secured it against his Enemies Much like this was the Case to which the Clergy of England were reduced They were terrified and oppressed by their Prince the present King undertakes their Protection and Deliverance they being no Men
at Arms were not obliged to fight for the one or against the other in this Juncture their Duty was to stand still and wait for the salvation of God which they did and God wrought Deliverance for them as he did for David and they sate down peaceably every Man under his own Vine as free from sin as from danger Rumpatur quisquis rumpitur Invidia Now to remove the Prejudices which the Historian hath insinuated into the minds of some to make them of his own Opinion that such of our Clergy as have taken the late Oath are as wicked as he represents them And to state the present Case aright I shall premise these things to consideration There are Two Extream Opinions which some Men have espoused concerning Monarchy The First Sort hold I. That Monarchy is Jure Divino which would infer that all other Species of Government are unlawful II. That the Monarch hath such an indelible Character of Majesty and Soveraignty inherent in his Person as cannot be erazed or dissolved but by his Death III. That every Supreme Monarch hath an Absolute and Arbitrary Power over his Subjects independent on the People and paramount to all Laws which he hath Power to dispense with as he shall think fit and that the Laws are only Acts of Grace and Condescentions granted by the King. And consequently IV. That though at his Coronation he have Sworn to maintain such Laws yet he is not obliged by his Oath when he shall see cause to do otherwise The Second Sort would depress the Majesty of Kings too low And they hold I. That the Original of all Power is from the People and that they may resume it on Male-Administration The Papists hold That there is such a Power in the Pope who in Case of Heresie may depose one Prince and set up another in Ordine ad Spiritualia And some of the Presbyterial Perswasion affirm the same Power to be in their Synods That Democracy or the Government of the People by a Common-wealth is more eligible than that of Monarchy The Church of England walks in a middle way between these and holds That though the King be not strictly Jure Divina i e. so as to make other Species of Government unlawful yet is he the Minister of God and not of the People though the Power be conveyed Medias Populo That he is in all Causes and over all Persons both Ecclesiastical and Civil Supreme Governor That though he be Supreme yet he is not Absolute to do whatever he shall please That Kings are generally limited either by certain Laws and Agreements with their People or those Ends for which Government was appointed by God. That the Parliament of England have part of the Legislative Power without whose concurrence no Acts of the King do bind the Subject That Kings are bound by those Oaths which they have taken at their Coronation to defend the Religion Laws and Liberties of the People And that our Laws and Oaths are the Measures as well of Government to the King as of Obedience to the People That though the King may dispense with a particular Law pro hic nunc for the Publick welfare wherein Salus populi Supreme Leâ—â— yet he cannot ordinarily dispense with Fundamental Laws to alter Religion and the Species of Government and destroy the Liberties and Priviledges of the People particularly when by Law it is agreed how the Members of Parliament and Officers Militery and Civil ought to be qualified it is not in the Power of the King to dispense with unqualified Members and Officers That although no Degrees of Subjects have Power to co-erce resist or depose the King for Male-administration yet Cases may happen whereby he may exuere personam Regis cease to be King and the Obligation of his Subjects be made void As first in Case of Conquest in a just War when the Conqueror protects the People in their Laws and Liberties and is in a plenary possession especially if the conquered King flies to a professed Enemy of the Nation and seeks to subject or enslave his People to such a Forreign Power 2. In Case of Lunacy and a setled Distraction of Madness which makes him utterly unfit to Govern himself he hath only nomen fine Re no Power of Administration 3. In Case a King obstinately persists to Subvert the Species of Government to alter the Religion to subject his Dominions to the Pope or French King and for want of Power to effect it wholly deserts the Government and not only leaves his People in a state of Anarchy and confusion but he himself enters into a state of War and procures the assistance of Forreign Princes to spoil and destroy the People That no Precept of the Gospel nor any Law of God doth interfere with or annul the Constitutions of a Nation or the general Ends of Government viz. the welfare of the Community for as King James said The King is for the Commonwealth and not the Common-wealth for the King And the End is more Noble and Valuable than the Means That if any Laws be made on an emergent occasion which may prove destructive to the Fundamental Laws and the Publick Welfare such Laws are not obligatory by reason of a previous obligation for the preservation of our selves and of the Community These are the leading Rules which we of the Church of England have followed and which we hope will in the judgment of all sober Men excuse us from those black Characters of Time-Servers Apostates c. which the Historian would brand us with only for transferring our Allegiance from the late King upon whom the Jesuits had practised their Power of Transubstantiating and made him of a King to be No-King to the present King and Queen wherein only for ought I yet see the Historian differs from us for as to the Authorities and Reasons by him alledged we are very near of the same mind And because he says in the conclusion of his Preface That he should be sorry that he hath lost his Labour viz If we be not perswaded to deny and withdraw our Allegiance from King William and Queen Mary I do assure him I am as sorry that his Labour should be lost as he himself can be and to think with how much greater sorrow he may be overwhelmed if his Labour be not lost For what can follow if his Design should take the desired effect i. e. If the late King should return with full Power to execute his whole pleasure in such an arbitrary manner as he began but the total Destruction of our Religion Laws and Liberties in which Case if the Historian be yet a Protestant he must turn Apostate and declare for an arbitrary independant Power in the late King or prepare himself to suffer whatever that King and his Instruments shall think fit to inflict on him which will be no cause of Joy to him though his Labour be very successful Wherefore I desire him to consider whether
Ch. 13. the Temporalty give this Reason for their Subsidy Besides the great and perpetual Honour which it hath pleased God to give Your Majesty abroad in making You the principal Support of all Just and Religious Causes against Vsurpers besides the great Succours in France and Flanders which we conceive to be most Honourable in regard of the Ancient League the Justice and Equity of the Causes c. And in the 39. Eliz. c. 27. They say This Land is become since Your Majesties days both a Port and Haven of Refuge for distressed States and Kingdoms and a Rock and Bulwark of Opposition against the Tyranny and Ambitious Attempts of Mighty Vsurping Potentates And 43 Eliz. c. 17. The Clergy say Who hath or should have a livelier sense or better remembrance of Your Majesties Princely Courage and Constancy in advancing and protecting the free Profession of the Gospel within and without Your Majesties Dominions than Your Clergy Now who can doubt but they would have acted the same things for their own Preservation which they did in the behalf o◠others and to which they encouraged others against their oppressing Princes And it is observed that the Assistance of the Hollanders cost this Nation 15000 l. per Annum and the encouraging of a Rebellion in others is as much as if we were engaged in it our selves and then the Nation that assisted Queen Elizabeth in promoting the Wars in Scotland and Holland and King Charles the First in the Wars against the French King in behalf of the Rochellers were guilty which is Durus Sermo because as Grotius says l. 2. c. 25. n. 4. He that doth not repel an Injury from his Confederates if he can is as much in fault as he that doth the Injury And he commends Constantine for making War on Maxentius and Licinius who persecuted such of their own Subjects as were Christians only for their Religion of whose Opinion in this case I have mentioned more from his l. 2. c. 25. n. 8. which sheweth notwithstanding what our Historian says to the contrary that in the Judgment of our Nation as well Clergy as Laity there may be a Restraint laid on such Princes as would destroy the Religion Laws and Liberties of a People And notwithstanding the former Declarations of the University of Oxford when an alteration of our Government was designed and vigorously carried on condemning many Heterodox Opinions yet upon mature Consideration of the Revolutions that have lately happened they have since taken up new Measures with almost a general consent upon that alteration of Affairs which they could not fore-see and therefore not determine of But I shall not presume to plead their Cause they are of sufficient Age and Abilities to answer for themselves In the mean time I see no cause why the Historian should so signalize himself for his great Loyalty above others when as David pronounced of Abner 1 Sam. 26.16 That he was worthy to dye because he had not kept his Master more carefully but slept when his Spear and his Cruse was taken from him so might the late King if ever he should return charge him with a Male defensus for not discovering the Traiterous Conspiracy against him and to his power assisting his Person according to his Oath for I suppose his Sword would not discern whether he were a Guelfe or a Gibelline or take any notice of his Loyal History which was so unseasonably published 4thly There are only these two things remaining at which such as refuse the present Oath of Allegiance do stumble The first is the Example of the Primitive Christians The second is their former Oaths of Supremacy and Allegiance As to the first the Primitive Christians lived under such Heathen Emperors as has had an Absolute and Arbitrary Power whose Edicts had the force of Laws and so they differed from us who have our Religion establish'd by Law Now their Religion being contrary to those Edicts for worshipping other Gods did expose them by their very Profession to Persecution It doth not appear that they were under any Oaths to their Heathen Persecutors but they were under the Precepts of the Gospel not to resist them and they chose to dye rather than to resist but then it may be observed that though they fought for their Emperors against other Pagan Princes they refused to fight for them against their Christian Brethren as Grotius l. 1. c. 1. § 9. quoteth St. Ambrose who saith That the Apostate Julian had many Christian Souldiers under him who when he commanded them to fight against the Common Enemies of their Country they obeyed him but when to fight against Christians then they acknowledged none but the Emperor of Heaven And in Tertullian's time they thought it unlawful to list themselves after Baptism under Pagan Princes and one Maximilian an African suffered Martyrdom for refusing to fight under the Emperor ob spretam Militiam De Corona c. 11. They prayed for and obeyed their present Emperors but were not curious to enquire after their Titles though some came to the Empire by Murther of their Predecessors and usurping on such as had better Titles and when any of those Emperors were deposed or taken Prisoners they were not sollicitous to endeavour their Restoration as when Valerian was taken by the Persians and cruelly handled yet Non omnino repetitus est agreeable to that Sentence of Nicetas Choniates nec Imperatorem qui absit quaerendum nec qui adsit pellendum esse and it is observed that of Thirty Emperors in those Primitive times at least Twenty of them were Usurped upon Deposed Captivated or Slain with the Sword without any reluctancy or great concern of the Christians who thought of no farther Obligation than to the Emperors in being according to that of our Saviour to render to the Caesar that was in being though a Persecutor and Usurper the things that were Caesar's which is the sense that Grotius gives on that place De Jure belli c. 4. § 20. In re controversa judicium sibi privatus sumere non debet sed possessionem sequi sic tributum solvi Caesari Christus jubet Matth. 22.20 quia in possessione erat Imperii nummus ejus imaginem habuit and so the Primitive Christians understood that of the Apostle Rom. 13. The powers that be viz. in possession are ordained of God and their practice was accordingly as hath been shewn And from these practices of the Primitive Christians the Historian cannot find any number of the Clergy of the Church of England to have deviated As to the Oaths of Supremacy and Allegiance which is the second Objection against the present Clergy the Obligation by them hath sufficiently been declared void by the late King himself but much more satisfactorily by others that have written on that Subject Those Oaths were very seasonable and sacred but each of them bound us only to our power not to what is impossible for us to do viz. to fight to
bring back James the Second which is by the Law of the Land made Treason against the present King and Queen and if the Historian think himself so bound I suppose he is as faulty in not endeavouring the Restoration of the one as he hath been too Industrious to exclude the other besides those Oaths bound us not only to the defence of the King as if the Government were excluded but expresly to withstand all such as should offer any violence to any of His Majesty's Subjects much more to the whole frame of our Government which too many without any Lawful Commission did with great violence and injustice and we were sworn to defend to our power all Jurisdictions Priviledges c. granted or belonging to the King's Highness not such as were neither granted or belonging as the Claim and Exercise of an Arbitrary Power and dispensing with Fundamental Laws and altering the established Religion as many other actions of the late King were and lastly I suppose that by the plain letter of the Oath of Allegiance which says That neither the Pope of himself nor by any other means with any other hath power to annoy the King's Countries License any to bear Arms raise Tumults or offer any violence or hurt to His Majesty's State or Government or any of his Subjects All which things the Pope by any means or in conjunction with any other the King himself not being excepted hath no power to do by this Oath but having so done the Oath binds the Subjects rather to resist than to assist and doth certainly permit the Subjects if not oblige them to defend themselves against all Opposers In a promissory Oath the matter whereof doth respect things future that matter is subject to change and uncertainty and so is the Obligation also which ceaseth with the matter for then it may not be in the power of the person to perform what he swore to and really intended rebus sic stantibus and no Man is bound to do an impossible thing nor is any Oath so absolute when it is made that it may not admit of some tacite Conditions So Bishop Sanderson in his Praelect 7. § 7. There is Solutio vinculi per cessationem materiae aut mutationem aliquam notabilem factam circa causam Juramenti principalem When the state of things is so changed from the time of swearing to that of fulfilling that if at the time of taking the Oath that change which afterward followed had been fore-seen the person would not have taken such an Oath Thus when Solomon promised Bathsheba to grant her Request and she desired that Adonijah might Marry Abishag one of King David's Concubines which was a kind of Treason for any one to attempt except the Successor Solomon notwithstanding his Solemn Promise instead of performing it swore that Adonijah should dye yet Solomon brake not his Promise because there was a tacite Condition that Adonijah should ask nothing that was unlawful Thus in the Oaths above mentioned we swore to defend the King's Person and the Privilidges and Prerogatives granted and belonging to the Crown this tacite Exception is plainly to be understood that if the King should attempt to subject his Kingdom to a Foreign Power and leaving us in Confusion should put himself under the Power of the French King which is diminutio Capitis a kind of Civil Death and by his Arms seek to destroy the Community and Government which by those very Oaths we were bound to defend the Obligation of those Oaths doth cease upon his attempting such things which if they had been fore-seen and expressed in those Oaths the Subjects would never have taken them Now although some Divines in their occasional Discourses of Government particularly of this of England seem to make it Absolute and indefesable and inseparable from the person of the Prince yet when they come to consider particular cases which they could not foresee or for the odiousness of them and the almost impossibility of happening they omitted the same Divines do agree to the Heads above-mentioned and make Exceptions to their own General Rules as will appear in what followeth hereafter In the mean time I doubt not but the Reader hath observed that as well Divines when they Treat of Law-matters and Moot-cases as Lawyers when they handle Points and Controversies in Divinity are guilty of many Blunders as particularly the Authors of the Erudition who affirm that the Proclamations of the King are as binding as a Law and Bishop Bancroft who told King James in the presence of Cook and other Lawyers That the King might call and Judge any Cause personally in his Chamber But of this we need no other instance than the present Historian who after so great a Deliverance as he must confess the Nation hath had and of which such ungrateful Murmurers as the Historian are unworthy to partake After that the Great Assembly of the Nation have declared their Judgments by their Oaths and many thousands of the Clergy joyned with them presumes after an Histrionical manner to bring them on the Stage and represent them as Rebels Traytors and perjured Persons not without Reflections on their present Majesties as Usurpers to say no worse is a most uncharitable if not an unrighteous deed seeing he stands in a manner Solus contra omnes Had he differed through a doubting Conscience he should have by the Apostle's Rule Rom. 14.22 kept his perswasion to himself and with all Humility and Modesty sought satisfaction and not have published his Opinion against the more mature Judgment not only of our own Nation but of all Christian Princes who do approve of our present Settlement And if my Account fail me not there is not one of an hundred that consent with him and before the Six Months be expired there may not be more then one of that hundred that will stand off and then our Historian may stand alone as Tom of Ten Thousands The PREFACE Considered THE first Paragraph of the Epistle which shews that the Doctrine of Non-Resistance and Passive-Obedience are founded in Scripture c. is admitted as Orthodox and the Doctrine of the Church of England but being delivered in general Rules they admit of some Exceptions and carry with them certain tacite Conditions and Qualifications which in case of great alterations would appear to be necessary and justifiable And I suppose that if such a case as ours now is had been thought of or proposed that Declaration viz. That it is not lawful on any pretence whatsoever to take up Arms c. would certainly be excepted or provided against as in the Case of Edward the Fifth when Richard Duke of Gloucester seized on his Person raised War and granting Commissions in the King's Name it might have been lawful for the then Queen Elizabeth having the Broad Seal brought to her by the Archbishop of York to raise an Army to rescue the King from the Usurper's Power notwithstanding he had raised an Army
atque ipso jure sive ipso facto Rex esse desiit l. 6. c. 23. In the next Paragraph he tells us Of studying the Laws of Providence and of considering the indispensible Obligations of taking up the Cross but when Providence hath in a signal manner without any unlawful Acts of our own delivered us from the Cross a little study will inform us that we ought not to draw it down on our backs again and to murmur against our Deliverers as the Israelites did against Moses and Aaron who brought them out of the House of Bondage and their cruel Oppressors As for the Opinions of the Gnosticks and Machiavel I suppose that learned Person whom the Author names hath sufficiently condemned them and so do all those Reverend Persons whom this Author hath accused explode the wild Opinions of Hobs Milton and Cressey and have acted in a direct Opposition to them And therefore he hopes in vain That no Man can imagine he intends any disturbance by his Writing for what could be intend by charging such a number of the Church of England as Apostates from their own Principles and guilty of Perjury only for taking the Oath of Allegiance to the present King and Queen There needs a better Apology than he hath yet made for himself to clear him from that Crime whereof his Conscience doth accuse him viz. that devilish Office of Accusing his Brethren for what tho' he truly relate the Opinions of those great Men his mis-applying of them and calling them to a Recantation and intimating that they are the greatest Incendiaries from whom we may justly fear greater Judgments is as great a Reproach as the most malicious Jesuite could cast on them for though the Preaching up the necessity of Suffering and the unlawfulness of Resisting be not a Doctrine likely to disturb the present Government yet when that Doctrine is applyed to the Person of King James and because we did not for his sake that would have destroyed us resist him that came to save us and as the Jews did Crucifie our Saviour to make way for those Romanists that will destroy us and our Nation This is the sole ground of all his Clamour against us but we are not such Children as to be affrighted by such Clamours we keep steady to our Principles and yielded both Active and Passive Obedience to the late King until he made it morally impossible for us to Obey him any longer and now that God hath set over us more gentle Governours by the same Methods that from the beginning he did set Rulers over all other Nations that is Mediante Populo which I could never yet see disproved we think our selves still bound to yield them that Obedience without which our Author says no Government can subsist If we compare what this Author designs by his Collections with that which the Jesuits and other Papists have written it will evidently appear that he intends to make the late King as Absolute in all Causes and over all Persons in his Dominions as ever they intended the Pope should be i. e. to be Infallible to be the Supream Judge of all Controversies to declare what is Good and what is Evil what is Vertue and what is Vice. And as hath been observed of Finch he attributes all the Divine Perfections to the King viz. Soveraignty Omnipotence Omniscience Majesty Infinity Vbiquity Perpetuity Justice Truth and Clemency and all these to be inseparable from his Person So that he is the very Hobbs of this Age whose Principles he would have all Men to espouse as himself hath done who in his Book de Cive c. 12. § 1 2. says That the Rules of good and evil just and unjust honest and dishonest are the Civil Laws and therefore whatever the Law Commands is to be accounted good and valid and that it is a wicked speech that Kings are not to be obeyed unless they Command Just things That before Empires were established there was nothing just or unjust which are Relatives to a Command that Emperors make things just which they command to be done and unjust what they forbid that private Men who assume the cognizance of good and evil do aspire to be like Kings which cannot consist with the safety of Government These seem to be the Articles of our Author's as well as of Hobbs his Creed Now let the Author review all the Writings of those learned Men whom he hath defamed and see whether he can Collect any such Problems out of them whether they ever declared that the King of England hath as Extensive and Absolute Power as either the Turk or the Pope or that the Person of the Prince had such an indelible Character of Majesty on him as could by no means be erazed Have any of them said that he could not be conquered in a just War or that on such a Conquest we were bound to pay him our Allegiance still and by no means transfer it to any other Have they said that the King might submit his Dominions to the Pope or the French King or that in so doing his Subjects were bound to assist him even to the utter destruction of the established Religion and the Fundamental Laws and Liberties of the Nation That it was in the King's Power to alter the Succession and set up a Suppositious Child to the Exclusion of his own Children and Lawful Successors King James never declared that he would assume to himself such an excess of Power though he declared that he was an Absolute Prince and would be obeyed without a Reserve as this Author hath for him who hath exceeded in this his Design all those flattering and fulsome Addresses which any the most infatuated Fanaticks presented to him But to go on did any of the Church of England say that it was not in the Power of the King exuere Regis personam to cease to be a King and either for his Religion or some other cause betake himself to a Cloyster and live as a Recluse leaving the Administration of the Government to a Successor Or if he were a Mad-man and bent on the Ruine of his People that no Restraint ought to be laid on him In such cases you might have required a Recantation of their Errors but when they never acknowledged more Power or Authority to be his due than what the Laws gave him when they never withdrew their Obedience Active or Passive until they were left in a state of Nature and Confusion and could never expect that he would return to them again or not without a Foreign Power that would make them and their successive Generations as unhappy in respect of things Spiritual and Eternal as in things Temporal what have they done to deserve those black Characters which the Author stigmatizeth them with which they do better deserve who would give the Powers of the World a kind of Omnipotence to do all that they will and to exceed the Devil himself who hath his Bonds and
Chains beyond which he cannot go and even tempt Men to be of the Opinion of the Gnosticks That all the Governments of the World are a contrivance of some evil Spirits to destroy the lives of Men and to abridge them of their Liberties which God and Nature have given them And with what Countenance can this Author aver that he doth only the Office of an Historian when the whole Design is a Satyr and an Indictment of Treason and Perjury against all those Divines that he quoteth who have since their Writings submitted to the present Government and sworn Allegiance to King William and Queen Mary and seems willing that King James should return with his French and Irish to be their Executioners It is not material to enquire whether he hath misquoted any passages but it is plain he hath mis-applyed them and stretch'd them beyond the meaning of their Authors for which I Appeal to the Author himself and shall only demand of him whether he himself doth or any of those whom he quotes ever did declare their Approbation of those Tenets of Sibthorp and Manwaring in the days of Charles the First or of the Bishops of Chester and Oxon in the Reign of James the Second whose Authorities in their own times were as he confesseth excepted against as of Men that did not write soberly on the Subject as our Author acknowledgeth And yet his whole Design is to shew that the King hath a plenitude of Power paramount to all that either of those four have mentioned over all the Laws of the Land over the established Religion and the Lives Liberties and Estates of all the Subjects with a quicquid libet licet This is not barely to plead for an inconsiderable rate of Ship-Money for granting Tolerations and Indulgences for a Power of Dispensing with some Laws but for the Legality of any Impositions even to the seizing our Freeholds of abrogating and making void all the Old Laws and giving the Prince's Will and Personal Commands the force of New and contrary Laws without any muttering or complaint of Grievances And if this Author have any spark of Ingenuity in him he must with shame acknowledge how Partial he hath been in relating the Opinions of many the most eminent of those Divines whom he hath quoted and leaving out the Opinions and Arguments of others whom though obvious to every ordinary Eye he hath wholly omitted I have already instanced in the decision of the present Case made by Mr. Faulkner and Barclay and Bilson and it were easie to fill a Volume far greater than I intend to shew only the Judgment of some of those Authors by him quoted when they considered what might be Lawfully done in some Cases against which being so odious and so rarely incident that the Laws have taken no notice of them or made any provision against them I shall give but two Instances more to this purpose The first is that of Grotius of whom p. 128. he says Whatever the learned Grotius says in his Books de Jure belli in his later works wherein he may be presumed to speak his truest sense he asserts this Doctrine on Mat. 26.52 If it be once admitted that private Men when injured by the Magistrate may forcibly resist him all places would be full of Tumult and no Laws or Judicatories would have any Authority since there is no Man who is not inclined to think well of himself This Comment is alledged with a Non obstante to whatsoever he had written in his Book de Jure belli because this was the latter Work whereas it is well known that his Book de Jure belli was not only written when he was in his full Maturity and acted in his proper Sphere as a Statesman and often reviewed it even after his Comment on the Gospels and was the Text on which almost all Civilians and Politicians did Comment as Authentick and for which we have his irrefragable Reasons as well as his Authority and in which he doth not deliver his Opinion in general but condescends to the consideration of particular Cases and Accidents whereas in that Comment he only delivers his Opinion as to the general and that not without restriction of the Resistance of private Men that were inclined to think well of themselves whereas when he considered the Constitution of particular Monarchies and Governments where the Legislative Power is not solely in a single Person as he knew it was not in England he hath otherwise determined for thus in that Famous Book p. 21. wherein having urged all the Arguments for Non-resistance he could think of he admonisheth his Reader of something else As first That such Persons as are under Compact with their People if they offend against the Laws may be restrained by force And secondly If a King abjure his Kingdom and desert it all things are Lawful against him as against a private Person for which he quotes Barclay That if a King alienate his Kingdom or subjects it to another he loseth it and then adds of his own Si Rex reipsa tradere regnum aut subjicere moliatur quin ei resisti in hoc possit non dubito nam aliud est imperium aliud habendi modus qui ne mutetur obstare potest populus id enim sub imperio non est Again he says If a King have one part of the Empire and the People another the King attempting to destroy the Peoples Right a just Force may be opposed and this I think to have place though it be said That the Power of War or Militia is in the King for that is to be understood of Foreign War for he that hath Right hath Power to defend that Right and he quotes Barclay That a Kingdom may be lost if a King be carried on to the destruction of his People Consistere enim non potest voluntas imperandi voluntas perdendi that if a King be intent on the destruction of his People to resist such a one is not to resist a Soveraign King but one who ceaseth to be such Qui se hostem totius populi profitetur eo ipsa abdicat regnum on which place Grotius his Annotator mentioneth a Note of Jo. Major in 4 Sentent Non posse populum à se abdicare potestatem destituendi principis si in destructionem vergeret and Grotius himself thinks that the Law of Nature allows it in his Notes on Esther 8.11 speaking of the Edict obtained by Mordecai for the Jews to defend themselves he says Jus naturae munit autoritate regia Much more might be added from Grotius to our purpose but he is so commonly quoted that I forbear and leave the Reader to judge how well the Author hath performed the Office of an Historian who picks and chooseth out of an obscure place and a 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 what may make for his own Opinion omitting those plain obvious and elaborate Discourses of the same Author which would confute it
force of his Authority ceaseth also And as to the Law of Nature for Self-preservation cannot be dispensed with saith that Bishop by any Humane Power 1. Because God is the Author of it 2. Because this Law for the preservation of the Common Welfare is as necessary to the support of Societies as Nourishment is for support of their Bodies 3. Because Natural Laws are the Dictates of Natural Reason and no Man hath power to alter Reason which is an Image of the Divine Wisdom and therefore unalterable And concerning the Obligation of the King's Oath this learned Bishop gives his Opinion quite contrary to what our Historian contends for l. 3. p. 144. of his Cases he says Kings are bound by Natural Justice and Equity without Oaths to do what they swear for they are not Kings unless they Govern and they cannot expect Obedience unless they tell the Measures by which they will be obeyed which are the Laws and these are the Will of the Prince If Kings are not bound to Govern the People by Laws why are they made By what else can they be Governed by the Will of the Prince the Laws are so which are Published that wise Men may walk by them and that the Prince may not Govern as Fools and Lyons by Chance or Violence and unreasonable Passions Ea quae placuerunt servanda saith the Law De Pactis And p. 143. Whatsoever the Prince hath Sworn to to all that he is obliged not only as a single Person but as a King for though he be above the Laws yet he is not above himself nor above his Oath because he is under God and cannot dispense with his Oath and Promises in those Cases wherein he is bound Although the King be above the Laws that is in Cases extraordinary and Matters of Penalty yet is he so under all the Laws of the Kingdom to which he hath Sworn that although he cannot be punished by them yet he sins if he break them And p. 149. he says The Prerogative of Kings is by Law and Kings are so far above the Laws as the Laws themselves have given them leave And p. 143. The great Laws of the Kingdom do oblige all Princes tho' they be Supreme The Laws of the Medes and Persians were above their Princes as appears in Daniel And such are the Golden Bull of the Empire the Saler and Pragmatical Sanctions in France the Magna Charta and Petition of Right in England c. And whereas the Historian doth urge at large the Doctrine of our Church in the Articles Homilies Liturgy and Canons c. it may be observed that there is no distinction in any of those of a King de Jure and de Facto but as by that Law of 11 Henry 7. did require Allegiance to the King de Facto so did the Subjects under Queen Mary and Queen Elizabeth pay their Obedience to both successively although one of those Queens was not Legitimate and if we pay our Allegiance to our present Soveraigns we do not transgress either her Doctrine or Practice unless it could be proved that we had resisted the late King And therefore our Historian reflects too severely on Dr. W who said That Passive Obedience in the narrow sence we take it in was not so much as thought on when these Homilies were Published those Homilies being aimed against the Vsurpations of the Church of Rome to which they never intended Obedience And when as our Historian observes That as well evil as good Kings do Reign by God's Ordinance and that it is a perillous thing to permit Subjects to judge which Prince is wise and godly and his Government good and which otherwise it may be supposed they intended our Obedience should be payed to the present King. But because the Laws are the Measures as well of the Princes Power as the Subjects Obedience I shall therefore act the part of an Historian so far as to give you an account of our Laws in both these Cases And I shall begin it with our Magna Charta which hath been confirmed by Parliaments in every Age since it was first made wherein the King grants That neither He nor his Heirs shall procure or do any thing whereby the Liberties therein granted shall be infringed and if any such thing be procured it shall be of no force And in the Original Grant yet preserved and in the hands of the Bishop of Salisbury it is provided That in case the King should violate any part of the Charter and refuse to rectifie what was done amiss it should be lawful for the Barons and People of England to distress him by all the ways they could think on such as the seizing his Castles Lands and Possessions c. Bracton hath been often quoted who says l. 1. c. 17. The King hath for his Superiors God and the Law by which he is made King as also his Court the Earls and Barons who when they see him exorbitant may restrain him And l. 1. c. 2. The Laws of England being approved and confirmed by the King's Oath cannot be altered And c. 17. Let Kings therefore temper their Power by the Law which is the Bridle of Power And c. 8. The King in receiving Judgment may be equalled with the meanest Subject L. 2. c. 24. The Crown of the King is to do Justice and Judgment and to preserve Peace without which he cannot subsist i. e. As in the Laws of King Edward c. 17. The King is constituted for the Liberty of the People which if he do not Nee nomen Regis in eo constabit And that by the word Heir all Successors are meant though not expressed in words Fortescue fol. 27. says From that Power which flows from the People it is not lawful for him to Lord it over them by any other Power that is a Political not a Regal Power And fol. 32. The King is set up for the Safeguard of the Laws of his People The Sword called Curtein was given to the Counts Palatine of Chester to this end Vt Regem si aberret habeat potestatem coercendi saith Matth. Paris p. 563. The Parliament in Richard the Second's Case did refer to an Ancient Statute whereby it was provided That if the King through a foolish obstinacy and contempt of his People or any other irregular way should alienate himself from his People and would not Govern by the Laws of his Kingdom made by the Lords of his Kingdom but should exercise his own Will from thenceforth it was lawful for them with the consent of the People to depose him from the Crown This Law it seems was embezelled by that King for in the Twenty Fourth Article against him it was alledged That he had caused the Records and Rolls concerning the State of the Government to be crazed and imbezelled to the great detriment of the People The Author of the Mirrour says p. 8. speaking of the Rise of the English Monarchy That when Forty Princes chose
seeing we do still agree in those Doctrines of Non-Resistance and Passive Obedience rightly stated and understood it were not more advisable for him to submit his Opinion to the Judgment of those Divines upon their more mature and particular consideration of the Obligation of those Doctrines in such a Case as hath now hapned or at least to the Determination and Establishment by Publick Consent now happily setled and by all Christian Princes approved of the French only excepted than so resolutely to persist in his Opinion to scandalize such as have taken the Oaths and to affright others from doing the same and like Jeroboam to make Israel to sin To put a stop to this Gangreen my next endeavour shall be to find the Nature of Non-Resistance and Passive-Obedience In order whereunto I shall enquire first the Sense of the Scripture and secondly the Sense of our Laws As to the Scripture we find it in a Prohibition of our Saviour Matth. 5.39 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. Not to resist an injurious person viz. So as to return the like Injury on him recompensing evil for evil it being unlawful for a private person to avenge himself and take an Eye for an Eye and this Precept obligeth only in lesser Injuries which are tolerable and supportable without any great damage to our Bodies or Estates such as a blow on the Cheek taking away a Coat and compelling a person to go with him a Mile which is but a small restraint of his liberty So Dr. Hammond in his practical Catechism expounding the Precept restrains it to matters of a light nature and to a light contumely and again such slight Injuries in which cases notwithstanding for prevention of greater Evils which we have just cause to fear it is permitted to seek such reparation as the Laws under which we live do allow But in cases of greater Injuries as in Exod. 22.2 when a Thief is found breaking up and be smitten that he die there shall be no Blood shed for him in such a Case the Law of Nature allows Moderamen inculpatae Tutelae And if I have assurance that a malitious person comes to take away my life I may kill rather than be killed So Dr. Hammond who proposing the Question What is the general nature of the Precept answers That the Injuries be tolerable and supportable in respect of what is already done and what may be consequent on our bearing them this concerns private persons As to our not resisting our Governours he that resisteth them is condemned by the Apostle and the word is by Hesychius parallel'd with 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 raising War against him where according to the former Exposition if the Injury done by a Prince be tolerable and supportable without destroying the Ends of Government and the Common Welfare they may not resist but in such desperate Cases they are bound by a Superior Law Salus Populi which being the End of Government is to be preferred before the Means it is lawful to defend themselves To this purpose Bishop Sanderson p. 216. De Consc A Subject is not ordinarily bound to obey a Law that is very grievous to the certain Ruin of himself and Family unless some great necessity or Publick danger do appear And if we are not bound to such Laws much less to such Governours as are highly injurious to their Subjects against Law. And thus in case of a lesser abridgment of the Subject's Liberty while it is tolerable and tends not to his utter Ruin the Subject must be passive but when the loss of their Liberty tends to the loss of their Lives and Estates and so the common Ruin of the present Subjects and their Posterity Quin resisti potest non dubito saith Grotius In such case Resistance may be made and yet we did not resist but only with-hold our assistance and only did not do what in truth was not in our power to do to which no Laws nor Oaths could oblige us to defend the late King in all his Extravagancies But because the Precepts of the Gospel do not interfere with the Civil Constitutions of a Nation let us consider how far the Laws of our Land do forbid Resistance There are two Laws made in the Reign of Charles the Second upon special occasions which forbid resistance by any persons on any pretence whatsoever the first is the Stat 13 Ch. 2. when the Parliament having fresh in their minds the War against Charles the First wherein many Members of both Houses as well as the Royal Family had been great Sufferers they made it unlawful for both Houses of Parliament to raise War Offensive or Defensive c. The second is the Corporation Act which says It is not Lawful on any Pretence whatsoever to raise War c. But both these Laws must be understood in a sense consistent with the Fundamental Constitutions for the Publick welfare and according to the intention of the Legislators which was to prevent the like Mischiefs as had happened in the long Civil War between the King and Parliament and which were then fresh in memory and which some Male-contents were endeavouring to renew and not to establish an Arbitrary Power in the King that by a standing Army he might exact all his Pleasure from the People destroy their Religions Laws and Liberties and if his Disposition lead him to it with a handful of Cut-Throats might enter into the two Houses of Parliament and destroy them by their own Law and so to go through the Nation and murther as many as they please which is the killing letter of the Law and of those Doctrines too taken in a strict sense in which they are contrary to all Laws Divine and Moral and therefore though delivered in general terms Aequitatem admittunt interpretem 3dly It is a needful Observation that de odiosis raro contingentibus Lex non decernit the Law makes no provision for such odious things as are not fit to be mentioned and rarely come to pass yet when at any time such cases do happen as under the late King they did we find our Legislators very Industrious and unanimous for the suppressing of them And when the Queen of Scots brought French Forces into Scotland to withstand the Reformation that Parliament and Convocation than which the Historian neither hath nor can mention a more August Assembly of the States agreed to give a Subsidy of six Shillings in the Pound to defray the Charge of that War and call the Design the Queen's using all Prudent and Godly means 5 Eliz c. 24. 27. And the Temporalty call it The Princely and upright preservation of the Liberty of the Realm and Nation of Scotland from iminent Captivity and Desolation And in 35 Eliz. c. 12. another Subsidy was granted by the Clergy for the Queen's Charges in the needful and prudent prevention of such Attempts as tended to the extirpation of the sincere Profession of the Gospel both here and elsewhere And
One King to Reign over them to Govern the People of God and to maintain the Christian Faith and defend their Goods and Persons in quiet by the Rules of Right and to be obedient to the Rules of Right if he did not so he should lose the Name of a King. Old Fleta speaking of the King's Oath says The King by Vertue of his Oath is especially obliged to the preservation of the Laws and he is therefore Crowned that he may Rule the People committed to him per Judicia by the Laws 15 Edw. 3. Stat. 1. We considering how by the Bond of our Oath we are bound to the observance and defence of the Laws and Customs of the Realm c. And 20 Edw. 3. Moâ—e at large the King declares We perceiving that the Law of the Land which we by our Oath are bound to maintain is less well kept and the execution of the same disturbed we greatly moved in Conscience in this matter desiring as much for the pleasure of God and ease of our Subjects as to save our Conscience and to keep our said Oath c. The like is in the Statute of Provisors King James told his Parliament the same March 21. 1609. That the King is bound by a double Oath to preserve the Laws tacitly as being King and so bound to protect his People and the Laws and expresly by his Coronation-Oath So as every just King is bound to observe that Paction made with his People by his Laws framing the Government thereunto And a King leaves to be a King. and degenerates into a Tyrant as soon as he leaves off to Govern by Law in which case the King's Conscience may speak to him as the poor Woman to Philip of Macedon Either Govern according to Law or cease to be King. And else-where he says If he should not keep the Laws to which he was Sworn he should be perjured But I proceed to the Statute of 11 H. 7. That from thence-forth no Person attending on the King for the time being and doing him true and faithful Service of Allegiance in his Wars should in any-wise be Convict or Attaint of High Treason nor of other Offence for that cause but to be for that Service utterly discharged of any vexation trouble or loss The Lord Bacon p. 144. Hist of Hen. 7. gives a Reason of this Law as agreeable with Reason of State that the Subject should not enquire of the justness of the King's Title or Quarrel And it was agreeable to good Conscience that whatever the Fortune of the King were the Subject should not suffer for his Obedience The Spirit of this Law saith he was wonderful Pious and Noble being like in matter of War to the Spirit of David in matter of the Plague who said If I have finned strike me but what have these Sheep done Neither wanted this Law parts of Prudence and deep fore-sight for it did the better take away from the People occasion to busie themselves to pry into the King's Title for that however it fell out their Safety was provided for besides it could not but greatly draw to him the love and hearts of the People because he seemed more careful for them than for himself To this purpose the Lord Cook p. 7. of his third Book of Institutes speaking of Treason says That the Act for Treason 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 de Facto only and not de Jure yet is he within the purview of this Statute and the other which hath Right and is out of Possession is not within this Statute And if Treason be committed against a King de Facto and not de Jure and afterwards the King de Jure cometh to the Crown he shall punish the Treason against the King de Facto and a Pardon granted by the King de Jure that is not also King de Facto is void It is the Opinion of Lawyers That Melior est conditio possidentis And Judge Hales gives the same sense of that Statute in his Remarks on the Pleas of the Crown Chap. of Treason The Lord Cook says 'T is against all Reason that the King 's Politick Capacity may not be separated from his Personal seeing his private Will is distinct from his publick Will exprest in the Law. Littleton in his Tenures Title of Homage Sect. 85. says Allegiance is due to every one in Possession that becomes King and to no other And Judge Popham in his Reports fol. 16 17. mentioneth a Case to our purpose Richard the Third granted certain Priviledges to the City of Gloucester with a Salvo to him and his Heirs And in Queen Elizabeth's days it was questioned whether the Salvo did pass to her she not being Heir to King Richard and all the Judges did Resolve that the Salvo did pass to her Sir Edward Cook in his Institutes on Magna Charta alloweth That the King hath no Power over the Militia to Muster his Subjects but only in such cases and manner as the Parliament by special Acts hath prescribed And p. 147. That the Right of Electing Sheriffs was anciently in the People as in London York Bristol c. So the Heretochs or Lord-Lieutenants in every County were chosen by a Folkmote in their Counties Lambard Arch. p. 135. And Spelman on the word Legiantia says it is Archius vinculum inter principem subdites It would be tedious to relate all that Grotius hath said though very pertinently and rationally I shall name a few of such Observations as come home to our Case l. 1. c. 4. § 7. n. 3. It is to be observed that Men did not at first unite in Civil Communities by any Command from God but voluntarily and from the experience they had that private Families were unable to resist Foreign Force from hence grew Civil Power which St. Peter calls a Humane Ordinance though elsewhere it be called a Divine because God approved it as convenient for the good of Mankind but when God approves of a Humane Law he must be supposed to do it after a Humane manner L. 2. c. 14. § 4. That Promises fully made and accepted do naturally transfer a Right and this holds as well in Kings as in private Persons L. 2. c. 13. n. 16. If a Promise confirmed by Oath be grounded on a Condition whereto it related that Condition not being performed makes the Promise void or if the Quality of the Person cease the Oath sworn to that Person in relation to his Quality doth cease also L. 2. c. 13. n. 18. Every Contract though sworn is to be understood with this reserved Condition That matters continue in the same state A wise Man saith Seneca changeth not his Resolution all things continuing as they were when he made it nor can he be said to repent because at that time no better Counsel could be followed than that he resolved on l. 2.
c. 16. n. 27. cadem mihi omnia praesta idem sum Such Persons as are under Compact with the People if they offend against the Laws may be restrained by Force And if a King desert and abjure his Kingdom all things are Lawful against him as against a private Person and he quotes Barclay That if a King alienates his Kingdom or subjects it to another he loseth it and I doubt not but in such a case he may be resisted The Empire is one thing and the manner of administring it is another thing which the People may hinder from being changed for that is not in the Empire and from Sen. l. 3. contr Although I must Obey my Father in all things yet not in that wherein he ceaseth to be a Father Consistere enim non potest voluntas imperandi perdendi And if a King have one part of the Empire and the People another the King attempting to destroy the Peoples Right a just Force may be opposed L. 2. c. 7. n. 27. in a Question concerning the Right of Succession it is not amiss to take the Advice of the People as Camden says of England Anno 1571. Grotius de Jure belli p. 93. c. 4. § 20. In a Controversie concerning the Title to a Kingdom a private Man must not undertake to become a Judge but follow the Possession for thus Christ commanded Tribute to be paid to Caesar Matth. 22.20 because he was in Possession and the Money bare his Image L. 2. c. 25. n. 4. He approves of a War on behalf of Confederates because he that doth not repel an Injury from his Confederates if he can is as much in fault as he that doth the Injury and he commends Constantine for making War on Maxentius and Licinius who persecuted such of their own Subjects as were Christians only for their Religion and l. 2. c. 20. n. 39. Injuries begun only are not to be vindicated by Arms unless the matter be both very weighty and proceeded so far that from what is already done either a certain Mischief though not yet what was intended hath already befallen or some extraordinary danger do threaten thereby if an Enemy hath once assaulted me and comes armed with a resolution to kill me I am not bound to tarry till he comes within reach of me but seasonably to prevent him And l. 2. c. 25. n. 8. Those Princes who are free may make War for themselves or others and though we should grant that Subjects may not take Arms for their own Defence against their Prince which yet is doubted even by those whose purpose it was to defend Regal Power yet it follows not that Princes may not take Arms in their Defence that which is unlawful for one to do by reason of a personal Impediment may be lawful for another to do for him As in Affairs of the Church Bishops are said to take on them the Care of the Universal Church so besides the care of their particular Dominions Kings assume the gegeral Care of Humane Societies So Seneca Bello à me peti potest qui à mea gente sepositas suam exagitat This which I have named from this Renowned Casuist may suffice to silence all the Objections of such as are of the Historians perswasion and to quiet the Consciences of such as have taken the late Oath to the present King and Queen I proceed now to our late Lawyers and Casuists and Selden deserves the first place who de Jure Nat. l. 1. c. 8. p. 106. says That by permission of Nature it hath been granted that whatsoever hath been by Men joyned in Society limited forbidden or constituted that they are bound to keep who have so consented according to the Conditions and Qualifications wherewith it is prescribed even as in any as have and as they have given their consent but whence is it they are so bound From the Authority of a Deity i. e. of Man's Superiour even from those things the rise of the Authority is derived and therefore from some Heads of the Law of Nature Lod. Vives on St. Augustine de Civ Dei l. 4. c. 5 6. takes Notice of the first words of Justine viz. That in the Beginning the Rule of Nations was in the hands of Kings whom not Popular Ambition but their Moderate Carriage approved by the good advanced to that height of Honour That the People elected such Kings to be their Guides and Over-seers of Publick Interest and that they were not compelled to take such a one to them as happened any way neither did Nobility or the seeking of a Party carry it but every Man 's own private good with the good of the Publick was so near to him that it made him to make choice of none but the best And Juvenal observes Satyr 10. That it was the People Qui dabat olim Imperium faces legiones Omnia I shall crave Pardon if I here insert a little of what our Judicious Hooker hath said in our Case to countervail what the Historian hath quoted as his Judgment Now thus saith he l. 1. c. 10. Though wise and good Men are fit to make Laws yet Laws take not their constraining Power from those that make them but from the Power which gives them the strength of Laws And by Natural Law the Lawful Power of making Laws whereunto all Societies are subject belongs so properly to those entire Societies that for any Prince or Potentate whatsoever to exercise the same of himself and not either by express Commission from God or Authority derived from their consent upon whose Persons they impose Laws is no better than Tyranny Laws they are not which Publick Approbation hath not made What is the Chaff to the Wheat That Quotation from an imperfect broken exploded Fragment to this substantial Argument I shall not swell this Tract by those Excellent Discourses of Puffendorff translated by the Author of the Answer to Popular Objections I shall mention but two Sentences of his first from his Tract de Interregno p. 272. If a King abdicates the Peace of his Kingdom and be of an Hostile mind or departs from the Rules of Government the ground of the Subjects Obedience is made void As in the Digests l. 49. Tit. 15. Qui fugit ad eos cum quibus nulla est amintia à fide suscepta transfugit The second is de Jure Naturae p. 1008. Such as desert the Government or abdicate the Kingdom against them is Lawful whatever is Lawful against a private person Also if a King that is constituted by his People would alienate his Kingdom or alter the form of Government if he continue to effect it by force the people may resist him by force Carpzorius an approved Author De Capit. Caes c. 1. p. 15. says There is no King in the Christian World whose Power some Compact made with the several Orders of the People may not restrain and limit and which are not bound by the Capitulation Reinbech
doubt but it was the intention of the Legislators to exclude them out of those Laws which were made with respect to a more particular occasion as the 〈◊〉 face to those Laws plainly sheweth It is notoriously known how hardly the Church was beset by two busie and powerful Factions when those Laws were enacted who though they agree in Principles tending to Rebellion yet that they might undermine the Church they found Patrons and an Interest in Court and Council in the Reign of Charles and James the Second and how opposite soever the Factions were to each other they were still ready to unite against the Church as their Common Enemy in which case it was requisite that the Members of the Church should use all honest means to retain their Superiours in a good Opinion of their undoubted Principles of Loyalty and to press the same Duty on such as were suspected to be of a contrary Mind against whom the Parliament especially intended those Tests and Declarations for who can suppose them such Mad-men as to make a Law upon a particular emergent Occasion as should cassate and destroy all other Laws for the preservation of their Religion Lives and Liberties and to establish Tyranny Popery and Idolatry by Law if the King will have it so for which end he may by the killing letter of that Law when ever he pleaseth bring in what Foreign Forces he pleaseth to eat us up and no Resistance must be made if this Law be strictly understood without any Reserve or Consideration of the Occasion of making the Law and the intention of the Law-givers which undoubtedly was their own and the preservation of the Nation And wise Men think that if there should be such a pack of Law-makers as to serve a turn of their own should have no regard to the over-turning and perverting as well of the Duties we owe to God our Neighbours and our selves as the Ancient Fundamental Laws of the Land that they are utterly void and we should sin more in swearing to keep such Laws than in not observing them The Historian reflects so severely on some Divines as if he came with a Commission from James the Second to execute on them the consequences of the Doctrines of Non-Resistance and Passive-Obedience they are Arraigned and Condemned as Apostates Traytors and perjured Persons and when time serves they shall not want an Executioner In the mean time he directs a fatal blow at one single and obscure Person but through him wounds all the rest who though they be many Heads yet all standing on the same Neck and our Historian thinks he hath got the Advantage which Nero wished for however he thinks he deals friendly with him if as Butchers are wont to use their Swine who scrape them a little before they cut their Throats Mr. Long says he is so well known for his Zeal in this good Cause viz. of Non-Resistance and Passive-Obedience to all that have seen his Answer to Mr. Johnson and Hunt His no Protestant but Dissenters Plot and other such Treatises that it is wondred that of late he should own himself the Author of the Solution of the Popular Objections c. Answ They who have known Mr. Long ever since the War began against Charles the First know that he hath inviolably practised those Doctrines himself to which in those Writings he perswaded others and shrunk not from them after the Prince of Orange came to Exeter as the present Bishop of Salisbury and several Members of the Church of Exon can attest and continued to Pray for the late King until he received Order for the contrary though he were publickly disturbed for so doing but when he considered that the late King had deserted the Government and left us in Confusion that the States of the Kingdom had admitted their present Majesties to the Throne even then though our Governours were changed he changed not his Opinion of the Doctrine of Non-Resistance and Passive-Obedience but thought that it ought to be transferred from the Person of the late King to the present King and Queen so that it is no wonder that he owns himself the Author of the Solution of Popular Objections wherein if any thing be urged by him that seems to comply with the Opinion of Mr. Johnson c. it was an Argument ad hominem and in such a case as happened after Mr. Johnson had written and was scarce thought possible to happen and we hope never will more And though he needed not that Apology of St. Austine's making retractations and to confess Errare possum Hereticus esse nolo yet he thinks it much better to do so than with Bellarmine to make such Recognitions as should declare his Obstinacy in a dangerous Error as the Historian doth And as to the particular Quotations from a Sermon of that Authors the Reader may observe that they were aimed at the Popish and Fanatical Doctrines of Resisting and Deposing Lawful Princes for the good of the Kirk and Mother-Church and do not touch a hair of them that did neither Resist nor Depose nor are any way guilty unless their not sighting with Popish and Irish unqualified Miscreants for the utter Destruction of our Church and Religion and the establishing of Popery and Slavery be a Crime of that Magnitude as to be accounted Perjury and Treason which seeing the late King's Souldiers very honourably and worthily refused it could not be expected from those who were to sight under another Banner What remains then but that we study to be quiet and to do our own business not provoking not envying or slandring one another but leaving the Government of the Nation to God and our Superiours make it our business to govern our selves according to the Laws of God and the Land and to follow the things that make for Peace and whereby we may edisie one another and not publish Histories with a design to foment Divisions to alienate the Affections of the People from their present Governours and to run us again into Confusion And although the Author of the History do conceive that either we have been too sinful in not assisting the late King though it were out of our Power or not Passive enough in our Obedience to him yet I shall still think it my Duty to Pray that neither he nor we may sin in resisting Lawful Authority nor suffer under an Unlawful and Arbitrary Power Lead us not into temptation And I hope that all good Protestants will joyn with me not only in this Prayer but in that Thanksgiving of the Royal Prophet Psal 66.8 9 c. O bless our God ye People and make the voice of his praise to be heard which holdeth our Soul in life and suffereth not our feet to be moved for thou O God hast proved us thou hast tryed us as Silver is tryed Thou broughtest us into the Net thou layedst Affliction on our Loyns thou causedst Men to ride over our heads we went through fire and water and thou broughtest us out into a wealthy place I will go into thy House with burnt-offerings I will pay thee my Vows FINIS ADVERTISEMENTS A Resolution of Certain Queries concerning Submission to the Present Government The QUERIES I. Concerning the Original of Government II. What is the Constitution of the Government of England III. What Obligation lies on the King by the Coronation-Oath IV. What Obligation lies on the Subject by the Oaths of Supremacy c. V. Whether if the King Violate his Oath and actually Destroys the Ends of it the Subjects are freed from their Obligation to him VI. Whether the King hath Renounced or Deserted the Government VII Whether on such Desertion the People to preserve themselves from Confusion may admit another and what Method is to be used in such Admission VIII Whether the Settlement now made is a Lawful Establishment and such as with a good Conscience may be Submitted to By a Divine of the Church of England as by Law Establish'd
as the Observation of Grotius on Mat. 22.20 mentioned in his Book de Jure belli p. 93. c. 4. § 20. which is more adapted to the present Case In re controversâ viz. of a Title to the Right of Government Judicium sibi privatus sumere non debet sed possessionem sequi sic tributum solvi Caesari Christos jubet quia in possessione erat nummus ejus habuit imaginem And l. 2. c. 9. § 8 9. de Jure belli If a King dye without Issue and it is the same if he be dead in a Civil sense by Conquest by Resignation or wholly deserting his People without making any Provision for their Government the Empire remains in the Body of the People who may create another and limit him the People being sui Juris And as these Arguments of Grotius which our Author omits would have solved the Phenomena in the present Case so will also the Resolution of Bishop Sanderson in the Case of the Engagement and in divers other parts of his Treatises of the Obligation of Conscience and of Oaths In the Case of the Engagement p. 90. he says That Allegiance is such a Duty as every Subject under what form of Government soever by the Law of Nature oweth to his Country primarily and consequently to the Soveraign Power by which that Common-wealth is governed as is necessary for the preservation of the whole Body And that if the intention of the Law-giver should be understood precisely of that particular actual and immediate intention of the Law Giver in making a particular it will not hold true in all Cases but there is to be understood in the Law-Giver a more general habituate and ultimate intention of a more excellent and transcendent nature than the former which is to have an influence into and an over-ruling Power over all Laws viz. An intention by the Laws to procure and promote the Publick Good. The former intention bindeth where it is subservient to the latter or consistent with it and consequently bindeth in ordinary cases and in orderly times but when the Obligation of the Law by reason of the Conjuncture of Circumstances or the Iniquity of Times Contingencies which no Law-Giver could either certainly fore-see or if fore-seen could not sufficiently provide against would rather be prejudicial than advantageous to the Publick or is manifestly attended with more Inconveniencies and sad Consequents to the Observers than all the imaginable Good that can redound to the Publick thereby can in any reasonable measure countervail in such case the Law obligeth not but according to the latter and more general intention only even as in the Operations of Nature particular Agents do move ordinarily according to the proper and particular inclinations yet upon some occasions and to serve the ends and intentions of Universal Nature for the avoiding of something which Nature abhorreth they are sometimes carried with Motions quite contrary to their particular natures as the Air do descend and the Water to ascend for the avoiding of vacuity And p. 216. De Consc A Subject is not ordinarily bound to a Law that is very grievous to the certain ruin and destruction of himself and Family unless some great necessity or publick danger do appear And which comes home to the matter of the present Oath he saith That when the Imposer chuseth Words capable of a double sence it is neither necessary nor expedient that the Promiser do doubt which sence the Imposer doth mean but may in prudence and without Violation to his Conscience make his advantage of the ambiguity and take it in the laxer sense And we may be resolved in our present case as he declares in that of the ingagement p. 106. There wants not greater probabilities of Reason to induce us to believe that the laxer sence is to be accounted the immediate and declared sence of the Imposers who tho' they might have a more secret reserved and ultimate intent the Ingager is not concerned in it the equivocation if any lieth on the Imposers score not on the Subscribers for which he gives many reasons and the limitation which he gives to an Oath among many others doth deserve a remark viz. Rebus sic stantibus if things continue in the same state wherein they were for when a Man swears to return a Sword that he borrowed and he of whom it was borrowed grows furiously mad he is not bound to restore it I shall mention but one passage more out of his Praelect 5. p. 176. where he puts the question When any one takes the Government on him having by Force driven out the lawful Prince or so streightned him that he cannot pursue his Right which is invaded not on a doubtful Right but by manifest wrong what shall a good Subject that hath Sworn Allegiance to the oppressed Prince do in this case Answ It seems to me that it is not only lawful for a good Subject to obey the Laws of the Prince in being but to do what he is commanded Medo non sit turpe factu aut injustam But also if the condition of Humane Affairs require it there may be a necessity of Obeying or he may be judged to fail of his Duty And whereas he had said that Laws made by him that wanted lawful Power do not bind the Conscience he answers That these things are not repugnant because tho' the Subject be bound to do what the Law requires yet he is not bound to that Law but to himself and his Country The Obligation is annexed to the Law that concerns himself and is truly a Law which he thus explains Seeing it is the Duty of a pious and prudent Man to consider not only what is lawful but what becomes him and is expedient to others a good Subject may be bound to do that for the welfare of himself and Fellow-Subjects to which by Law he is not bound which Obligation ariseth from the Duty he oweth to himself and to his Country that Wars and Rapines may be prevented and he may live peaceably under them without violating the Faith we owe to the â—ightful Heir I shall mention many others whose Judgment in particular Cases agrees with what hath been lately practised Bishop Hall Decad. 2. says If a Thief rob me of my Treasure and flieth my Conscience would not strike me if I pursue him and so strike him that he dies The same holds good in resisting such as want a lawful Commission and due Qualifications which are but as Thieves and Robbers and for want of legal Qualifications may be dealt with as such Bishop Taylor in his Second Volume p. 137. resolves That where the Right of Succession is in a Family by Law or Time immemorial no Prince can prejudice his Heir or the People committed to him for it cannot without consent be alienated because Persons cannot be disposed of as Slaves or Beasts So that in this and some other Cases the King looseth his Authority and then the