The Original of Government in General.

GOD is the Fountain of all Government, being not the Author of Confusion but of Peace, and hath established Order among all his Crea­tures; in the Angelical Nature he hath con­stituted several Orders, Angels and Arch­angels, Principalities, Powers and Dominions; in the Cele­stial Bodies, the Sun to rule by Day, and the Moon by Night, and one Star differeth from another Star in glory. And when he made the first man, he gave him dominion over all the works of his hands, he was to rule his Wife, and she to live in subjection to him, and when he became a Father, his Children were to yield him obedience. And when the Families of the Earth were multiplied, so that one Father or Family could not claim Authority over the rest, and considering the great corruption of Nature, it was im­possible but Violence and Injustice would be practised, Man­kind saw a necessity of setting up one Common Father over many Families, to suppress Violence, redress Injuries, and distribute Justice. To this purpose Mr. Hooker, l. 1. c. 10. Two Foundations there are which bear up Publick Societies, the one a natural inclination, whereby all men desire a sociable life and fellowship; the other an order expresly or secretly agreed on touching the manner of their union in living together; for if when there was but one Family in the World, the means of instruction, Humane and Divine, could not prevent shedding of Blood, how could it be but when Families were increased, each providing for it self, strife, contention and violence must grow among them? [Page 2]To take away such mutual Grievances, Injuries and Wrongs, there was no way but only by growing unto composition and agreement among themselves, by ordaining some kind of Publick Government, and by yielding themselves sub­ject thereunto, that to whom they granted Authority to Rule and Govern, by them the Peace and Tranquility of the rest might be procured — No man might in reason take upon him to determine his own right, therefore strife and troubles would be endless, except they gave their com­mon consent to be ordered by some whom they agreed on, without which consent there was no reason one man should take on him to be Lord or Judge over another — and over a multitude of Families; impossible it is, that any one should have compleat power, but by consent of men, or imme­diate appointment of God. All publick regiment of what kind so ever, seemeth evidently to have risen from delibe­rate advice, consultation and composition between men judg­ing it convenient and behoofful. And (the corruption of Nature presupposed) the Law of Nature doth necessarily require some kind of regiment; and men saw, that to live by one man's will, became the cause of all mens misery; this constrained them to come to Laws, wherein all men may fee their Duties, and know the Penalties of transgnes­sing them. And tho' 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, whereto all Societies are subject, belongs so properly to those entire Societies, that for any Prince or Potentate of what kind so ever, 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. So far judicious Hooker, in as evident a manner as any demonstra­tion [Page 3]in Euclid, to which add that observation of Mr. Sel­den.

‘ Selden de Jure Nat. l. 1. c. 8. p. 106. 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 with which it is prescribed, even as many 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 Superior, even in those things the rise of the obligation is derived, and therefore from some heads of the obligation of the Law of Nature.’ Lod. Vives, on St. Aug. de Civitate Dei, l. 4. c. 5, 6. takes notice of the first words of Justin, (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 Honor, on which he gives this comment, That the People elected those Kings to themselves, to be Guides, Governors and Overseers of the Publick Interest, and they were not compelled to take such a one as hapned any way to them, neither did Nobility or the seeking of a party carry it, every man's own private good, with the good of the Publick, was so dear and near to him, that it made him to make choice of none but the best.’ And it is observable from Livy and other Roman Historians, that ‘their five first Kings were chosen by the Senate and People, and that Tarqui­nius Superbus was by them deposed.’ Neque enim ad jus regni quicquam praeter vim habe bat ut qui ne (que) populi jussu ne (que) pa­tribus autoribus regnavit, to which that of Juvenal agreeth, speaking of the People, ‘ Satyr 10. Qui dabat olim Imperi­um fasces legiones omnia.’ In our Nation, when the Romans invaded the Land, the People chose Cassibilane their King. On the death of Hardicanute, the third Danish King, they chose Edward the Confessor; and on the death of William [Page 4]the Conqueror, they chose William Rufus, and of four that succeeded the Conqueror, not one had the right by neerness of descent.

It is objected against this Opinion of Electing our Gover­nors, That the People, having no power over their own lives, cannot give that power to any other.

Answ. It is not the People that confer this power, but God, who by his Law hath given this power to all supreme Magistrates, That he that sheddeth man's blood, by man shall his blood be shed. The People are only a Medium of convey­ing this power of the Magistrate to a particular person, God is the Author of the Magistrates power, to which the punishment of Murtherers is annexed; for the general Rule is, That the Magistrate shall bear the Sword for the punish­ment of evil doers; and Capital punishment is in some ca­ses just, the People only apply this general Rule, and de­termine the power to be in such a particular person, for the terror of evil doers; so that though I, being a private person, have no power over my own or another man's life, yet the Magistrate hath by the Institution of his Office from God. St. Paul, Acts 25.11. says as much, If I have done any thing worthy of death, I refuse not to die.

The Ordinance of Government is from God and Nature, but the Species of it, whether by one or more, is from Men, and the Rule for administration, is by mutual agreement of the Governor, and those that are to be governed, from whence probably that which by St. Paul is called [...], God's Ordinance, as to Government in general, is by St. Peter, 2.13. called [...], a Humane Constitution, as to the particular Species, for so the Supreme Power is called, whether to the King as Supreme. As for the Patri­archal Constitution, and a Lineal Descent by proximity of Blood, it is so near to an impossibility of finding out the right Heir to the first Father of a People, that we must let that alone for ever. And as for Conquest, Grotius, l. 1. c. 4. [Page 5]§. 16. says, ‘He that doth usurp a Government, and af­terward enters not into a Compact with the People, (as it is evident William the Conqueror did, who also pre­tended a right prior to his Conquest) nor is there any trust reposed in him, but his possession is maintained by force; the right of War doth in this case still continue, so that it is lawful in all things to deal with him as with an Enemy. And l. 1. ch. 4. §. 7. N. 3. It is to be observed, saith Grotius, That men did not at first unite in civil Com­munities by any Command from God, but voluntarily, and from the experience which they had, that private Fa­milies were unable to resist any foreign force; from hence grew Civil Power, which St. Peter therefore calls a Humane Ordinance, though elsewhere it is called a Di­vine Ordinance, because God did approve thereof, as suit­able and convenient for the good of Mankind, but when God approves of a Humane Law, he must be supposed to do it as Humane, and after a Humane manner.’

Concerning the Rise of our Government, which is the Se­cond Query, I shall search no farther than the Reign of Wil­liam, called the Conqueror, who in truth disclaimed that Title, pretending a right to succeed by a Grant from King Edward, and an Oath of Harold, who swore to preserve the Kingdom for him after the death of Edward; King Edward being dead, many of the Nobles invited William to take the Crown, but Harold, contrary to his Oath, assumes it; whereupon he resolves to vindicate his Title by the Sword, the Pope sending him a consecrated Banner, and approving his Title, and shortly after his landing, slays Harold in battel, and marching to London, is proclaimed King; and crowned by Aldred, Arch-bishop, taking the Coronation-Oath, which was injoyned by King Edward, and is the same in substance with that which is still administred, and in the Title of his Laws, made in the fourth Year of his [Page 6]Reign, he stiles himself Heir and Cousin to Edward the Con­sessor, Spelman's Councils, p. 619. and confirmed all St. Ed­ward's Laws. And his Son Henry declares his Father's Title thus, Qui Edvardo regi Haereditario Jure successit, Selden ad Eadmerum, p. 211. Henry the First, his Son, abolished the Norman Laws, which his Father added, as Cooke in the Proeme to l. 3. of his Reports. Afterwards the Barons threatned King John to seize his Castles, if he would not confirm their Laws, which they did until they got the Magna Charta.

It appears then, that our Government is not an Absolute Monarchy, such as that of the Turks, and the ancient Em­perors of Rome, whose Wills declared by Edicts, had the force of Laws, as is evident from, 1. The Manner of Ma­king Laws, the Legislative Power being divided between Prince and People; And, 2. The Mutual Oaths and Ob­ligations that pass between the Prince and Peo­ple, and because Quas vulgus eligerit. no Laws oblige the Subject, but what are agreed on by Prince and People in Parliament. 3. Nor can any Money, without their consent, be raised. And whatever Laws have been thus made in former Ages, and stand unrepealed, do respectively ob­lige both Prince and People in future Ages. So that when Laws are thus made, it is not in the power of Prince or People to annul them, but by the same Authority by which they were made; by which it appears, that the Legislative Power, which is a chief Property of Soveraignty, is not sole­ly in the Prince, yet may he pardon the Persons of some Offenders, and remit the Penalties in some Cases, wherein Salus Populi Suprema Lex, which Maxim, as it leaveth in the Prince a power of dispensing with the rigor of the Law, as he shall see it expedient for the publick good, so it leaveth also in the Subject a liberty upon just occasions, (as in cases of great exigency, and for preventing of such ha­zards and inconveniencies as could not be foreseen or pre­vented, [Page 7]and might prove of noisom consequence to the publick) to do other wise than the Letter of the Law re­quireth. See Sanderson's Case of the Liturgy, p. 170. for which he gives this reason, (viz.) It may well be presumed, that the Law giver, who is bound in all his Laws, to intend the safety of the Publick, and of every Member thereof in his due proportion, hath no intention by the observation of any parti­cular Law, to oblige any person who is a member of the Pub­lick to his destruction or ruine, when the common good is not an­swerably promoted thereby. Upon which ground it is gene­rally resolved by Casuists, that no Constitution (meerly humane) can lay such obligation on the Conscience of the Subject, but that he may, according to exigency of cir­cumstances, do otherwise than the Constitution requireth. This leads me to the Third Querry.

The Third Query, which is concerning the Obligation of the Coronation Oath, and the Oaths taken by the Sub­jects, of which I shall speak joyntly, because the Obligations are relative and reciprocal.

There cannot be a more solemn Oath than that which is taken by our Princes at their Coronation, to which the Prince is obliged as to the Matter of it before his Corona­tion, as well as the Subject is bound to the Prince, tho' not not crowned; the Prince is our natural and liege Lord, as we are his natural and liege Subjects, (i. e.) according to Law.

The Oath, as I find it taken by King Charles First, of bles­sed Memory, is this:

Quest. Sir, Will you grant and keep, and, by your Oath, confirm to the People of England, the Laws and Customs to them, granted by the Kings of England, your lawful and religious Predecessors, and namely the Laws, Customs and Franchises granted to the Clergy by your glorious King St Edward your Pre­decessor, [Page 8]or according to the Laws of God, the true Profession of the Gospel established in this Kingdom, and agreeable to the Prerogative of the Kings thereof, and the ancient Customs of this Realm?

Answ. I grant and promise to keep them.

Q Sir, Will you keep Peace and Godly Agreement intirely, according to your power, both to God and Holy Church, the Clergy and People?

A. I will keep it.

Q. Sir, Will you, to your power, cause Law, Justice, and Discretion, in Mercy and Truth, to be executed in all your Kingdoms?

A. I will.

Q. Will you grant to hold and keep the Laws and rightful Customs, which the Commonalty of this your Kingdom have; And will you defend and uphold them to the Honour of God, so much as in you lieth?

A. I grant and promise so to do.

Our Lord the King, we beseech you to pardon and grant and preserve to us, and to the Churches committed to our Charge, all Canonical Priviledges, and due Law and Justice. And that you would protect and defend us, as every good King ought to be a Protector and Defender of the Bishops and Churches under his Government.

A. With a willing and devout Heart, I promise and grant my part, and that I will preserve and maintain to you, and the Churches committed to your charge, all Ca­nonical Priviledges, and due Law and Justice, and that I will be your Protector and Defender to my power, by the assistance of God, as every good King in his Kingdom by right ought to protect and defend the Bishops and Churches under his government.

Then the King ariseth, and is led to the Communion Table, where he takes a Solemn Oath, in sight of all the [Page 9]People, to observe the Premisses, and laying his Hand on the Book, saith, The things which I have before promised, I shall perform and keep. So help me God, and the Contents of this Book. Now an Oath being a high Act of Religion, and called the Oath of God, invoking him as a Witness and Surety for the performance, and a Revenger in case of Transgression, ought not (but as Medicines) to be taken but in cases of Necessity, with good Advice, and great Sin­cerity, especially in such Solemn and Publick Oaths, the violation whereof the very Heathen do abhor. And what the Laws of the Church and People are, the Magna Charta, the Petition of Right, and the Statutes of Parliament do shew; to all which the Prince is sworn, and thereupon the People declare their acceptance of him, and some Subjects of all Orders do him immediate Homage in the Name of the rest. And by the Laws of God and Men, those things that are Solemnly Sworn to, on express Conditions mu­tually agreed on, do equally oblige both Parties.

The Subjects Obligation is expressed in several Oaths, the most considerable are those of Supremacy and Allegiance; from each of which the Person sworn is under a double Ob­ligation; first and primarily to the matter of the Oath which concerns both Prince and People, which they are sworn to defend: And secondarily, to the Persons specified in the Oath, whose Interest it is to defend the same, (viz.) the King, his Heirs and Successors. The Oath of Supremacy was framed to assert the King's Supremacy, in Opposition to the Usurpation of the Pope, wherein we promise, To bear Faith and true Allegiance to the King, his Heirs and Law­ful Successors, and to our power to assist and defend all Juris­dictions, Priviledges, &c. granted or belonging to the King's Highness, his Heirs and Successors, or united and annexed to the Imperial Crown of this Realm. This Oath was brought into Form by King Henry VIII. And the Parliament then declared, That it was a Declaration of the Ancient Right of [Page 10]the Crown, which doth not at all exclude the Right of the Subject, because the admission of that Usurpation would certainly bring the Subject under the Yoke of Popery and Slavery, which by this Oath they are bound to their pow­er to resist, as they did in the Reign of King John, and se­veral other Kings, of which hereafter.

In the Oath of Allegiance, we swear, to bear Faith and true Allegiance to His Majesty, his Heirs and Successors; and him and them will defend to the utmost of our Power against all Conspiracies and Attempts whatsoever made against his or their Persons: And do our best endeavour to disclose to His Majesty, his Heirs and Successors, all Treasons and Traiterous Conspiracies, which we shall know or hear of to be against him or any of them. And we also Swear, That neither the Pope of himself, nor by any other means with any other, hath power to Depose the King, or annoy his Countries, or to give License to any of them to bear Arms, to raise Tumults, or to offer any violence or hurt to His Majesties Person, State, or Government, or to any of His Majesties Subjects, within His Majesties Do­minions.

Concerning these Oaths it is observable, First, that they were both intended to preserve the King and his Subjects from the Usurpations of the Pope and Church of Rome, contrary to their Ancient Rights, which were opposed and resisted not only by many of our Kings which were them­selves Papists, but by the Nobles and Commons when their King would have submitted to them. And if they who were Papists did so resolutely defend themselves against Po­pish Usurpations of a Pecuniary and Temporal concern, much more ought we, when not only our Liberties, but our whole Religion, as Protestants, is invaded. Secondly, That by these Oaths we are bound to defend them to the utmost of our power against all such as shall offer any Vio­lence or Hurt to His Majesty's Person, State, and Govern­ment, or to any of His Majesty's Subjects. Thirdly, Be­cause [Page 11]it is mentioned in the Oath, that these Priviledges were granted or annexed to the Crown, (viz.) by the first Constitution, agreed on by Prince and People. Fourthly, Because it is said, that neither the Pope of himself, nor by any other means with any other, (which may infer, al­though the King himself should joyn with him, as King John did) may do violence or hurt to the State and Go­vernment, or to any of His Majesty's Subjects; from whence I inferred, that the Subjects were primarily obliged to the matter of the Oath, and then to the King's Person, because the King in Person may joyn with the Pope to do violence and hurt to the Subjects, in which case the Oath binds the Subjects to the utmost of their power to defend and main­tain their Rights and Priviledges, which for their better Se­curity were granted or annexed to the Crown, not for their utter subversion; and it is incredible that any Prince would oblige his Subjects by Oath, to which he himself hath sworn also, or that he would expect the performance of it from his Subjects, which he himself with all his power is resol­ved to vacuate and destroy. And in such a case we must recur to the Law and Dictates of Nature for preservation of our selves and the common welfare against unfaithful and cruel Men; for there is such a Law Prior and Paramount to any particular Constitution, and for the end whereof all Government was instituted; this is always accounted in­culpata tutela, so Natural and Necessary, that it cannot be annulled by any Civil Constitution. Et qui se cum defen­dere possit occidi permittit illum damnari posse non aliter ac si seipsum occidisset, he is a Felo de se, guilty of Self-murder. And doubtless if it had been proposed to the Law-makers, whether they intended to oblige themselves to assist and defend the King's Person in case he should joyn with the Pope and French King to set up the Inquisition, and bring in French Dragoons, they would never have enacted such a Law; and therefore we may presume they never intended [Page 12]such Obligation. Fifthly, That we are bound to pre­serve them to the King and to his Heirs and Successors, and him and them to defend to the utmost of our power a­gainst all Conspiracies and Attempts whatsoever, which shall be made against his or their Persons, their Crown, or Dignity. Supposing then there be an Attempt made to deprive the Heir Apparent of the Right of Succession, there is an Obligation on the Subjects not only to disclose and make it known to such Heir and Successor, but him and them to defend to the utmost of our power. To this pur­pose Bishop Taylor says, second Vol. p. 137. 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 loseth his Authority, and then the force of the Obligation ceaseth also. And how good an Opinion the Ancient Clergy and others had of the Peers and People that fought in defence of the Magna Charta, and against the Usurpations of the Popes, may appear by the Writers of that and the succeeding Ages concerning Simon Montfort. The Chronicle of Meilrois, lately Printed by the Bishop of Oxford, p. 231. says, Oc­cubuit cum multis ex magnatibus Anglicis qui venerant ad bel­lum ut certarent pro justitiâ Angliae, cujus post modum Ju­stitiae infallibile signum fuit crebra miraculorum exhibiti di­minutus exhibita circa Hugonem summum Angliae dispensato­rem & Simonem de Montfort, qui occubuerunt pro justitia de­certentes & idio nonnulli eorum meruerunt à deo miraculorum exhibitionem, of which Miracles they give divers instances. And long after these Writers, which lived in the time of the Barons Wars, Polidore Virgil, who lived in the days of Henry VIII. gives this Testimony to Simon de Montfort, p. 317. of the Basil Edition, Inhaesit hominum mentibus con­stans opinio hunc (Simonem de Montfort qui ob patriam & jus [Page 13]jurandum (for it seems they were under the like Oaths) vitam amisissent interiisse Martyrem id quod & vita sanctitas non patitur negandum, jam tum fueri qui ejus memoriam ut dici cujuspiam colere ceperunt compluresque id fecissent cui Re­gis iram non perti muissent. For if the Prince do evidently violate not only the Coronation-Oath, but act contrary to the tenor of the Oaths of Supremacy and Allegiance, and actually subject the People to that Jurisdiction and Usur­pation, against which they are sworn, what is the extent of that Clause in the Oath of Supremacy (viz.) To our power to assist and defend all Jurisdictions, Priviledges, and Authorities granted or beloning to the King's Highness, &c? Doubtless they that granted them, and by Oath are bound to assist and defend them being granted, may oppose such as attempt the destruction of them, when not only the King's Prerogative, but the Peoples Religion, their Laws, and Liberties are assaulted, and in a way to be utterly ruined: And Treason may be committed against the Go­vernment as well as against the King; and also the King's Eldest Son. It is well known how resolutely our Ance­stors in the darkest times of Popery (being themselves Papists) did defend the Nation against the Incroachments of the Church of Rome, when their Kings would have parted with this Right, which they affirmed he neither could nor should do, and in defence of them they were pro­digal of their Lives.

Query. Whether these Premises being undeniable, the Subjects that according to their Oaths did timely endeavour (the case being otherwise desperate) to vindicate as well the Right of the Crown to the King, his Heirs and Suc­cessors, as their own Religion and Liberties, did not act ac­cording to their Oaths and Duties, not by resisting their Prince, but by defending the Succession and themselves a­gainst such Instruments as acted contrary to the tenor of [Page 14]those Oaths. If Judges, Juries, &c. had performed in their several places as the Law and their Oaths obliged them, the King might have kept his Throne: We have a Maxim in Law, That the King can do no wrong, because he is supposed to do all things by his Ministers, and they to act all according to the Law: But when a King shall choose such Ministers as will act against the Laws, and defend them therein, there cannot be a greater wrong done to the Sub­ject.

5. In Answer to your Fifth Query, which concerns the mu­tual Obligations between the Prince and the People by ver­tue of these Oaths and the Declaration hereafter mentioned. It is to be considered (as Bishop Sanderson says in the Case of the Engagement, p. 90.) 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, (who is Caput Communitatis) as is ne­cessary for the preservation of the whole Body. And speak­ing of the Obligation of Laws (which will hold also in the case of Oaths,) 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 Law, it will not hold true in all cases, but there is to be sup­posed 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 where the Observation of the Law by reason of the conjuncture of Circumstances, or the iniquity of Times (Contingencies, which no Law-giver [Page 15]could either certainly fore-see, or if fore-seen, could not sufficiently provide against) would rather be prejudicial than advantagious 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 later 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 to descend, and the Water to ascend, for the avoiding of vacuity.

Concerning the Coronation-Oath, I shall add here what Bishop Taylor l. 3. p. 144. says, That a Prince's swearing to govern by Laws is very ancient, of which he gives di­vers instances, and says, Kings are bound by natural Justice and Equity, without Oaths, to do so, for they are not Kings unless they govern, and they cannot expect Obedience unless they tell the measures by which they will be obeyed; and these measures cannot be any thing but Laws, which are the will of the Prince, which when published to the People then they are Laws. If Kings be 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 or Lions, by chance or violence, and unreasonable passions, Ea quae placuerunt ser­vanda, saith the Law, l. 1. de Pactis. If this had not been the will of the Prince, it had been no Law, but being his will let it be stood to. And p. 143. Whatsoever the Prince hath sworn to, to all that he is obliged not only as a single person, [Page 16]but as a King, for though he be above the Laws, yet is he not above himself, nor above his Oath, because he is under God, and he cannot dispense with his Oath and Promises in those cases in which he is bound: Although the King be above the Laws, that is, in cases extraordinary, and matters of Penal­ties, 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 breaks them. And p. 149. he says, The Prerogative of Kings is by Law, and Kings are so far above their Laws, as the Laws themselves have given them leave. And p. 143. The great Laws of the Kingdom do oblige all Princes, though they be supream: 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 Salic and Pragmatical Sanctions in France, the Magna Charta and Pe­tition of Right in England. That great Emperour C. de Le­gibus l. 4. Digna vox est Majestatis regnantis legibus allega­tum se principem profiteri. A Sentence worthy of the Ma­jesty of a Prince to profess himself tied to his Laws.

Pareto legi quisquis legem Sanxeris, was the wise saying of Pittacus. And the distinction of the Directive Power of the Laws and the coersive, is futilous; for a Directive Pow­er is no power, and a Law doth not only direct but o­blige.

Thus the Emperour Theodosius, Tantum mihi licet quan­tum & leges licet. Augustine l. 4. c. 4. De Civitate Dei, Quid sunt Regna nisi magna latrocinia remota justitia quae est legum effectus. The intention of the Coronation-Oath is to oblige the King not to invade the Rights of the Subjects and the Established Clergy; and it is sworn to the Bishops by whom the Oath is administred. And St. Aug. Epist. 225. says, Expectationem eorum quibus Juratur quisquis de­cipit non potest non esse perjurus: Whoever deceives the ex­pectation of him to whom he hath sworn, is guilty of Perjury. It may be said that by the Church and Bishops [Page 17]the King might intend such as were of the Roman Com­munion; but the express letter of the Oath is contrary, (viz.) With a willing and devout heart I promise and grant that I will preserve and maintain to you, and the Churches committed to your charge, all Canonical Priviledges, and due Law and Justice, and that I will be your Protector to my pow­er, by the assistance of God, &c. To this Evasion St. Au­gustine gives a check, Epist. 224. Quacunque arte verbo­rum quis juret Deus tamen qui Conscientiae testis est ita hoc ac­cipit sicut ille cui juratur intelligit: By whatever art of words any one sweareth, God who is Witness of the Con­science, doth so take it as he to whom he sweareth doth understand it. And Bishop Sanderson blackneth such a practice with the Sin of Perjury: Alterum perjuris Genus est ubi recte juraveris non sincere agere sed novo aliquo exco­gitato commento (salius tamen verbis) vim juramenti declina­re & evadere, Praelet. 6. de Juramento s. 7. Such a pra­ctice is contrary to the qualifications of an Oath, Jer. 4.2. Thou shalt swear, The Lord liveth in truth, in judgment, and in righteousness: And in a Prince that so sweareth, the Nations shall bless themselves, and in him shall they glo­ry: But how can they hope that he will punish Perjury in others, that is guilty of it himself? To this I shall one­ly add what Grotius says l. 2. c. 14. s. 4. de Jure belli, That Promises fully made and accepted, do naturally transfer a right, and this holds as well in Kings as in private men. Their Opinions therefore that hold that a King promising without a good cause, is not obliged, are not to be allow­ed. It was nobly done of Henry the First, when the Pope offered to Absolve him of his Oath, answered, Who will ever trust another, when they see by my example, that an Absolu­tion can make void the highest Bond of Faith. See Eadmer's Hist. p. 126.

And where there are mutual Stipulations between Par­ties, with Conditions expressed, if either Party fail in per­forming [Page 18]the Condition sworn to on his part, the other Par­ty is not bound to perform what he was sworn to: So Bishop Sanderson, p. 177. de Jurament. If Caius swear to give Titius an hundred Pounds on condition that Titius assign to him such a parcel of Ground at a certain day, which Titius refuseth to do, Caius is disobliged.

And p. 216. De Cons. A Subject is not ordinarily bound to obey a Law that is very greivous to the certain ruine and destruction of himself and Family, unless some great Necessity or publick Danger do appear. And p. 202, he shews, That when the subject matter of the Oath ceaseth, the Obligation al­so ceaseth; as when the state of Affaires between the time of swearing and of performing the Oath is so changed, that if he that swore could have foreseen such a change, he would not have sworn: As if a Father swear never to al­ter his Will wherein he had made his Son to be his Heir, and afterward his Son attempts to poyson him, the Father may appoint another Heir notwithstanding his Oath; the reason is because the root of the Obligation, which gave occasion to the Oath being taken away, the Obligation also is taken away. And it is a Maxim in the Civil Law, Cessante Causa cessat Lex; Grotius, l. 2. c. 5. n. 17. thinks no question, but a King by a long continued permission may warrant a People to recover their Liberty on a pre­sumption that the King hath left it to them, Grot. l. 12. c. 4. n. 14.

Bishop Andrews gives us these short, but useful Rules concerning Oaths, 1. If what we swear to, be simply evil, the Rule is, Ne sit Sacramentum pietatis vinculum impieta­tis. 2ly, If it hinder a greater good, then, Ne sit sacramen­tum pietatis impedimentum pietatis. 3ly, If the Oath be simply made, yet it doth Subjacere civili Intellectui; as Jer. 18.7, 8. where God speaks conditionally of plucking up and destroying a Nation, If that Nation turn from their e­vil ways, I will repent of the evil, &c. The Conditions [Page 19]may exclude the event, and the Oath remain good; So that if the Prince to whom we swear do whol­ly pervert the end of the Oath, and require us to act contrary to the ends for which we sware, we are not obliged to obey him contrary to our Oaths.

These things premised, will lead to a full understand­ing of the Declaration required in the Act for Uni­formity, viz. I do declare that it is not lawful upon any pretence whatsoever, to take Arms against the King, &c. i. e. This is only a declaration of a Man's private Judge­ment, according to the best information which he hath at present; nor can any man suppose that the positi­on which is indefinite can reach to every Kingdom, and therefore may be false as to such Kingdoms, (viz.) that of Poland, where in some cases Resistance is per­mitted, and in our Nation where the Laws are made the measure of the King's power, because as Baldus Con­fil. 1.245. says, Clausula deplentitudine potestatis semper intelligenda est de potestate bona & Laudabili.

2ly, It may be dubious (or rather out of doubt) because it is possible for a King exuere Regis personam, as in case of Resignation, Desertion or great Distraction, such as the late King of Portugal, who in his Mad­ness slew divers Subjects; and in such cases Nature dictates that we may vim virepellere, as David defend­ed himself against Saul. And the Deposing of the King of Portugal was approved, as by other Nations, so by the English particularly.

So that this Declaration though in general terms, may admit of exception, (as other such Declarations do, as when I declare according to the fourth Commandment, That it is not lawful to do any manner of work on the Sab­bath-day) yet Periculum vitâ tollit Sabbatum, and such [Page 20]cases of necessity may happen as may make some kind of Work lawful to be done on that day. And it is a good Rule in Law and Equity, that Omnia dicta quantum vis universalia equitatem admittunt interpretem: So when I declare according to the Apostle, That Children ought to obey their Parents in all things; the exception against things sinful is understood. And if a King in his Lu­nacy, committing several acts for the Destruction of his innocent Subjects may be restrained, so may such a Prince, Qui Sobrius ad evertendam rempublicam accedit; If our Promise confirmed by Oath, be grounded on a condition whereto it related, that condition not being performed, makes the Promise void, L. 2. c. 13. n. 16. Gr. de J. Belli. 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, but not if they be changed. A wise Man, saith Seneca, changeth not his Resolution, all things continuing as they were at the time that 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. Eadem mihi omnia praesta & idem sum.

3ly, Nor can a man declare it to be a traiterous po­sition in some cases (though he himself do abhor it in other cases) to take up Arms by the King's authority against his person, or against those that are commissi­oned by him, because such Commissions may be grant­ed to persons that by Law are disabled to take such Commissions, or the Commissions may be forged, as in the late Irish Rebellion, or they may be extorted from the King, being under the power of his Enemies, and [Page 21]in fear of his life; such was the case of Edward the 5th, when Richard Duke of Glocester seized on his Person, raising a War, and granting Commissions in the King's Name. Suppose that his Mother, Queen Elizabeth, who had then the Broad Seal brought to her by the then Arch-bishop of York, had raised another Army, to free the King from the Usurper's power, could this ei­ther justifie the Duke and his Party, or condemn the Queen and her Adherents?

And what hath happened, may happen again: As in the Case of Ireland, where Commissions are granted to Papists, who are unqualified, Query, Whether it may not be lawful for the Protestants of that Nation to defend by Arms such as by those Commissions assault them, for the destruction of their Religion, Laws, and Liberties? So that notwithstanding this Declaration, if there be Laws and Oaths, and certain contingent Ca­ses, whereof the Subject that makes the Declaration is ignorant, which do allow a defence of the Crown, Re­ligion, Laws, and Liberties; such defence may be law­ful, notwithstanding the Declaration, as in case it should happen that the King wholly deserts and renounceth the Government.

Which leads me to answer your Sixth Query, Whether, it being granted, that the King's being studiously bent on the Alteration and Subversion of the Government established in Church and State, do amount to a Renunciation of the Government?

After that Grotius had urged all the Arguments he thought of for Non-resistance, he thought fit to admo­nish his Reader of something, lest he should think, that he had offended against that Law (of Non-resistance) when indeed he had not, and the Admonitions are these:

First, Such persons as are under compact with the People, if they offend against the Laws, may be restrained by force; And 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, who was the greatest assertor of Monarchy, who says, If a King alienate his Kingdom, or subjects it to another, he loseth it; Grotius his words are, Si Rex reipsà tradere regnum aut sub­jicere moliatur quin ei resisti in hoc possit non dubito nam aliud est perium aliud habendi modus qui ne mutetur ob­stare potest populus id enim sub imperio comprehensum non est. Seneca l. 3. Controvers. Et si parendum in omnibus patri in eo non parendum in quo efficitur ut non sit pater. And Barclay says, A Kingdom may be lost, if a King be carried on to the destruction of the People; Consistere enim non potest voluntas imperandi & voluntas perdendi.

Again, If the 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 (saith he) I think to have place, although it be affirmed, 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. Grotius on Hester 8.11. concerning the Edict which Mordecai procured for the Jews to defend themselves, says, Jus naturae mu­nit authoritate Regiâ, supposing they might have done it by the Law of Nature.

And on those words of his, Si Rex hostili animo, &c. hath this Note, Jo. Major, in 4 Sentent. says, Non posse populum à se abdicare potestatem destituendi Principis si in destructionem vergeret.

So Bilson, p. 520. If a Prince submit his Kingdom to a Foreigner, or change the Form of the Common-weal, or neglecting the Laws established by common consent, to exe­cute his own pleasure, the Lords and Commons may joyn and defend the Laws established. From whence I argue thus, that Prince who studiously altereth the Form and Constitution of his Kingdom, as suppose from a mixed and limited Monarchy, to an absolute, destroys the Species of Government, qua talis, and so loseth it; for the introduction of the new Form, is the destruction of the old; but a King that declares, (and acts according­ly) that he will govern absolutely, and requires his Subjects to acknowledge his absolute power, doth ipso facto, destroy that Species of a limited Monarchy which he had, therefore he loseth that Monarchy. And what was acted in Scotland, and intended to be acted in Eng­land, is sufficiently known, and a full confirmation of this Argument. And 'tis the judgment of Grotius, that he that openly in word or deed professeth himself an enemy to the whole Nation, (and the major and better part may carry that denomination) is in that very act presumed to abjure and renounce the Government of it; for if such a Prince should proceed to execute all his ruining Designs, he would leave none of his People over whom he might reign.

To these, I shall add another Argument, viz. That a Prince or People may yield up themselves to a pre­vailing power, as the men of Capua and Collatia did to the Romans, and so lost all their authority. And that our King did so, may appear by disbanding his Army on the approach of the present King, and submitting himself to his Guards: And as King Agrippa, said to the Jews. Intempestivum est nunc libertatem concupiscere, olim ne ea amitteretur certatum oportuit; He ought to [Page 24]have defended his Dominion while he had it, it is too late to require what by dedition and dereliction he hath given up.

4. There are in Laws, as well as in Oaths, Casus o­missi, and tacit exceptions, which the greatest prudence of men could neither foresee, nor sufficiently prevent; nor indeed were it a point of prudence so much as to name them, being things odious, or rarely contingent, as the case of a King's being lunatick, or otherwise in­capable of the Administration of his Office, which our Laws have not provided against. Bishop Sanderson, p. 41. De Juramento, mentioneth these four. Si Deus permiserit, quoad licet, salvà potestate Superioris Rebus sic stantibus. 1. If God permit, as in the 4th of St. James.

So that if Caius swears to Titius, to pay him at Lon­don, on the Calends of January, a Sum of Money which he oweth him, but is at that time confined to his Bed by a grievous Disease, or in his Journey is robbed of his Money by Thieves, in this case he is not guilty of per­jury, because Rei impossibilis nulla est obligatio, there is no obligation to a thing impossible; and because all things are subject to the Divine Will and Providence: therefore in every Oath, by a Common Law, this Clause is to be understood, unless God shall otherwise dispose. For this he quotes the Gloss. ad quest. 22. c. 2. B. Paulus, In omni voto vel Sacramento intelliguntur hujusmodi gene­rales conditiones si Deus voluerit si vivero si potero.

2. Another Condition to be understood, is, if it be lawful, because there is no obligation to unlawful things; as if a man swear to observe all the Statutes and Customs of a Corporation, he is bound to observe such only as are lawful and honest.

A 3d Condition is a Salvo to the power of a Supe­rior, as when a Son swears to do a thing that is lawful in it self, but his Father being ignorant of the matter, commands another thing, the doing whereof hinders the Son from performing what he had sworn, the Son is not bound by that Oath, because by the Divine Law, he is bound to obey the command of his Father; the reason is, because the act of one man ought not to pre­judice the right of another.

The 4th Condition is, if things continue in the same state wherein they were, as when a man swears to re­turn a Sword that he borrowed, and the person of whom it was borrowed, grows furiously mad, he is not bound to restore it. So Seneca, l. 4. de Ben. c. 35. Tum fidem fallam si omnia eadem sint me promittente. Si mu­tentur fidem meam liberat.

It is highly reasonable to presume, that such cases may happen, which if the Law-givers could have foreseen, they would not have made or pass'd into a Law; and therefore it may be presumed they will not exact obe­dience to it.

Dr. Sanderson, p. 166. de Cons. When the Law for­bids that to be done, which the Subject cannot omit without sin, or commands that to be done, which he cannot do with­out sin, such a Law doth not bind; for, 1. Rei illicitae nulla est obligatio, as when a Prince commands the Worship of a false God, Prior obligatio praejudicat posteriori. The obligation to preserve the Common Welfare is prior to our Allegiance to the present Governor.

Falkner, in his Book of Christian Loyalty, speaks as much for the unlawfulness of Subjects taking up Arms against the King as can be said, p. 372, &c. yet p. 542. he proposeth the case, Whether if a Supreme Governor should, according to his own Pleasure, and contrary to the [Page 26]established Laws and his Subjects Property, actually engage upon the destroying and ruining a considerable part of his People, they might not defend themselves by taking Arms. And he instanceth in the Paris Massacre, where about 100000 were slain in cold blood, most of which were innocent persons, never accused or tried by Law, which he says, was such a cruelty as can scarce be paralel'd under Mahometism; And he grants, that if ever such a case should happen, it would have great difficulties. Grotius (saith he) thinks, that in this utmost extremity, the use of such defence, ultimo necessitatis praesidio, as a last refuge, is not to be condemned, provided the case of the common good be preserved. And he seems to grant, that this may be true, upon this ground, (viz.) that such attempts of ruining, do, ipso facto, include a dis­claiming the governing those persons as Subjects, ( i. e. according to Law) and consequently of being their Prince or King, and so the expressions in the Declara­tion, that it is not lawful on any pretence whatsoever, &c. would be secured. Now p. 529. he quotes Barclay, l. 3. c. 16. p. 212. saying, that a Prince, seeking the ruin of his People, is no longer King. Se omni dominatu & prin­cipatu exuit atque ipso jure sive ipso facto Rex esse desiit, l. 6. c. 23. With whom he joyns Grotius, l. 1. c. 4. n. 11. Si Rex vere hostili animo in exitium totius populi feratur, to resist such a one, is not to resist a soveraign King, but him who ceaseth to be such, Consistere simul non pos­sunt voluntas imperandi & voluntas perdendi quare qui se hostem totius populi profitetur eo ipso abdicat regnum. And, p. 531. Falkner says, On yielding such suppositions, (to be true) I shall grant the Answer given to be true. To this purpose speaks Grotius, l. 1. c. 4. §. 7. n. 2. treating of Resistance, This Law seems to depend on the intention of those who first entred into Civil Society, from [Page 27]whom the right of governing is transferr'd. Now if such had been asked, whether they intended to impose a Yoak equal to Death upon all that should resist the Tyrannies of a superior Magistrate, upon any account whatsoever? I know not how they could willingly an­swer in the affirmative; for what in this case Cha­rity would recommend, that may be received as a Law.

7. But another Query is, Whether the King, being destitute of the assistance of his Subjects, leaving the Land in confusion, two Armies being in its bowels, hath vacated the Government, and so it is necessary, that some other, to avoid Anarchy and Confusion, be ap­pointed to succeed? To this I answer, 1. That the King, even before his leaving the Kingdom, had de­serted the Government; for it is undeniably affirmed by Civilians, whose practice is agreeable, That nolle ha­bere, and renunciare, are terms equivalent, as when a man conveyeth an Estate with a Charge and Incumbrance upon it, he that will not accept of the Estate with the Incumbrances and Charge, though he would gladly en­joy the Estate, doth, in the judgment of the Law, and in all Equity, renounce his Title to it; for he must ac­cept it modo & forma debitis, or not at all; whence I thus ground my Argument, He that is not willing to hold the Government of England, as constituted with certain Limitations and Conditions annexed, doth con­structively renounce it. But the late King was not willing to accept or hold the English Government as constituted and limited, Ergo, the sequel of the Major is clear, because Onus transit cum emolumento, and both Law and Equity do preclude a right to the one, with­out the other; an entrance into the Government, with­out [Page 28]the observance of the Condition, modo & formâ, is so far from giving a right to it, that it is a renunciation of it. And the Minor is as clear, because it is not pos­sible for a Popish Prince, such as ours was, to be wil­ling to govern the English Nation, without one or more Popish Priests, without many Papists in Office, Civil and Military, and without subjection to the Pope of Rome, and holding correspondence with him. So that if it should be demanded of the King, (which yet needs not the having sufficiently declared the contra­ry) whether he would accept of the Government, as by the Laws and Statutes against Papists is provided, his refusal is a renunciation. And of this we have had plain demonstrations: The King declaring to the Scots, that he had an Absolute Power, and practising the same in England, by entertaining the Pope's Nuntio, setting up of Popish Bishops, imprisoning the Protestant Bi­shops, entertaining Jesuits and Papists in his Privy Council, and chief Offices, Military and Civil, the Charters generally taken away, Magdalen Colledge emptied of its Students, to make way for Papists, these were manifest indications of the subversion of the Go­vernment; for as Aristotle, l. 5 ^o. Polit. n. 112. Tyran­nus efficitur qui vi dominatur, Regnum est Imperium vo­luntate Civium delatum at si quis vel fraude vel violentia Dominatur manefesta Tyrannis est, &l. 3. n. 87. Reges solùm volentibus imperant si nolentibus imperatur regnum esse desinit. So that the King having first deserted the People, and lost their affections, and for this and other causes deserted the Kingdom, and left it in confusion, giving order to his General to disband his Army with­out Pay, many of which were Papists, and known Enemies to the Nation, from whom they feared great mischiefs to themselves; There being also another [Page 29]Army in the Nation which became successful, it was highly necessary that the Nation to avoide utter ruine, should by their Representatives freely chosen, convene, to consult and agree upon a fit person for the admini­stration of the Government; and whereas the person that headed the prevailing Army, was by good Provi­dence married to the Heir apparent of the Kingdom, if he not only by his own merit in preserving the Crown, which otherwise had been lost, but by Marriage of the right Heir, and with her and the Kingdom's consent be chosen to a Consortship in the Administration of the Government, it is no more than what Necessity and Right did require.

Nor is it more than what was done in the Case of Henry the Seventh, who having overthrown Richard the Third in Battel, was in a Parliament called by him, acknowledged their King; of which I shall give you the History as related by my Lord Bacon, p. 10. of his History, which may serve as a President to au­thorize what is now done, and leads me to the Eighth Quere, to which I shall answer first Historically, and then Rationally in Justification of the late Proceed­ings.

The Coronation of Henry the Seventh was on the 30th day of October 1485, and on November the 7th the Parliament met, in which (without respect to his Queen's Title, whose Coronation was deferred till al­most two years after, (when danger taught him what to do) he obtained that the Inheritance should rest, remain and be in the King and the Heirs of his Body, not mentioning his right Heirs: so that the Entail seem­ed rather a personal Favour to him and his Children, then a Disinherison of the House of York; and this being obtained, he married the Lady Elizabeth on the 18th of [Page 30] January, which was celebrated with greater Triumph and Demonstrations of Joy and Gladness, than either his Entry or Coronation, which the King rather noted than liked; and he shewed himself no very indulgent Husband to her, though she were Beautiful, Gentle and Fruitful. So great an Enemy he was to the House of York, that he caused Sir Will. Stanly, who had saved his Life, and set the Crown on his head in Bosworth-field, to be executed for saying, That if he were sure that young man Perkin Warbeck were King Edward's Son, he would never bear Arms against him.

This Case seems much more unjustifiable than ours, for here the King and Parliament did not only set the Crown on the head of the Conqueror, but intailed it on his Heirs, without respect to the right Heir, whom he had not yet married, and for ought they knew, ne­ver intended; of which his strange carriage towards that good Lady, whom he confined to live with the Queen Dowager, her Mother, in London; but he kept Edward Plantagenet, the Son and Heir of George Duke of Clarence, close Prisoner in the Tower, might give the Nation just cause of suspicion, that he intended to Reign by his own Title, as Heir of the House of Lancaster, or as Conqueror, without any respect to the Title of the House of York; And he intended (faith the Lord Bacon) that it should be so believed, for to the Act of Parliament he added the Pope's Bull for confirmation.

But in our Case much more Justice, Wisdom, and Moderation did appear; the Title of the right Heir being united to that of our Deliverer, and the Crown intailed on the right Line; the present Administrati­on being by consent, and in the name of the King and Queen, which was not observed in the Case of Henry the Seventh; and the consent of the Princess Anne be­ing [Page 31]also obtained, who hath now a nearer prospect of the Crown than otherwise she could have hoped for.

Nor is the making of the Convention a Parliament without a President, for in the year 1660, when Gene­ral Monk had summoned several Members in the like manner, but not so free, there being many of the King's Party excluded, yet they were made a Parlia­ment by the King, notwithstanding any want of the King's Writs, Anno Car. 2di, 12 ^o.

And as to the Rational Part of the Answer, let it be considered, That a Nation must unavoidably run into Confusion, unless such a means may be used; for sup­pose the Royal Line should be extinct, there can be no fitter means to settle a Government, than by such a Convention duly chosen, and the Agreement of the Lords Spiritual and Temporal, who want only the Royal Writ to Summon them, and that not being to be had, the Nation may do what is in their power to prevent that Confusion which the King's deserting them, and carrying with him the Broad-seal, leaving two Armies in the midst of the Nation, by reason whereof it might in a short time have been as ill with us, as it is now with our distressed Brethren in Ireland, made necessary; and Necessity hath no Law superiour to it.

This therefore may be an Answer to those that ob­ject against the too great hast in proceeding to a Settle­ment, before a Parliament could be regularly called by Writ, for considering the great Destraction of the Na­tions, and the ill Circumstances wherein this and the Kingdom of Ireland were: The delay of a speedy E­stablishment, might have unsettled us for ever; for the King having either deserted the Government, or being driven from it, and another being fully possessed [Page 32]of the Kingdom, the common Safety would soon be destroyed if either the prevailing Power should be re­sisted, or some person not be admitted for the Admini­stration of Justice, and Prevention of Violence: As when a Ship master forsakes his Ship in a Storm, and his Mate thrusts himself into his Office, to guide the Ship, if the Mariners will not presently obey him, as long as he guides the Ship towards the Harbor, the Ship must likely perish, and the Mariners in it: Or if the right Master should be utterly disabled by Sick­ness or Destraction to perform his Office, may not ano­ther assume his Office by consent of the Mariners? 'Tis King James the First's saying, The King is for the Commonwealth, and not the Commonwealth for the King: The end is alway accounted more noble than the means. And unless it should be granted, that a King in plena­ry Possession ought to be acknowledged and obeyed, I cannot see on what ground our Saviour commanded Tribute to be given to Caesar, or the Apostle injoyned Subjection to the Higher Power.

The Powers then in being, being such as usurped on the Senate, and were set up as Emperours by a part of the Souldiary, their best Title being the Approbation of the Senate, Ex post facto: The Usurpation of Juli­us Caesar is too well known to need a Relation; and that could not give a sufficient Title to Augustus against the Claim of the Senate: the Argument of our Sa­viour for paying him Tribute, was, because the Money bore his Image; as also the Money in the days of Juli­us Caesar bore his, and so may be an argument for pay­ing Tribute to any Prince whose Money is current in a Nation. But this will be more evident by consider­ing who was the Prince in being when the Apostle wrote his Epistle to the Romans, which was either Clau­dius [Page 33]Caesar or Nero: and the most credible Historians inform us, that on the death of Caligula, the Consuls and Senate advised how they might restore their Com­monwealth to its ancient Freedom, taken from them by the Caesars; but being too slow in their Resolutions, because of Dissentions among themselves, it hapned in the interim, that Claudius having hid himself, being frighted with the news of Caligula's death, was disco­vered by a common Souldier, who knowing him, sa­luted him Emperour, and led him forth to his fellow-Souldiers, with whom he remained a part of the night, Minore spe quam fiduciâ, saith Suetonius, the Consuls and Senate then sitting in the Capitol consulting for their common Liberty, sent for him by the Tribune of the People, to have his Advice therein; the Souldiers and People assembled, desired that one might be forth­with named for their Emperour; on which Claudius took courage, and promising Rewards to the Souldiers, being also pittied by the People, who thought him de­signed to suffer punishment, they saluted him Empe­rour. Tacitus gives alike relation of Nero his Suc­cessor, Annal, l. 12. That Agrippina his Mother con­cealing for a time the death of Claudius, kept the Pa­lace Gates shut, and pretended great kindness to Bri­tanicus the eldest Son of Claudius, until she had contri­ved to make Nero Emperour; and having gotten the Praefect of the Bands then on the Guard to her Party, sends out Nero, accompanied by Burrhus to the Guards, where while some expected Britannicus to follow, the Praefect and Souldiers, to whom Rewards were promi­sed, saluted Nero Emperour. Now one of these thus advanced to the Empire, by the Souldiers, was un­doubtedly the Emperour then in being, when the E­pistle to the Romans was written, to whom Obedience [Page 34]is required for Conscience sake, as to the Ordinance of God; if it be replied, that the Senate did after­wards confirm them in the Empire, that will not vary the present Case, the present King and Queen being al­so confirmed by Parliament.

That which hath been said, leads me to consider these Scriptures which seem to confine our Obedience only to the lawful Powers, yet some learned and good men have given such a sence of them as may raise a doubt, whether they speak of a King de Jure only, or de Facto; and if of a King de Jure only, then of such a one as is a Minister for the publick Good only.

For a right understanding of those Scriptures of the New Testament which speak of Obedience to Magi­strates, as Matth. 22.21. Rom. 13.1. 1 Peter 2.13. We are to consider the occasions of inditing them; that of our Saviour was occasioned by such as accused him for any Enemy to Caesar, that he would make himself a King, and sought by this question to insnare him, which our Saviour perceiving, he only demands to see a piece of the Money with which they traded; and finding Caesar's Image on it, conceived him to be the Magistrate then in power, commands to give unto Cae­sar the things that are Caesar's. Moreover, the Jews having from the beginning been governed by one of their Nation, and, as they boasted, never in Subjection to any other, thought it an Usurpation in any to ex­ercise Dominion over them, which made the Roman Power very jealous of them, there being at that time great expectation of a Prince that should Govern the World; and the frequent Seditions and Rebellions of that Nation against their own and the Roman Magi­strates, increased these Jealousies; Judas of Galilee ha­ving made a great Insurrection, and the Christians [Page 35]being called Galileans, were thought to be of the same Spirit.

And as for the Gentiles that were converted to Chri­stianity, to which they were invited partly by the Priviledges of their Christian Liberty, that they should not be the Servants of Men, and partly by the Apo­stles Prohibition of going to Law before Unbelievers, some weak, and others licentious as the Gnostiks, would acknowledge no Magistrates; and as St. Chrysostome ob­serves, some of the Galileans would rather die than pay Tribute to the Romans. St. Chrysostome hath divers ob­servations on this 13 Romans very considerable; first he stops the mouths of such as did object, that the A­postle did abase his Christian Brethren, by subjecting them to Earthly Princes, for whom the Kingdom of Heaven was prepared: To this the answer is, That the Apostle did not so much subject them to those Princes as to God, who appointed them. Then he raiseth a question, Is every Prince then ordained of God? I say not so, for I speak not now of any Prince, but of the mat­ter itself: for that some should command and others obey, this I call the Ordinance of God; and he ex­plains his meaning by the instance of Marriage, that the Man and Woman are joyned by God, (i. e.) Mar­riage is God's Ordinance; not that all such as cohabit as Man and Wife are joyned by God, but only such as are married according to the Laws of Wedlock: Thus the Apostle doth not say there is no Prince but of God, but there is no Power but of God. And on v. 5. for Conscience sake, he thus comments, [...]; That they might not be ungrateful to their Benefactors. So St. Chrysostome from whose Comment we may observe, that although Government be God's Ordinance, yet the person in [Page 36]Government is not always so; he only is God's Mini­ster, who doth administer the Government for the common Good. 2. That we owe Subjection to the person invested with the Government, who takes care for the publick Welfare, for Conscience sake; (i. e.) as an acknowledgement of the Benefits that we par­take of under his Administration of the Government: Nor doth it appear, that our Saviour, Mat. 22.21. did determine that Caesar was the Supeme Power de Jure; for if in a private case he refused to decide a controver­ted right, Who made me a Judge or Divider over you? Luke 12.14. much less is it probable that he intend­ed to determine such a publick case. And that the A­postle had no other respect but to the person in posses­sion of the present Power, may be doubted from what followeth:

As for the Observation of some Criticks, that the word [...] is constantly used for a Person in Lawful Authority, we find it otherwise; for St. Luke, speak­ing of the power of darkness, (i. e.) the Devil, Luke 22.53. his words are [...] (i. e.) the power of the Devil. Nor could the Devil derive a Lawful Authority, as he could, if this word would bear it, when speaking of the Kingdom of the World, he saith, [...] all this power will I give thee; as if he had power to set up an universal Em­peror over the World. And St. Luke is observed to have written most exactly agreeable to the Greek Idium of any of the Evangelists. So that it cannot be in­ferred from this Scripture, that the Persons then in Power were rightful Magistrates. Grotius de Jure Belli, p. 93. 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 [Page 37]erat Imperii & nummus ejus habuit imaginem: From whence it followeth in the judgment of Grotius, that our Saviour's Command to pay Tribute to Caesar, was grounded on his being in possession of the Empire. And if this be so, as I cannot from the Command of our Saviour, Matth. 22. or from Rom. 13. see any Reason to the contrary, it will follow, that it is our Duty in licitis & honestis to yield Obedience to the present Powers. Michael Salon, an eminent School-man, is of the same Opinion, That the Romans possessed Judea by Tyranny, when our Saviour enjoyned the paying of Tri­bute, Q. 60. Art. 6. de justitiâ & Jure; where yet he affirms, That the Catholicks of England were bound to obey the just Laws of Queen Elizabeth, whom he calls an impious Woman. Besides, I think it will be a very dif­ficult Task for any Man to shew where the word [...] is applyed to any Person that is out of the Pos­session of the Power, seeing it ordinarily signifieth the Person that is actually in possession of the Power. For thus the Apostle speaks of the Powers that are in being, [...], and to them he says we must be sub­ject, not only for fear of wrath, which implyeth that we ought to prevent our Ruin, to obey the Power that is in possession. But then the Question is, how this obligeth the Conscience, when the Subject is for­merly obliged to a Prince de Jure? Now the Rule for directing Conscience, is the Word of God, and if that do enjoyn Obedience to the Prince in possession, the Subject may safely yield it, and ought to do it for Conscience-sake. Puffendorf is of the same judgment, p. 1009. de Jure Gentium, where he says, That the Se­nate and People of Rome were deprived of their Ancient Right through fear or want of strength, not by approving the Dominion of the Caesars. (So Emanuel Thesaurus says, [Page 38]that the People of Rome under Tiberius, did tempori seraire non Regi.) And it is well known (says he) by what means the ancient Caesars invaded the Empire; yet St. Paul, Rom. 13. attributes [...] Authority to them to whom Obedience is to be yielded for Conscience­sake, as our Saviour also Commands to give unto Caesar the things that are Caesar 's. On which occasion also he mentioneth that Statute of Henry VII. which in­demnifieth those Subjects which acted under the King in being. And he adds a Sentence from Nicetas Cho­niates, nec Imperatorem qui absit quaerendum, nec qui adsit pellendum esse. So that I think the Cases in the 22 of Matth. and Rom. 13. may satisfie Conscience as to our present case; for if those Caesars who were then in Pos­session, were to be obeyed for Conscience-sake, even then when the Right did belong to the Senate, then we may also obey the King now in being, tho' there be another to whom it is supposed the Right of Go­vernment doth belong, without wounding our Con­sciences.

Now if the present Power be God's Ordinance, we must obey for Conscience's sake; for if we believe that God hath an over-ruling Providence in the Government of the World, to set up one, and pull down another, though we see not a Reason of the Alterations that are made, yet we must believe that there are great and just causes, and such as are directed to good ends, espe­cially where it appears that God by such Revolutions brings Order out of Confusion; and the changes that are made, are effected more visibly by the Counsel of God, than Conduct of Man. Another Rule of Con­science is the Glory of God, that which tends most to the advancing of God's prescribed Worship, the purity of his Ordinances, a sound Faith, and holy Life, we [Page 39]may with a good Conscience submit to. It is a saying of Polycarp, when he was near his Martyrdom, We owe all due Obedience to Princes and Potentates, yet not so as thereby to endanger our eternal Salvation. The Law of Charity is another Rule of Conscience, which as it obligeth us to do good unto all men, so more especially to them that are of the houshold of Faith, for whom we should lay down our very lives, that we may prevent their misery and destruction. St. Paul could wish him­self accursed from Christ for his brethren and kinsmen, ac­cording to the flesh, Rom. 9.3. And what he suffered and did for his Brethren according to the Faith of Christ, appears as by his great Afflictions, so by his ready complyance in the case of Circumcising Timothy, Acts 16.3. because of the Jews which were at Lystra and Iconium, though he were of a Persuasion that Christ could profit them nothing that were circumcised, seeing that such became debtors to do the whole Law. And Acts 21.23. when St. James and the Elders informed him, that the Jews would be offended by his teaching them, that they ought not to Circumcise their Chil­dren, nor to walk after their Customs; he was per­swaded, lest he should offend them, to purifie himself, and in the Company of others to go into the Temple, to shew that he kept the Law. From whence we learn, that it is out Duty to part with many Opinions of our own, not absolutely necessary to Salvation, for the propagation of the true Religion. I speak not this as if it were Lawful to do any evil that good may come of it, which the Apostle utterly condemns, but only on supposition that the late King hath rendred himself uncapable of the Government, and that the present King and Queen (considering the Circumstances where­in we were) are regularly advanced to the Govern­ment, [Page 40]that we ought to pay our Allegiance to them. The Question whether Humane Laws do bind the Con­science, is much discoursed of by Divines, who resolve, that they do not bind the Conscience immediately by their own Authority, but mediately by vertue of the Command of God, who enjoyns Obedience to the Higher Powers: But then if the matter of the Law be unjust, or if it be not for the Publick Good, which is the end of all Humane Laws, they are not Obligato­ry to Conscience; for the Rule for Conscience in things Political is the Publick welfare: So the Ancient Roman Law, Salus Populi Suprema Lex, which is the same with that of the Apostle, He is the Minister of God to thee for good, (i. e.) not for thy Private Good only, but for the Publick Good, attending continually on this very thing, (i. e.) the Publick Good, wherein thy Private Good is concerned; for the Laws do not respect this or that particular man's case, but the Com­mon good; and good Laws may be grievous to this or that particular Man in some cases, which yet highly conduce to the Publick Welfare, and better is a private Inconvenience than a publick Mischief. Those Laws therefore that tend most to the Publick welfare, are the Rule of Conscience in Political Affairs. And for the same Reason that when a Magistrate makes a Law against God's Law in Religious Matters, it doth not bind the Conscience: For the same Reason, when a Magistrate makes a Law against the Publick welfare, it doth not bind the Conscience in Political Affairs: The Reason is, because the Magistrates Power is derived from God, and God hath limited and determined that Power for the Publick Good as its great end, and such Laws as are contrary to that end, have no Authority, nor do oblige the Conscience. It is truly said, that [Page 41]some things are commanded, because they are good; other things are good, because they are commanded: Now our Obedience to Governors is good, because it is commanded; but a respect to the Publick welfare in all Laws is commanded, because it is the chief good and end of Government, and so is Prior and Paramount to all Politick Laws; and hence it is, that the Casuists do resolve, that Humane Laws do not bind the Con­science when things grievous and intolerable are com­manded. But then the Question will be, Who shall judge whether the Laws made are conducing to the Publick Good or not, when not only the Magistrate, but the Representatives of the People have pre-judged it, and therefore past it into a Law? Answ. There are few Laws, like those of the Medes and Persians, unal­terable; what was for the Publick Good at the time of making the Law, may afterward, on the alteration of Times and Accidents, prove to be otherwise; and when the Reason of a Law ceaseth, the Obligation of it ceaseth also as to Conscience. There was a Law made against the use of that pernicious Weed of Hops (as the Law termeth it) because it was thought prejudicial to the Health of the Subject; and though the Reason of the Law might be good as to some particular Men, Yet long Experience taught, that the use of Hops was more beneficial to the Publick; and therefore though that Law was not repealed, yet the use of Hops was continued: Now the Question is, whether such Brewers as continued the use of Hops against the Statute, did sin or not in so doing? If they did not sin, it was be­cause their Consciences were not obliged by that Law; if they did sin, then the breach of a mistaken and erroneous Law is a sin, and damnable, which is a ve­ry hard Sentence.

But Secondly, Although the greater part of the Peo­ple with their Legislators may judge the Laws made to be for the Common good, yet every Man must judge of his own Actions, in reference to those Laws, whe­ther they be agreeable to the Common good or no, for the greater number in Councils may err, there is no Infallible Judge in Civil or Religious matters: If then the Law-givers may err, or my Conscience tells me that they do err, I am not bound to do what they Command by a blind Obedience, but to use my private discretion, in enquiring whether the thing enjoyned be for the Publick good or not; for if I am allowed to use the judgment of my private discretion in Religious matters, why not in Civil? Men are not to go as Beasts where they are driven, much less to act con­trary to their Reason and Judgment, which makes them worse than Beasts, who will follow their Senses unless they are hindred by force; so that I am not bound to obey a Law meerly Humane for Conscience­sake, when I judge that Law contrary to the Publick welfare, but I must submit to the Penalty, if I cannot honestly avoid it. But if a Magistrate that is obliged to govern by Laws, do resolutely set himself to destroy those Laws, and ruin not only the generality of his Sub­jects, but his own Crown and Dignity, we are not bound in Conscience to obey such a Magistrate, because of a prior Obligation to preserve the publick welfare, which was the end of Government, and to which the means are subordinate. It now remains, that having proved that Scripture and right Reason to be the Rule of Conscience for our Obedience both to Magistrates and their Laws in foro interno, that I do also prove, that a respect to the Publick good (not being contrary to any Law of God) is our Rule for Obedience, in foro externo.

One chief Law imprinted by God on the Reason of Mankind, is the conservation of it self, and for that end vim vi repellere, to repel Force by Force, for which end Mankind were taught to live in Societies, and esta­blish Rules and Laws for the Common Safety; there­fore homines conspirantes in communem utilitatem, are the Subject-matter of a Common-wealth, this being the end of all Societies; no Civil Constitution can annul this Bond of Nature: So Panormitan, Quando jus Civile aliquid disponit contra jus naturae standum est Juri naturae. So also when the Law makes provision for such things as the Law-givers fore-see, and afterwards some things happen which could not be fore-seen, and new Reasons and Accidents appear contrary to those Laws, here Nature, as a common Parent and Protector of Justice and Necessity, alters or adds to the Law; as when Sextus Tarquinius ravished Lucretia, though there were no established Law against that particular sin, yet Nature it self directed a severe Punishment: And when the Pharisees pleaded their Vows to the Corban, in bar to relief of their Parents, which is a Law of Nature, our Saviour pronounced such Vows null. Bishop Tay­lor, p. 296. proves, That the Law of Nature cannot be dispensed with by any Humane Power: 1. Because God is the Author of it. 2. Because this Law of the pre­servation of the Common welfare is as necessary to the sup­port of Societies, as Nourishment is for the 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. As to the Law part, the Act 11 Hen. 7. c. 1. says, That it is not reasonable, but against all Laws, Reason, and good Conscience, that Subjects going in War with their Soveraign Lord (for the time being) should [Page 44]lose or forfeit any thing for doing their Duty and Ser­vice of Allegiance; and it was Enacted, That from thenceforth no Person attending on the King for the time being, and doing him true and faithful Service of Alle­giance in his Wars, should in no 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. of his History of Henry VII. gives a Reason of this Law; For that it was agreeable (saith he) to 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 War were, the Subject should not suffer for his Obedience. The Spirit of this Law was wonderful Pious and Noble, being like in matter of War to the Spirit of David, in matter of Plague, who said, If I have sinned, strike me, but what have these Sheep done? Neither wanted this Law parts of prudent and deep fore-sight, for it did the better take away occasion for the People to busie themselves to prie into the King's Title, for that however it fell, their Safety was provided for. Besides, it could not but greatly draw unto him the love and hearts of the People, because he seemed more careful for them than for himself.

The Lord Cook, p. 7. in the Third Book of Institutes, on the word Le Roy, 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 Rex de facto only, and not de Jure, yet is he King within the purview of this Statute. And the other that hath Right, and is out of possession, is not within this Statute: And if Treason be committed against a King de facto, and not [Page 45] de jure, and after 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 all Lawyers, that in rebus dubiis melior est con­ditio possidentis. Judge Hales gives the same sense of that Statute, in his Remarks on the Pleas of the Crown, Chapter of Treason.

Now both these were great Lawyers, and wrote un­der such as were Kings de jure, and in peaceable times. The Argument then is this: If Treason may be com­mitted against a King in possession, or de facto, and not against the King de jure, being out of the possession, then I owe Allegiance to the King in possession, and not to the King out of possession, though King de jure. The Rule of the Law is this, I owe Allegiance to him that gives me Protection, whether I live at home un­der a King de facto, or live as a Stranger abroad under one that is a King de jure. I owe Allegiance unto each while I am under their Protection; for thus in Calvin's Case, Seventh Book of Cook's Reports; one Shirly a French-man, and some Subjects of the King of Portugal, having conspired with Lopez for the death of the Queen, were Indicted for acting contra Legiantiae suae debitum, against their due Allegiance, and were found Guilty, and Executed. And this the Law calls a local Alle­giance. When Cities and Souldiers are taken in War, they may, to preserve their Lives, swear to the Con­queror never to bear Arms against him; by which Oath the condition of their former Prince is no way made worse, for had they refused such an Oath, they should have lost their Lives, which by this means being preserved, they may be in a condition to serve their Prince in any thing else but in fighting against him [Page 46]who spared his Lise. Besides it is well known, that many good and wholesome Laws were made by such as were Kings only de facto, not de jure, which are still in force with us as they were with the Subjects that lived in their several Reigns; whence it follows, that we owe and ought to yield Allegiance to the King de facto, and observe his Laws, and to Pray for him as King. On the Deposing of Richard the Second, in a Provincial Synod in Canterbury under Henry the Fourth, whose Title was only de facto, it was decreed, that Prayers should be made pro ipsius & Regni salute, as he had de­sired. And Arundel, then Arch-Bishop of Canterbury, tells the King, that the Clergy did pugnare precibus & sacrificiis apud deum pro victoriis ei obtinendis. Aethel­wolfe, Anno 854. was made King while his Elder Bro­ther was living, yet Elston and Swithon, Bishops, prayed solemnly for him: So the Bishops prayed for Will. Ru­fus, his elder Brother living. St. Anselme also, though banished by Henry the First, did him Homage, and prayed for him. And although our five first Kings, beginning at William the Conqueror, came irregularly to the Crown: The first by Conquest, the second and third while their elder Brother lived, the fourth reigned when his Predecessor had a Daughter living, which was Maude the Empress; the fifth while his Mother, the right Heir, was living, yet were the stated Forms of Prayers still continued in the Ancient Missals re­spectively.

Nor can we well be excessive in our deference to those who under God have been the chief Instruments of the Common Safety; for if the Law of Nature, which obligeth every particular person to self-preserva­tion, and much more to the preservation of the Publick Welfare, (in which case we may vim in repellere) be [Page 47]prior and paramont to any subsequent Law of a more private concern, we of this Nation, which were so near to destruction, had all reason imaginable, to secure our selves against such violent and illegal attempts as were made, not only against our selves, but against the whole Protestant interest throughout all Europe, ha­ving such dreadful instances of Persecution in the neigh­bouring Nations of France and Piedmont; for the Que­stion is not, whether we should chuse Sin rather than Affliction, in which case the Apostle hath determined, that we may not do evil, that good may come of it; but whether of two temporal evils, the least is to be chosen, or whether, when we are left without a Governor, we should set a Bramble over us, to rent and tare our flesh, or the healing Olive, under whose branches we might set down in peace and security. It is very observable, what God says concerning Jehoiakim the wicked Son (of a good Father) Josiah, Jer. 22.15. Shalt thou reign, because thou closest thy self in Cedar? did not thy Father eat and drink and do justice and judgment, and then it was well with him? But thine eyes and thy heart are not but for thy covetousness to shed innocent blood, and for oppression and violence to do it, therefore thus saith the Lord concerning Jehoiakim, the son of Josiah King of Ju­dah, they shall not lament for him, saying, Ah Lord, or, Ah his Glory.

I shall therefore leave it to the serious consideration of my Brethren, whether it be more eligible, to pray for them in our Liturgy, who have preserved us in the free use of it, or for such as would have taken it from us, and imposed the Mass book and Legends, instead of that and the Scriptures, by which we should have been reduced to this dilemma, either we must obey, to the violation of our Conscience, or, for our disobedi­ence, [Page 48]we and our Families must be utterly destroyed.

If yet upon consideration of what hath been here said, and what our own judgments may add, we are still in aequilibrio, and do doubt to whom the Title of the Crown doth of right belong. I doubt not but the Law of Charity to our selves, our Families, and love to the Protestant Religion, may be of great weight to turn the Scales, and warrant our resolution in a case so doubtful.

Bishop Sanderson, Praelect. 5. p. 176. puts this 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? His Answer is, It seems to me, that it is not only lawful for a good Subject to obey the Laws of the Prince in being, and to do what he is commanded, modo non sit factu turpe aut injustum, if the thing be not in it self evil or unjust. But also, that 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, did not bind in Conscience, he answers, that these things are not repugnant, because though 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 may be 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 [Page 49]oweth to himself and to his Country, that Wars and Ra­pines may be prevented, and we may live peaceable under them, without violating the Faith we owe to the rightful Heir. But then he raiseth the Question, Seeing no man can serve two Masters, especially of contrary interest, how can we please the one, without displeasing the other? His Answer is, It may be presumed, that the rightful Prince will consent, because the Subject herein doth not so much serve the Possessor as the Common-wealth, the safety whereof no less concerns the injured Prince, than the present Possessor, and probably more, for as the true Mother of the Child had greater tenderness of its life than the pretended Mother, so the true Prince may be presumed to have a greater regard to the welfare of the People, than the Ʋsur­per.

Claudian to Honorius.

As a Mariner is supposed to intend the guiding of his Ship to a safe Harbor, and a Physician to intend the Health of his Patient, so is a Prince presumed to intend the prosperity of his People, which is the great end of Government.

Bishop Bilson goes farther; speaking of the Roman Cruelties, says, They are such as are able to set good men at their wits end, and make them justly doubt, since you refuse the course of all good Laws, Divine and Humane, whether by the Law of Nature they may not defend them­selves against such barbarous blood suckers. For what­ever is attempted on us without Law, is force, and we may, vim vi repellere, as in the case of a Sheriff taking [Page 50]possession on a Judgment; if a Prince should commis­sion armed men to oppose him in the execution of his Office, he may lawfully resist them, and the Law doth indempnifie him; the Princes Private Will cannot make void his Publick Will, formerly declared and pub­lished in his Laws.

This hath been the sence and practice of our own and other Protestant Nations; of our own in the Case of the Queen of Scots, who brought French Forces into Scot­land, to withstand the Reformation, endeavoured by the Nobles: the Clergy of England gave a Subsidy of 6 s. in the Pound, to defray the Charge of that War, and call it, her using all prudent and Godly means, 5 Eliz. ch. 24. & ch. 27. The Temporalty call it, The princely and upright preservation of the Liberty of the Realm and Nation of Scotland from eminent Captivity and Desola­tion. And for abating Hostility and Persecution with­in the Realm of France, there were Forces sent under the Earl of Warwick to New-haven, to assist the French Protestants, which was then accounted a Godly and prudent means to abate Hostility and Persecution, pra­ctised against the Professors of God's Holy Gospel. And in the 35 of Eliz. ch. 12. was another Subsidy granted by the Clergy for the Queen's Charges, in the prudent and needful prevention of such Attempts as tended to the Extirpation of the sincere Profession of the Gospel both here and elsewhere. And Ch. 13. the Tempo­ralty gave 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 Ʋsurpers, besides the great Succours in France and Flanders, which [Page 51]we conceive to be most Honourable in regard of the ancient League, the Justice and Equity of the Causes, &c. And in 39 Eliz. ch. 27. they say, This Land is become, since your Majesty's 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 Ʋsurping Potentates. And in 43 Eliz. ch. 17. The Clergy say, Who hath, or should have a livelier sense or better remembrance of your Majesty's Princely Courage and Constancy in advancing and protecting the free Profession of the Gospel within and without your Majesty's Dominions, than your Clergy? And we cannot doubt but they would have acted the same thing for their own Preservation, which they approved and encouraged others to do.

The Protestants of Saxony and Lantgrave, being seven Princes, and Twenty four Cities, declare, That the Em­peror was reciprocally bound to them as they to him; and that he had dissolved their Obligation of Allegiance by cast­ing them out of their Possessions, and endeavouring to de­stroy their Religion, which unjust Attempts have not God for their Author: Nor are we otherwise bound to Caesar than on his performing the Conditions on which he was created Caesar, Sleidan, lib. 18. The Magdeburg Divines affirm the same, Sleidan, l. 22. Where the Laws and Constitu­tions of a Government allow of a defence, the Gospel doth so too, for it doth not alter the Laws of a State; which may be an Answer to what is urged from Rom. 13. for the Obligation of all Subjects is such, as the Laws under which they live do require. The Oath of the Subjects of the King of Poland hath this Salvo in the Oath of the King; Quod si Sacramentum meum violavero incolae Regni mei nullam nobis obedientiam praestare tenebuntur. In Ri­chard the Second's time, the Parliament declared in a Statute of Praemunire, That the Crown of England hath [Page 52]been so free (i. e.) from the Incroachments of the Pope) at all times, that it hath been in no Earthly Subjection, but immediately subject to God in all things touching the Regal­ty of the Crown; and God defend (say they) that it should be submitted to the Pope, and the Laws and Statutes of the Realm be by him defeated and avoided at his pleasure in perpetual destruction of the Soveraignty of the King, his Crown and Dignity, and of all the Realm; and therefore they declare, That they and all the Leige Commons of the Realm will stand with their Lord the King and his Crown and Regalty in the cases aforesaid (viz. purchasing of Bulls from Rome, executing Judgments given in that Court, Translating of Bishops, &c.) and in all other cases at­tempted against him, and his Crown, and Regalty, in all points to live and to dye. And they pray the King, and him require by way of Justice, to Examine all the Lords in Parliament, as well Spiritual as Temporal, severally, and all the Estates of the Parliament, how they think of the causes aforesaid, which be so openly against the King's Crown, and in derogation of his Regalty, and how they will stand with the King in upholding the Rights of the said Crown and Dig­nity. And we find by a Letter of King John's to the Pope, That if the King would, yet the Barons would not submit to King or Pope in those cases. How contrary to this Sta­tute of Praemunire did they act, that instead of a strict en­quiry after such as endeavoured to subject the Nation to the Usurpations of Rome, did closely and particularly ex­amine both Lords and Commons, whether they would submit to the introducing that Usurpation, and upon their Refusal, were presently discharged of their respective Of­fices, and excluded from the Prince's favour: Was not this to subvert a Fundamental Constitution of the Govern­ment? And by that Act, to incur a Praemunire. Carpzorius, an approved Author, de Capital. Caesarea, says, c. 1. p. 15. [Page 53] There is no King or Supreme Prince in the Christian World, whose Power some certain Compact made with the several Or­ders of the People, may not restrain and limit, and which are not bound by the Capitulation. Reinkinck says the same of the Emperor, de Reg. Secul. l. 1. Class. 3. p. 76. That Caesar the Head of the Empire, is bound by the Laws; and how should the King of England be above all the Chri­stian Kings? It was too much for him to aspire to be like the most Christian King. Henry the First acknowledged, That if he would (submit to the Pope) his Nobles would not permit it. And the Lords and Commons under Edward the First, signified to the Pope (concerning his claim to Scotland) that they neither ought nor would permit it, al­though the King should attempt it. And under Henry the Third, it is recorded, That if the King and Nobles should agree to it, yet the Commons would not permit the entrance of Adomer, the Pope's Legate, into England. Bodmin, treating of the King of France (says) Principem contra leges nil posse, & rescriptis ejus nullam rationem haberi de­bere nisi aequitate perinde & veritati consentanea sint. Bra­cton, of the King of England, says, Rex est sub lege quia Lex facit Regem. This Bracton, who lived in the Reign of Henry the Third, was of the judgment, That the Ba­rons had a power to restrain the Kings Exorbitances, lib. 3. ch. 26. Rex habet superiorem deum item legem per quam factus est Rex, item Curiam suam (viz.) Comites & Ba­rones suos. The Barons proceeded in their Wars on this Principle, That they had a power to restrain their Kings from subverting the Laws and Religion established. And what Opinion the Religious Men of that Time had of those Wars, may appear by the Opinion that the Chronicle of Mailros had of Simon of Monfort, of which I have spoken before. This may suffice to resolve the Conscience in respect of the Law.

Thus have I given an Account of the Judgment of many learned Men concerning the Queries proposed. How far they may prevail with others I cannot presage. But I plainly perceive, that many very learned and good Men are yet of another Opinion; and indeed there are many very difficult Arguments, both from Scripture and Laws, which by the several Interpretations given of them by learned Men of this and former Ages, may confirm them in their prejudices. Therefore my humble Request to them that are yet unsatisfied, is, That laying aside all Prejudices, they would maturely consider of the Arguments Pro and Con, and after diligent Enquiry, and hearty Prayers, follow the dictates of a well-informed Conscience,

In the mean time let the Apostle's Rule be observed by the Parties of different Persuasions, Rom. 14.1, &c. which he gives in the Chapter immediately after the Rules for Obedience; Him that is weak in the faith, receive, but not to doubtful disputations, for one believeth that he may eat all things; another, who is weak, eateth herbs. Let not him that eateth despise him that eateth not: And let not him that eateth not despise him that eateth. Who art thou that judgest another mans servant? Let every man be fully perswaded in his own mind.