I Have consider'd the Matter you mentioned to me with all the care and attention that my other necessary Affairs would allow, and I account it indeed, as your Lordship does, a great unhappiness, that any Protestants are dissatisfied with our present Settlement, but especially, that some of those Bishops are of this number, who were so lately made Confessours for the Protestant Religion.
It is not without great Injustice, that some of those Gentlemen, who have put Pen to Paper in defence of the New Oaths, take the liberty of charging these Bishops as if their present dissatisfactions did spring from Pride, Interest, Humour, Obstinacy, or a Fear of having their Wings clipt in this New Settlement: I am confident that they, which charge any of these things upon those Venerable and Excellent Men do not know Them, and they write as if they had never heard any thing of Them before this unhappy Rupture. Undoubtedly They who could go to a Jayl, and were ready to be ruin'd in their Estates, and to sacrifice themselves for the two best things in the World, the Church of England, and the Laws of the Land, do de serve no such Character. I am persuaded, that what their Lordships, and many others with them, do in this respect, proceeds purely from Conscience; and that if Themselves were so happy, or others for them, to satisfie their Consciences about the Present Settlement, and the New Oaths, They would as heartily comply with the present Settlement, and act in it, as any other of their Majesties Subjects.
But tho', my Lord, this is my Judgment concerning their Dissatisfactions, that they proceed from Con science, yet I am persuaded that there are Misapprehensions and Mistakes, which, if rectifi'd, would make an alteration in their Opinions; that too great stress is laid upon some things, that do not deserve it, and too little upon others, that are of much greater moment. I say this, with Reverence of them that are so much my Superiors, not taking upon me to Judge what the Reasons of their Dissatisfaction may be: but for those of my own rank, whom I am more conversant with, I may pretend to know most of their Reasons; and, as far as I can recollect, all their Doubts and Dissatisfactions may be reduced into a very narrow Compass.
Your Lordship requir'd me to contract my thoughts into as small a Discourse as I could; I will not forget your Lordship's Command: I think that all may be reduced to these two Points; One is, The Scruple concerning the Oaths of Allegiance and Supremacy taken to King James the Second: And the Other, about the New Oaths to their Present Majesties, requir'd of all persons who sit in Parliament, or are in any Office Civil or Military, or in Ecclesiastical Preferments. Now if I could prove, that the Oaths to King James have ceased to oblige us, and that the New Oaths to King William and Queen Mary may be lawfully taken; I presume that this will be allow'd sufficient to remove the Scruples, and will give satisfaction to such as will do me the right not to carp at, or be angry at any single reason, but to consider them all together.
In relation to Oaths in general, I need not spend much time to enquire how they may cease to oblige those who have taken them; that they cease to bind when the Government of that Person to whom they were taken is at an end, I think no body will deny. This is all I will desire to be granted me concerning the Oaths to King James.
And in relation to Government, That may be said to cease several ways; as when the Person entrusted with it dies; or when He will govern no longer, and so withdraws himself from it voluntarily; or when He is conquered, and forced thereby to withdraw himself involuntarily, and can give no longer Protection to those who were his Liege Subjects.
These are the chief Instances, whereby the Government of any Particular Person may cease.
There is no doubt concerning the first of them, but all our present dispute will be about the rest; that is, whether any one, or all of them are applicable to the Government of King James; whether He would govern no longer; and whether He did withdraw him self from, and leave his Government voluntarily; or lastly, whether He was driven out of it by a fair and just Conquest.
I think, my Lord, that the Proof of any one of these three Instances were sufficient to satisfie all honest Men, that the Obligation of the Oaths to the late King James is superseded by it: and I believe such a Proof to be no difficult task.
For to begin with the first of them; The Oaths of Allegiance and Supremacy were taken to King James as King, and oblige no further nor longer than He continued to be King, that is, to govern as King of England: Now that the late King ceased to govern as King of England a good while before the Prince of Orange either landed here, or, I believe, thought of coming hither, may I think be made plain by these following Considerations.
I need not examine curiously here, my Lord, into the Nature of Government, and the Diversities of it; my business only is to have it agreed what sort of Government our English One is.
That it is a Mixt sort of Government is plain from our Constitution, whereby every One of the Three Estates in Parliament are necessary to the making any Laws whatever for the Nation as well as the King's Le Roy le veult.
It is the King, the Lords Spiritual and Temporal, and the Commons in Parliament assembled, that make Laws; and not the King alone, or the Lords alone, or the Commons alone; nor the King him self with any one or two of the States of Parliament.
And as the King cannot here make Laws alone for the Nation, so He is, according to our Constitution, obliged by a most Solemn Oath and Promise, at his Coronation, to Govern according to the Laws made by Lawful Authority. This I am assured is the Essence of a King of England, that He is One sitting upon the Throne, and Governing, not by his own Will, or his own Edicts, but by the known Laws of the Land.
These being, my Lord, the Two main Hinges of our Government, that all the Laws the People of England can be governed by are made in Parliament, and that the Government it self be administred according to these Laws; if either the King alone, or any one, or both, of the Houses of Parliament take upon them to make Laws, the One Hinge is broken off; and if the Government it self be not administred, that is, if the King do not govern according to the Laws, the Other Hinge is broken off also, and then the Constitution is at an end, and our Legal Government does cease, what ever new, or better one be pretended to be set over us instead of it.
Having premised this state of our Government and Constitution, I think it will not be deny'd me, that where ever there has been a direct contravention to either of those fundamental Supports of our Government, it hath caused a subversion of the Government itself.
I must now apply what I can of this to the late King, and see whether One or Both of those Fundamental Supports of our English Government were not sorely shook or subverted by Him.
As to the First, That all the Laws the People of England are governed with be made in Parliament, it is as plain as the Sun at Noon-day, that this was subverted by the late King: Notwithstanding at his first taking his Chair at the Council-board, upon his Brother's Death, He declar'd He would Govern by Law, and that the Laws of the Land had made the King as great as He desir'd to be; yet He did certainly change his Mind within less than six Months, and set up for an Arbitrary Power over the Laws, by dispensing with them.
Now that Dispensing with the Laws of the Land is to all intents and purposes the Making of Laws by his own Authority without the Concurrence of Parliament, is what your Lordship heard so learnedly and so clearly prov'd at the Seven Bishops Tryal by your Councel, and what may be shewn in a very few words. I will instance only in the Recusants, who were not only made uncapable by the Laws of the Realm of Civil and Military Commands, but of keeping their Conventicles here: This was the Recusants Condition by the Laws, and they could not be deliver'd out of this Condition but by a Law which should annul the former Laws against them, and make them as capable of Places of Trust as any of the Members of the Church of England: Now did not the late King by his Dispensing Power and his Sole Authority make such a Law for them? Did He not annul all the Laws in force against them, and qualifie the Recusants and put them into Places of Trust? What could any Law made by the true Legislative Authority, a King with his Parliament, have done more for them, than the King himself with out a Parliament's Concurrence did?
I think, my Lord, this Instance sufficient to shew, that the Dispensing Power which King James used was to all intents and purposes a Legislative Power; since, as I have prov'd it, no Law could have done more for any persons aggrieved, than this Power; and there fore that This was a direct Subversion of our Government, the chief Fundamental of which was, that the Laws should be made by the King and Parliament. And if our Constitution was subverted, I cannot see how his Legal Kingly Power was not subverted with it, nor that our Oaths to Him were not at an end, when the Constitution we swore to was dissolved, and He had of himself divested himself of, and laid aside, that Authority, which we only swore to submit to and defend.
If your Lordship should ask me when this Dissolution of Government happen'd, I think I should be able to fix the Time: Your Lordship does remember, that upon the Duke of Monmouth's Rebellion, the late King gave Commissions to several Popish Officers; this was the Forerunner of it: but when upon the sitting down of the Parliament in October afterwards, He not only in his Speech told his Parliament, that He had done it, but that He was resolved to stand by it, and there upon dismist his Parliament for their opposition to it, He finisht his Design, and our Ruin; and from that Moment, I look upon the English Constitution to be altered, and must lay my finger upon this as the com pleat Subversion of our Legal Government.
I know some will be offended at my urging this Practice of a Dispensing Power so far as to make it a Subversion of our Government, and will not endure to hear, that a King of England can forfeit or fall from his Authority; I am very ready, my Lord, to beg these Gentlemen's Pardon, if they would but allow me one satisfactory Argument to prove, that a Dispensing Power is not of that fatal consequence to the Legal Power of Legislature that I have suppos'd it to be: but till that is proved to me, I think I should de serve very great blame, if I did not make the Dispensing Power to be what in reality it is, a Subversion of our Constitution.
And for a Forfeiture, I would only know, why such a thing must be lookt upon as monstrous, intolerable, nay, impossible in England? Suppose the late King, (besides his letting Papists into all Places of Trust, against the plainest and the severest Laws, and his subverting all the Laws made in defence of the Church and Government of England, by laying them aside for the Dissenters sakes) had been pleased to impose what Taxes He pleased upon his Subjects, and had levyed them either by his own Army, or by Dragoons borrow'd from France; and had for the future annull'd all the Laws made in Defence of the Church of England, or the Rights and Properties of the Subject; and had laid every other Law aside by his Royal Edicts which all Men should obey without reserve, as much as he had done those made for the security of the Church of England by his Declaration; I would only know by what name to call such Practices, and whether our business in such a case is only with patience to suffer a King wholly to alter the frame of the Government, and to make Bondslaves of those who were his Freeborn-Subjects, born to the Protection and Priviledges of Laws.
This is, my Lord, no wild or unreasonable Supposition, I am afraid, that we should have been able, had the late King continued but a Year or two longer upon the Throne, not to have been put to the trouble of making these Supposals, but to have instanced in them, as we now do in the Declaration for Liberty of Conscience.
One would think that such Practices, which seem to be the plainest Instances of the Subversion of a Government, should be so most especially of his share in it, who was guilty of them; and he that will not allow any forfeiture or destruction of a King's share in a Government by such a subversion of it, will find it hard to maintain that a Government subsists tho' it be destroy'd, and that a King hath not destroy'd his own Power, tho' He hath quite ruin'd that Government in which and by which He enjoy'd it.
My Lord, I am not willing to aggravate the Faults of any, nor to make the Consequences of them look more gastly than they are of themselves, much less would I be guilty of such a thing towards Crowned Heads; however, I am not able to alter the appearance of this, that the Publick Safety and Happiness can never be secured in any Constitution whatever, and that the Ends of Governments are quite lost, if that Person who subverts any particular Government, do not at the very same time destroy or forfeit, let Men call it what they please, his own share in it.
To this Argument from the Dispensing Power, it may be answer'd, that the Practice of it, as to the Instances which I have been able to mention, does not amount to a Subversion of our Government, if those Laws were unjust and void in themselves, which the King dispensed with. As for the Laws about Offices Civil and Military, from which Papists were excluded, They say the Observator has prov'd it often enough, that they were null and void, since no Laws can preclude a King from making use of his Subjects. And for all the Laws against Conventicles, the Author of a Paper, publish'd very lately, and licens'd too, call'd, The Case of the Protestant Dissenters Represented and Argued, p. 2. tells us very roundly, that they are void also, and that the Dissenters must be excused if they have in their Practice exprest less Reverence for Laws made by no Authority received either from God or man: and complains, that They are injuriously reflected on, when it is imputed to them, that They have, by the Use of their Liberty, acknowledg'd an Illegal Dispensing Power. We have, says he, done no other thing herein, than we did when no Dispensation was given or pretended, in Conscience of Duty to Him that gave us breath. Nor did therefore practice otherwise, because we thought those Laws dispens'd with, but because we thought them not Laws.
So that the result is, that the late King ought not to be accus'd of Subverting the Government, by setting aside those Laws which were void of themselves.
But I need not trouble your Lordship with any Answer to such an Objection, since I know your Lordship, nor any of those for whose sakes I write this, do not believe a word of what these two do so dogmatically, and yet most unjustly assert. I suppose the Observator will not be fond of standing by his Assertions, and that the Author of the Dissenters Case ought to have shewn some more Manners, than to cast such saucy and bold Slanders upon our Parliaments, while one is actually sitting. It is sufficient for my vindication, that the present Parliament believes those Laws which the late King dispensed with, not only to be true, but necessary Laws, whatever these two Gentlemen with so much confidence have said to the contrary.
I will pass now to the other Fundamental of our Constitution, which is, that the Government be administred according to the Laws of the Land. It is equally evident, that this Fundamental was subverted by the late King, as well as the former; for so far was he from governing according to Law, that his whole Government, from the time of his claiming his Dispensing Power, seems to be a downright opposition to the Laws. He was pleas'd to make Privy-Councellours against Law, Judges against Law, Sheriffs against Law, Lord-Lieutenants and their Deputies against Law, and Justices against Law; to have Men hang'd up for deserting in time of Peace against Law; to have Popish Chappels, Jesuits' Schools, and the Conventicles, open'd against Law: in a word, his Resolution, as well as his Practice, did shew, that the Laws were not intended to be made the Rule of his Government. This is the True State of King James's Government, and This is inconsistent with that Essential of our Constitution, of Governing according to Law.
Now if, my Lord, it be the Essence and the Definition of the King in our Government, that He is One who governs the People committed to his charge ac cording to Law, how can we reckon in this Rank the late King from the time He was so resolutely set upon governing against Law? In our Constitution, He that does not govern by Law, does not govern at all; and He that does not, nor will not govern at all, cannot nor will not be King; but ceases to be such from the time He makes his Own Will, or his Evil Councellors Advices, the Rule of his Government, and not the Laws.
I had almost forgot another Instance of the late King's Dispensing Power, and that was his laying aside those Oaths of Allegiance and Supremacy, which yet are the grounds of most Men's scruples. How can this be lookt upon otherwise than as a Condemnation of the Oaths as unlawful; and if they were so, we have the late King's Judgment also against the Obligation of these two Oaths; for if He to whom the Oaths were taken, thought them unlawful, then they are certainly fallen as to Him. This is as if a Person who had a Bond from another, which he lookt upon as unjust, should give it him up, and consent to the cancelling of it.
So that, my Lord, if the breaking One of our Fundamentals, by not governing according to Law, do not make such a Person cease being King, yet that breach of the Other, the assuming a Legislative Power, which quite alters and tears up the whole Frame of our Constitution, cannot do less than shake his Right to the Government, who was so solicitous to destroy it. He that will not govern as King of England, will not govern at all; and if He continue in this humour, as the late King did, from the time of assuming his Arbitrary Dispensing Power, how can he be longer King? and if He ceased to be King by his leaving off to govern; the Oaths to Him were as much at an end, as if He had ceased at the same time to live. And as the Oaths could certainly have no further Obligation to Him, when He had divested himself of his Kingly Power, by destroying that very Government whereby, and in which He was King, so did the Declaration about taking up Arms upon no pretence against the King fall with them. That Declaration every one will grant me, was made for the preservation of the Government, which the late King took such indefatigable care to destroy.
That Declaration was never intended for the destruction and ruin of our Government: and yet it must be the ruin of the Government, if it puts it into a King's hands, to turn Tyrant without control, and to subvert our Legal Constitution and undo a Nation without gainsaying: and therefore that Declaration was intended for the security of, and was to be made to, a King governing by Law, and therefore did not concern the late King from the hour He set up his own Will against the Laws, and his own Power against that of the Whole Kingdom in Parliament.
This, my Lord, is the first Case whereby a King ceases to Govern, or to be a King, for they are synonymous. I think by the Instances I have produc'd, and the Arguments I have offered, it may reasonably appear, that the late King had subverted our Government, and destroyed his own share of enjoying the Kingly Authority in it, and thereby ceased to be King: and if once He ceased to be such, no body will deny that the Obligation of all Oaths to Him as King did expire at the same time.
But since, my Lord, we have commonly receiv'd a very transcendant Notion of our Monarchy, which will not allow the Destructive Practices I have now mention ed, nor worse than these, to make a forfeiture of the Kingly Power here, or to be the Subversion of our Monarchs Rights, whatever they be of the Peoples, I shall wave the insisting further upon this Head.
Let it then be supposed for that Opinion's sake, that the King does not destroy his own Right, or the Exercise of his Royal Authority, tho' He does destroy our Constitution by ruling directly against the Laws, and making Laws by his own Power. The next Enquiry is, Whether a King can lay down his Government, and divest himself of all Authority, and whether King James did not voluntarily leave his Government by withdrawing himself out of the Kingdom, and making no provision for the Publick.
No body will dispute with me, that a King cannot lay down his Government: The Case of the Emperour Charles the Fifth, and, which comes nearer our own concern, that of the Queen Christina of Sweden, are Instances of it, beyond opposition. And I think it would be as little disputed, that the late King James did by a voluntary withdrawing himself out of the Kingdom recede as fully from his Government, if these few things were fairly consider'd.
First, That He was at that time of withdrawing himself actually upon a Treaty with the Prince of Orange, and had Three Lords Commissioners with Him, who gave the King such an account of their Negotiation, in a Letter brought to Him the very night He withdrew, that He himself could not but give this Just Character of the Prince's Proposals, as to say of them, that they were fairer than he could or did expect; so that the King had no reason then to be afraid of his Person, but might have continued with security in his Palace, and taken care of the Government, and called such a Parliament as both Himself and the Prince desired, which might have quietly and effectually set led this Nation, and prevented all ill consequences to his Person or to his Affairs.
Secondly, That it was the Design of the Popish Party to persuade him to withdraw himself; their End in it being to put us thereby into Confusion. This they did not boggle to speak out; the Lord Dover and Mr. Brent made no secret of it, but said it more than once, that the King would withdraw himself out of the Kingdom, above a Fortnight before He did it. Nor were these Two the only Persons in this Secret and of this Opinion. In the Letter that was sent down to the King, while He was at Salisbury with his Army, and can be produced, He was told, that it was the Unanimous Advice of all the Catholicks here at London, that He should come back from thence, and with draw Himself out of the Kingdom, and leave us in Confusion, assuring Him, that within Two Years or less we should be in such Confusions, that He might return, and have his Ends of us, as their phrase was. Now if the King was pleas'd to take such desperate Councellors Advice, and thereupon to withdraw Him self out of the Kingdom, and command his Army to be let loose upon the People by disbanding them at such a Juncture, I can see nothing herein to make his going away involuntary.
If then his withdrawing Himself out of the Kingdom was done out of design and willingly, He did as effectually divest Himself pro tempore of the Government, as if He had left a formal Resignation of the Kingdom behind him, attested by all his Privy-Councellors' hands; and our Allegiance to Him did fall with it, and our Oaths did no more oblige now, than the Oaths taken to Christina Queen of Sweden did, when she resign'd, and went to Rome; since in both Cases the Government of these Two Princes was equally at an end, but our condition the worse of the two, since Queen Christina left the Government to her Kinsman, but our King left us to the Rabble, and his disbanded Army.
There is one Objection, my Lord, which I have of ten heard made against this, that tho' the late King, out of a groundless fear, or for any other reason or de sign whatsoever, did voluntarily withdraw himself out of the Kingdom, yet this ought not to be accounted a compleat Cession or Dereliction of the Government, unless it could be proved withal, that there was not Animus revertendi, that he never intended to return to us more.
But this Objection is of no weight in the Case of a Kingdom. For, whether the King intended to return back any more, or no, signifies nothing herein; since the withdrawing Himself, and making no manner of Provision for the Government and Safety of the Nation, did actually put an end to his Government at least for that time; and our Constitution can no more than any other Government in the World be left in such a Condition, or can be said to subsist in such a Case; and it is against all the sence and reason of Man kind to think that any Nation either will or ought to continue without a settlement till the Governor, who hath left it unawares and in confusion, will be pleased to think of returning. Does any one believe, that if the late King (when He withdrew) intended not to return these ten Years, that we of this Nation should have continued in the Anarchy He left us, and have no Government till He would come back? Among all our Discontents, I hope none can be found so weak to imagine this; and the same reason I am sure holds as fully against his leaving us one Month as ten Years. So that whether the late King intended to return or no, when He went away, He ceased to govern us; and the very same moment He was pleas'd to leave off governing, by withdrawing himself, He cancell'd the Obligation of all Oaths and Allegiance to Him as King.
But beyond all this, I can grant, my Lord, that the late King, from the very time of his withdrawing, nay, from the very minute of resolving to do it, had Animum revertendi, did intend to return to us. I do believe, that those Papists which advised him to with draw, did design that He should return; and that He himself did concur in both resolutions. But what was He to return for? Was it not to have his Ends of us?
What those Ends are, I suppose no Protestant needs be told; none of those who make this Objection, can doubt of it since his late coming to Ireland. Should we have waited then till the late King could return with his borrowed Forces from France, to destroy our Protestant establisht Religion, and our Civil Constitution, because He had Animum revertendi; and therefore not have setled and provided for the Nations safety? Was the King's Government not at an end, tho' He had with drawn himself from us, and left no Provision, because He was resolved to come back to destroy our Religion, and to be reveng'd of the Nation? My Lord, I think such an Animus revertendi to be so far from making the Dereliction lame and void, that it is as good a Proof of making the late King's Action a compleat Dereliction, as if He had left it attested under his Hand and Great Seal, that He would never return to us, or this Government more.
For my own part, I am persuaded, that the late King withdrew himself voluntarily, and by the Advice of Popish Counsels out of this Kingdom; I am persuaded that He went off with an Animus revertendi; and I am as fully persuaded that the Intention of his returning was to ruin our Properties and Laws, and to destroy our Reformed Religion, or, to put it into the Popish Dialect, to have his Ends of us: From the first of these, to wit, his Withdrawing voluntarily, I am satisfied that the late King James's Government and our Allegiance to Him are fallen; and the last of them, the Intention of his Return, will I hope satisfie all others as much as it has done me, that we have no tempting reasons either to wait for the late King's Return, or to accept of his Government, if He should get back.
I must now, my Lord, go on to another Consideration, for there are some who are little satisfied, not withstanding all the evidence that can be offered, about the King's voluntary withdrawing himself, as they were at his misgovernment, being urged as the destruction of his Royal Dignity: and tho' these Gentlemen have not agreed with me hitherto, yet in this last Consideration they must concur with me; and that is, that the late King was conquered by the Prince of Orange, and driven away involuntarily at least: So that if by this Conquest He was put out of the condition of Governing and Protecting us, we were as much depriv'd of the liberty of paying obedience to Him, who was now driven from us.
The Business to be examin'd here is, what sort of a Conquest this was, and whether it was a just one, such a one as by reason of which the People of England might lawfully submit to the Conquerour of their King.
To begin with the Expedition of his (then) Highness the Prince of Orange, there appears to be all the reasons in it that could justifie such an Invasion, or make a Conquest just and good. The Prince was no Subject of England, but a Soveraign Prince, who made this Descent into our Nation against our late King in defence of his own Rights as well as of ours: and therefore his Action could upon no account be stil'd a Rebellion.
But the Cause of his Expedition is above all other things to be enquired after, for that must be the chief thing that can justifie the Revolution here, and ought to be highly reasonable, and such as can give satisfaction to all wise and indifferent men; since tho' the Prince of Orange were never so much a Soveraign Prince, yet if he had not a very justifiable reason of coming hither with an Army, his Expedition had been altogether a most unaccountable Action, and his Conquest unjust.
Now, to give all the satisfaction requisite to this justest Scruple, the Prince's Reasons for coming hither in that manner, appear to be as just and as good, as his Success was great; and if ever one Prince's Invasion of another Prince's Kingdom were to be justified, the Prince of Orange's was. For, to instance in one or two of these Reasons, He himself, as well as his Princess, had most undoubted Right to the Succession of the Crown of England, and the Dominions belonging to it, after the death of the late King James. This Right was notoriously set aside, or made wholly useless to Them, by the Arts and Counsels of those Papists who were about the King, and did influence him. The Imposture of a Pretended Prince of Wales was thought of and pitcht upon as the most effectual Bar to either of their Titles, and did set Them as well as Her Royal Highness the Princess Ann of Denmark aside, and deprive All Three together of their Rights of Succession, and provide effectually against a Protestant Successor, the only Person the People then in Power at Court were afraid of.
But to wave the Instance of the setting up a pretended Prince of Wales betwixt These Protestant Princes and their Right of Succession, because the Proof of that Imposture has not been laid open as it might have been to the World, and therefore cannot so strictly be insisted upon; tho' most people, even those who are dissatisfied about the present Settlement are satisfied of the Imposture: the Right of Succession, which was in the Two Royal Princesses, and the Prince of Orange, was made wholly useless to Them, by the late King's putting the Government of Part of the Dominions of the Crown of England into such hands as would not deliver them up or submit to any Protestant Successour. Ireland is an evident Proof of this, where all Offices Civil and Military, contrary to the Laws of the Land, were put into Popish Hands, and such a Bigotted Irish Papist was made their Governor, as that what ever Rogueries or Violences the Papists should be guilty of towards the British Protestants among them, they should never need to fear being call'd to account, being certain that his own management of the Government as well as his Religion would keep him from ever delivering up Ireland to any Protestant, while He had the Sword in his hands, and such a throughly Popish Army at his Command.
Now in this case, when Ireland was wholly given up into such hands, and Scotland was almost in the same condition, and England ready to be put into the same, it was high time for the Prince of Orange to assert his own and his Princesses Right; and it was most reasonable for Him by all justifiable Ways and Means to prevent their being debarr'd their Right of Inheritance of these Kingdoms, by bringing the late King to reasonable Terms, or by depriving Him of the Power of doing Them or their Right any further Mischief herein.
This therefore, together with the Princes Concern for our Religion and our Laws, which were violated in so high a degree by the late King, and with which his own Right of Succession was interwoven, was a most just reason for the Prince of Orange's coming with an armed force; and if the King would rather put things to the hazard of Battels, than the decision of a free and legal Parliament, no body else could help it: and if his Army would neither fight for, nor stand by him, but suffer Him to be driven out of his Dominions, it was because He had taken sufficient care to let all of them, as well as the rest of the Nation, know how very unjust the War would be on his part, and how very unreasonable it would be for them, who were the greatest part of them Protestants, to assist Him in depriving his Children of the Hereditary Rights of Succession, and ruining the Church of England, and the happy Constitution of our English Government. Such Considerations as these made the late King's Army so useless to Him, and the Prince's Victory so easie to Him, whose business was not to Conquer here, but to do Himself and his Princess Right, and to preserve our Government in Church and State; which if He had tamely lookt on, and suffer'd to be destroy'd, His own Right would most infallibly have sunk with them, being so entirely linkt with them.
Here some will be ready to call upon me, and tell me, that if the Prince was a Conquerour, then all our Rights and our Possessions are in his hands, and at his disposal; and that our condition is far from being mended, since we are by this Conquest in that state which the late King was labouring to bring us to, subjected absolutely in our Persons and Fortunes to the Arbitrary Will of a Conquerour. But it is very easie to answer this fearful suggestion, by shewing them, that the King alone was conquered, and not the Nation with him. The Prince in his Declaration had assured the Nation, that his only design of appearing in Arms here, was to secure his Own and Their Rights, and He did there upon conjure them to assist Him in so good and so just a Design; which the Nation did, either by not aiding the King, or by rising up in several parts of the Kingdom for him: so that here was a True Contract be twixt the Prince of Orange and the Nation, which hath been faithfully observed, the Rights of the Nation being entirely preserv'd to them, and not one of them invaded, nor the least pretence to a Conquest over the Nation made by Him. Thus, my Lord, we see our Rights are secure, notwithstanding the late King lost his, by bringing upon himself the necessity of being driven out of his Dominions and conquer'd, rather than he would do the Prince and the Nation that Right which He was obliged to by the Laws and by his Coronation-Oath.
Now since the late King did lose his Kingdom by these means and upon these accounts, and was put out of the capacity of either Governing or Protecting those who were his Subjects, it is become as impossible for us to perform Allegiance to Him, as it is for Him to Govern us; and since the Prince and Princess of Orange, by reason of this Conquest of the King, and by Vertue partly of their own Hereditary Right, and partly of the Consent of the Nation assembled in Convention, are in Possession of the Crown of England, and do Protect and Govern the Nation according to the Laws of the Realm, and have taken the Coronation-Oath, that they will always continue to do so; the only question is, whether our Allegiance in such a case is not transferr'd from the late King, who was justly conquered, who does not govern us, and can no further protect us, unto those Persons who are now invested with the Regal Power, and in possession of the Government, and do protect the Nation.
The Resolution of this Case would have been very readily made by any of us, had Providence placed us upon the Continent, in those Countries which have lately been, and now are like to be, the seat of War, and not in an Island so happily secured from the sudden Descent of Enemies. Had we lived in Germany or Flanders for example, we should have learnt how far Allegiance is necessary, and when it may be transferr'd from the Prince conquered to the Conquerour. No prudent Man thinks the People of any Town in Flanders perjur'd, because, notwithstanding their former Oaths to their Hereditary Prince the King of Spain, the fortune of War necessitates them to take new Oaths of Allegiance to a Conquerour. And I think Men ought to make the very same Judgment of things here, that since the Government of King James is at an end, the Oaths to Him have no further force; and that since He was fairly conquered by that Prince, whom He was endeavouring to deprive of his Right of Succession to the Crown of England, and is by that altogether incapacitated from governing and protecting us, our Allegiance either wholly ceases, or is superseded as to Him, and We may in our Circumstances give security to the Government, and pay Allegiance for that Protection we enjoy from it.
This, my Lord, is agreeable to the Laws and Practice of all Countries, to the Laws of our own Nation, to Reason, and, which is more, unto Scripture it self. I need not trouble your Lordship much with shewing its agreement with the Laws of Nations, since almost every day's Practice doth give Instances of it; whereby People and Countries that were under their own Soveraign Prince, and had taken Oaths of Fealty to Him, are by the Fortune of War made another Prince's Subjects, and may lawfully according to the Law of Nations transfer their Allegiance to their new Lord. The Reason of all this is founded upon the Nature and End of Government it self, upon that mutual Obligation which is supposed to be betwixt a Prince and his People, who upon his Power and his Promise of protecting them in their Lives and in their Properties, do engage to perform Allegiance, and to bear Faith to Him: now this stipulation does naturally fall, when such a Prince is no longer Able or no longer Willing to protect them; and the same Reason which obliged them to pay their Allegiance to that Prince, does direct them now to transfer it from Him who is by the Fortune of War disabled from affording Protection, to the Conquerour, who will engage to protect them, and does preserve them in their Persons and their Estates and in all their ancient Legal Securities.
And as this cannot be denied to be the Practice and the Law of all Countries abroad, so the Laws and Customs of our own Kingdom do not only countenance such a transferring of Allegiance to a Conquerour, but do indemnifie the paying Allegiance to a meer King de facto who may be an usurper, and the defending Him in his Government: Thus in the Statute made the Eleventh Year of Henry VII. Chap. 1. it is declared to be against all Laws, Reason, and good Conscience, that Subjects going with their Soveraign Lord in Wars, attending upon Him in his person, or being in other places by his commandment within the Land or without, any thing should lose or forfeit for doing their Duty and Ser vice of Allegiance; and it is enacted by the King, by the Advice and Assent of the Lords Spiritual and Temporal and the Commons in Parliament assembled, that from henceforth no manner of Person or Persons whatsoever He or They be, that attend upon the King, and Soveraign Lord of this Land for the time being, in his person, and do Him true and faithful service of Allegiance in the same, or be in other places by his command in his Wars within this Land or without: that for the said deed, and true duty of Allegiance, He or They be in no wise convict or attaint of High-Treason, ne of other Offences for that Cause, by Act of Parliament, or otherwise, by any Process of Law, whereby he, or any of them shall lose or forfeit Life, Lands, Tenements, Rents, Possessions, Hereditaments, Goods, Chattels, or any other thing: but to be for that deed or service utterly discharg'd of any Vexation, Trouble or Loss.
This Law doth authorise any Subject to pay his Allegiance to the King in being; and does secure him against all Penalties for the same; and therefore reaches our Case, where there is not a bare Possession, but all the Right that Conquest can give.
And in the famous Act of Parliament concerning Treasons, the 25th of Edward III. my Lord Coke says, that by the King, against whom Treason is committed in that Statute, is meant the King in possession of the Throne, whatever his Right to it be. These, my Lord, are his own words, This Act is to be understood of a King in possession of the Crown and Kingdom: for if there be a King Regnant in possession, although he be Rex de facto & non Rex de Jure, yet is He Seignior le Roy within the purview of this Statute. And the other that hath right and is out of possession is not within this Act. Nay, if Treason be committed against a King de facto & non de Jure, and after the King de Jure cometh to the Crown, He shall punish the Treason done to the King de facto: and a Pardon granted by a King de Jure, that is not also de facto, is void.
This is sufficient to shew the sence of our Laws in this case, and for its being agreeable to Reason to transfer our Allegiance in the Circumstances mentioned, I have already in part proved this, and I think it may be fairly deduced further from the Writings of that great and excellent Casuist Bishop Sanderson, whom all will allow to be a very competent Judge of the Dictates of Rea son. Whoever will read his Case of the Engagement, may find a great deal to this purpose, but I intend only to insist on what he hath delivered in his Fifth Praelection concerning the Obligation of Conscience, where he disputes for, and gives several reasons for the paying obedience to the Laws, and submitting to the Government even of an unlawful Usurper; and he puts this very case, that where any one, having driven away by violence the lawful Prince and true Heir of the Kingdom, or having opprest him so far as that he is unable to stand up for his own Right, doth, while the other is still living, take the Government upon him, and act as King, when he is in reality rather an Usurper than a King, and it is past doubt that downright Injury is done [to the op pressed Prince]. If it be askt, (says he) what I think a good Subject should do in this case, who hath taken an Oath of Fealty to his lawful Prince, or if he have not taken such an Oath, yet is as much obliged to the Prince, as if he had sworn it; My opinion is, that it is not only lawful for a good Subject to pay obedience to the Laws made by him that has the Supreme Power only de facto, and not de jure, and to do what other things are commanded by him, (so that nothing base or unjust be commanded) but that it is necessary oftentimes for him to do these things, and that he should be wanting to his own Duty if he did not.
What I would gather from this Case, put by the Great Bishop is, that if such obedience be lawful, and very often necessary to one who is a meer Usurper by unlawful Violence, the least he would have determined in our circumstances, must have been, that Obedience might lawfully be paid to our present King and Queen, who come to the Throne either by its being left empty by the last King, or by a lawful and just Conquest. And what the Bishop has afterwards urged in the Case of his Violent Usurper, that, notwithstanding the obedience to him, the Fealty due to the lawful Prince must be preserved inviolate, and nothing done in prejudice of his Right, can have no place here; since the late King fell perfectly from all Soveraigny here by deserting his Government, and the Prince of Orange had a most just cause of War against him, and made as plain a conquest over him, neither of which can be brought within the Bishop's Case: and therefore, if Subjects may, (to keep to the Bishops Reasons upon the Case) for their own sakes, for the preservation of their Lives and Estates, and for the Protection they receive under those who have possession of the Government, and for the Publick sake, for the Trade and Commerce of the Nation upon which the Publick must subsist, live quietly under, and pay obedience to an usurped Power; every one of these Reasons is more forcible upon us to pay our Obedience to their Present Majesties, who have Right of Just Conquest, Right of Lawful Succession, and the Consent and Recognition of the Nation in Convention on their side.
And as Reason has directed in such circumstances to transfer Obedience to the Conquerour, under whom we can live safe and in quietness, so does the Scripture it self, the Best Rule we can desire in our Case. As the Scripture commands, under the greatest Penalties, Subjection to the Supreme Power, so it does not put men upon the rack about the Right of Governours, or upon examining who has or who has not the true Right to a Crown; but directs obedience to the Powers in being, to those who are in possession of the Supreme Power, how small soever their claim to it may be. This I can make evident, my Lord, from the Instances of some in the Old Testament, and of those to whom our Lord Jesus himself and his Apostles did so strictly command Obedience in the New.
Upon the Death of Josiah King of Judah, the People of Judah took Jehoahaz, who was the fourth and youngest Son of Josiah, and anointed him, [which was done by the Chief Priest] and made him King in his Father's stead, setting aside the Right of his Three Elder Brothers, 2 Kings 23. 30. Now that Jehoahaz was Shallum no one will doubt, that will compare this place out of the 2d Book of Kings with Jeremiah 22. Ver. 11. and that Shallum was the youngest Son of four he can no more doubt that will consult 1 Chron. 3. 15. In this Instance we do not find the Scripture condemn the peoples paying Allegiance to this Prince thus set up; but on the contrary, God calls upon them by the Prophet Jeremiah, (Jerem. 22. 10, 11, 12.) to weep sore for him that goeth away, who was to return no more nor see his native Country, that is to lament for their King Shallum or Jehoahaz, who was carried by Pharaoh Nechoh into Egypt, and was to die there.
After the Deposition of Shallum, Pharaoh Nechoh, who was his Conquerour, made Eliakim King, whom he called by the name of Jehoiakim, tho' he was but the second Brother: and no notice is taken of the eldest Brother Johanan, who, if he was then living; was certainly the true Heir to that Crown. This Jehoiakim reign'd eleven years, 2 Kings 23. 36. in the third whereof he was conquer'd by Nebuchadnezzar King of Babel, Dan. 1. 1. who afterward took him away, and set up his Son Jehoiachin or Jeconia or Conia in his stead. But he continued on the Throne but three Months, for Nebuchadnezzar came again and besieged Jerusalem, to whom Jehoiachin surrendred him self, and was by him carried into captivity. Then Nebuchadnezzar made his Uncle Zedekiah King, who was the third of those four Brothers, 1 Chron. 3. 16. and he reigned near eleven years as King of Judah, while the eldest Brother Johanan was living, and the second Brother perhaps Jehoiachim in the Babylonian's hands; without all doubt, if Jehoiakim was dead, his Son Jehojachin the right Heir and the true King was living, for we find him releas'd out of Prison after 37 Years, 2 Kings 25. 27. during all which time we never find God complaining of the peoples submitting and paying Allegiance to this King Zedekiah that was set up by Nebuchadnezzar; but we meet with Jeremiah's Lamentation taken up for this very King, whom he calls, The Breath of our Nostrils, the Anointed of the Lord, (Lamentations 4. 20.) tho' he was made King, while the true King and Heir of that Crown was alive. Here we have a Subject made King, and set up against the true King by the Conquerour, whose power herein God did so far approve as to call Zedekiah's defection from his Fealty to Nebuchadnezzar (whose power over Judah was no more than what a Conquest and an unjust one too did give) a Rebellion, and to give him and all that belonged to him up to Destruction and Captivity for it. Whoever will reflect upon these Examples, will see how far the people were from being condemned, or discouraged from transferring their Allegiance to these four Kings: the first of which Jehoahaz, was set up by the People against the Right Line and before his Three Elder Brethren; the second Jehoiakim, was by a Conqueror made King before his Elder Brother Johanan; the third Jehoiachin, was set up against his own Father; and the fourth was of a Subject made a King, while the True King and Rightful Heir was still in being.
There is another thing very observable here, and that is about the Oaths taken to Kings, who were such meerly by conquest. It was the manner of the Subjects of Israel and Judah to take Oaths of Obedience to their Kings, as one may very justly collect from that passage in Ecclesiastes 8. 2. where the Preacher advises to keep the King's Commandment, and that in regard of the Oath of God, that is, of the Oath of Obedience which the Subject had taken to the King. Now this Oath was sworn, not only to King's of God's own appointment, or to their Hereditary Successors, but to those who had no other Title or Right than that of Conquest, when such Conquerours requir'd it of them, tho' their own Princes were still living. Thus Nebuchadnezzar made Zedekiah swear by God (2 Chron. 36. 13. with Ezekiel 17. 13.) to be faithful to him, while his own Prince Jehoiachin was yet alive; and Zedekiah took Authority from Nebuchadnezzar to reign as King under him, which he continued to do according to his Oath for some Years, but afterwards rebell'd against the Conquerour. This Oath God did approve as lawful, and calls it Mine Oath, (Ezek. 17. 19.) and held himself obliged to punish the breach of it, as he should have done if Zedekiah had taken it to Jehoiachin himself, and had broke it, as he did the Oath in this case. This is plain from Ezek. 17. 15, 16, 18, 19.
And for those Kings in the New Testament to whom Allegiance is so strictly commanded to be paid, it is most evident, that Augustus, and those after him, were direct Usurpers upon the People and Senate of Rome, having gained the Supreme Power into their hands by Craft and Arts, and chiefly by the assistance of the Soldiery, whose Right to dispose of the Supreme Power over the People and Subjects of Rome I cannot hear that any man does maintain: and this was more particularly plain in the Advancement of Nero to the Throne by the Soldiery, whom his Mother Agrippina had tampered with against Britannicus the last Emperour's Son; and yet this is the very Emperour to whom St. Paul teacheth Obedience, under pain of damnation, for whom he exhorts the Christians to put up Prayers and Supplications, that under him (who had no better Right to that Government than what I have just mentioned) they might lead quiet and peaceable Lives in all godliness and honesty.
Whoever, my Lord, will compare our present Case in England, with the Instances I have produc'd out of Scripture, cannot deny me, that Scripture does allow the transferring of Allegiance in the Case of Conquest from one Prince to another; some of the Instances do reach further, which shew the Command for, and the Practice of Obedience to, those who had meerly the Possession of the Government, but no manner of Right or Title to it.
And now, my Lord, I have dispatch'd the Consideration of all your Lordship's Commands, and of all I have been able to say in so narrow a Compass, and a midst so many other necessary Avocations, upon this Subject; and yet I cannot conclude without examining a little their Reasons and their Intentions, who are so little satisfied with ours, or with the present Settlement.
If the present Settlement of this Nation under their Majesties does not give them satisfaction, and is such as they cannot with a Conscience submit to; it must be because they have sworn Allegiance to Another Person, to whom they believe it to be still due, because He is still alive. If they find themselves under such an Obligation, then their Endeavours or at least their Wishes ought to be, that the late King might be recalled to his Government; or that, if He be unfit for Government, a Regency might be setled by the Consent of the Nation in Parliament, He still retaining the Title of King. These Methods are the only ones that either themselves, or any one for them thinks can salve their Allegiance. But examine them singly and see whether they can.
If the late King should be recalled, either it must be upon Terms and Conditions, or it must be without them. To recal Him to his Government without Conditions, I never yet met, nor heard of one Protestant that was for it; but they all cry out, upon Terms, or not at all; upon Conditions, or we are all ruin'd in our Properties, and ruin our Religion. One Question then I have to make to these Gentlemen, and it is, By what branch of their Oath of Allegiance they are impower'd to make Conditions with the King; and which of the Laws is it, that gives the Subjects such an Authority over the King as to offer them? They are absolutely against recalling or receiving the late King back with out Conditions. If so, then I will suppose that equitable Conditions were offered the late King: and I can sup pose very easily, that He will not be so obliged; but requires to be admitted into the Possession of his Crown without any other Terms than the Oath He took at his Coronation, and the Promises He then made of defending our Church and governing us by Law. In this case, upon their own grounds, these Gentlemen must resolve to resist his resuming his Government, and must never admit him, if he will never condescend to Conditions; and then I would know of them what is become of the whole Oath of Allegiance, or the Obligation their Con sciences were formerly under by it. This Matter is too plain to need more words.
But suppose Conditions for his return were offered by the Nation, and accepted by Him, and that as soon as He was secure of his Throne, He forgot them all, as much as He did his First Promise at Council-Board, and his Coronation-Oath; what must be done in this State, when the Nation will be in ten times worse condition than it was this time twelvemonth, when his Dispensing Power, and Arbitrary Government were at the height? No Man can suppose Conditions of any worth, that have no security in them; and the least they can have in this case must be, that if the King breaks them, then He forfeits the Benefit of them, to wit, his Restitution to his Government; and we, as well as He, should immediately be in the very condition we were in upon his leaving or losing the Government. That such would be our condition inevitably, is the easiest thing in the World to prove.
For 1st, No Conditions made for the securing Property to the Subject, and the Protestant Religion to the Nation, can signifie any thing to Him who is governed wholly in all his affairs by French Counsels, and by the Jesuits, who are not truer Enemies to our Reformed Religion, than French Counsels to the Liberty and Property of Subjects.
But 2dly, His Religion is wholly inconsistent with our safety either in our Properties or in our Religion; and this we have had experience enough of, one would think, already; too much, to make us fond of trying the Experiment over again. Let it but be considered, that by his Religion and by such Power, He is obliged upon pain of forfeiting his Kingdoms, to extirpate Hereticks, to destroy every Protestant in England; and that by the Conditions made He will be at least obliged to secure the Nation in their Protestant Religion and in their Properties; and then I would ask such a Per son, what the best and the safest Conditions can avail in these circumstances? If an Obligation to destroy us, and an Obligation to preserve us, be inconsistent; and no Man in the world can perform both; I think the talk about Conditions ought to be at an end, since there is no way to bring these contradictions to agree.
The Wisest Part, my Lord, of those who are dissatisfied do very easily see into the Vanity and Inconsistency of this Project about Conditions, and grant that they would be useless. And therefore since Conditions are vain, and that the late King was unfit for Government, They were for having a Regency set up during the late King's life, He retaining only the Title of King; and this they thought would salve their Oaths to Him, and their Consciences. But this cannot do the business, since it is plain that such a Regency would have been as much against the Oath of Allegiance, as the present Settlement; and a submitting to That would have been as direct a Violation of the Oath of Allegiance, as they suppose a submission to the present Settlement is.
To prove this then; By a Regency the King would have been divested of all Power, which the Regent must have been entrusted with; of the Revenue too, which must be annext to the Power whereever that is lodg'd, because by it the Regent must have been supported in the Exercise of his Power; He would have had no Command nor Authority left him, nothing but the bare Title of King, and to have all business run in his Name, though he have nothing to do with it. Now is not this as directly against the Oath of Allegiance as a thing can be? By the Oath, as long as it obliges, every one is bound to preserve to the King and maintain his Crown and Dignity. By a Regency the King is divested of all his Power and Authority of making Laws, of having the Militia in his hands, and of the Administration of the Government, which are the chief, if not only branches of Royalty of his Crown and Dignity. And yet these Gentlemen think that a Regency and their Oaths of Allegiance to the late King are consistent; where as by a Regency he is deprived of every thing but his bare Title, and by their Oaths of Allegiance they are bound to preserve to Him every thing else as well as his Title. I can see no more opposition in the present Settlement to the Oath of Allegiance, than would have been in their Regency, since the Kingly Power of K. James is equally destroy'd by both; and Oaths do concern Matters of Substance and not meer Shadows, such as the bare Title of a King is, where there is not the least jot of power left. So that there is not any considerable difference betwixt the present Settlement, and their Regency, upon the Oaths account; and I wonder that so much ado should be made, and so much insisting upon Leaving to the late King the bare Title of King, where as a Title is a thing of no worth; and if the Laws of St. Edward the Confessour might but be heard, this Controversie about the meer Title would have fallen; since by them a King by misgovernment, verum nomen Regis perdit, forfeits the Title of King as well as the Power.
But I will suppose further, that this Project of a Regency had taken, and that a Regent had been chosen for the late King's Life, I must now ask what they would done with the King himself? either They must have had him kept in safe custody, or let him, as he did, escape away. If they would have had him secured, I would fain know whether it had been consistent with that Oath of Allegiance which they took to King James, and think themselves obliged still by. But if He was to be let go whither He would, and should have got back into England with the same assistance by which He is now got into Ireland, I ask them whether they should not look upon themselves as obliged to defend that Regency which was set up for the absolute Good of the Nation, and to which they had sworn Allegiance; and whether this would not have obliged Them to oppose King James, who was come to break the Regency; and, tho' all had judg'd him and knew him unfit for Government, was yet for regaining it by force. Either They must, notwithstanding his Unfitness for our Government, have quietly submitted be cause of their former Oath of Allegiance to Him, or they must in defence of the Regency have fought against the late King himself, notwithstanding that former Oath to Him.
My Lord, if those dissatisfied Gentlemen who were for the Regency will but reflect upon what I have been able to say about it, I do not fear their being any longer of opinion that a Regency was the only way could settle the Nation in safety, and secure men's Consciences in peace; and I hope They will for the future not be so sharp and severe against the present Settlement, as contrary to our Oaths of Allegiance; since I have shewn, that their own Regency is every jot as much. I humbly beg of them, that they would examine things impartially, and lay by all prejudices upon other ac counts, and then I am confident that they which did desire and contend for a Regency notwithstanding their late Oaths of Allegiance, will see reason to submit to the present Settlement under their Majesties, notwithstanding those very Oaths, which I am sure are no more against the present Settlement than against their Regency.
I am afraid I have tired your Lordship, and must beg par don for this tedious Letter; which, tho' it should be so unhappy as to do no service to any of those persons for whom it was design'd, yet will do my self a great one, in being a Witness for me, how ready I am to obey your Lordship's Commands, and in giving me this further opportunity of assuring your Lordship how much I am,
Your Lordship's most Obedient and most Humble Servant.