THO' the Author of the Case of an Oath of Abjuration con­sidered, makes a shew of Reason and Authorities against such an Oath, and against all that are Pag. 33. vid. Inf. declarative of Right, or more expressive of the Duty of the Subject, than the Oath of Allegiance, enacted 1 W. and M. I shall hope to make it evi­dent, That Reason, and the Stream of Authorities, are full against him; without being thought in the least to reflect upon that Parlia­ment which made the New Oath; or upon those Members in either House, who have opposed farther Securities, when, perhaps, they thought the Times did not require them; Or that the Terms in which the proposed Oaths had been conceived were open to rea­sonable Objections; nor, possibly, had any body been at the pains to lay before them the Form, or Substance, of the Oath of Fidelity [Page 2] anciently used; and, as I doubt not to prove, enjoyned by the Con­stitution of this Monarchy, and still in force.

The Considerer would be thought as true a Friend to the English Nation, and to our present Settlement, as any body; yet one may say, that the Cloven Foot appears, by the manifest end of his Book; and, particularly, by two Passages, when he was not upon his usual Guard.

One is, where he, without any real ground, brands the People of England with the Cha­racter of Pag. 8. See the In­constancy of English Men. Inconstancy.

The other, where he intimates, That, in his Opinion, no Succes­sion to the Crown of England can be Pag. 25. Although they could not lay Claim thereto by Lineal and Le­gal Succession. Le­gal, unless it be Lineal; or, as he elsewhere explains his use of the Word, Pag. 23. Lineal and Immediate; by which he excludes his Majesty's Legal Right, as a certain Bishop does her Majesty's, while he contends, That God has dispos'd of the King­dom to his Majesty by Conquest.

These Notions are, like Sampson's Foxes, joyn'd Tail to Tail for the Destruction of the present Settlement.

‘Sure I am, our Considerer will have no reason to complain of any Injury, in being thought one of the same Principle, or rather Fa­ction, with a Vid. The Pretences of the French Invasion exa­mined. Licensed by the Lord Nottingham upon Ad­miral Russel's beating the French Fleet, p. 11. certain Authour, who says, Considering the Hurry the late King's un­expected Desertion put all things in, and the absolute necessity of a speedy Settle­ment, the Friends of the Old English Mo­narchy have just cause to rejoice, it was made so near the Old Foundation, Query, What he means by a Temporary Variati­on? Whether during the Lives of their Present Ma­jesties, and of the Prince and Princess, and of the Issue of either of them: Or, which is most likely, during the Absence of the late King, while that Juncture or Necessity should continue? with a small and only Temporary Variation from it, which was also absolutely necessary in that Juncture of Affairs.’

Yet the Considerer, that he may create a Confidence in them who acknowledge the Right of their Majesties, and believe the Settlement of it to be no Variation from the Constitution of the Old English Mo­narchy, pretends not only Pag. 1. Sincerely to love their Present Majesties, and to serve them according to his poor Capacity and Station, well as any Man in England; but to entertain no manner of Scru­ple [Page 3] concerning their Right; to have had a previous Disposition for receiving it, in approving of the P. 22. This is a famous Passage, and makes very much for a Bill of Exclu­sion, at least, if I mistake not. Bill of Exclusion; and to admit, that very anciently the States of the Realm did Depose one King, and set up another by a If they had not in­tended thereby to shew and exercise a Power they thought inherent in them on such extraordinary occasions. Power Inherent in them; or what they in those Times, when they could not be ignorant of the Constitu­tion of this Monarchy, judged so to be.

And yet, out of his great Concern for the Liberties of England, he would not have the Subjects Hurt by compel­ling them to swear to an Authority, which, Pag. 22. They hurt John, &c. But they intended not to hurt the Subjects by compelling them to swear against him. of his own shewing, or concession, is truly Legal; and to renounce a pretended Authority, which never can be real, till that ceases which has been established by a Power which the States of the Kingdom in the time of R. 2. and long before, judg'd inherent in them; and if it were not originally inherent, was given by express Law.

Tho' the Title of his Treatise relates only to an Oath of Abjurati­on, which seems meant of an Express Abjuration; His Arguments run against all implied Abjurations, Vide Pag. 33. which Oaths Declarative of Right plainly are.

This might set aside the Consideration of the Head which he raises upon the supposed Impossibility of keeping such an Oath: For, certainly, it is far from being more impossible to be true to Princes, whose Right we swear to, than to those whose Right we refuse to swear to.

Tho' he will not allow of any manner of Abjuration; Pag. 35. The other part of Abjuration is of his Per­son and Government. he seems particularly to reflect up­on some Form offered at some time or other; and yet is not so fair, or so distinct, as to give the Words at large, the rejection of which he would justifie.

But, as he opposes all Oaths of Abjuration in general; his Arguments will appear to be of no Weight, unless they strike at all such Oaths, tho' relating only to the present time: As if we should swear, which doubtless we may with a good Conscience, when required, That James, lately King of England, has no manner of Right or Title to the Crown.

[Page 4]Should we go further, and Swear, That we will to our utmost op­pose his Readeption This the Word used in the Year Book, 1 H. 7. in relation to the Restaurati­on of H. 6. of Power; surely it is not impossible for us to keep this Oath, and yet submit to God's▪ Providence, if it should be his Pleasure to re-establish him upon the Throne.

What he says, therefore, in relation to future Contingencies, I might leave out of the Question: As I might pass by all his Pretences to skill in History, upon the suppos'd Novelty of an Oath of Abju­ration: For if it be needful, it's being New, could be no Objection against it, with a Man, who, if he be what he pretends, has no manner of Scruple against Abjuring the late King's Title and Go­vernment, for the present.

Besides, if there never had been any Oath expresly Abjuratory; if it shall appear that there have been Oaths Declaratory of Right; this would be enough to expose his vain shew of Reading.

His chief Positions and Insinuations are these:

I. That an Oath of Abjuration or barely Vide Pag. 33. Declarative of Right, is Pag. 4. Altogether new and strange in England, and in Pag. [...]0. When that which secures all other Governments in the World besides, and that which his secured our own as well as any other for so many Hundreds of Years, ( viz.) An Oath of Allegiance to the Possessors of the Throne, will not secure, or be thought sufficient to secure the pre­sent Government, on what Foundation will the World about us think we stand? all other Governments in the World: That is, never had been required here, or in any other Govern­ment.

For a seeming Proof of which Negative, in relation to England, it was but requisite for him to make a great shew of being thoroughly read in our Histories; such an Undertaking becoming no Man who has not a comprehensive Idea of the State of this Kingdom under all the Successions of Kings. Nor, however, can he extend this Obser­vation beyond his own Country, without assuming to himself the knowledge of the past and present Governments of all other Na­tions.

Tho', as I shall prove, he has been a very negligent or partial Ob­server of the History of this Kingdom; he would have it taken upon his Word, That no Oath of Fidelity was ever required of the Sub­jects of England, other than an Oath to the Possessors of the Throne, as Kings in Fact, without Declarations of Right: When yet, as he pretends to demonstrate by an indigested heap of Quotations, there often has been as much occasion for such Oaths, as can be imagined now.

[Page 5]II. He labours to impose the Belief, That an Oath of Abjuration, or barely declarative of Right, is needless; because, as he will have it, there is as much Security to the Government from an Oath to a King, meerly as King de facto; and particularly in the Oath required by the Statute 1 W. and M. As from an Oath recognizing the Right of the Possessors, and abjuring the Pretences of others.

III. That an Oath of Abjuration, or barely declarative of Right, would be very mischievous: Because, 1. It would be a means of deceiving the Government, and occasioning the wilful Perjury of many; he uncharitably suggesting, that those his Friends, who take the Oath to their Majesties, while they believe the Right to be in the late King, will as readily swallow Formal, as they do Material Perjury. 2. It will occasion Distractions, and strengthen the Jacobites, he unreasonably supposing, Page 30. that few will take it. 3. Page 31. It will be the means of turning out a great number of good People, that serve their present Majesties with Faithfulness, and Honesty, and Diligence, and with Affection too.

That is, who are in their Service, love their Persons, and pay them all the Allegiance which they take to be due to a King and Queen in Fact: But if they should be obliged to swear to their Right, must lose the Opportunities they have of serving him, whom they contend to be their only rightful Prince; with much greater Advantage than they could without Power and Wealth from their Present Majesties.

IV. He maintains, that an Oath of Abjuration is impossible to be kept: Falsly supposing such an Oath to imply a Fighting against God's Providence, and engaging never to obey the Person Abjured, tho' he should be restored without their Assistance, or Connivance.

In refutation of which his false Colours I shall shew,

I. That an Oath of Abjuration, or at least Declarative of Right, is not New or Strange in France.

II. That the Oath of Fidelity to our Princes, required by the Con­stitution of this Monarchy, is an Oath of Abjuration, either express or implied; and always as to a King of Right: And that the old Oath of Fidelity is more expressive of the Duty of the Subject, than the Oath of Allegiance required by the late Act; and that old Oath still remains in force.

III. That in several Ages of this Monarchy other Oaths have been required, and taken by the Subjects of England, besides those which were taken to the King for the time being: And that they are Oaths [Page 6] of the like Nature with those which he will have to be altogether New and Strange.

IV. That if there never had been an Oath of Abjuration before this time, however, this would be no colour of Objection against one now; for that it is more needful now, than it can be thought to have been in any of those Reigns in which he instances: And that an Oath expresly abjuring the late Kings Pretension, is now abso­lutely necessary: Nor is it to be thought that it would occasion For­mal Perjury, but that it would prevent Material in many.

V. That it is likely to be of great Advantage, and Support, to the Government, and Nation.

VI. That no Man ought to refuse such an Oath to their Present Majesties, if required by Act of Parliament; and that it is not to be believed that the Refusers would be considerable, in number, or In­terest.

I. Since he suggests, That the World about us would suspect the Foun­dation on which we stand, if an Oath of Abju­ration, Pag. 30. On what Foun­dation will the World a­bout us think we stand? or more than to a King as barely King in Fact, or Possessor of the Throne, tho' without Right, should be required; it may be conve­nient to prepare the way for my Authorities in relation to England, with shewing that France, which makes so great a Figure in the World about us, would have no reason to draw any Inference from such an Oath, to the Disadvantage of our present Settlement.

Bernard de Girard, Lord of Haillon, in his History of France, Sur du Haillon de l' Estate & Succez des Af­fairs de France, p. 45. written by the Command of C. 9. speaking of the Difficulty Pepin had to get the People of France to depose Childe­rick, of the Merovingian Line, and set up him, says,

‘He thought that to discover openly to the French in France, the de­sire which he had to make himself King, would be lost time, and to endanger his Person; seeing the French were by Oath solemnly sworn at the Coronation of their Kings, to serve, maintain, and pre­serve him, towards, or in respect of, all men, and against all men. Oblig [...]z a Ray de le ser­vir, maintenir, & conserver envers tous, & contre tous. When the Prelates and Lords (instead of the Peers, Clerks, and La­icks, since instituted) in the name of the Church, Page 46. the Nobility, and People, promised the King at the Ceremony of his said Corona­tion, to obey, serve, and defend him. Moyenant quil soit just, &c. Pro­vided that he be just, valiant, diligent, a Drouturi [...]. Doer of Right, clement, a Minder of [Page 7] his Affairs; and that he knows how to resist his Enemies, punish the bad, protect the good, and defend the Christian Religion.’

Here is not a bare Passive Obedience sworn to, as if it were only while they lay under a Force, but an Active. And in swearing to Defend their King against all Persons whatsoever, they, by plain Im­plication, swear, That no body besides has right to their Allegiance; for then he would be one against whom they ought not to defend their Prince. And yet it appears that here is an Oath which they had no reason to complain of as a Burden, since it is so express upon what Condition the Obligation depends.

I shall give one other memorable Instance, how little Reason the French would have to undervalue us for an Oath of Abjuration; and that shall be in the Form of the Oath which th [...] Peers, the Great Men, the Nobles, Walsingham. fol. 401. temp. H. 5. Proceres, Mag­nates, & Nobiles, ac status regni praed. tam Spiritua­les quam Temporales, nec non Civitates & Notabiles Com­munitates, ac Cives, & Bur­gense: Villarum [...]usdem reg­ni, praes [...] to consanguin [...]o suo pro tempore obedientes, praestabant Juramenta quae sequuntur. and States of the Kingdom of France, as well Spiritual as Temporal, together with the Cities and Communities of any note, and Inhabitants and Burgesses of the Towns of the King­dom, were obliged to take to our King, Hen. 5.

‘First, That they will suffer the said Lord King Henry to dispose of the Army, and govern the Common Weal; and will humbly and dutifully obey and observe his Commands, in all things concern­ing the Government of the said Kingdom, and in all other mat­ters. Also, That the said Peers, Great Men, &c. as much as it may concern all and every of them, in all things, and through all things, shall well and faithfully observe and cause to be observed by all others, those things which were appointed and agreed between the said Cousins of the said King, and the King himself, by the Counsel of those whom the said Cousins and the said Lord the King, thought fit to consult therein. And that, immediately from and after the Death of the said Cousin of France, they shall be the faith­ful Men, and Leiges of the said King Henry and his Heirs; and him, for their Leige Lord, and Supream King of France, without Oppositi­on, Contradiction or Difficulty, shall receive, and admit, and for such shall obey: And that they shall never for the future obey any body, besides the said Cousin, as King, and Regent, of the Kingdom of France, except the said King Henry and his Heirs. Also, That they will not give any Counsel, Aid or Consent, that the said King Henry should lose Life, or Member, or be Imprisoned, or should suffer [Page 8] Damage, or Diminution, in his Person, State, Honour or Goods. But if they should know any such thing to be attempted or plotted against him, they to their Power will hinder it, and will give the said King Notice of it, as soon as they can, themselves, or by Mes­sengers, or Letters.’

This Form was first setled by Articles, and the Articles afterwards were confirmed by the States of both King­doms, Rot. Parl. 9. H. 5. n. 18. Pars 1. Approbatio pacis inter Regem Angli [...]e & Franciae nuper conclusae. viz. as the Record expresses it, The Prelates, and inferiour Clergy, Peers, and Great Men, and the Commons of both Kingdoms. Which shews, that the Parliament of England approv'd of such a Recognition and Abjuration.

This Oath is so express, and full, that I need make but this Observa­tion upon it; That our magnanimous King, Henry the 5 th, wanted some French man of this Gentleman's Abilities, to insinuate himself into his Favour, by Protestation of Zeal for his Service, Page 30. They will see us now forc'd to be chain'd to our Obedience, and t [...]ed down groveling, for fear of rising up against them. This posture will not please our Friends abroad, &c. and to perswade the King, That Friends abroad would not be pleas'd to see the French Nation thus chain'd to their Obedi­ence; and Enemies abroad, and at home, would rejoyce at it.

II. But since he who charges the English Nation with Inconstancy, would have our Kings trust its Generosity for Obedience to them. Page 30. This Posture will not please our Friends abroad, who understand our generous Tempers bet­ter, they will fear the ef­fects of such unusual Bonds. I shall here examine whether the Wisdom of our Fore-fathers a­gree with his in this Point.

Both Princes and People being subject to many Frailties, and Tem­ptations, which may draw them to separate Interests; it has been found expedient in all Ages, and almost all Governments, to make their Promises to each other matter of Religion, by the Interpositi­on of the solemn Sanction of Oaths, to which God is called a Wit­ness, and Party. Hence it is, that, at least in all limited Monarchies, the Princes have ever been sworn to the main Limitations: And in both the limited, and absolute, the Subject has sworn Obedience. And tho' no People have been truer to their Kings, while they pre­served their Coronation Oaths, than the English; the Swearing Obe­dience has been no where more carefully provided for. If our Rhe­torician will say, They have been tied down, groveling on the ground, for [Page 9] fear of rising up against their Princes; others will say, that this can be applied only to such as, with him, think their Duty a Chain.

And yet this is such a Chain, as was confirmed by the Great Charter of the English Liberties, Declarative of the ancient Law of the Land; Magna Carta, cap. 35. according to which, the Sheriff's Turn is to be held twice a Year, once after Easter, and once after Michaelmas; at which time there is to be a View of the Free Pledges: Which View, says the Char­ter, is to be thus: Viz. That our Peace be kept, and the Tything be en­tire, as it used to be.

Upon which the Lord Coke says,

2 Inst. fol. 73. The Institution for keeping the Kings Peace, was, ‘That every Freeman at his Age of 12. should in the Leet, if he were in any, or in the Turn, if he were not in any Leet, take the Oath of Alle­giance to the King: And that Pledges, or Sureties, should be found for his Truth to the King, and to all his People; or else to be kept in Prison.’

This Franck-pledge, as he observes, was most commonly of Ten Families, thence called a Tything.

The Author of the Mitror. c. 1. Sect. 3 Mirror, speaking of King Alfred's Constitutions, says, ‘Sheriffs Turns and Views of Frank-pledges were ordained, and that none of the Age of XIV, or upwards, should be received in the Realm for above 40 days, except Passengers to Fairs, Pil­grims, and Messengers, if he were not first plevied by Freemen, and sworn to the King by the Oath of Fidelity, and after received in a Tything.’

And under Title Abusions he says,

‘It is an Abusion to suffer any one within the Realm above 40 days, Cap 5. Sect. 1. who is of the Age of XIV, be he English-man, or Foreigner, if he be not sworn to the King by the Oath of Fidelity, and plevied, and in a Tything.’

By Leges Canuti c. 52. Habeat omnis D [...]minus fa­miliam suam in plegio suo, &c. Canutus his Law, every Pater fami­lias was to be answerable for all within his Family. Or, as it is there expressed, Have them in his Pledge.

The Leges Sancti Ed. c. 19. sub Decimali Fidejusp­one. Confessor's Law is express, That all People ought to be under, or within the Franck pledges.

[Page 10] Leges Sancti Edw. de Friburgis.This, as the Confessors Law terms it, was the Chief and Greatest Security, by which all were sustained in a most setled state. And the Insti­tution of it was so far beyond the time of memory in those days, that, as the Heathens made some God the Founder of a Family or City of unknown beginning; the Invention of this Law was ascribed to King Leges Sancti. Ed. De Greve. Hanc legem invenit Arthurus. Arthur, whose truly great Acti­ons have afforded so much matter for Fa­bles.

The Confessor's Law does not give us the Form of Words used in Swearing to the King's Peace; either requiring only the Substance, or supposing the Form of what was so frequent, and so universal, to be known of all.

But we have a full Account of the Nature, and Substance of the Oath, where speaking of the Annual Folck­mote, to be held on the First of the Calends of May, which by the N ^a. the Sheriffs turn, as appears above, was twice a year; and the Oath to the King was to be in the turn after Michaelmas. time of meeting, and the Parties which compos'd the Assemblies, could be no other than a Common-Council of the Kingdom, or Parliament. It says,

Leges Sancti Edw. Tit. Greve. ‘It was Enacted, that there all People and Countries should meet once in every Year, to wit, on the first of the Calends of May, there In unum & simul. one and all, to confederate and consolidate themselves with a Faith and Oath never broken, N ^a. An Infamous Person was not to be admitted in­to a Frank-pledge. as sworn Brethren, to defend the Kingdom against Strangers, and against Enemies, Ʋna oum Domino suo Regi. together with their Lord the King, and with him to keep his Lands and Honours, with all Fidelity. And that they will be faithful to him, as Sicut Domino suo Regi. their Lord the King, both within and without the whole Realm of Britain.’

‘So ought all the Princes and Earls to swear together, before the Bishops of the Kingdom, in the Folckmote: And in like manner all the Peers of the Kingdom, and the Knights; and, in general, all the Freemen of the whole Kingdom of Britain, ought, in full Folckmote, to swear Fidelity to their Lord the King, as aforesaid, before the Bishops of the Kingdom.’

[Page 11]According to this Law, the Nation was to swear Active, as well as Passive Obedience, and to defend the King, and Kingdom, a­gainst all Enemies whatsoever: And to be faithful to the King, as King of Right; since he is to be received for their Lord the King, or the only King.

What was to be sworn pursuant to this Law, does not differ mate­rially from what was long before the Confessor's time Enacted under Lamb. Archaiono­mia Edmundus regnare cae­pit. An. 940. Desiit An. 946. Edmund, King of the East Angles, con­temporary with the West Saxon King Vide Spelm. Concil. 1▪ Vol. fo. 348. Concil. Presentibus Ethelwolso Rege West-Saxoniae, Beorredo Rege Mor­ciae, & Edmundo Rege Est-Anglorum. Ethel­wolph.

Here was required the Swearing Fidelity, and the Active Service due from a Man to his Lord, and to be against every thing, or per­son, which he was against: There was to be no Controversie, or Di­spute, which might relate either to the Commands, or the Authority of the Commander. Both, for certain, were suppos'd to be accor­ding [Page 12] to Law, Verbum Regis est verbum Legis. Ld. C. Bracton. contrary to which the King has never been presumed to have any Will.

The other Oath, as part of the Body of the Confessor's Laws, was received, and confirmed, or rather declared to be in force, four times, as I take it, Seld. ad Eadm. f. 172. in the Reign of W. 1. Tho' Mr. Selden will allow of but one Confirmati- of those Laws.

1. At Berkhamstead before his Coronation, when the great Earls, Edwin, and Morcar, with the Army out of the North, which Harold left behind him, besides the Accession from all parts of England, treated with that King with Swords in their Hands, and obliged him to make a Flor. W. fo. 653. & others. Foedus pepigit. N ^a. Tho' the M. S. of Matthew Paris mentions it as done by the Advice of Archbishop Lanfranc: His Name appears to have been added to the Copy. And Fretheric certainly died at Ely before Lanfranc came over. League, or Contract with them. At which time it seems to me, that Fretherick, Abbot of St. Albans, sware the King expresly, to the Observation of St. Edwards Laws.

2. At his Coronation, which was before­hand agreed to be, as Ordericus Vital. f. 502. Cunctique Praesules Re­gnique proceres, cum Guliel­mo Concordiam fecerunt, ac ut diadema regium sumeret, sicut mos Anglici Principa­tûs exigit, oraverunt, &c. the manner of the English Principality, or Political Government, requires. And accordingly he took the Vid. Bromton, Col. 962. Stubs inter decem Script. Col. 1702. and others. Coronation Oath.

3. Vid. Seld. Dissert. ad Fletam, f. 519. Guliel. 1. dicitur Londinum Anno suo 4 ^o. Convocasso omnes è pro­vinciis suis universis Anglos & Nobiles & Lege suâ eru­ditos, ut eorum & jura & consuetudines ab ipsis audiret. In the fourth of his Reign, when a Common Council of the Kingdom was held, to enquire, and settle, what were the Laws of the Realm; which went under the name of the Confessor's Laws.

4. At some other time, when those Laws were enforced, with such Additions, or A­mendments, as had been Enacted for Firmantur Leges Ed­wardi. Hoc quoque prae­cipimus, ut omnes habeant & teneant Leges Edwardi Re­ [...]is, in omnibus adauctas hi­is quae constituimus, ad Ʋtili­tate Anglorom. the Benefit of the English.

[Page 13]Among the Laws thus amended, I find that about the Oath of Fidelity; there being more express Provision for the Rights of the Kingdom, than had been before. One Clause or Chapter has these Words:

Leges W. 1. c. 52. De fide & obsequio erga Re­gem. ‘We ordain, that all Freemen shall af­firm with a League, and Oath, That within and without the whole Kingdom of Eng­land, they will be faithful to King William their Lord; preserve his Lands, This relates to the Pledges. and Honours with all Fidelity, together with his Person, and defend them against Enemies, and Strangers.’

In another part of his Laws, after he has promis'd that all Freemen shall enjoy their Estates, as had been before enacted and granted in a Common Council of the Kingdom; there is this Clause or Chapter:

‘We also enact, and firmly enjoyn, That all Freemen of the whole Kingdom be Sworn Brethren, to defend our Monarchy, and our King­dom, according to their Strength, and Faculties, and manfully keep the Peace, and preserve the Dignity of our Crown entire; and con­stantly to maintain Right, and Just Judgment, by all means, accord­ing to their Power, without Fraud, and without Delay.’

Hereby the Subjects were to be engaged by Oath.

I. To be faithful to the King as their Lord, or only Rightful King.

II. Not only passively to obey, but to defend his Person.

III. In effect, to Abjure the right of all others: not only as he was acknowledged for their only true Lord; but as they were to De­fend him against all Enemies whatsoever.

IV. They were to Defend the Monarchy, and Kingdom, and to maintain Peace, Right, and Justice, by all means within their Power: That is, by the Sword, if others fail'd.

The Import of the Oath required by this Law, in affirmance of the Old Constitution, is manifestly referred to, by the States of the Kingdom in their Letter to the Pope, 29 E. 1.

The Pope having cited the King to answer judicially before him, 29 E. 1. In Parl. apud Lincoln. Mat. West. de An­no 1301. & Ryley's Placita Parl. concerning his Rights over Scotland; his Parliament wrote a Letter to acquaint the Pope, that this ought not to be. And among other things they write thus:

[Page 14] Praecipuè cum praemissa ce­derent manifeste in exhaere­dationem Juris Coronae Reg­ni Angliae, & Regiae digni­tatis, ac subversionem status ejusdem regni notoriam nec­non in praejudicium Liberta­tis, Consuitudinum & Legum paternarum, ad quarum ob­servationem, & defensionem ex debito praestiti Juramenti astringimur manutenebimus toto posse t [...]isqu [...] viribus cum Dei auxilio, defend [...]mus. Nec etiam permittemus prae­missa tum insolita, inde­bita, praejudicialia, & alias inaudita, praelibatum Domi­num nostrum R [...]gem, etiamsi vellet, facere, seu modo quo­libet attemptare. ‘Chiefly, since the Premises would mani­festly turn to the Disherison of the Right of the Crown of the Kingdom of England, and of the Royal Dignity, and notorious Subversion of the State of the said Kingdom; and also to the Prejudice of the Liberties, the Customs, and Laws, of our Ancestors; to the Obser­vation, and Defence of which, we are bound, by virtue of the Oath we have taken, and which we will maintain with all our Power, and, by God's Assistance, will Defend with all our might.’ Nor also do we, or can we (as indeed we may not) suffer our Lord the King, even tho' he would, to do, or in any wise attempt the Premises, so unusual, undue, prejudicial, and before this time never heard of.

This may serve as a Parliamentary Explication of the Oath en­joyned by the Laws of W. 1. in affirmance of the Common Law.

Pursuant to which, I find, that all the S. Dune [...]m. f. 213. Anno 1086. Mandavit ut Arch, Episc. Abbates, Com. Bar. Vicecom (cum suis mi­litibus) die Cal. Augusti si­bi occurrerent Saresberiae: quo cum venissent milites illorum sibi fidelitatem contra omnes homines jurare coegit. Vide Jan. Anglor. faciem novam. proving the extent of Milites [...]lorum. Free-holders of England swore Fidelity to that King, against all men, in a great Council of the Kingdom at Salisbury.

As they had done two Years before, in a great Council at London: Or else in their several Counties, soon after the breaking up of the Council.

Annales Waverlenses, f. 133. Anno 1084. Deinde, &c. ‘At Pentecost, say the Annals of Waverly, he made his younger Son a Knight at Lon­don. Then, or after that, taking Homage of all Proprietors of Land throughout Eng­land, of whose ever Fee they were, he did not delay to receive the Oath of Fidelity.’

Which gives me occasion to observe,

1. That at this, and other times, we find a plain Distinction be­tween Doing of Homage to the King, or to his known Successor, and Swearing Fidelity: Yet,

[Page 15]2. Tho' Homage to inferiour Lords was without Oath, the Ho­mage to the King, by reason of his Sovereignty, was often, if not always, sworn.

3. The Oath of Fidelity to the King, was an Oath of the nature of Homage; and requiring the same Subjection and Obedience. And both the one and the other, obliged the Subject to serve the King for the time being, as Rightful, and to defend him against all Men, without exception.

1. As anciently as the time of the Heptar­chy, Leige Fidelity, and Homage, Mat. Par. Addit in Vita Offae 1. Rex totius ditionis suae convocat nobilitatem, quae ex Regis praecepto & persuasione Offano filio suo Ʋnigenito ligeam fecerunt fidelitatem & homagium. are said to be done by the Nobility of the Mercian King­dom to Offan, the Son of Offa the First.

And an Historian, speaking of an Assembly of the Earls and Ba­rons, with the Clergy of the whole Realm, in a Parliament at Salis­bury, where H. 1. obtained a Settlement of the Crown upon his Son William after him, Hemingford, f. 473. A [...]. 1116. says,

The said Great Men did Homage to his Son William, and Swore Fidelity: Where the Distinction of Swearing one, and Doing the other, is exactly observed.

The Learned Knight Spelman's Gloss. Tit. Homagium. Sir Henry Spelman supposes, That men were never sworn in Ho­mage, because the doing of Fealty immediate­ly So Britton de Ho­mages, p. 174. b. & quant. l' Homag' serra pris tost soit pris le serment, &c. follows it. Which he takes to be the Reason why some Nonnulli docti asse­runt in Homagio jurari. Learned Men assert that there is swearing in Homage.

But if it will appear that God has been invoked or appeal'd to, for the truth of the Homage, this I take to be as much an Oath, as if the Hand be laid upon a Bible. And for this I have the Judgment of Sanderson de Jura­menti Obl. pag. 86. Bishop Sanderson, who holds the formal Reason of an Oath to consist in the Invocation of God: That this may be by Signs without Words, and by Words without Signs: And particularly he mentions, So help me God, as Words of Swear­ing. That these Words were used at the doing Homage to the King, when by reason of his Sovereignty, and not barely upon the account of Tenure, appears beyond Contradiction by the very Form of Homage done by the Temporal Lords cited by Sir Henry himself: [Page 16] Agreeing with that which Mr. Prynn supposes to have been used at the Coronation of R, 2.

3. That the Oath of Fidelity to the King was an Oath of the nature of Homage, were to be believed, if it were only for the Proof that there is, that Homage to the Subject, was in all Ages held to be of the nature of the Fidelity due to the King; as appears in the Exception or Salvo in the Oath of Homage to the Subject, of the Faith owing to the King.

The constant Form of Homage to a Subject was this:

‘I become your Man from this day forward, of Life, and of Member, and of Worldly Honour, and Faith to you will bear; for the Lands which I claim to hold of you. West, 2. c. 44. Littleton Sect. 85. Britton de Homa­ges, p. 174. Lib. Rub. in sccio. Omnis homo debet fidem Domino suo de Vita & Membris suis, & terreno honore, & observatione Consilii sui per honestum & utile salva fide Deo & terrae Principi. Saving the Faith which I owe to our Lord the King.’

And the Red Book in the Exchequer calls this Homage to the Lord, Faith of Life, and Member, and Worldly Honour, &c.

This Faith of Life, and Limb, and Worldly Honour, was due to the King, without exception of any man: As it was due to the Lord with the exception of the King.

By the Confessor's Law before cited, they were to be faithful to the King as their Lord, and to Defend his Kingdom, and Person, against Foreigners and Enemies, without exception of any Person whatever: when Vide Inf. according to this Author, another Person had the Legal Right. That to W. 1. is but a Declaration, or rather Explanation of the former.

[Page 17]Nor do either of them differ materially from the Form above-men­tioned, enacted under Edmund, King of the East-Angles.

But, as I take it, none of the Laws for Oaths imports more than what Neubergensis, who wrote about the time of R. 1. gives, as a short Definition of the Oath of Allegiance, or Fidelity, due to the Kings of England; Unless it be, that those Laws express what is to be presumed to be implied in Newbergensis, concerning the Kingdom: speaking of the Submission made to Hen. 2. by the Nobility of Scot­land, he has these Words.

Tho' this do not mention the Kingdom; 29 E. 1. m. 10. d. Apud Lincoln. a Record 29. E. 1. giving an Account of the Oaths of Fidelity Sworn by the Kings of Scot­land, to the Kings of England, from before the time of W. 1. downwards to the time of Hen. 3. inclusive, of the last Oath, says,

This Oath of Fidelity, as appears by the course of Authorities; and particularly by Record 1 E. 1. was taken Rot. Pat. 1 E. 1. Pars 2. m. 2. Prelati Co­mites proceres ac Communi­tates Regni nobis tanquam Domino suo Ligio & Regi Juramenta fidelitatis, &c. praestiterunt. to the King as the Swearers Leige, and true and lawful Lord, and King. And indeed, for such the Kings were received at their Coronations, as appears by the Rot. Claus. 1. R. 2. m. 44. After the Archbishop had given an Account to the People of the King's Swearing, and Inquiring ab eodem populo si ipsi consentire vel­lent de habendo ipsum Regem Dominum suum ligeum & ad obediendum tanquam Regi & Domino ligeo. Close Roll, 1 R. 2.

[Page 18]Nor was this only at Coronations, at Leets, and at Sheriff's turns: but sometimes there were special Commissions for taking it in the several Counties of England: As was pa­ticularly Rot. Par. 45. H. 3. m. 12: 45 H. 3. where the King de­clares, That he does it in ease of the Peo­ple, and to prevent their Trouble and Expences in coming to Lon­don: Which seems to have regard to that part of the Constitution, mentioned in the Confessor's Law, requiring the Oath to be annually taken in a Folcmote, or Great Council of the Kingdom.

The Form of the Oath of Allegiance which Sir Henry Spelman ex­hibits, as of later Date than that common Law-Oath, is this:

Spelman's Gloss. Tu J. S. Jurabis, &c. Fidelis & legalis. Vide the Cu­stomary of Normandy, c. 43 cited by Sir H. S. Li­g [...]antiam autem sive Lega­lit [...]tem de omnibus homini­bus suis totius provinciae debet princeps hab [...] ex quo ei tenentur contra omnes ho­mines qui mori possunt aut vivere proprii corporis praebere consilii & auxilli adjuvamentum, & [...]i se in omnibus in­nocuos exhibere, nec [...]i adversantium partem in aliquo confovere. Ipse etiam [...]osdem tenetur regere, protegere, ac defensare, eosque secundum jura & consuetudines & leges Pat [...]iae per­tractare. Vid. The Oath sworn by the King of Scots to E. 1. Knighton, sol. 2483. Je [...] ferra feal & leal, & fei & lealte porteray au Roy Dengleterre Edward & a ses heirs, de vie, & de membre, & de terrene honer contre totez gentz que puiront viver ou morire. Et james per nulli armes ne porteray ne en consail ne en eyd serra▪ contra Luy, ne co [...]tre cez heirs pur nule cas que poet evenir, &c.You J. S. shall swear, that from this day forward you shall be faithful and loyal to our Lord the King and his Heirs, and shall bear Faith and Loyalty to him of Life and Member, and worldly Honour: And that you shall hear of no Evil or Damage against them, which you shall not prohibit to your Power. So help you God.

Here is an Addition of [ Heirs,] and Omission of [ the Kingdom.] But as no one can become the Man of another more, than by devo­ting his Life, Members, and Worldly Honour and Estate to his Ser­vice: This is the true Homage. And he to whom we swear to pay this, against all other Persons whatsoever, who would do him Evil, or Damage, is thereby effectually recognized to be the only Lawful and Rightful Prince; and the Pretences of all others are thereby abjured.

Whether any certain Form of Fidelity to our Princes were fixed by the Common Law; or whether, as seems most probable, the Words were variable, keeping to the Substance: Certain it is, That the Oath of So styled in the Stat. 7. J. 1. c. 6. Obedience (or Allegiance) re­quired by the Stat. 3 Jac. 1. c. 4. does not in the least set it aside, only gives a Power upon occasion to administer a new and more explicit Oath.

[Page 19]In that Oath which is so well known, that I need not recite it at large.

I. It is sworn, that the King for the time being is lawful and rightful King.

II. There is an express Abjuration of the pretended Authority of the Pope of Rome; which if this Gentleman had thought of, he would not have so peremptorily asserted, That an Oath of Abjura­tion is altogether new and strange in England.

III. There is an express Engagement to the Defence of the King's Person to the uttermost of the Swearers Pow­er, against all Tho' this seems re­strained to such as may be encouraged by the See of Rome, there is added, [ or otherwise. Conspiracies and Attempts whatsoever. This by the words of the Oath reaches to his Successors, and therein to their present Majesties.

If the Considerer had attended to this, surely he would not have maintain'd, That an imply'd Promise of Defence, (if so much be imply'd in an Oath to be faithful, and to bear True Allegiance to Princes, barely as Possessors of the Throne) is is all that has secured this Government for many hundreds of years. Pag. 30.

IV. By the Oath enjoyned 3 Jac. 1. the Party was obliged to discover all Treasons, and Traiterous Conspiracies, which he should know or hear of, against the then King, or his Heirs.

Now perhaps, here our Author might equivocate and say, That an Endeavour to restore his Rightful King, could be no Traiterous Conspiracy against the Possessor. But he ought to consider that this Oath, as did the old Oath of Fidelity, supposes no Man to be King, but the Soveraign Lord and King, in Possession, or the King for the time being, according to the Statute, 11 H. 7. declarative of the Law of the Kingdom.

Before the Oath of Allegiance, Enacted 3 Jac. 1, by the Oath of Supremacy, 1 Eliz. c. 1. 1 Eliz.

1. The Queen is acknowledged for only supream Governour of this Realm.

2. There is a Renunciation, or Abjuration, of the Power of any Fo­reign Prince.

3. There is an Assurance, not only to bear Faith and true Allegiance, but to defend all Jurisdictions, &c. belonging to the Queen, her Heirs and Successors.

So that whoever has taken that Oath, is obliged to recognize their present Majesties for the only Supream Governours of this Realm; and to defend all Jurisdictions, &c. belonging to them.

[Page 20]Now let us see whether the Caution to the Government required by the Act of Parliament 1 W. M. comes up to those of former times: And whether the Common-Law Oath of Fidelity is yet in force.

The Act for declaring the Rights and Liberties of the Subject, and setling the Succession of the Throne, having recited Evidences of the late Kings Endeavours to subvert and extirpate the Protestant Re­ligion, and the Laws and Liberties of this Kingdom, declares, that their said Majesties having accepted the Crown and Royal Dignity, did become, were, are, and [of right ought to be, by the Laws of this Realm, our So­veraign Leige Lord, and Lady, King and Queen of England, France and Ireland, and the Dominions thereunto belonging ‘In and to whose Prince­ly Persons the Royal State, Crown and Dignity of the said Realms, with all Honours, Styles, Titles, Regalities, Prerogatives, Powers, Jurisdictions and Authorities to the same belonging and appertain­ing, are most fully, rightfully, and intirely invested, and incorpora­ted, united, and annexed.’

After which follows an Entail of the Crown: ‘And thereunto the Lords Spiritual and Temporal, and Commons, do in the name of all the People aforesaid, most humbly and faithfully submit them­selves, N. This is no Tempora­ry Variation, as the Author of the French Pretences examined supposes. their Heirs, and Posterities for ever; and do faithfully promise that they will stand to, maintain, and defend their said Ma­jesties, and also the said Limitation and Suc­cession of the Crown, herein specified and contained, to the utmost of their Powers, with their Lives, and Estates, against all Persons whatsoever that shall attempt any thing to the contrary.’

This was after a Declaratory Vote of the House of Commons, Vote of the House of Commons, 28 Jan. 7. 1688/9. ‘That King James the Se­cond had endeavour'd to subvert the Con­stitution of the Kingdom, by breaking the Original Contract between King and People.’

Whereby, and by the declaring the Royal Dignity entirely and rightfully vested in their Majesties, it is manifest, that they not only recognized the Right of their Majesties, but declared against, and renounced all manner of Pretences to Right in the late King. And they farther Promise to maintain and defend their Majesties against hi [...] as he attempts to destroy our present Settlement.

This, no doubt, is a good Foundation for an Oath of the like Ex­tent; nor can any man refuse to swear to this Settlement, if required by Act of Parliament, but he must at the same time maintain the [Page 21] Law, declaring the Right to be in their Majesties, to be no good and binding Law. And upon this Account, certainly, it was, that some have in a publick manner censured the declaring the Acts of their Majesties first Parliament to be good and binding Laws, as destructive of the Monarchy.

The Act of which I am speaking, provides, ‘That the Oaths hereafter mentioned, be taken, of all Persons of whom the Oaths of Allegiance gnd Supremacy might be required by Law, instead of them: And that the said Oaths of Allegiance and Supremacy be abrogated.’

The Oath of Allegiance hereby abrogated, I take to be only the Oath enjoyned 3 Jac. 1. For,

1. That Oath is the only Oath which had that Name affixed to it, and that was 7 Jac. 1. c. 6. when it was first called the Oath of Obe­dience (or Allegiance:) But the Common-Law Oath either was suf­ficiently known under the Name of the Oath to the King, especially if the place where it was to be taken, and the Persons by whom, were added: Or else, which is most probable, it had another known Name, which was that of the Oath of Fidelity to the King.

Thus, not to mention the frequent Instances in History from be­fore the time of W. 1. downwards, where the swearing to the King is expressed by doing Fealty and Fidelity.

I find it upon Record more than once in the time of H. 3. That Fidelity was sworn to him, as it was particularly in a great Council held at Vide particularly Rot Claus. 1. H. 3. m. 44 d. Cele­brato nuper Concilio apud Bristol ubi convenerunt uni­versi Angliae Praelati tam Episcopi & Abbates quam Primores & multi tam Comites quam Barones qui etiam universaliter fidelitatem nobis facientes, &c. Bristol, in the first year of his Reign.

And Rot. Parl. 1. E. 1. p. 2. m. 20. De Fidelitate Arch. Ep. &c. de Hibernia facienda; Reciting, that in England the Ea [...]ls, Barons, and Commons had taken the Oath. the Oath of Recognition or Sub­mission to E. 1. at his Accession to the Throne, which the States of the Kingdom had required to be taken by the Subjects in his Absence, is expresly called the Oath of Fi­delity.

In the same Year a Commission was sent to take Sacramentum Fidelitatis, Rot. Pat. 1. E. [...]. m. 20 the Oath of Fidelity, of Lewellin, Prince of Wales. And the Commissioners make a Return, giving an Account how far they went, to no purpose, to receive the Oath of Fidelity.

[Page 22] E Bundel. Brev. An. 1. E. 1. m. 1. in Turri Lon­don.And I find a very memorable Record to this purpose, of a Letter of the Bishop of Carlisle to the Chancellor of England, com­plaining, that the Sheriff of Cumberland had unreasonably distrain'd the Men of his Liberty, to oblige them Fi­delitatem dicto Domino suo Regi debitam facere, to do or swear the Fi­delity due to the said Lord the King; when, as he pretends, they had offered to swear: Wherefore he prays that the Sheriff may be obliged to receive their Oaths; or that others may be commissioned for that purpose.

All which Records make it evident, That the common Law-name of the Oath to the King, was [ The Oath of Fidelity.

2. Allegiance is not a Word that will distinguish an Oath to the King from an Oath to the Subject, more than Fidelity will: For tho' Men were not sworn to be Leige-men to Subjects, they in Ho­mage became so, in effect. And Britton shews, that the chief Lord, or else the first to whom Homage was paid, tho a Subject, was a Speaking of the Sal­vo when Homage was to other than the Liege Lord. Britton de Homages, p. 174. Sau [...]e la foy que jeo doy au Roy & mez autres Seignurages▪ Liege Lord.

But Ligeance, or Allegiance seems to be used in Law, or strict speak­ing, as the Cause or Ground of the Oath of Fidelity, and of doing Homage, where both were done separately and distinctly, 29 Ed. 1. supra. as appears by the Record, 29 Ed. 1. where it is said, that the King of Scots agreed for himself, and his Successors.

Where Allegiance coming after Homage, and Fidelity, must needs be used exegetically, or by way of explanation of what kind, or upon what Account, the Homage and Fidelity were. For it is not to be thought that the Allegiance related to any Act distinct from Homage, and Fidelity; but that the doing these, was in pursuance of the Obligation they were under to their Leige Lord. According to which it has been usual for the Kings of England, to charge the Sub­jects upon their Allegiance, without any particular relation to doing Homage, or swearing Fidelity: And in this Sence I find Fidelity us'd [Page 23] as synonimous with Allegiance, and distinguished from the Obligati­on of the Oath; in a Writ from Hen. 3. Brev. in Turri London. 8 H. 3. to Jeffry de Nevil, charging him to come with Horse and Arms, and all the Men he could get together, to attend the King at Northampton, and to assist against all that might disturb the Peace of the Kingdom; in fide quâ nobis te­nemini, & sub debito Sacramenti vestri nobis praestiti. ‘Upon the Fi­delity which you are bound to pay us, and by vertue of your Oath taken to us.’

3. The Oath of Allegiance taken away by the Statute W. M. was an Oath which had been required of none, but such as were, or might be ordinarily without any new Law, obliged to take the Oath of Supremacy; Persons of whom the Oaths of Allegiance [and] Supremacy, might be required: Not [ either of them.] But it is certain, that the Common-Law Oath of Fidelity was required, either of every one of the Age of 12, as the Lord Coke says, or rather of 14, according to the Mirrour, which the Oath of Supremacy never was. And therefore, that Oath which was to be taken by them, who might not without a new Law be obliged to take the Oath of Supre­macy, still remains in force.

4. If it were not the meaning of the Law-makers 1 W. M. to leave the Common-Law Oath to the Crown, we must suppose, that they intended to set aside the Security, which the Wisdom of our Fore­fathers provided, in swearing all the Youth of the Kingdom to be true to the Government: For if the old Oath does not remain, no Oath of Fidelity, or Allegiance, can be required of any under the Age of 18. unless upon the account of some Office, or of Recusancy; 3 Jac. c. 4. It shall be lawful, &c. to tender the Oath, &c. to any Person 18 years old, or above. or else to free from the payment of Double Taxes, or to remove suspicion of Disaffection to the Govern­ment. But no man can reasonably suppose it the meaning of the Parliament, that the generality of the Nation shall be exempted from giving that common Caution, or Security, to the Government, which had been required of every Freeman, or Youth, at the Age of 12, or else of 14.

To proceed; instead of the Oath of Allegiance, first enjoyned by the Statute 3 Jac. 1. The late Act requires only this Form:

‘I A. B. do sincerely promise, and swear, that I will be faithful, The new Oath. and bear true Allegi­ance, to their Majesties, King William, and Queen Mary.’ So help me God.

[Page 24]Not here to shew the Sence too commonly put upon this Oath; which will be more proper, when I come to shew the necessity of some farther Caution of Fidelity: I shall here only observe in short,

1. As I before observed, Allegiance is only the cause or ground of Swearing to be faithful, not any farther Tie. And therefore they that think their Allegiance bound them only to swear to their Maje­sties as King and Queen, in fact, think themselves not otherwise obli­ged to be faithful.

2. Here is no Recognition of Right, which the Old Laws requi­red fully enough, according to the simplicity of those Times; and the Stat. 3 Jac. 1, required in express Terms.

3. Here is no Active Duty sworn to, in Defence of their Majesties, and the Kingdom.

4. Here is no engaging against all Enemies to their Persons, and Government: Vide Inf. That this would not be sufficient. Which primâ facie one would think, might prevent all Pretences, That tho' ordinarily Men are obliged to Defend their Majesties, the Obligation would not hold against the late King, if he should land.

5. This seems to be of the nature of the Common-Law Oath of Fealty, by which Men swore to be faith­ful and loyal to their Lords, Vide the Oath of Fealty, Abr. of Statutes Ed Anno 33. Hen. 8. & Littlelon. Sect. and Faith to them to bear. Where Faith, and Loyalty, is plain Allegiance, or the Consequence of it. Indeed it is not according to the Allegiance due to the King; and therefore the Law provided no Salvo to this Oath, for the Faith due to the King; as there was in Homage; that being of the nature of the Subjection due to the Kings of England: Neither, as I shall afterwards shew, is the Allegiance, which many who take this Oath suppose to be all that is intended by it; the Allegiance due to the Crown of England.

Instead of the Oath of Supremacy, we have this Form:

‘I A. B, do swear, that I do from my Heart abhor, detest, and abjure, as impious, and heretical, this damnable Doctrine, and Po­sition, that Princes excommunicated, or deprived by the Pope, or any Authority of the See of Rome, may be Deposed or Murdered by their Subjects, or any other whatsoever.’

‘And I do Declare, that no Foreign Prince, Person, Prelate, State, or Potentate, hath, or ought to have, any Jurisdiction, Power, Su­periority, Pre-eminence, of Authority, Ecclesiastical, or Spiritual, within this Realm.’ So help me God.

[Page 25]Now this Gentleman, certainly, sees at a great distance, who does not observe, That, as much as this Oath is curtail'd, yet here is an­other Oath for the Security of the present Government, besides the Oath of Allegiance to the present Possessors of the Throne: Whereas be supposes, Pag. 30. cited supra. that neither this Government, nor any other in the World besides, ever required more than such an Oath of Allegiance, as he la­bours to prove sufficient.

However, here are Four considerable Omissions out of the Oath of Supremacy, enjoyned 1 Eliz. which I leave to others to account for.

1. The former Oath requires Men utterly to testifie, and declare, in their Consciences, that the Queens Highness is the only Supream Governour of this Realm, and of all other her Highnesses Dominions and Countreys.

But there is nothing like this in the new Oath; which we can hardly call an Oath of Supremacy. I am sure it is at most but a Ne­gative Oath of Supremacy. But where the Supremacy rests, is, to use a Law-term, left as it were in Abeyance, or in the Clouds.

2. That Oath contains an express Abjuration of the pretended Au­thority of every Foreign Person, Prelate, or Potentate.

3. It requires Men to promise, that they shall bear Faith, and true Allegiance, to the Queens Highness, her Heirs, and lawful Successors: and to their Powers shall assist, and defend, all Jurisdictions, Priviledges, Pre-eminencies, and Authorities, granted, or belonging to the Queen's High­ness, her Heirs, and Suceessors, or united, and annexed to the Imperial Crown of this Realm.

If this Gentleman will shew me these Words in the new Negative Oath; or what import as much as they do, tho' sworn to their Ma­jesties only as Possessors of the Throne, I shall be very thankful.

4. The former Oath in some measure swore men to the Succession of the Crown: Third General Head. Which leads me (in farther Disproof of his Supposition, that the Go­vernment never required any other Security from the Oaths of the Subjects, besides an Oath of Allegiance to the Possessors of the Throne) to shew some Presidents of Oaths to the Succession, in their nature Abjuratory.

Of these I might give numerous Instances, which yet may seem needless; since he himself cites an Author who is express, Sim. Dunelm. Anno 1116. cited Pag. 10. That a Convention of the Great Men, and Barons of the whole Kingdom, did Homage, and swore Fidelity to William, Son of Hen. 1.

[Page 26]I shall not here stand to prove, That under these general Words the Commons of England were comprehended: but shall observe from him, That at this time William, the Son of Robert, Hen. the 1 st's El­dest Brother, was alive.

So that here was,

1. An Oath of Fidelity, besides what was taken to the Possessor.

2. An Oath in its nature Abjuratory; the Common-Law re­quiring all Men, when the Succession was setled, and secured by the Oaths of the Subjects, to swear to the Successor as to the true Leige Lord; with a So the Oath to H. the Son of H. 2. Salvâ fi­delitate debitâ Patri vi­venti, mentioned in the Record, 29 E. 1. apud Lin­coln. So An. 1252. in the 36th of H. 3. Ʋniversalis Communia Civ. Lond. fecit fidelitatem Domino Ed. sal­va fide Dom. Regis Lib. de Antiquis Legibus in Civ. Lond. Pag. 68. Salvo only for the Fidelity due to the King: And to defend him against all other Persons whatsoever, who would injure his Person, or diminish the Rights of the Crown, or Kingdom, to which he was chosen to succeed. And if William the Son of Robert should have been a Compe­titor for the Crown with William, the Son of Henry 2; by vertue of this Oath, the Nation had been obliged to fight against the Elder Brother's Son, tho' present in Person.

Rot. Parl. 38. H. 6. n. 26.Of the like nature with this, was the Oath of Obeysance to King Henry the Sixth, the Queen, Prince Edward, and the Heirs of the King's Body.

Tho' Richard Duke of York, Father of E. 4. had, according to the Modern Notion, the Divine Right of Succession.

And whereas the Nation did effectually Abjure Richard's Pretences; he himself had done as much before, swearing in these Terms:

‘I Richard Duke of York, confess and beknow, that I am, Vide the Oath at large, Stow. f. 395, 29 H. 6. and ought to be, humble Subject, and Liege-man, to you my Soveraign Lord King H. 6. and owe therefore to bear you Faith, and Truth, as my Sovereign Liege Lord, and shall do always, to my Lives end, &c.’

It appears farther in fact, that tho' Richard bore Arms against Hen. 6. he did it at first only out of pretence of redressing Grievances; but never laid Claim to the Crown as his Right, till he had Hen. 6. in his Power. No Man therefore can say, that the presumable mean­ing of this Oath, was, That he sware to Hen. 6. only as to a King in Fact. And that he might well take himself to be the Sovereign Leige Lord of the Kingdom, when he swore that Hen. 6. was, and ought so to be.

[Page 27]But were there any question, Whether the Oaths taken in former times for securing the Successions, agreed to by the States, or People of England, were in their nature Abjurutory; I think there is no pos­sibility of doubt, but such were Enacted more than once in the Reign of Hen. 8. when the Foundation of the Reformation was laid, and secured, by the Oaths of the Subject.

And indeed, the Oaths of Supremacy are so plain Abjurations, and so great Securities to the English Government; that one would think, no body but one who cinsiders so little, or so much as on one side, as this Author, could maintain, That an Oath of Allegiance to the Possessors of the Throne, Page 30. has been that which secures all other Governments in the World besides, and that which has secured our own, as well as any other, for so many hundreds of years.

Yet, since nothing but love to Popery, can be thought at the bottom of the Objections against our present Settlement; perhaps, this Gentleman may be one, who thinks no part of the Security of the English Government to lie, in maintaining the Supremacy of the Crown against the Usurpations of the Pope. But for certain, Parli­aments in the Reign of H. 8. judged it for the Security of the Go­vernment, that the Subjects should be obliged to take such Oaths, both in relation to the Succession, and the Regal Supremacy, as this Author inconsiderately affirms, Page 2. to be altogether new, and strange in England.

By the 25 th of H. 8. the Marriage with Katherine, Mother to Queen Mary, 25. H. 8. c. 1. was de­clared void, and the Marriage with Ann, Mother to Queen Eliza­beth, declared lawful, her Children made inheritable, according to the course of Inheritances, and Laws of this Realm: First, to Males; then to Females: And it was made Treason, by Writing, Print, Deed, or Act, to attempt any thing to the Prejudice of that Settle­ment. And there was enacted the substance of an Oath to be taken throughout the Kingdom, upon the Penalty of Treason, truly, firm­ly, and constantly, without fraud, or guile, to observe, fulfil, and maintain, defend, and keep, to their Cunning, Wit, and uttermost of their Power, the whole effects and contents of that Act.

By the 26 th of that King, 26 Hen. 8. the following Form was Enacted:

‘Ye shall swear to bear Faith, Truth, and Obedience alonely to the King's Majesty, and to his Heirs of his Body, of his most dear and en­tirely beloved lawful Wife Queen Ann begot­ten, and to be begotten. And further, Mother of Queen Eliz. [Page 28] the Heirs of our said Sovereign Lord, according to the Limitation in the Statute made for the Security of his Succession in the Crown of this Realm, mentioned and contained; and not to any other within this Realm, nor Foreign Authority. And in case any Oath be made, or hath been made by you to any person, or persons; that then ye repute the same as vain and annihilate: And that to your Cunning, Wit, and uttermost of your Power, without Guile, Fraud, or other undue meaning, ye shall observe, keep, maintain, and defend the said Act of Succession, and all the whole Effects and Contents thereof, and all other Acts and Statutes made in Confirmation, or for Execution of the same, or of any thing therein contained. And this ye shall do against all manner of Persons, of what Estate, Dignity, Degree, or Condition soever they be. And in no wise do, or attempt, nor to your power suffer to be done, or attempted, directly, or indirectly, any thing or things, privily, or apertly, to the lett, hindrance, da­mage, or derogation, thereof, or of any part of the same, by any manner of means, or for any manner of Pretence. So help you God, and all Saints, and the Holy Evangelists.’

28 Hen. 8. v. 7.By the Satute 28 Hen. 8. the Marriages with Queen Katherine and Queen Ann, are de­clared unlawful, and the Children illegitimate; and the Crown is set­led upon the Issue of the Body of Queen Jane, Mother of King E. 6. and for lack of such Heirs, to such person and persons, as the Kings Hlgh­ness shall limit, and appoint to succeed to the Crown, by vertue of the said Act.

It was farther provided, ‘That if any of the King's Heirs, or Chil­dren, should usurp the one of them upon the other in the Crown of this Realm, or claim, or challenge the King's Imperial Crown of this Realm in any other Form or Degree of Descent, or Succession, than is there limited; or if any Person or Persons to whom the King should give, or dispose his said Crown and Dignity of this Realm, or the Heirs of any of them, do at any time demand, chal­lenge, or claim the said Crown of this Realm otherwise, or in any other course form, or degree, or condition than the same, should be giv­en, disposed, and limited to them by the King, by Virtue and Autho­rity of that Act, &c. that then all and singular the Offenders in any of the Premises, and all their Abetters, Maintainers, Favourers, Counsellers and Aiders herein, shall be esteemed and adjudged High Traytors to the Realm: And as well the said Heirs and Children, as every other Person and Persons, to whom the King should limit the Crown, and every of their Heirs, for, every such Offence, shall lose and forfeit all such Right, Title, and Interest, that they may claim or [Page 29] challenge to the Crown of this Realm, as Heirs by Descent, or by reason of any Gift, or Act that shall be done by the King, for his or their Advancement, by Authority of that Act, or otherwise, by any manner of means or pretence whatsoever.’

And an Oath, in substance the same with the former, and very little differing in words, Ye shall bear Faith, Truth, and Obedience a­lonely to the King's Maje­sty, Supream Head in Earth under God of the Church of England. is required of the Subjects, according to that Settlement; and, according to the farther exigency of the time, Recognizing the King for Supream Head in Earth, under God, of the Church of England.

‘In the same Parliament a Law was made, 28 Hen. 8. cap. 10. requiring every one in Office to swear, That he from henceforth shall renounce, refuse, re­linquish, or forsake, the Bishop of Rome, and his Authority, Power, and Jurisdiction. And that he shall never consent, nor agree, that the Bishop of Rome shall practise, exercise, or have, any manner of Authority, Jurisdiction, or Power, within this Realm, or any other of the King's Dominions; but that he shall resist the same at all times, to the utmost of his Power. And that from henceforth he shall accept, repute, and take, the King's Majesty to be the only Supream Head in Earth of the Church of England.’

It seems none of these Forms were found full enough to obviate the Evasions of Subtile Swearers, and exclude the pretended Right of the See of Rome. And therefore 35 ^o H. 8. to the Renunciation of the Power of the See, and Bishop of Rome, and Adjuration to the Set­tlement made 28 H. 8. and then confirmed in the principal part, with some additional Provisions; these words were added:

‘[ With my Body,] Cunning, Wit, and uttermost of my Power, I shall observe, keep, maintain, and defend all his Majesties Styles, Titles, and Rights, with the whole Effects and Contents of the Acts provided for the same, and all other Acts and Statutes made or [ to be made] within this Realm for that purpose; and in derogation, extirpation, and extinguishment of the usurped and pretended Au­thority, Power, and Jurisdiction of the See and Bishop of Rome.’

And it is observable, that tho' that Act continued, the Illegitima­tions upon the Ladies Mary and Elizabeth, yet in case the King and Prince Edward should die without Heirs of either of their Bodies, then the Crown was entailed successively upon the two Ladies; but the Interest of either was to determine, if they did not perform such Conditions as the King should limit. And in case of failure of Issue, or in performance of Conditions, lest the Realm should be destitute of a [Page 30] lawful Governour, the Crown was to go to such Person or Persons as the King should appoint in the manner there directed.

From which Statutes of the time of Hen. 8. concerning Oaths to the Crown, and the Settlements of it, I may observe,

1. That when an Oath was appointed by due Authority, they who administred it were not always obliged to a set Form of Words, keeping to the Substance: as appears by comparing the Statutes, 25 and 26 Hen. 8.

2. That Oaths declarative of Right have been held useful and expe­dient, appears by the Statutes 28 H. 8. c. 7. and c. 10. By the first of which the Subjects were to swear the King to be Supream Head in Earth under God, of the Church of England. And by the last they were to swear to accept, repute, and take the King so to be.

3. That Parliaments have had the same Judgment of Oaths of Abju­ration, is evident, by their sometimes swearing to one Rule of Succes­sion, then to another; contrary to that; and to defend that Succes­sion to which they swore, against all manner of Persons what­soever.

And as these were implied Abjurations, they against the See of Rome were as express as Words could make them.

4. That, in the Judgment of those times, implied Abjurations were as binding, as the Express, is not to be doubted: Since it is certain, that it was the full intention of those Parliaments to bind the Subjects to those Settlements, without possibility of Evasion.

5. That Acts of Settlement were thought to govern the Oath of Allegiance, and to make the Heirs to whom it was to be due, after the determination of the Interest of the then King.

6. That the Right to the Crown in Reversion, or Remainder, was then held forfeitable; and determinable, even after Possession, upon Non-performance of Conditions.

7. That if the Person, who, according to our de facto men, would have been King or Queen immediately upon the Death of H. 8. should take Possession of the Crown, contrary to an Act of Parlia­ment, such Person might be a Traytor to the Kingdom.

8. That supposed Bastardy was held no Impediment to an Ele­ction or Settlement by Parliament, tho' it was to a Descent.

9. That it was not at that time thought, that any body in par­ticular, who could not claim under an Election, or Parliamentary Settlement, could be lawful King.

10. The Reason why the Authority of the See of Rome was Abjured expresly, and that of the Person who stood next (according to what some think the setled Rule of Succession) only by Implication, seems [Page 31] to be, that the Authority of the Pope was believed by many: But no one in particular was reputed to have a Right, contrary to what was setled in Parliament. And therefore there was no need to swear against it directly. And yet this was fully enough, in effect, when they swore a Marriage lawful▪ while another to whom the King had been married, was alive, and had Issue to claim a Right of Succession, contrary to the Settlement.

11. Tho' every Man was bound to defend the Settlements to the utte [...]most of his Power, it should seem some Men thought themselves exempted from defending with their Bodies, or fighting for either side: And therefore the Statute 35 H. 8. adds the words, [ with my Body.]

12. Notwithstanding former Oaths, in some of which all manner of Attempts to alter the then Settlements of the Crown seem preclu­ded; Parliaments judged those Oaths to bind the Subjects only in their private, not in their Politick, and Legislative Capacity. And there­fore, thought they might without sin concur in the Repeal of those Acts, against which they had sworn never to attempt any thing.

13. If an Oath should now be required, to maintain, and defend with their Bodies, the present Settlement of the Crown, against all persons whatsoever; and to maintain the Incapacity of a Popish Prince, (who would promote the usurped, and abrogated Authority of the Bishop of Rome) to inherit, possess, or enjoy the Crown and Go­vernment of this Realm; created, or declared, by the Statute 1 W.M who, but our Considerer, would say, That such an Oath were New and Strange? when the Law 1 W. M. is so manifestly one of those Laws, which they who took the Oath 35 H. 8. if now alive, were, by vertue of that Oath, bound to maintain; which is a matter very well worth the Consideration of the Roman Catholicks of Eng­land.

IV. Whoever considers what I have alrea­dy shewn, 1. Of the History of for­mer Times relating to the present Case. of the nature of the Oath to the Crown, required by the Constitution, generally of all the Subjects of England; and what far­ther Securities from the Oaths of the Subjects have been required, upon occasion; will think it to no great purpose to examine the Circum­stances of those Times, when this Gentleman supposes, that there was as much need of an Oath of Abjuration as now.

However, the observing his Mistakes in the History of this Realm, may give a fit handle for the establishing, or hinting, of some useful Truths.

[Page 32] Page 4. The Line of Succession, he says, hath been as frequently interrupted in England, as in any He­reditary Kingdom in the World. And therefore there had been as much need of an Oath of Abjuration here, as any where, and yet we have never had one.

This hisbold Negative, I think I have sufficiently disproved: but would gladly know of him what he means by an Hereditary King­dom.

If he means, as without doubt he does, a Kingdom, where, of right, in all cases, the Succession ought to go to the next in the Line; and that every Interruption of such Succession, is contrary to the Constitution: Then I may say, and shall shew him in its place, that he knows nothing of the Constitution of this Monarchy: Which, as a wit­ty Author long since observed of the Kingdom of Israel, is in respect of Stock, or Family, Hereditary, as to Persons, Elective.

And if this has been the known Constitution; then Interruptions of the Line, provided the Family were kept to, could not require any other Abjuration, than what was contained in the common Law Oath.

He tells us, he will not run up beyond the Conquest, and what Right William the Conqueror had to these Kingdoms; he says, every body knows as well as any body.

But I may tell him, he himself does not, with all his Pomp of Reading. And if he were not byassed by slavish Principles, he would have attended to the plain Evidences, which could not but occur to any diligent, and impartial Enquirer, proving, that W. Page 4. 1. had a better Title than Conquest, or the Promise of the Confessor: For that, being quali­fied by his own Affinity, tho' a Bastard, and in his Wive's Consangui­nity, as she was descended from a Daughter of King Alfred; he was chosen Successor in a Parliament, or Common Council of the Kingdom, in the life time of the Confessor. The time and circumstances of which, I may shew him in due time; however shall give him two Authorities to animate his farther Enquiry.

William himself, in one of his Charters, has this Style:

[Page 33]To understand how this was, take the words of Ordericus Vitalis, Ord. Vital. f. 492. an Author of suffi­cient Antiquity.

It is very observable, that as this Author uses Concessio Regni, and concedentibus Anglis, he seems to refer to the Coronatio H. 1. apud West. Anno 1100. agreeing with the Coronation of King Ethelred, Anno 989. Bib. Cotton. sub Effigie, Claudii, A. 3. Standing Rituals for the Coronations of the Kings of England, before the time of W. 1, and since, agreeing in substance; according to which, the People, being asked by one of the Bishops, whether they would subject them­selves to such a Prince, and obey his Com­mands? Answer, Volumus, & concedimus, 'We will, and concede, or ' grant.

‘This Gentleman, out of his great Skill in History, tells us, that Page 5. it is manifest beyond dispute, that when the Conqueror, as he calls him, came to the Crown, the Right Heir was alive: who was Edgar Atheling, the Son of Edward, Grandchild of Edmond Iron­side. This Edgar, says he, was not only Heir to the Crown by Li­neal Descent; but design'd to succeed Edward the Confessor, by him himself; and sent for, for that purpose from abroad.’

If he had been as skill'd in Story, as he would be thought, he might have remembred what is written of the famous Monk Guit­mond, who told W. 1. that according to the Laws of the Hebrews, and of other Nations, Ord. Vit. f. 325. A­liique plures exlinea Rega­lis prosapia. Edgar Atheling, and several others, descended from the Line of the Royal Stock, were Heirs of the Crown of Eng­land: So far was he from thinking the Right fixed in Edgar alone.

[Page 34]Besides; this Gentleman might have met with Proofs, that tho' Ed­gar, together with others of the Royal Stock, were qualified for an Election, he could not have a Right of Descent; being descended from a Bastard: For, to name one Authority of many:

The Tho. Rudborne Hist. Maj [...]r Winton nuper Ed. E­thelred dictus Ʋnredi, &c. cujusdam Ducis filiam nomi­ne Algivam accepit in Con­cubinam, ex quâ genuit fi­lium nomine Edmundum I­rynside. History of Winchester lately pub­lished, is express, That Ethelred begot Edmond Ironside of a Concubine. Sure I am, I need not cite Authors to prove his gross Mistake; as if Edgar was sent for by the Confessor, with design that he should succeed him. Every body who has read the Story, can inform him, it was Edward, Edgar's Father.

Page 7. William the Conqueror, he says, left England to his Second Son: But William himself de­clared upon his Death-bed, that it was not his to give. He wisht it indeed to his Son William, but left it to God's Providence; and that not to the longest Sword, but plainly e­nough to the Election of the States: Vide Ord. Vital. and Camden 's Brit. f. 104. Vide etiam Selden 's Notes upon Drayton 's Polyalbion. For the reason he gave why he would not impose a Successor, was, lest it should occasion Trou­bles in England.

Page 8.Of his own shewing there was no particu­lar occasion for an Oath of Abjuration in the time of W. 2. continuing during his Reign; there being an express Agreement sworn to by 12 Great Men of each side, that whichsoever died first, the other should succeed to all.

‘He makes a general Reflection upon Eng­lish-men, Page 8, 9. as guilty of Inconstancy, from the supposition that they generally engaged to bring Robert, before they could have time to see whether King Henry would be as good as his word.’

Quia rex jaem Tyraniza­verat. Mat. Par.But Readers may chuse whether they will believe him, or the ancient Author, who says, it was because he had begun to play the Tyrant.

But observe how well he follows his Point: ‘What, says he, did Henry do, with regard both to his Brother Robert, and the vigorous Prince young William, who had sworn severely to revenge his Fa­thers Injuries, and Eyes? Why, he contented himself to Swear his own Son, who was also called William, into the Succession of Nor­mandy, Anno 1115. and of England, Anno 1116.’

[Page 35]Supposing that the generality of his Readers will not mind the Latin so much as the English; here is not a word mentioned by him, of swearing the People: But as it is worded, it may pass as if his Son only was sworn. And yet one of his own Authors says, ‘The Son of King Henry is by all sworn to be made Heir of his Father. Annales de Morgan.’

And, certainly, when they swore to make him Heir, they believed they had Power so to do. Nor was there colour of believing, that any body in particular had a Right needful to be Abjured, when no body could have Right but from them, who had determined their Election, as far as their Soveraign Wills could be fix'd.

He thinks to prove from the course of Au­thorities, Page 11. that the common Oath of Allegi­ance was twice sworn to Maud in the Life-time of Hen. 1. If it were, this surely was a different Security from an Oath to the present Possessor. Besides, all Authors agree, that the Oath to her in Succession was conditional: Some say, if H. 1. should die without Heir Male, which this Gentleman renders, Issue Male. But Gervace of Canterbury, who liv'd about that time, says,

And considering in what sence several were in ancient times lookt on as Heirs, at the same time; and how Hen. 1. and his Son Wil­liam, were made Heirs of their respective Fa­thers. And particularly, that Hen. 1. Bib. Cot. sub. Ef. Cl. A. 3. in the Ritual of his Coronation, is said by Paternal Succession to have held his Station delegated to him hoereditario judi­cio, 'By an hereditary Judgment; that is, an Election, placing him in the Inheritance of the Crown. It can be no great Question but many, at that time, thought they injur'd no body, nor went against their former Oaths, in chusing Stephen; especially after H. 1. had, on his Death-bed, as far as lay in him, released and freed the Nation from any Oath taken upon his Account, which might prejudice Stephen's Election.

[Page 36]A Bib. Cot. Tit. Ve­spat. A. 19. de Monast. E­lyensi. M. S. in the Cotton Library, which gives the most particular Relation of this mat­ter that I have observed, among other things tell us, that H. 1. speaking to those about him a little before his Death, said,

‘Ye Nobles and Wise Men! I produce unto you your Fellow-Sol­dier Earl Stephen, my beloved Kinsman, noble in his Virtue, and very Religious: Regem per me ut ju­re haereditario suscipiatis & constituo, & sic modis om­nibus esse contestor. as much as lies in me, I appoint that ye receive him for King, by right of Inheritance; and earnestly intreat, that it may be so.’

The Reasons this Author gives of his being received, are very re­markable, Et de Stirpe Regia des­cenderat. ‘Because he was a renouned, and honest Man, and much beloved, and a va­liant Soldier, and had descended from the Roy­al Stock; the Great Men, and Citizens, being allured by Rewards, and the Clergy fearing, lest if repulsed, he should raise Commoti­ons; they received him for King of England. For the obtaining which however, he was greatly help'd by the Oath of Hugh Bigot, which he, as the King, Stephen's Uncle had commanded, made upon the Holy Evangelists, before the Clergy, and People; that he was with the K. at his Death, and heard him granting the Kingdom to his Nephew.’

What need was there, at that time, of an Oath of Abju­ration of Title in Maud? which no body but her Bastard Bro­ther Robert, Vide infra. seems to have though [...] of, till Stephen disobliged the English in the highest degree imaginable.

Page 13.But I thank him for his Concessions, that Robert swore to Stephen, because he could not otherwise be in a capacity of serving his Sister-in-Law. ‘And, that he fears, there are many Roberts of Gloster now alive, that have taken the Oaths to their Present Majesties, with no better Design, than to ca­pacitate themselves to do them a shrewd turn when it lies in their way.’ He adds, Altho' they, (which, to be Sence, must be meant of their Present Majesties) see no Shadow of unfaithfulness, or ill design, in them.

But certainly here, he goes beyond his Warrant: for, doubtless, their Majesties now see more than a Shadow of the Unfaithfulness and ill Designs of some who have taken the Oaths; And who, to pursue the Parallel, for which I am beholden to this Gentleman, like their Prototype, Vide ib. his Conditional Homage. hope to justifie themselves by the words of an Oath with unusual Loop-holes.

[Page 37]He thinks it mightily to his purpose, that Stephen contented himself with the ordinary Oath of Allegiance, tho' Maud was his Competitor. Page 13. But he would have done well, somewhere at least, to have shewn what the ordinary Oath was; which if he had done, it would have appeared a sufficient Security against Maud. And so indeed it pro­ved in fact: For as long as Stephen perform'd his part of the Con­tract, and consequently as long as the Oath to him was in force, Maud was look'd upon as justly excluded the Succession, seemingly at least designed her. But as Authors say, Gerv. Dorob. Col. 1340. Bromton, Col. 1024. pauca tenuit. he treated the English Nobility with Con­tempt, relying upon the Council and Assi­stance of Foreigners; he performed little of what he had sworn at his Coronation; And as one rightly says, ‘In process of time, through the Injustice or Remisness of the Governour himself, Gerv. D [...]sidea, &c. Dis­cord arising by little and little, all things of a suddain were confus'd with Dissentions, and Rebellions.’

Till these Disorders arose, there was no colour of ground for a par­ticular Abjuration of one who could raise no Competition. And when the Disorders were begun, it was too late for him to attempt to en­gage the Nation into any Oath, other than what those within his Obedience ordinarily took.

This Gentleman yields, that the Common Oath of Allegiance was taken to Eustace his Son; which was a second implied Abjuration of any pretence which Maud could make; and another Engagement to fight against her, as an Enemy to the King, and Kingdom.

He speaks of the Agreement between Stephen and Hen. 2. but thought not fit to represent it fairly. His Words are,

Page 14▪ ‘ Stephen began to incline to Peace, which was agreed upon, you know, on condition that Stephen should continue King during his natural Life, and Henry to succeed him.’ But Bromton, Col. 1037. Bromton assures us, 'twas not as King only in Fact; but tanquam princeps legitimus, 'As the lawful Prince; as Henry was to succeed tanquam haeres Legitimus, 'As Law­ful 'Heir. And to shew that this did not in the least derogate from the Right of King Stephen, the Bromton. ib. Ego Stephanus Henricum Ducem Norm. post me successorem Regni Angliae, & Haredem meum Haereditario jure constitui Charter made thereupon adopts, or constitutes, Henry, Heir to Stephen.

[Page]Nor was this any new thing in England: for W. 1. in one of his Charters, declares that the Confessor had Cart. Antiq. in Tur­ri Lond. C. C. Quo me in Regnum suum adoptivum he­redem instituerat. instituted him adoptive Heir to his King­dom.

No wonder, therefore, that H. 2. took the usual Oath of Fidelity from his Subjects, without any manner of regard had to William, Stephen's Son; who was legally disinherited.

He seems to wonder, that, Page 15. notwithstand­ing the Oath the Nation took in general to H's Mother Maud her self; yet Henry succeeded Stephen, without any manner of notice taken of her.

This he would help out with an implied Cession, because she put in no new Claim.

But he either conceals, or has not observed the real Abdication, which had been in her case; the Nation having once intended to have received her for Queen, till she absolute­ly refused the Condition, Vide Gerv. Dorob. Col. 1354. in denying to con­firm the Confessor's Laws. The knowledge of which Denial being made publick, so animated the People against her, that she ran away in a Fright, and never more durst pretend to what she had so justly forfeited.

H. 2. he says, left his Crown uncontested to R. 1. But that he had it not by a strict Right of Descent, prior to any Election of the States, is very evident from the ancient Historians: For if he had been King by vertue of a Right of Descent; then he would have been reputed King before he was Crown'd: whereas till then he was held for no more than Duke of Normandy. Bromton, f. 1153. Hove­den, f. 656. It was the great Art and Industry of his Mother, which pro­cured Oaths of Fidelity to him. Bromton, Col. 1159. And his Co­ronation was not as an insignificant Ceremo­ny; but according to the ancient Rituals expressing an Election: ac­cordingly Hoveden says, Hoveden supra. he was Crown'd by the Counsel, and Assent, of the Archbishops, Bishops, Earls, Barons, and a great number of Milites; which accord­ing to the use of the Word in those times, extended to common Free­holders.

Page 15.His Master-piece in Story, is to shew, that John had twice rebelled against his Brother Richard; Page 16. when, as he says, our common Hi­storians confound Actions done at different [Page 39] times: But what is all this to the question of Abjuring the Right [...] a Competitor? When John never pretended to a Right before his Brother, but sometimes pretended only to redress Grievance [...]; at others, that his Brother was dead, or could never return from abroad to fill the Throne.

He takes notice, that John for his Treasons was abdicatus, ‘Disin­herited, and deprived of all Honours, which he might hope for, or expect to have from the Crown of Eng­land: Page 22.’ Which he will have to be a famous Passage for the Bill of Exclusion; when, as himself contends, John was not the next Heir: And, therefore, that was no President for an Exclusion of the next Heir.

‘Tho, says he, Page 22. & 23. John did actually succeed his Brother Richard; tho' Arthur had been declared Successor to Richard; Tho' it was the Opinion of all the World, both abroad, and at home, that Arthur was the undoubted Heir of the Crown; tho' many Nobles sided with him; tho' he claim'd the Crown himself openly, and gave John abundance of Trouble, and alarm'd him daily: Yet did John never attempt to get him Abjured by the Nation, nor to secure himself any other way, than by the common Oath of Allegiance.’

Here is such a formidable number of Tho's, that one had need strike off some of them. But I wonder, why John's succeeding his Brother, should come into the number; for that of it self could re­quire no more than the usual Oath, nor, indeed, did any of the other Circumstances. That Arthur had been authoritatively declared Suc­cessor, I do not remember: That it was the Opinion of all the World, both abroad and at home, that Arthur was the undoubted Heir, I am sure is not true: For Cujac. de feudis, f. 519. where 'tis called Mos Britanniae. Cujacius, who takes the Right of Representation, which was all that Arthur had, to be the Law of England, says, That the Right of Proximity prevails in other Countries; and particularly, it was the Law Grand Customary, cap. 25. d' Escheance. of Normandy. But Archbishop Hu­bert, more agreeably to our Constitution, Mat. Par. 1 John. de­clared in the name of the States, at the Co­ronation of John, That he was chosen meerly upon the account of his supposed Merit; and that no Man had right to be King without their Choice. And what need was there for the Nation to abjure any one's Right, when they did not think a Right fixt in any Person whatsoever, other than what the Nation consented to?

[Page 40]He passes over the Reigns of H. 3, E. 1, and 2. upon supposition, that neither of them had any Rival to fear; forgetting Lewis the Dauphin of France, who was for some time a more troublesom and dangerous Competitor, both to John, and his Son, than ever Arthur was to either.

This, one would think, our Historian could but have mention'd, were it not for the unlucky Circumstance, that upon the account of that very Competition, the French King's Advocate maintained.

1. Mat. Par. Addit. f. 281. Vacans itaque regnum si­ne Baronibus ordinari non debuit unde Barones elege­runt Dominum Ludovicum qui ratione uxoris suae, &c. That John had been justly rejected by the Barons of England. 2. That thereby the Kingdom became vacant. 3. That the Right of Administring Affairs, or filling the Vacancy, fell into the hands of the Barons. 4. Accordingly they had chosen Lewis. And, 5. That he was qualified for this Election in the right of his Wife, who was King John's Eldest surviving Sister's Daughter.

He observes, that when E. 3. was Crowned, upon the Deposal of his Father, there was no Oath of Abjuration. Nor surely was there need, when the States had not left the Father so much as Annal [...]s de Gestis Anglor. Bib. Cotton sub Ef­fig. Cleop. D. 9. the name of King; but enacted, that he should be called only Edward of Carnarvan, the King's Father. Be­sides, if his Consent could signifie any thing, he himself Knighton, Col. 2550. Gratulabatur quod filium Edwardum post se regnare elegissent, & [...]i assensum su­um, in quantum potuit, at­tribuit. submitted, and took it very thankfully that they chose his Son to succeed him.

That there was no occasion of abjuring any supposition of Right in R. 2. after his being deposed, appears fully enough from his own shewing.

‘The Estates of the Realm, says he, Deposed him very solemnly, (even without any notice taken of his Resignation, tho' after he had made it) objecting such and such Crimes as deserv'd it; which they might well have spar'd, and surely would have done it, even for pities sake, if they had not intended thereby to exercise a Power they thought inherent in them, on such extraordinary occa­sions.’

Here he not only owns, that the States at that time might judge such a Power inherent in them; but that if R. 2. were guilty of the Crimes alledged, which is not now to be question'd, his Deposal [Page 41] was just. And however R. 2. had resign'd: And then, what need was there of Abjuring Richard?

If he had withal remembred The Statute which they referr'd to 11 R. 2. when they told him of an ancient Statute, by vertue of which they might abro­gate him, and chuse anyone of kin of the Royal Stock Vide Knighton de R. 2. that Sta­tute, with the execution of which they had some years before threatned R 2. he could not have questioned the Power of the States, but would have believ'd that they really had that Power by Law, which they thought inherent in them: And that Hen. 4. being of the Roy­al Stock, was duly and legally chosen in his stead.

The Reason he gives why he will not trouble his Friend with the Instance of H. 6. with regard to Richard Duke of York, nor of E. 4. with regard to H. 6. is very comical.

‘Because, you say, there was no need of their doing so; Page 24. since both of them looked upon themselves as Rightful Possessors of the Throne: And what need was there of causing the Subjects to Ab­jure the Right of one who had no Right at that time; nor as they thought, any time besides?’

Where the only justifiable Reason for Possessors to desire an Oath of Abjuration, with respect to any Competitor, which is the belief of their own Right, his Art would improve against one: And cer­tainly, no Man but this Author would think a Law for such an Oath now, an Evidence that their Majesties thought the right to be still in King James; but directly the contrary.

Yet, tho' his Premises speak only of what the Possessors themselves believed, his Conclusion is upon the general belief in those Times: which will appear to run through all the Times in which he instan­ces: And then, according to his own Confession, there was no need of an Oath of Abjuration in any of those Reigns.

And if the Story of that Time from whence the de facto Men fetch their chief Colours were duly weighed, it would in great mea­sure silence this Controversie. I shall here only point at what the Records and History of the Time make evident.

1. Richard Duke of York, having never been Crown'd, was never re­puted King: And himself had sworn to Hen. 6. as the only Rightful King.

2. Tho' R. by the Treachery of the King's Ministers, after the Death of his wise and warlike Uncles, was advanced to Honour and Au­thority in the State, till by degrees he fill'd most Places with his Creatures; got the King entirely into his Power; and awed the Par­liament [Page 42] with his Arms; yet he was obliged to take up with a Re­version after H. 6. as Hen. Duke of Normandy did, after King Stephen.

3. When E. 4. afterwards claim'd the Crown, he did it not upon supposition that H. 6. had not been a true Legal King; but had broken the Contract established in Parliament between his Father, himself, and H. 6. and was unfit to Reign: According to which the Estates adjudged the Possession to E. 4.

4. Edward the 4th's own Parliaments never held him to have been King, till the Estates had declared him King; notwithstanding his Success against Hen. 6.

5. The Acts of all Vide Stat. 1. E. 4. c. 1. Other than by Au­thority of any Parliament, holden in any of their times. the Parliaments in the time of H. 6. except that which was held after a Readeption of Power, upon driving out E. 4. were held to have been made by good Authority.

6. They never thought that there was more than one King at a time. And therefore from the time that Hen. 6. was suppos'd to have been turn'd out for having broken the Contract, Edw. 4. was in his time reputed the only King; Hen. 6. was held for an Usurper; and his Parlia­ment Vid. Rot. Parl. 17 E. 4. n. 34. Printed Stat. c. 6. called a Pretensed Parliament.

7. Hen. 6. was not only in his time, before being out upon the sup­posed Breach of Contract, reputed the only Rightful King; but by Act of Parliament Rot. Parl. 1 H. 7. n. 16. Restitutio H. 6. 1 H. 7. the Atteindure of H. 6. by a Parliament of Ed. 4. is declared to have been against Honour, Nature, and Duty; And in another place, contrary to due Allegiance, and all due Order.

To return to our Author.

‘Neither, says he, will it serve to my pur­pose to instance in R. Page 4. 3. with regard to the Son and Daughter of his Elder Brother, George, Duke of Clarence, because he confided so far in the Attain­dure of the Father, that he had no suspicion of the Children; he bastardiz'd, depos'd, and murder'd, the Children of Ed. 4. But he thought the Act of Parliament had secured him against the Family of Clarence; and therefore was regardless of them. We have no reason to think he acted out of any better Principle towards them. And it was not then so clear in Law as since, That the Crown takes away all Defects and Stops in Blood; and that from the time the King assumes the Crown, the Fountain is cleared, and all Attainders and cor­ruption [Page 43] of Blood discharged. Which was the Resolution of the Judges in the Case of Hen. 7.’

Is it not great Pity, that where he would be thought to write so wisely, he wants not only certainty, but truth of Fact, and of reasoning?

1. How can it be said that R. 3. depos'd the Sons of E. 4. when neither of them was ever King, or at that time reputed so to be?

2. If one were King, how could both be said to be depos'd, unless one lived some time after the other? Whereas they that suppose them murdered, will have both to have been murdered at the same time.

3. He who reads Buck's History, would be modest in the Charge of Murder upon R. 3. and would impute the Death of one to some natural Cause, and might incline to think the other lived several years after R. 3 d's Death.

3. However, it is certain they were alive when R. 3. was Crown'd and yet his Parliament did not believe that they had any manner of Right. Nor does it seem to have prevailed so far with the People, that there was any occasion of an Oath of Abjuration. For the on­ly Competition which might occasion it, was of Henry, afterwards Hen. 7, who had no Pretence of Right, but from the Choice of the People, or States.

4. There seems no mean Grounds to believe, that the Children of E. 4▪ were justly declared Bastards, by reason of their Fathers Pre­contract, in force when he married their Mother.

6. Whether they were Bastards or no, the States thought they had sufficient Authority to declare R. 3. to have the only Right to be chosen, because E. 4's Children were not fit to Reign; And they thought R. 3. the most deserving of the Royal Family.

7. The Maxim declar'd in the time of Hen­ry 7. is as awkwardly represented, and applied, Year-Book, 1 H. 7. f. 4. b. as his other Collections.

A Question being put to the Judges 1 H. 7. Whether they who had been Attainted in the Reign of R. 3. were capable of sitting in Parliament, and resolved in the Negative; their Opinions were ask'd concerning the King himself, who likewise had been Attainted. They Answer,

That the Maxim here declared does not relate to the Right of Suc­cession, but to the Act of assuming the Royal Dignity, with the Consent of the People, is very plain. The Case of H. 6th's Readep­tion of Power, after he had been dispossessed by E. 4. and by his Parliament disabled from holding the Crown, being brought as a President for adjudging, that H. 7th's Assumption of the Royal Dig­nity purged the Attainder he had lain under.

What does this relate to the Duke of Clarence, who was ne­ver King? Indeed it contains a great Truth, which was never di­sputed in ancient Times; which is, That any deserving Person of the Royal Family, was held a Person capable of being chosen; and from the time of his being chosen, and declared King, all Objections vanished. That this could not relate to a Right of a Descent, but to a bare assuming the Crown, upon the Choice, or Submission, of the Peo­ple, or States, is evident by the Case then in question; which was of a Prince, who was of a Bastard Branch of the Younger House. And tho' the Bastardy had been removed by Act of Parliament, there was express Provision, That the Capacities granted should not ex­tend to the Inheritance of the Crown. Besides his Mother, who if there were any Right of Descent, stood before him upon the Royal Line, was alive at his Accession to the Crown: And if an Attain­der had been no Objection against a Right of Descent the Duke of Clarence's Children had that Right before him.

[Page 45]And yet the Nation having generally declared for him, R. 3. was by Parliament adjudged to have acted Rot. Parl. 1 H. 7. n. 3. traiterously against him, before he had been Crown'd.

From all these Instances, these Three Conclusions are very obvious.

1. That the Oaths of Allegiance to all these Kings, were, as to the only lawful and rightful Kings; and implied Abjurations of all others.

2. That there was no manner of occasion for abjuring any one Person in particular; because it was the setled Judgment of the Parliaments, and People of all those Times, that no other Person besides the King Regnant was King, or could be King, till he was admitted by the States, or People.

3. That it was not bare Possession, or want of Possession, which made any Man more or less a King: For then H. 6. would have been the King after a Readeption of Power: And neither E. 4. nor C. 2. would have been the King, while either of them was out of the Kingdom: And every Prince would lose his Authority, while Rebels are in possession of the Power of a Nation.

However, were it admitted that this Gentleman's Account is incon­testably true, it would appear to any impartial Considerer, That he has left the Merits of the Case of an Oath of Abjuration untouch'd: for,

(1.) His suppos'd Instances relate only to the Times when the Person, who, according to him, had the Legal Right of Succession, prevail'd against the Competitor: But he offers not the least Sha­dow of Proof, nor indeed can he, That they who submitted to the other, accounted him, even during that Submission, not to be the on­ly Legal, and Rightful King.

(2.) As, therefore, it is to be presumed (which also is true in fact) that they thought the Prince whom they obey'd the only Legal and Rightful Prince; if the Oath required to be taken to him were not thought sufficiently to imply a Renunciation, or Abjuration, of the Pretences of every other Person whatsoever; they were not only guilty of an Error in Politicks, but of a great Sin, in not improving the Opportunity God had intrusted them with, for securing the Pub­lick Peace.

(3.) If the Oaths of Allegiance had this Defect; to this were to be imputed, the many violent Changes which have hapned in this Government: But,

[Page 46](4.) Since the Oath was full enough for any honest Man; and, according to the Simplicity of those Times: And yet the People sometimes forsook the next of the Line, as well as the more remote; it is to be believed, that both the one and the other were deserted by their former Friends, for some thing common to both.

(5.) It dos not appear in Fact, that ever any King of England lost his Crown, meerly from a Perswasion generally obtaining, That the Possessor was no rightful King, as not being the First upon the Royal Line; and that the Competitor had a Right to be the King, without any manner of Election. But the misfortunes of Princes have been imputable chiefly to such Actions as amounted to a Breach of the Con­tract between Prince, and People; or were taken so to be: Or to the belief of extraordinary Merits in the Rival, and prospect of great benefit to the Publick by his Promotion. So that the Liberty which the People thought they had to close with any opportunity of ca­sting off the Possessor, has not been, because the Oath of Allegiance did not sufficiently bind them to defend the Possessor, while the Oath was in force; but that they thought themselves really discharged from the Oath by the Possessor's Violation of the Contract; or the Superiour Law of the Publick Good.

(6.) However it has been in former times, what the Act of Settle­ment had made very plain, is so confounded by Men, who like the Pope, in order to Spiritual things, claim to themselves a peculiar Right to interpret all manner of Oaths; that there is an absolute Necessity not only for a Reinforcement of the Common-Law Oath of Fidelity, but for an Oath in express Terms, declaring their Majesties to be the only lawful, and rightful King and Queen of these Realms; abju­ring the late King's Pretence of Right, and engaging Men to De­fend them to the utmost of the Parties Power, against the late King, and all other Persons whatsoever. If any thing short of this were sufficient; yet if the Old Oath was Declarative of Right, and by un­doubted Implication engaged the Subjects to Fight for the Possessor, even against him who had been in Possession, upon what, accord­ing to our Considerer, must have been the only Legal Right; and if the present Oath mentions nothing of the Right of their Majesties; and many who have taken that Oath, declare with this Author, that it is only as to Possessors of the Throne; This Omission, Page 30. to say no more, gives too great Countenance to the Supposition, that they are not our Legal and Rightful Sovereign Lord, and Lady. And it mightily concerns every one, who believes their Right, to vindicate their Majesties, and the Settlement, from so foul an Imputation. Nor [Page 47] is it to be presumed, that their Majesties will reward Men for think­ing them Usurpers. Here I shall shew,

1. That they are thought by some only King and Queen in fact; that is, as those very Men explain themselves, meer Usurpers upon the Right of a Prince, whose Right continues.

2. That both, according to the Men of that Notion, and to the Reason of the thing; no Man, while he believes them to be only King, and Queen in fact, can give any Security of being true to this Government.

3. That he who should refuse to acknowledge the Right of their present Majesties, and abjure the Pretension of the late King, if required by Act of Parliament, ought to be accounted an Enemy to this Go­vernment.

4. That whoever will give this Security, ought to be reputed a Friend; till he shew the contrary, by holding or acting, as he had done before.

5. That even an Oath of Recognition, without an Abjuration, can­not be thought a sufficient Security.

1. The Present Dean of St. Pauls, who may be thought to trim the Notion of a King de facto, and dress such an one up in the Cloathes and Figure of a King of Right, Case of Alleg. p. 14. says,

‘In Hereditary Kingdoms, he is a Rightful King, who has by Suc­cession a legal Right to the Crown: And he who has Possession of the Crown without a legal Right, is a King de facto; that is, is a King, but not by Law.’

To apply this, he says:

‘King James, more I hope, by following ill Counsels, than by his own Inclination, Ibid. Page 48. had effectually removed all Prejudices, and Objections against such a Revolution; excepting the Obligations of Duty, and Conscience.’

So that according to him, notwithstanding all that King James had done, in breach of the Contract between Prince, and People; as the Parliament plainly judg'd; Duty and Conscience still bind us to him. And he, as being the rightful Prince, ought still to have continued the Possession of the Throne.

Then speaking of Circumstances making way for his present Ma­jesty's Accession to the Throne.

‘Now, says he, not to dispute the Legality of all this, Page 49. there was nothing so formidable as to prejudice an honest Man against Sub­mission [Page 48] and Compliance, as there was in the late Times of Re­bellion; nothing that could reasonably hinder a Compliance, but an Opinion that we must never pay Allegiance to any but a Legal King.’

‘Before which he had laid it down as a ge­neral Rule, Page 26. that a legal and successive Right is the ordinary way, whereby the Providence of God advances Princes to any Hereditary Throne: And this bars all other Human Claims; but yet God may give the Throne to another if he pleases; and this does not destroy the legal Right of the dispossessed Prince.’

To me, I must needs say, here seems certainty enough to ground an Indictment against the Dean, Act 1 W. M. by which the Oath is required. for holding, that a Legal Right to the Crown still remains in the late King, tho' the Parliament has de­clared, that the Royal State, Crown and Dignity are rightfully and en­tirely invested in the Persons of their Present Majesties.

Our Considerer knew too much Law to run this hazard; but we may conclude him to be of the same Opinion, not only from what he says of a legal and immediate Succession; but from his Concern, that the Government should look upon an Oath of Allegiance to their Majesties as Possessors of the Throne, while the Swearers hold ano­ther to have the Right; to be as great Security, as an Oath Decla­rative of their Majesties Right.

2. That no Man, while he is of this Opinion, can give any Se­curity of being true to this Government, I shall make very evi­dent:

• I. From the Opinions of those Men, upon whose Account, or in consequence of whose Doctrines, the Right of their present Majesties is denied.
• II. From the nature of the thing.

1. 'Tis a miserable thing to consider, how much men endued with Reason subject themselves to others, who have nothing but Noise and Assurance to entitle them to a Dictatorship. But so it is, that when the Doctrine of our Church is to be learnt from its Arti­cles and Homilies; the most forward of the Clergy usurp an infalli­ble Chair, and to dissent from what they would impose, is enough to place a man among the Publicans and Sinners.

The Popish Doctrine of Probability seems improved by these men: And it is not only held safe to act as a few Great Doctors ad­vise, but they who go upon other Grounds, must be thought not to hear the Church.

[Page 49]Wherefore, to shew how likely some men are to prevaricate, when they swear Allegiance to their present Majesties, I shall fairly re­present what Sacred Authority they would have, for imposing upon the Government with an empty sound of Words, which are made to signifie nothing, or very little.

Yet I cannot but observe, that tho' the Notions are adopted by Church-men, they had a Lay-Father, which was that man of immor­tal memory, Sir Robert Filmer; Vide Heylin 's Certamen Epist. pag. 208. of whom the great Dr. Heylin did not blush to learn Politicks.

Sir Robert having, as he thought, fixt an absolute and arbitrary Power in Adam, was mightily put to it to derive this down to all Kings at this day, whether they came in by Right, or Wrong.

But this he heals by the present Dean of St. Paul's Doctrine of Providence.

‘Many times, says Sir Robert, Anarchy of a mixt Mo­narchy, pag. 275. last. Ed. pag. 253. by the Act of an Usurper himself, or of those that set him up▪ the true Heir of the Crown is dis­possessed: God using the Ministry of the wickedest men for the removing and setting up of Kings: In such ca­ses the Subjects Obedience to the Fatherly Power must go along, and wait upon God's Providence, who only hath right to give and take away Kingdoms; and thereby to adopt Subjects into the Obe­dience of another Fatherly Power.’

We should be apt to think that when the Subjects are by God himself, by his Active, Vide ▪ Dr. S's Case of Al­leg. p. 12. Nor does it make any difference in this case, to distinguish between what God permits, and what he does. not bare Permissive Providence, adopted into another Fatherly Pow­er; all the Obedience which was due to the former Fatherly Power, becomes due to the present. But Sir Robert begs your Pardon for that.

‘If, says he, a Superior cannot protect, Directions for Obedi­en [...]n to Government, p. 72. it is his part to desire to be able to do it, which he cannot do in the future, if in the present they be destroyed for want of Government: Therefore it is to be presumed, that the Superior desires the preservation of them that should be subject to them: And so likewise it may be presumed, that the Usurper in general doth the Will of [ his Superior,] by preser­ving the People by Government. And it is not improper to say, that [ in obeying an Usurper, we may obey primarily the true Superiour, so long as our Obedience aims at the preservation of those in Subjection, and not at the destruction of the new Governour.’

[Page 50]Here indeed is one thing which Sir Robert's Admirers will find di­rectly against them, in their Application of his Principles to the present Case; which is, that, with him, no one can be an Usurper, unless it be upon the Right of his Superiour: Or, as he expresses himself in the Definition of Usurpation, Directions for Obedi­ence, p. 75. last Ed. p. 165. Who hath such a former Right to govern the Usurper, as cannot lawfully be taken away.

Since, therefore, the late King never had Right to govern his pre­sent Majesty, he cannot be an Usurper according to Sir Robert.

However, these men taking it for granted, that both their Maje­sties are Usurpers, apply Sir Robert's Rule, in justifying a sort of Obe­dience to them, and swearing to it upon occasion, for the Service of him whom they believe to be their true Governour; for which they will presume his Consent, contrary to his publick Declarations.

After Sir Robert comes a much greater Man, Bishop Sander­son:

Sanderson de legum hu­manarum obligatione Prael. 5 Sect. 19.Who teaches, That there is a necessity of obeying an unjust Possessor of Power, within the Bounds which he sets for Obedience, 1. In the Defence of the Country against Foreign Force, and the Attempts of Ene­mies. 2. In the administration of Justice. 3. In matters of commutative Justice. But that they must remember to do this only as far as Gratitude or the publick Safety requires; but not upon the account of any Right or Authority in the Usurper; and that they take care to preserve their Fidelity to their lawful Prince. To all this he holds, that the Consent of the Lawful Prince is to be presumed, as it is his Interest to have his People preserved for him: Provided they comply with the present oc­casion Ʋt presentibus rebus quo Salvi sint se quà licet modeste accomodent. as modestly, that is, as backwardly as may be, and only for self-preservation. Upon this account he held it lawful to be true and faithful to the pretended Common­wealth, Sanderson's Case of the Engagement, p. 111. without King and Lords, so far as not to resist.

And yet he has a Salvo for an absolute Promise of this nature, in one of the Exceptions which he takes to be involved in the nature of every Oath, De Oblig. Jur. prael. 2. Sect. 10. & prael. 6. Sect. 12. viz. Salva Potestate Superioris. 'So as it preju­dice 'not the Power of the Superiour.

[Page 51]If therefore the suppos'd Rightful King command a de facto-man to resist the Possessor; according to him, that Command is to be obeyed, notwithstanding the Oath. For tho' he presumes the tacit Consent of the Prince, Prael. 4. Sect. 6. that the Subject should take this Oath, pro­vided it be as he directs, with Reluctancy, Ibid. Sect. 7. and not till a Man is forc'd to it; he never supposes the Obligation to be absolute, till the presumption of the Consent has pass'd so long, that it may be too late to declare the contrary. Ibid. Sect. 6.

What he says of the Irritation, or making void an Oath, comes up so fully to the present Question, De Jur. Obligatione Prael. 7. Sect. 6. that I cannot but transcribe the most part of it.

‘He who is anothers Subject, is not his own Man, has not Power of obliging himself in those things in which he is subject, with­out the will of the Superiour under whom he is: And therefore ought not by any Act of his to draw upon himself any Obligation without his Consent, either express'd, or reasonably presum'd. For the Rights of Superiours over their Subjects are perpetual, by the immo­vable and eternal Law of God. Moreover the Duties of Subjects towards their Superiours, and the Right of Obedience and Sub­jection, are by the same perpetual Law, perpetual and indispensi­bly obligatory: Which antecedent Obligation (according to our third Hypothesis) hinders the effect of a subsequent Oath, that it cannot oblige. For the Prior Obligation is always a Prejudice to the Posterior, and makes void every Act inductive of a New Obli­gation contrary to it. Therefore in this case we must say, 1. That a Subject ought not, in those things in which he is subject to ano­ther, to swear that he will do any thing, without the at least pretended Consent of his Superiour. 2. That if he has sworn, and the thing is not unlawful, he is obliged to do it, as long as it does not seem con­trary to the Will, Dignity, or Utility, of the Superiour. 3. That the Superiour, if he has once confirmed the Promise of his Subject, by his express Consent, either antecedent or subsequent, cannot after­wards make it void, or take off its Obligation. 4. That if the Superiour, as soon as he should know of the matter, should present­ly signifie to his Subjects his Dissent, openly and peremptorily, and prohibit that which was sworn to be done, that transitory Obligati­on immediately ceases; and that the Subject by vertue of the Obli­gation of Duty, which is permanent and perpetual, is bound to act to the contrary of what he has sworn.’

[Page 52]From Bishop Sanderson, to descend to Dean Sherlock.

Case of Alleg. Vide supra.He has determined, 1. That their Majesties are only King and Queen in fact. 2. That God's Providence has actually given the Au­thority to their Majesties: But yet, 3. Has not alter'd the late King's Right.

However, one would think, that if God has by an active, and not permissive Providence, given the Authority to their Majesties; the same Allegiance and Obedience will be due to their Majesties, which was to the late King. But this the Dean does not hold by any means: For,

Pref. to the Case of Al­leg.1. ‘He declares, that he prayed for King William and Queen Mary by name, accor­ding to the Apostles Direction, To pray for all that are in Authority; even while he thought himself bound in Conscience not to swear Allegiance to them:’ That is, according to himself, Page 17. did not owe it them: For as he rightly says, What I am bound in Conscience to do, I may swear to do. So that if we take his Example for a Rule, or what he elsewhere says must be done, a King de facto may be in Au­thority; and yet no Allegiance may be due to him.

Page 18.2. Tho' the Dean teaches it to be a Duty to pray for a Prince, who has the whole Go­vernment in his hands, and has power to do a great deal of Good: Yet he says, We must take care to do it in such terms, as not to pray against the dispossessed Prince.

3. ‘He holds, that there are different Degrees of Submission, ac­cording to the Degrees of Settlement; and tho' the generality of the Nation submit to such a Prince, Ibid. and place him on the Throne, and put the Power of the Kingdom into his Hands; yet it may be we cannot yet think the Providence of God has set­led him in the Throne, while the dispossessed Prince has also such a formidable Power, as makes the Event doubtful.’

Upon this Principle the Battle of the Boyne brought some to take the Oaths: However, these Words are not confined to the Forces of Subjects, but take in the Forces of any Foreign Prince, autho­rized by the Dean to assist a Prince, whom he says, God does not hin­der from claiming his Right, when he finds his Opportunity.

[Page 53]Since, therefore the dispossessed Prince has still a formidable Power, as he is back'd by the Power of France; the degree of Submission due to their present Majesties, ought, according to him, to be diffe­rent from the degree of Submission due to Rightful Possessors.

I must own, in this the Dean is not singular; for this, with others of his Doctrines, I find in a M.S. of Obadiah Walker's, communicated to me by a worthy Gentleman lately deceased, who had been his Pu­pil, while Obadiah professed himself a Protestant.

‘My Assistance, says Obadiah, to the pre­sent State against Right is required, M. S. Penes Authorem. when the Sword they have unjustly acquired, and for which I obey them, is by a new War, a wresting again out of their hands: And then at such a time, in requiring my Aid, they require in some Sence also, my Protection, and bestowing on them my Power, instead of being restrained by theirs: And my hindring a Right, when it is in my Power to suffer it to pre­vail; which by no means may be given by me: For now their Government being dissolved into a State of War; as their Power upon which they established their Dominion over me is diminished; so is my Obligation, and my Assistance naturally returneth to him who hath more Right.’

4. The Dean allows Men to swear, Page 17. that they will live quietly and peaceably under such a Government.

Where he does not seem in the least to think the Swearers obliged to defend the Government against Strangers and Enemies, which the Common Law Oath required of all Men; and which is not required by the New Oath, if it leaves a Latitude for Men to swear to their Majesties only as Possessors of the Throne.

5. Whatever the Dean may hold in relation to the Defence of the Kingdom, against other Enemies; if the Dis­posessed Prince be the Enemy; Case of Alleg. p. 31. But a Prince may raise an Army for his Defence, be­sides the Militia of the County. This he may do when he is out of possessi­on; and loyal Subjects ought chearfully to serve him in it. Now here is a Question which I am not Lawyer enough to decide, Whether a Commission granted by a King out of Possession, be a Legal Commission? But be that how it will, I am sure there is no Law which requires all Subjects to receive Commissions from the King, tho he be in Possession. he is so far from allowing it lawful to Defend the Kingdom a­gainst him; that he too broadly insinuates, That he may send Commissions, which shall oblige his Subjects to serve him, against the King in possession; or at least, which a man may lawfully act by.

[Page 54]6. He says, We must pay Taxes to the Possessors: But if these are to be paid with a tender regard to the suppos'd Right of the Dispossessed Prince; and we are so far from being obliged by our Oaths to defend the present King and Kingdom against him, that it may be a Que­stion, whether we may not be obliged to defend him against the Possessor; it is an easie thing for men who come with these Noti­ons into Places of Trust in the Government, to turn their Taxes into Supplies for the King, whom they think themselves obliged to serve as far as they can, without their apparent Ruine.

If therefore the Dean of St. Pauls is of any Authority upon this Question, there can be little or no Security to the Government by the present Oath; which, as this Gentleman himself contends, pro­mises no other Faith and Allegiance, than what is due to Possessors of the Throne, upon the Account of Possession only.

And whereas Dean Sherlock contends, that Usurpers are the Case of Alleg. p. 11. Higher Powers ordained by God; and that such a sort of Subjection, or degree of Submission, as he teaches, is due to them, upon the Penalty in the 13th of St. Paul to the Romans;

Another Man of great Name in the Church, who has written some things Dr. Whitby. Vide the first part of his Protestant Reconciler; afterwards re­canted. ab­mirably well, and seems Considerations for taking the Oath. Pref. I do by no means condemn those Writings, which plead for taking the imposed Oath, upon such Grounds as do more fully justifie the Title of our present Governours. almost to come up to the Legality of the present Settlement; has found out a way of making a meer Bugbear of the Sentence of St. Paul, against such as resist the Authority of their Maje­sties, if their Possession is not Legal in the Church Sence.

Consid. pag. 57. ‘The Word, says he, which we translate Damnation, in the Original is [...], that is, Judgment: Now by our Law Treason may be committed against a King de facto, and that is punishable by the Judgment of Death, &c. It may be Judgment to resist the King de facto, in favour of the King de jure; that is, it may be an Offence, which by the Law will render me obnoxious to Judgment, &c.’

That is as much as to say, If I fight for the King de jure, the King de facto, if he prevail, may hang me by the Law of the Land; tho' I did no more than my Duty by God's Law: For by that I am obliged in case of a Competition to serve him, whom it is eternal Damnation to resist.

[Page 55]I shall touch upon but one more Spiritual Interpreter, Reasons why the Rector of P. took the Oath. and that is the nameless Rector of P.

This profound Casuist holds, That the Oath of Allegiance to the late King is still in force, and obliges every body to their Power, notwithstanding the taking the Oath to their Majesties. To help out which, he, instead of the Word [ attempts] in the old Oath, against which Men were obliged to defend the last King, while he continued King, uses the Word [ Contempts.]

As to the Word Allegiance in the Statute 3 Jac. 1. he uses several Arguments to prove, that it doth not imply actual Defence.

1. The Judgment of J. 1. Page 7. in his Apology for the Oath, that no more was intended by it, than bare Obedience; and that, Page 13. as he says in another place, no more than Passive.

2. The Naturalization of Foreigners; when yet, he says, of necessity they must be the natural Subjects of some other Sovereign Prince or State.

3. That if Allegiance required the bearing Arms, it would be a capital Crime not to accept a Commission.

4. That Non-resistance is all the Duty taught by the Church of England.

5. That the Oath of Allegiance, Enacted 3 Jac. 1. did not by any Clause of Repeal, abrogate or annul the Statutes and Common-Law, Page 8, 9. which al­lowed to the Clergy Exemptions from bear­ing Arms.

This premised, Page 12. he declares it his firm Opi­nion, that the Imposers of the Second Oath expected nothing that was inconsistent with the former.

1. Because, says he, most of them lay under the same Obligation to it that we do. Page 13. Taking it for granted, that they lay under the same Obligation which the Rector thought he did; and that they were as sensible of the Obligation.

2. ‘There are, says he, some Presumpti­ons, Page 14. that in this Second Oath they might rather design something less. Page 15.’ The Pre­sumption which he mentions is from the use of Abdication, to express the occasion of the New Oath.

[Page 56]3. ‘Let it, says he, be remembred, how many material Passages are left out of the Oath: As the Recognition of his just and un­doubted Right; with which Allegiance seems to have a near Al­liance: And as the Cause is manifest why that should not be con­tinued; so is it palpable, that this Abstract, these few Words which they have selected, cannot have all the Force and Effect of the whole.’

4. He urges the Account which the mo­dish Comentators, Page 17. as he calls them, have given of Allegiance, viz. that Allegiance is no more than Obedience to a King, while he rules according to Law.

He seems to yield the Objection, that this reduces the Oath to an empty Nothing. To which all that he says in effect, Page 17. is, 'tis as much as the matter will bear.

Which being the avow'd and direct Consequence of holding, that the Oath is taken to their Majesties only as to Possessors of the Throne: The Inference is obvious, that when such like Evasions are found out, and spread; whereby Men think that they may swear Allegi­ance to their Majesties, and yet retain Allegiance to the late King, as the only rightful King; it is necessary by a new Law to stop the Contagion. And since Men are so artful in their Interpretations; to obviate all manner of Subterfuges, by obliging them, not only to recognize the Right of their present Majesties, but to abjure the pre­tended Right of the late King; which it is more than a perhaps, that they think no general Words can reach: For let it be supposed, as this Author doth all along, that their Majesties are but bare Posses­sors of the Throne, without Legal Right; and then we may soon see what his Skill will signifie, Pag. 25. I am now in the second place, to shew you according to my Skill, &c. to cast a Blind; as if notwith­standing that Belief, a man is to be relied upon for the Allegiance which he swears to their Majesties.

It is very obvious, that when he is upon doing real Service to his Friends, he may be allowed to blacken the Swearers with mental Reservations, and to carry the meaning of this present Oath fur­ther than they will allow it to go; that he may prevent their being chain'd to an Obe­dience they never intended, Page 30. or cashier'd for not swearing to what they would be thought to intend.

[Page 57]He would seem to hold, that whoever has taken the present Oath, Page 28. and yet actually serves and corresponds with their Majesties Ene­mies, would make no bones of taking and breaking an Oath of Ab­juration.

Yet I doubt not but if this should be his own Case, or the Case of any near Relation, he would plead Church Authority for this; and would have more Excuses for it than one: As,

1. That he did not correspond, while he could presume of his Rightful Prince's Consent, that he should submit to their present Ma­jesties; but now he does it by the greater Authority. Or,

2. He did not correspond till the Affairs of France and the late King were so flourishing, that what he before thought a thorough Settlement, became unsetled; and so the ground of the Oath failed. And thus Dean Sherlock's Notion of Degrees of Settlement falls with­in another of Bishop Sanderson's implied Reservations; rebus sic stanti­bus, matters standing as they were when he swore.

3. Tho' not to hold Correspondence with their Majesties Ene­mies seems implied, in being true and faithful to them: Yet this they must intend with an Exception of the late King, because they hold, that he has right to make War, in order to which he will want Intelligence from Men entrusted by their Majesties. The having this, therefore, is one of the Rights of the Superiour, which they must suppose excepted in the nature of the thing; tho' not men­tioned.

4. They cannot think their Rightful King included within the general Word Enemies.

This answers what he pretends to hold of the Obligation to De­fence; tho' without the Consent of High Church, which holds, That Passive Obedience, Vide Dean S's Case of Resistance, and the Rector of P. or Non-resistance, is as much as can, or ought to be required by the Sovereign Power.

If therefore Non-resistance is all that the Legislative Power can re­quire; an Oath to defend the Government with Lives and For­tunes, would, Vide Sand. Prael. 3. Sect. 9. De re ex se illicita se­cundario 6. Sect. 14. Subin­telligi semper oportere hanc conditionem si ut id volue­rit quod ex aequi boni jure ab illo expectari, à nobis boneste concedi fas est. in the Judgment of Bishop Sanderson, be an Oath in a Secondary Sence unlawful, as being a Promise of what can­not modestly be required.

[Page 58]However, if it imported Defence against the late King, all these Casuists would have said, it cannot honestly be granted; and is void to all intents and purposes.

This shews the Fallaciousness of that Instance, by which he would illustrate the supposed Security in the present Oath of Allegiance, without a Declaration of Right.

‘If, says he, a man oblige himself by Oath to pay another an hundred Pound, Page 33. he is as strongly obliged to pay it him by vertue of his Oath, as if he had truly borrow'd it in time past of him. The Oath has given the other a Right to the Money; and by the Oath the Promiser is obliged to pay it.’

Where to make the Parallel hold:

1. The present Oath of Allegiance must be as expressive of the Duty of the Subject, as the Common-Law Oath, which was De­clarative of Right.

2. Tho' no Right is declared; he who swears must believe that no other Person has Right. For if he does, this is not like promi­sing to pay money, which is ones own to dispose of.

3. His very Instance is not universally true: For tho' a Man swear to pay money to an Highway-man, the Highway-man has no Right to this money. Cicero held the Oath absolutely void; (a) Grot. de jure Belli & Pacis. Lib. 2. Sect. 14. but Grotius and Bishop San­derson, who opppose him in this, are express, that the Highway-man acquires no Right. And agreeably to them Vide a late Paper of Dr. Hammond's Opinion. Dr. Hammond holds, that he who swore may bring an Action for the money.

Case of Alleg. p. 34. So­vereign Power is God's Authority, tho' Princes may be advanced to it by no honester means than Thieves take a Purse.They who shall observe the Character Dean Sherlock gives of his Providential King, will think my Instance, of swearing to pay money to an Highway-man, not improperly applied to an Allegiance unwillingly sworn to, while men look upon themselves under a Force, no way alterative of the Legal Right of the Dispossessed Prince.

II. That in the nature of the thing, [...]o man who holds their Ma­jesties to have a Possession, contrary to Right, remaining in King James, can give reasonable Security of Fidelity to their Majesties; especially that the present Form of Words pronounced by them yields none, may very easily appear from the nature of the thing: For,

[Page 59]1. No man can be of the Opinion that they are only King and Queen in fact, but upon those Grounds which carry some of our High Church men to swear Allegiance to their Majesties, barely as Pos­sessors of the Throne, and others of them not to Swear: but ac­cording to the Opinion of both Divisions of that Party, they cannot be obliged to do any thing in the Service of their Majesties, to the real Prejudice of their King of Right: Or if they have, they are bound to repent of it.

2. Tho' some Persons of Art and Abilities to delude, may have permission to take the Oaths to their Majesties; it is not to be pre­sumed that the late King would consent that these Oaths should be generally taken, lest People who understand not Subtilties should think themselves obliged, by vertue of that Consent, to serve their Majesties, according to the true import of the Oath. And indeed the late King's Declarations take off all Colour from such Presumpti­on: So that the Non-swearers have a great Advantage in the Argu­ment against the other de facto-men.

3. Tho' Dean Sherlock in some places holds the rightful King out of Possession not to be King, and ridicules Bishop Sanderson's Noti­on of his presumed Consent, for a sort of submission to the Rival; yet he manifestly allows, at least does not deny, such an Authority to remain in the dispossessed Prince, as he could not have otherwise than as King. For he not only affirms, that he has Right to make War, which he must not by his Principles yield to any Subject; but makes his Person irresistible, and strongly intimates his Opinion of the Legality of his Commissions, especially when his Power is formidable. If therefore any Authority remain in the Dispossessed King, either two Rival Kings may be inve­sted with Regal Authority, Case of Alleg. pag. 14. which he abso­lutely denies: Or else, if there be any Au­thority in the Commands of the King de facto, it must lie in the presumed Consent of the other.

4. He must yield this at least, in one Case of a Prince's being kept from the possession of his Right; which is, when an Usurper steps into the Throne before the Prince, who, according to Men of that Notion, is King before Possession, could assume the Ensigns of Roy­alty, which, according to them, was the Case of Robert, the Eldest Son of W. 1. upon the Possession of W. 2. and H. 1. Of Maud up on the Possession of Stephen: Of Prince Arthur upon the Pos­session of King John, and so downwards.

[Page 60]This in direct Consequence would extend to the present Case, when, according to him, a King de facto has, contrary to the Laws of this Realm, dispossessed a King de jure, who, suitably to the Dean's Expressions, Page 49. tho' he left the Crown and Kingdom in a fright, is not to be thought to have renounced all future Right and Claim to it.

Since, therefore, he is so far from giving colour to this Presumption, that he publickly claims the Crown, and commands all the Subjects of this Monarchy to assist him against their present Majesties; they who believe him to be King, and yet would swear Allegiance to their Majesties; in whatever Form of Words they swear, as they believe the Regal Authority to be legally and rightfully vested in the late King only, must be supposed to intend to do nothing in pursuance of that Oath, beyond what they can have King James's Authority for.

Nor must the Dean think to evade this Consequence, when all that he retracts of his Case of Resistance, is his former Assertion, that when St. Paul says, All Power is of God, he means only Legal Powers. But that, in an Hereditary Monarchy, where the right Heir is living, Usurped Powers, are not of God.

I am sure he no where retracts another as positive Assertion, That the Sovereign Power which makes Repeals, and dispenses with Laws, Case of Resistance, pag. 199. & 200. is inseparable from the Person of the Prince.

According to which, 1. The late King could do no Act which amounted to the Breach of the Contract; and so bare Abdication, or running away in a fright, is all the Foundation which would remain for the present Settlement.

2. This inseparable Sovereignty continuing in the Person of their Rightful Prince, their Majesties must upon this Principle act under the late King's Authority, or without any at all.

3. This shews, beyond Contradiction, that they who would re­fuse to Recognize the Right of their present Majesties, and to Abjure the late Kings Pretension, are to be accounted Enemies to this Go­vernment, notwithstanding all that our Considerer offers to clear them.

‘A new Oath, he says, will only affect such as have taken the Oath of Allegiance, Page 28. & 29. bona fide, and kept it very honestly. And is it likely, that they who have done so, should be Enemies to the Government?’

[Page 61]Now this will not concern our present Question; unless these are Men who would refuse to take an Oath of Recognition and Abju­ration, by reason of the Belief that King James remains the rightful King.

If therefore that Belief carries with it as great a Reflection upon the present Government as its greatest Enemies can invent; and if farther, it disables them from serving the Government, and paying that Allegiance which is due to it: They (upon the known Rule, when the Exigences of Affairs require Assistance and Defence) as they are not for the Government, must be reputed against it.

I may add, as another Rule, that whoever denies to pay their Majesties that Allegiance, which the Constitution of this Monar­chy requires to be paid to the Sovereign Lord and Lady for the time being, must be Enemies in the Eye of the Law; unless, being Sub­jects, they are rather to be accounted Traitors. But no Man who swears Allegiance to them, while he believes the late King to be the Rightful Ring, can pay them the Allegiance due to them by the Constitution; that requiring Allegiance, upon the Account of a presumed Right in the Possessor.

But that which puts this matter beyond all Question, is, that every Man is to be supposed to act according to his Principles; but no Man can be led by any Principle to believe the late King to have the Right, who will not by the same Principle be obliged to do him Service; that is, pay him Allegiance whenever it is in his Power: Tho' sometimes, as Bishop Sanderson has it, the Exercise of Allegiance may be suspended by reason of a prevailing Force.

How far soever these men may justifie their Swearing to their present Majesties, bona fide, according to the perswasion of their own minds, they cannot be said honestly to have kept the Oath: For if they have kept the Oath, they have acted contrary to their Belief: If they have acted according to their Belief, they have not kept the Oath.

Oh! but says our Considerer, Page 29. ‘The Legisla­tive Power imposed the Oath of Allegiance on the Subject, and intended it for the Se­curity and Establishment of the Present Government: The Sub­ject takes the Oath, and keeps it faithfully; how is he then an Enemy?’

If he who believes King James to have the Right, tho' the Parlia­ment declared the Regal Power to be rightfully vested in their present Majesties, can be thought to have taken the Oath in that Sence in which the Parliament intended it for a Security, this were some­thing: [Page 62] And yet, if the Parliament might at that time think there was no need of having the Oath as express as the Act of Settlement, or implying as much, and should afterwards find a necessity of pro­viding against a spreading Evil, of which they were not then so sensible; they who have manifested their Opposition to the Grounds of the Settlement, if they should refuse to give that reasonable Secu­rity, would be no less Enemies, for having before given what they cannot be thought ever to have intended for a real Security.

Since he thinks himself very lucky in his Similies, I must not pass by that which he brings upon this occasion.

‘My Friend, says he, desires me to walk a Mile with him, Page 29. to conduct him through such a thieving Lane, and I consent; and when he comes to the Miles end, his Fears grow greater, and he desires me to walk another Mile; but I tell him, It is late, and I can go no further without Inconveniency, and Danger to my self; and for this he quarrels with me, and accounts me his Enemy. I leave you to judge with what reason.’

Apply but his own Instance to the present Case, and the Reason will appear undeniable: For,

1. He admits the Case to be of two Persons, whose Ways and Interests are divided; that is, one for King James, while the other is for their present Majesties.

2. He supposes that the Jacobite went with the Williamite as far as he could, with his own Conveniency, and without Danger.

3. That there is yet more Danger. This Danger he must not, by his Principles, share with the other, especially when it is so late, that the utmost time which has been allowed to keep along with the Williamite is expired.

4. It is therefore natural to conclude, that this Man is one of that Party from whence the farther Danger is to be feared.

5. And upon that Account the Williamite ought in the first place to secure this Man from doing him any Mischief; by his Oath, as full as Words can make it, if he is a Man thought to make Con­science of an Oath; if not, by dislabling him from adding to the Danger.

6. To apply this Instance to the present Case.

If a Man slightly Arm'd, travelling upon a dangerous Road, should meet with several Passengers who had been rob'd, and made such a Description of the Theives, that upon the first approach of some Men well mounted, every one of the Fellow-Travellers should be satisfied that they were part of the Gang who committed the [Page 63] Robberies: And yet, tho' the Travellers were superiour in Num­ber and Courage, they should be so generous as to trust the others with their Arms, upon an Oath, that they would never set upon them till they were joyn'd by the rest of their Party; Would not this argue a strange sort of Generosity in them, who should take such a slight Security?

It must not be said that this is not the present Case, in relation to the Oath of Allegiance; since these men profess, that they intended to pay no other Allegiance, than what is due to a King ba [...]ely as Pos­sessor. Nor can the Import of the Word Allegiance ever convince them who are resolved never to own, that Allegiance, according to the Constitution, implies an acknowledgment of the Right of the Pos­sessor, and a Renunciation of all Pretenders; as it engages the Sub­ject in the Defence of their Prince against all men whatsoever.

VI. But whoever will take an Oath in such a Form, as leaves no co­lour for evading the Common Law-meaning of the Oath of Fide­lity, ought to be accounted a Friend till the contrary appear: For,

1. It is a common Presumption, that Men will not wittingly, and willingly, Case, p. 28. and with an evil mind, forswear themselves.

Tho' this Gentleman, to serve his purpose, takes a Liberty with his Friends; it is by no means to be supposed, that any Man who should in express Terms swear to the Right of their Majesties; that he be­lieves the former King to have no Right; and that he will to the ut­most of his Power defend the Persons and Right of their Majesties against him; should, notwithstanding this Oath, believe that their Majesties have no Right, but that the Right is in the late King, and that it were unlawful to defend their Majesties against him.

1. It is certain, the Consent of the late King to such an Oath is not to be presumed.

2. If it were actually given, the Oath could not but be thought to bind, according to the plain meaning of the Words: God being called as a Witness and Party to a Renunciation of that very Excep­tion, or Equivocation, with which, otherwise, Men would think to juggle.

3. The Question being of Protestants who take this Oath; the Doctrine of mental Reservations, or the Dispensation of any other Superiour, besides them who enacted the Oath, cannot be thought to take place here.

[Page 64]II. Tho' I will admit, that there are Exceptions to be made to the general Rule and Presumption in this Case; because those Gen­tlemen, who pretend to be the only Men fit for Employments, must not be thought so weak, as not to see through all the Evasions which Clergy-men ▪ or others, have found out to elude the meaning of the present Oath; and therefore it must be yielded, that they break it wittingly and willingly: Yet the Rule holds good in the General; be­cause most Men are to be presumed to have regard to their Oaths, when there can be no doubt of the meaning. Nay, even those Men who cannot but know, that they break the Oath which they have taken to their Majesties, would not be likely to break a plain Oath of Abjuration: For,

1. Tho' their Biass may lean to those Interpretations of the pre­sent Oath, which stifle their Convictions; no Evasion for such an Oath having yet been invented, their Consciences would so stare them in their Faces upon the apparent Violations of so solemn a Tie, that it is not to be thought they durst venture.

2. Men who would venture Damnation to perjure themselves, would not do it in such a manner, that the World must pronounce them wilfully perjured. As Sir John Denham well observes, Vide his admirable Po­em on Cooper's Hill.

3. The Temptations for breaking such an Oath would be remo­ved: For,

(1.) Neither could the late King trust 'em after such an Oath against him; nor if he did, could they have any Reputation or Party wherewith to serve him to any purpose, or render themselves worth courting.

No Man, whatever his Talents may be, can be a great Man as he stands alone.

They who swear to their Majesties as King and Queen in fact, have hitherto maintained their Reputations with a bigotted Party, upon that Doctrine of Probability before observ'd, which makes the Eva­sions, with which the present Oath is taken, to pass for the Church-sence. But since there can be no Protestant Church-Cover for bare-fac'd Perjury; they who should take a full Oath of Recognition and Abjuration, and yet act as if they believed the late King still to have the Right, must no longer pretend to be Protestants; and by being [Page 65] necessitated to pull off that Mask, under which they have served Popery, will become useless, and despicable.

(2.) As such an Oath as is proposed would be an effectual Re­nunciation of King James and his Party; Interest, which has so long had the Ascendant over these Men, would be an Argument for eve­ry one, who should take such an Oath, to strengthen and support himself among them, who receive him upon this Test.

(3.) Tho' the Supposition, That the late King still remains King, or has Right to be King, has no real Foundation in Law, Reason, or the Authentick Doctrine of the Church of England: Yet some Men are for maintaining, that he still has the Right, meerly because they have held so hitherto. But as in abjuring the supposed Right, they would own themselves to have been in an Error; Since they could not have the Glory of Perseverance, they would, in all pro­bability, be driven to the Honesty of Repentance.

V. But it will be said, What need would there be of an Oath of Abjuration, if there should be an Oath recognizing the Right of their present Majesties? Would not this sufficiently imply, that the late King has no Right?

Answ. 1. If it does, then, certainly, whoever would proffer to take an Oath of Recognition, and yet refuse an Oath of Abjuration, would make the last necessary by his Refusal; as it would argue that he has some hidden Reason for his Refusal; and therefore did not mean honestly when he proffer'd the other.

2. The Refusal of an Oath of Abjuration must be presumed to be grounded upon a Perswasion, that the late King has Right: And therefore, whether this is really consistent with the Belief, That their Majesties have Right, or no, is not very material. How­ever,

3. It is plain that these Men may, by their avowed Principles, take an Oath to their present Majesties, as having a Legal Right; and that they will defend them against against all Men; and yet not think themselves obliged to defend them against him whom they suppose to have the Divine Right; unless they swear against him by Name: For,

1. According to them, the Sovereignty, and all the Rights of it, remain inseparable from his Person; especially such as Kings may retain, when they are not in a Condition to require the Actual Obedience of their Subjects: and by plain consequence, the Pre­rogative of not being included in the general Words of any Sta­tute: And therefore a Defence against all Men, would, with the de facto-men, imply an Exception of their dispossessed rightful Prince.

[Page 66]2. These Men to some purposes allow their Majesties to be lawful and rightful King and Queen; and yet not in such a sence as wholly excludes the late King's Pretensions, as I might prove by several Instances; but shall confine my self to Dean Sherlock, and the more wary Author of an Enquiry into the Nature and Obligation of Legal Rights.

Tho' the Dean seems very full, that their Majesties have no Legal Right; Dr. S's Vindic. p. 8. that the Settlement to which he contends that a sort of Allegiance is due, Ibid. pag. 9. is actual, not legal; and that, according to the Doctrine of the Convocation, in the time of J. 1. Those Princes who have no Legal Right, may have God's Au­thority. Yet it were no difficult thing to prove, by the direct Con­sequences of what he holds, if not by the the express Terms, that he must needs be ready to swear, that their Majesties are lawful and rightful King and Queen; and yet would not think King James's Right altered by that Providence, which setled their Majesties in the Throne; or that he ought to defend their Majesties against King James.

In his Vindication, where he seems to advance farther towards the Right of this Government, then he had in his Vindic. pag. 16. Case of Allegiance, he says, ‘He is the King, who is in Possession of the Throne, with the Case of Allegiance, pag. 9. The Submission of the Prince, indeed, may be thought necessary to transfer a Legal Right. Consent and Submis­sion of the People. The Consent and Sub­mission of the People turn that which was originally no more but Force, into a Civil and Legal Authority, by giving themselves up to the Government of the Prince: That Vindic. pag. 18. all Mankind have this Natural Right; That their Submission gives a Prince a Right to govern them; and that this is a Lawful Right.’

Any Man therefore, one would think, might maintain from these Premises, that he who has a Legal Right to Govern, is the sole Right­ful Prince, and is to be defended against all others.

Ibid. ‘No hold you there, says the Dean, tho' the People confer a Lawful Right, they can­not extinguish their former King's Claim, who has not submitted.’

Well, but may not the King in Possession be secured of the Al­legiance of those, who acknowledge him to have Right, and swear that they will be true and faithful to him?

[Page 67]Truly, the Dean intimates broadly enough out of Dr. Jackson, ‘That though Subjects would resist God's Or­dinance; Page 77. if they should resist till their Ma­jesties be declared Usurpers or Intruders, by some higher Power or Authority; the late King, Case of Alleg. pag. 31. like H. 7. against R. 3. is Authorized by God's Ordinance to execute Vengeance, or to bring Con­demnation on their Majesties: Ibid. This Tyrant. which every one might not have done, which perhaps no other might do, save only in his Right and Interest, and by his Com­mission.’

Upon which the Dean himself says, ‘Now who ever doubted but a Rightful Prince, Vindic. pag. 77. when dispossessed unjustly, may recover his Throne again if he can, and dispossess the Usurper; or that those who lawfully receive Commissions from him, may lawfully fight in his Quarrel? But the great Question still remains, Whether Sub­jects may lawfully take Commissions from the dispossessed Prince, to fight against the Prince who is setled in the Possession of the Throne?’

Since when he had taken the utmost time to consider of this Point of Law, he would not determine against the Legality of such a Commission, all the Implications in his First Book, of his Opinion for the Legality of them, remain.

And it must be remembred, that he had there asserted positively, Case of Allegiance. That Loyal Subjects ought chearfully to serve their Prince in an Ar­my, which he may raise for his Defence when he is out of Possession. And then I think it can be no great Question, whether they ought not to act under his Commission, when required by him.

Besides, as the Dispossessed Prince still, according to him, must con­tinue the Rightful Prince, his unrecanted Do­ctrine of the Absolute Irresistibility of his Per­son remains in full Force. Vide Case of Ressstance. Wherefore we may conclude, that Dean Sherlock, tho' he should think his being a Clergy-man were no Exemption from the Defence of their Majesties, and the Kingdom; yet would not by vertue of an Oath, recognizing the Right of their Majesties, think himself obliged to defend them against King James. And yet I dare say, no man thinks so hardly of the Dean; for my part, I profess I do not, as to believe, that if he sware to defend their Majesties against King James, he would not, upon occasion, pursue the Obligation of that Oath.

[Page 68]Yet our Considerer must say, suitably to his licensed Freedom, that Dean Sherlock would make no Bones of taking and breaking an Oath of Abjuration. Page 28.

2. The Author of the Enquiry having, without doubt, observed with what Contradictions Dean Sherlock had been charged, both by Friends and Enemies to the Government; and the Censure those had incurred, who finding no other Tory Principle but Conquest left for the Foundation of this Settlement, had placed it upon that; touches upon it very tenderly; and, if we except what he says that way, it must be said, that he fixes the Foundation of this Government wholly upon an Abdication, or running a­way in a Fright; Vide Dr. S. supra. and the Judgment of the States upon this Abdication, which he suppo­ses to have given their Majesties a Enquiry into the Na­ture and Obligation of Le­gal Rights, &c. p. 17. A Legal Title to the Crown, and a Legal Authority, may be separated; that he who has the Title, may not have the Legal Authority, nor be the Legal King. Legal Authority to administer the Government, while he admits that the late King has a Legal Title, separate from that Authority: But this Authority of the States he limits to a Page 7. Va­cancy; or, as he explains himself, where Page 11. there is no Monarch actually in the Throne: and the Power of Judging or Declaring, he allows not to go farther than for the Page 7. next Heir. He says farther, in a particular Case, by way of a General Rule, That where the undoubted Heirs to the Crown, by a Lineal Succession, are unjustly kept from their Right, Subjects are bound to do them right, by placing them on the Throne. So that,

1. Suppose the Prince of Wales were wholly out of Question; yet if his Majesty has his Crown otherwise than in the Right of her Majesty, he would not be a Legal King in this Author's Sence, not­withstanding all that he says to make us believe, that he thinks his Majesties Authority Legal.

2. If the late King still retains a Right; whatever Legal Authority their Majesties may have, the People, according to him, are bound to do King James right, by placing him upon the Throne. And what he says of their having answered the Law of Succession, Page 7. in placing him formerly upon the Throne, is a meer Evasion; it not coming up to what is due to a continuing Right, whether of Succes­sion before Possession, or of Restitution afterwards: And, certainly, it is Nonsence to suppose, that I am obliged to put a Prince into [Page 69] Possession, if an Usurper got in before him; but not if the Usurper came in upon the dispossessing him.

As he supposes the Throne to have been no otherwise vacant, than by an Abdication; this will plainly resolve its self into Dean Sherlock's Notion of Degrees of Settlement, according as the Abdicating Prince is more or less formidable, or intent upon pursuing his supposed Right. And thus he who is thought to have divested himself of his Sovereignty, when he left the Nation, without constituting any body to govern in his Absence; may be said to have reassumed his Royal Dignity, by granting Commissions to a standing Council, or to any particular Persons to manage his Interest. Which is the direct Consequence of dividing the Breach of the Contract from the Abdication: For if no regard be had to the breach of that, J. 2. would continue as Legal a King as C. 2. was, during the late Usur­pation.

And whatever Allegiance the de facto-men should swear to their Majesties, and intend to pay while the Strength of the Nation were in other Hands; it is little less than Demonstration, that unless they swear their Majesties have the Right exclusive of King James; the present Government cannot be secured of their Allegiance: because by their Principles, if they get into Power to turn the Scales, they are obliged to recall their King.

This, I conceive, may be enough to shew the absolute Necessity of an Oath, whereby Men may not only recognize the Right of their present Majesties, but abjure the pretended Right, or Title, of the late King; which no man can do, while he, with that subtile Author whom I last cited, separates the Legal Authority from a Legal Title.

6. That they who take the present Oath to their Majesties, while they suppose the Right to be in the late King, are guilty of material Perjury, would be no Question to any body, who does not take Bishop Sanderson, and other Casuists of that Stamp, for Oracles.

The Bishop all along supposes, that Allegiance was due to C. 2. during the late Times of Usurpation; and yet, that men might promise to be true and faithful to the then Powers, with­out entring into any Obligation, Case of the Engage­ment, p. 102. contra­ry to their Allegiance to C. 2.

His chief Reasons are,

1. The Page 110. Absenc of Words incapable of a Construction binding to less than the Allegiance due to Governours de Jure.

[Page 70]2. ‘That the Imposers intending by the Engagement to secure themselves, especially, against the Designs and Attempts of those men, who they knew well enough, held them for no other than Usurpers; must be in Reason supposed to require no more Assu­rance of them by the Engagement, than such as may, and is usu­ally given to Usurpers: Which, says he, is not an Acknowledg­ment of their Title, and a Promise of Allegiance, but meerly a Promise of living quietly so long as they are under their Power, and enjoy their Protection.’ Whereas,

(1.) Tho' he will not allow any Promise of Allegiance to be contained in the Engagement; there was not only a Promise to be true and faithful to the Commonwealth; but as then established, without King and Lords: Which was an express owning it for an established Government. And himself had before laid it down as a Rule, that Page 90. Allegiance is a Duty, which every Subject, under what Form of Government soever, by the Law of Nature, oweth to his Country; and consequently, to the Soveraign Power thereof. So that here must have been an Established Government without a So­vereign Power, which is absurd; or else they who took the Engage­ment with an honest Mind, could not but think that their Allegi­ance was transferred to Persons invested with Sovereign Power.

(2.) He very absurdly supposes, that because Governments, esteemed Usurpations by their Enemies, seek to secure themselves; therefore they seek to be secured only as Usurpers: that is, not believing that they are de jure, and that the Allegiance of the Subject is due to them, because their Enemies deny they have any Right. Or else, that to oblige the Subjects to defend the Persons of the Governours, is a necessary Security for Rightful Governours; but unnecessary for Usurpers: which is equally absurd.

But admit the Bishops Evasions would hold for the Engagement; it is evident, that there is no true ground for them in the present Oath of Allegiance: For he takes it for a clear Truth, Case of Engagement, pag. 97. ‘That all Promises and Assu­rances, wherein Faith is required to be given to another, ought to be understood ad mentem imponentis, according to the mind and meaning of him to whom the Faith is to be given; so far forth, as the meaning may reasonably appear by the nature of the matter about which it is conversant; and such signification of the Words whereby it is expressed; as, according to the ordinary Use of Speech amongst Men, agreeth best there­unto.’

[Page 71]And tho' he allow the Promiser of Faith in some cases to take advantage of Ambigu­ity in the Words of the Promise, Page 99. and to make use of that Latitude of Sence which was left undetermined: Yet he does not permit Men to advantage themselves of any re­mote, secret, and reserved intent.

But our Law-makers have been so far from giving occasion to suppose, that they had an hidden Intent to have this Government sworn to, only as an Usurpation; That,

1. They acknowledge their Majesties to be rightfully invested with the Regal Dignity, and declare their Submission to them upon the Account of Right: Which Submission being not only for them­selves, but as the Representatives of all England not personally present; the Subjects that swear to be true and faithful to their Majesties, can­not be thought to answer the meaning of their Oath, if they pay not the Faith due to rightful Possessors.

2. They faithfully promise to defend the Persons of their present Majesties, and the Limitations setled by that Act, which requires the Oath, against all Men whatsoever.

3. They use such a Word to engage the Subjects to the Service of their Majesties, as in common and legal Intendment, and by Bishop Sanderson's own Confession, implies Subjection to a Rightful Government. Every Man must take Allegiance to imply a Legal Tie; and the Law supposes this, to be only to a Legal and Right­ful Government. Nay, the Bishop himself holds, That it is due only to the Rightful Governour; and that the exercise of it is su­spended during an Usurpation.

Whoever therefore takes the present Oath with a Belief, That he ought to retain Allegiance to the late King; or that he is in any respect King of England, or ought so to be, must needs be guilty of material Perjury. And if he does it, after the Import of the Oath has been fairly represented, it will be very difficult to avoid Formal Perjury.

I will agree with Dean Sherlock, Vindic. p. 80. ‘That a different Opinion may excuse from formal Perjury: For no Man is formally perjured, who does not know it.’

But then it is the Judgment of all Casuists, Vide Bishop Sanderson's Sermons. That an erroneous Conscience is sinful and damnatory, where the Error does not pro­ceed from invincible Ignorance.

[Page 72]The evading therefore this Snare and hazard of Damnation, by an Oath which artful Men have made of doubtful Interpretation, were one benefit of an express Oath of Abjuration, which the Con­siderer seems never to have thought of.

Nor, indeed, has he said any thing materi­al against those Arguments for one, Fift General Head. which he has thought fit to mention; only has given occasion for Men to take greater notice of the Advantages to the Government and Nation, which it would be likely to pro­duce.

He asserts very Magisterially, That an Oath of Abjuration will neither gain their Ma­jesties any new Friends, Page 26. nor fix the old ones faster: nor discover any old or new Enemies.

But I think, whoever impartially considers, may soon be satisfied in the contrary to every one of these Assertions: For,

1. Since it is evident, that they who take the present Oath are really bound to the Import of an Oath of Abjuration, and are guilty of material Perjury, if they take the Oath in a lower sence; these Men, when they are under a necessity of bethinking themselves of what they are already bound to, are likely to take the Oath in such a Sence, as will make them Friends of Enemies: Or if they were not to be accounted other than Friends before, they will by an Oath of Abjuration be fixt faster to their Duty.

But if any, who have hitherto pass'd for Friends to this Govern­ment should refuse an Oath of Abjuration; it appears by what has been above observed, that this Oath would make a Discovery of Enemies, not before truly known.

2. Many Men may be thought to have held off from this Govern­ment, because they thought it at least doubtful, whether it asserted its own Right; but would readily submit to that Authority, which should put that out of question: The chief Difficulty having been, to satisfie Men that they ought to swear Allegiance to any Govern­ment, meerly upon the account of Possession.

3. Several may have held off out of Worldly Policy, when they found so many seemingly come into the Government, tho' really a­gainst it, that they might think it in danger of over-setting by the number of Enemies within. But when these found, not only the Men in Offices, but the Generality of the Nation, engaged and united in the Defence of the Gouernment against all Enemies what­soever; they would find no Temptation to be of a divided Party, or Interest.

[Page 73]4. Tho' those Subjects who are Friends to this Government upon a Principle, cannot be fixt faster to it by an Oath of Abjuration; since that can oblige them to no more than they already know to be their Duty, and Practise, as they have Opportunity; yet it may be thought an occasion of fixing Friends abroad, and of gaining new ones; when the Honour of the Government is vindicated, and its Continuance and Strength secured, by an Oath, which will in­volve all men who should break it, in formal, as well as material Perjury.

5. But as this Gentleman's Charity will not admit of a Distinction between Formal and Material Perjury; and therefore he could not think of any Benefit which might accrew by an Oath, which would free honest Men from the Danger of the First; Neither do his Poli­ticks reach to another Benefit of an Oath of Abjuration; which is the weakning Enemies, and strengthning and supporting the Go­vernment, and the Friends to it: Which cannot properly fall within the only Pag. 26. An Oath of Abjuration will neither gain their Majesties any new Friends, nor fix the old ones faster to them; nor yet discover any old or new Enemies. And, what is an Oath good for, that will answer to none of these ends and purposes. ends and purposes of an Oath, which he could think of.

The Benefits likely to arise from such an Oath might appear in many Instances; of which I shall name some:

1. Whereas, according to the Doctrine too generally received, Men may swear to the Government, without giving any Security for the Support and Defence of it; all Men who should take an Oath of Abjuration, would proclaim their being engaged in its Defence; to the Horror of its Enemies, and Encouragement of Friends, both at home and abroad.

2. Whether this struck Terror into Enemies or no, the engaging Numbers to stick to the Government in all Events, when before they thought themselves at liberty to chuse their Side, could not but afford real Security and Strength.

3. Such an Oath would vindicate the Honour of the Govern­ment; which hath suffered most by the Reproaches of pretended Friends.

4. They who before thought themselves as much engaged as they could be by this Oath, would be enabled to serve the Government with Courage, when they saw the Nation Sworn-Brethren for the Defence of it: Whereas, before, the Fears of Treachery might [Page 74] weaken and dispirit too many in the Service, who might think that every Step they took, they trod upon a Mine ready to spring.

5. The Effects of an Act of Abjuration would be very beneficial, if it were only upon the account of Offices.

The Influence of the Offices of the Kingdom Ecclesiastical, Mi­litary, and Civil, is so very great, that the Constancy of the People of England to the National Interest, while all the Offices were in the Hands of that Party, who are now against the Right of their Ma­jesties; as it is an Evidence, how despicable that Party must needs be without such Supports; is an undeniable Argument for taking from them that wherein lies all their Strength and Power to do Mischief.

Here the Considerer Objects:

Obj. 1. Will they not rather be enabled to do more mischief, by being more trusted for such an Oath? Which admits of several Answers.

1. They cannot be more trusted than they have been, in confi­dence, That they had taken the Oath without any mental Reser­vation.

2. If they should take such an Oath; the Presumption, as I have before shewn, will be strong for their keeping it.

3. They could not, if they would, do as much mischief as they have done; because they could not have so many to joyn with them as they have hitherto misled, with Pretences which would serve no longer.

4. Some at least of the most dangerous, would be likely to re­fuse it: Either, 1. To have the Reputation of Constancy: Or, 2. Of being true Sons of the Church; according to what has pass'd for its Doctrine: Or, 3. Because they are too far engaged in Plots against this Government, to dare to desert their Party: Well re­membring that of the Satyrist,

5. Admit they should all take the Oath, and design to elude the plain meaning of it; this could not be without communicating and publishing their Evasions: So that the Government would be sufficiently alarm'd against trusting many of them; and however, it is likely would make a Distinction between them who have served it out of Principle; and them who must renounce their Principles to come in to it.

[Page 75]6. As it is not to be suppos'd, that the Majority of those who had declared the Right to be in the late King, would wilfully perjure themselves to keep their Places; the Treachery of a few who had lost that Credit with which they should serve their Party, could not ballance against the advantage of having all of a piece, and united against the common Enemy; and the strengthening the hands of Friends by the places of them who should absolutely refuse to abjure the late King's Pretension; or however, should be thought not to have deserved so much for coming in at the Eleventh Hour, as they that came in at the First.

Obj. 2. But whereas to serve his purpose he had held, that all who take the present Oath, and yet retain an Allegiance to the late King, wilfully perjure themselves; that therefore all these would take an Oath of Abjuration; Page 27. and that it is not in man to find out or assign one tolerable Reason why they should not do it; he sounds his main Ob­jection upon the Supposition, Page 31. that all that take the Oath of Allegiance will not take the Oath of Abjuration; but a great number of good People, that serve their present Majesties with Faithfulness, Honesty and Diligence, and with Af­fection too, will by reason of that, be dispossessed of their Employments, and incapacitated to serve them any longer: For to be sure, no other but the honest, faithful, and the conscientious, will be dispossessed thereof.

To which I answer,

1. As has appeared above, how good foever such Men may be; they cannot be good Subjects, but are to be accounted Enemies; because the only possible ground for thhir Refusal, must be the Be­lief, that the late King still retains a Right to dispossess their Ma­jesties; and, at the least, is not to be opposed: And therefore, the more conscientious they are with that Opinion, the more dangerous they are to the present Government.

2. Since he holds, That a great number of these Men will be dispossessed, so much the greater will be the Benefit to the Publick by such an Oath, as it disarms the more Enemies, and supplies their Places with the more Friends; making Men to be useful, who had been loss'd to the Publick.

3. If we could suppose that these Conscientious Men are truly Faithful to the Government; and yet their Faithfulness could not over-ballance the Prejudice of their Education, against the Right of them whom they serve, as having Right; the men must needs be so shallow in their Understandings, that no Government would have any loss of them.

[Page 76]4. If these Men were as affectionate to their present Majesties as our Considerer supposes, they should be contented to have their Pla­ces fill'd by Men, who would vindicate their Majesties from the re­proachful Imputation of being Usurpers; which the Principles of these Men six upon them.

5. If great Numbers should be dispossessed, we must suppose, that at least the Heads of the Party would go among the rest: And then no man could be tempted to deny the Right of their Majesties as a Recommendation to Places under them; but it would be as much a man's Interest to be for the Right, as it has been to be against it.

When therefore Interest should fall in with the universal Bent of the Nation; what would become of that Party which has been no way considerable, but by the Artifices and Encouragement of pre­tended Friends?

6. If all the de facto-men should be dispossessed, they who decla­red the Regal Dignity to be rightfully invested in their Majesties, and they who have from the beginning approved of that Declarati­on, will be enough to fill all the Offices of the Kingdom; and to support the Government, which they so readily and thankfully sub­mitted to, as a Deliverance not only from the late King, but from that Party which had much longer Tyraniz'd over them.

But, surely, the Considerer cannot but be thought something out of season in his Argument, against dispossessing them who will nei­ther abjure the late King, nor Recognize the Right of their Maje­sties; at a time when the Nation is so sensible, that there has been Treachery somewhere: And cannot but think it most probable, if not certain, that they who have a Sett of Principles for the purpose, should be the men that should act uniformly to them.

Indeed, it is very difficult not to think, that how much soever a Prince's innate Goodness and Clemency may put him upon con­quering Enemies by Kindness; that method is always dangerous, while there is any Competitor for the Crown. For if the Compe­tition be weak, that is the most likely means of giving Strength to it: But when, by the Treachery of them who have been trusted, or any other means, the Competitor out of Possession has an inviting Prospect of Returning; every Act of Indulgence towards his Party (which they that believe him to have the Right must be) serves as a Step towards his re-mounting the Throne.

[Page 77]Some of these Enemies, perhaps, hardly know themselves to be so: But if they will not come up to that Test, which the Necessi­ties of the Publick require, for the distinguishing them from Ene­mies, should they be let in, the Crowd would follow.

By what I have already represented, it may appear, that the De­sign of procuring an Oath of Abjuration, is not to be accounted vile and selfish, Page 31. & 32. as this Gentleman insinuates: And that it is so far from tending to the Hazard of the Peace and Welfare of the King­dom, that it seems the only probable means of securing it: I had almost said must be judg'd so, by all who do not think the Restau­ration of their King of Right, the only means to an end, which all would be thought to aim at; even they who would receive the late King with French Forces.

Certain it is, that many who would think it an happy day for England, when an Oath of Abjuration should be enacted, would be as well pleased with the Conversions, as with the Falls of the most of them, who, notwithstanding the present Oath to their Majesties, think or declare themselves at Liberty to serve the late King upon all occasions: Not but that they who wish well for England, must needs desire to see some men made as exemplary in Punishments, as they have been in Treachery, and the Profession of Principles fitted to justifie them.

I think it has fully appeared, that an Oath of Abjuration is no new Project, or a fresh Spanish Wreck; to which he most wittily compares it. If it were a French Wreck, perhaps he might lay a Claim of merit to it.

However, they are most likely to deserve the Name of Projectors, who pretend to secure the Government by an Oath less explicit than was ever before used, and that at a time when new Arts had made it necessary to have one, more explicite than ever; who would find out [...]n Invention to support a Government without de­fending it; to make Passive Obedience supply the place of Active; to make two opposite Allegiances in force at the same time; and to carry on a War between two Rival Kings, without engaging the Sub­jects in the Quarrel, till they should see which side had the better; and, if they must fight against either, to secure the Possessor, by fighting for the other whenever he should land, or send his Com­missions.

[Page 78]Tho' I must allow the Considerer to know the Sentiments and Pro­ceedings of the Enemies to the present Government; ‘I am sure we are not to take it upon his Word, That the Managers of the Jacobite Party, Page 30. and more understanding People among them, do un­derhand abett and favour an Oath of Abju­ration; Page 31. well knowing they shall find their Account in it.’

If they did promote this, still, according to himself, who is al­ways free with his Friends; this would be no Objection against it; since, as he says, they have hitherto sh [...]wn them­selves but Puny Politicians, Page 30. and have laid and managed their Designs with so much weakness and simplicity, that they seem to be infatuated very much.

I am sure, if they should desire an Act of Parliament for an Oath Abjuring their King's Pretence of Right, it would be an undoubted Evidence of their Infatuation.

Nor can it enter into my Imagination, that any Jacobite should desire this: For it must be either a Jacobite in Office, or a Jacobite out of Office: But who can think that a Jacobite in Office should desire an Oath, to turn himself out; when he may at his Pleasure give King James the same, or a greater Proof of his Loyalty, by laying down before that Discovery of himself becomes a Forc'd-put?

If it be one out of Office, nothing but Envy and Repining at the Advantages which others enjoy who deserve no better than them­selves, could make them wish their Friends removed: And all Men must judge, that in such case Envy would be more prevalent than Zeal for their King's Service; which one Man in a considerable Post may promote more than Thousands elsewhere.

Oh! but they are likely to reap Advantage from the Distractions an Oath of Abjuration will undoubtedly produce among us:

So far from that, that it will prevent Distractions and Divisions of Duty: For Men who take an Oath of Abjuration, will no lon­ger be able to trim between Right and Fact, till they are almost di­stracted to know which they should adhere to; nor will there be drawing of different ways among Benches of Justices of the Peace, or other Officers; of which some notable Examples might be given.

If the Distractions are, by the turning men out of Offices, who can serve their Majesties no otherwise than as Possessors of the Throne without Right; a very fair riddance of them! But, surely, these [Page 79] Passive Men, who pretend that they will live quietly under a Govern­ment, which their Consciences will not give them leave to defend, will not raise a Rebellion to recover their Places. And if they should, perhaps it were no indesirable effect of such an Oath: For when the Body of this Nation, which is entirely for their Majesties, had all the Men in Offices of their side, how easily, how happily, would such a Rebellion be quell'd! If this were the effect of such an Oath, I am sure it would discover, or occasion, the Distress of the Jacobite, or rather French Party here; and would in all likelyhood for ever free this Government from the Danger of Enemies, Foreign, or Do­mestick.

But should there be hazard in this, it were certainly better to have the Enemies declared, than lurking under the Mask of Friendship.

VI. Yet in farther Disproof of his Suggestions, I shall shew, not only that no one ought to refuse an Oath of Abjuration, if required by Act of Parliament: But that the Refusers cannot be considerable in Number or Interest.

Here I may use, 1. Some Arguments ad hominem. 2. Others, such as I take to be in their own nature convincing to Men capable of Conviction.

1. The Considerer has no reason to suppose, that any man ought to refuse an Oath of Abjuration, if required by Act of Parliament: For not to repeat his Concessions before observed,

(1.) He professes, that he shall think he has represented matter but confusedly, Page 25. if his Friend do not see from his Collections, ‘That the Oaths of Fidelity and Allegiance have been constantly imposed on, and taken by the Subjects of the Land, (concern'd to take them) to such Persons as were by the Consent and Approbation of the Three Estates of the Kingdom invested with the Regal Power; although they could not lay Claim thereto by Lineal and Legal Succession.’

I think it is no great Question, but he here admits Allegiance to be due in such case. And if Allegiance be due, there is no doubt but it is due in that Sence in which it was constantly imposed and taken; which as I have shewn, was always as to a King of Right, and car­ried with it an implied Recognition, and Abjuration.

He, therefore, in owning Allegiance to be due to their Majesties, does as much as confess, that they have the Right to the Crown, and that the late King has none: Nor is it to be thought that any but a Quaker that believes this, will refuse to swear.

[Page 80] Page 32.(2.) He says, ‘No one that in good Con­science took the Oath to their present Maje­sties, can find himself at liberty to serve by any ways or means one that would certainly dethrone them. This is undoubtedly the least that an Oath of Allegiance can do, that it ties the Hands of all that take it from lending any manner of Aid or Assistance to the late King James. But if his Post be Active, he he is farther obliged thereby to be Active in their Defence. If a Privy Councellor, a Bishop and a General, take the Oath of Alle­giance to King William and Queen Mary, they are undoubtedly obliged thereby to advise faithfully; and keep their Secrets; to pray for their Prosperity, and fight the Battles of them.’

Where,

1. His Rightful King is such an one, as has no Allegiance due to him. And if that which ties the Subjects to him is broken, he must confess that he is no longer their King, nor can have Right to be their King, while another has Right to their Allegiance.

2. He having expresly asserted, That no man who has sworn to their Majesties may aid or assist King James, what follows of Fighting the Battles of King William and Queen Mary, must be meant as well against King James as any other. But certainly, if the late King still remains Rightful King, his Person is irresistible by Officers as well as others, who, according to those who are supposed likely to scruple an Oath of Abjuration, are, or ought to be his Subjects. If then his Irresistibility is gone, his Royal Character is lost, accord­ing to the generality of the de facto-men; and particularly Vide his Case of Re­sistance. Dean Sherlock: Tho' indeed in his late Sermon 30. Jan. 1693. I shall not dispute the lawfulness of resisting the Kings Authority; whether it were lawful for the Parliament to take Arms against the King to defend the Laws and Liberties of their Country. Sermon before the House of Commons he seems to mince the matter.

Yet it must needs be said, That a King, till he ceases to be a King, is not by the Law of England resistible, nor ever was; but by a temporary Clause in King John's Charter, left out in all subsequent Confirmations of the English Liberties.

He, therefore, that admits the late King to be resistible, therein, virtually pronounces him to have fallen from the Royal Dignity; and may very well swear the Right to be in their Majesties, and abjure those Pretences, against which the Bishop invokes God's De­cisive Judgment, when he prays for the Prosperity of their Majesties, while engaged in a War against him;

[Page 81]And the General, if he does not Pray, does as much, and per­haps a great deal more, in Fighting himself, and animating Thou­sands.

3. No man who has taken the present Oath, is to be presumed likely to refuse an Oath of Abjuration; because, tho' many are not sensible how far they are engaged by the Oath they are under; they, as has appeared above, have already virtually acknowledged the Right of their present Majesties, and abjured the late Kings Pretension. But not to swear expresly to what is sworn by manifest Implication, is such a Nicety, as one would think reasonable men should not be guilty of.

4. As 'tis under the Notion of keeping to the Doctrin of the Church of England, that men think to justifie their evading the plain mean­ing of the present Oath, and their refusing to take any Oath more express; when the Church Authorities making for an Oath of Ab­juration come to be weighed with those which are against it; the first must needs apparently turn the Scale, and induce men to take an Oath, clearly expressing what the present Oath implies.

1. In Queen Elizabeth's Days, Bishop Bilson, agreeably to the known Profession of the whole Church of England at that time, Bishop Bilson of Chri­stian Subjection, Ed. Anno 1586. p. 279, 280. supposes it to be no Rebellion for the Nobles and Commons to joyn together against their Prince, to defend their ancient and accustom'd Liberties, Regiment, Vide the Passages cited at large, Fundamental Constit. and Laws; and that this may be done in all Kingdoms, by vertue of a Power for preserving the Foundation, Freedom and Form of their Commonwealth; which they foreprized when they first consented to have a King.

2. The Learned Dr. Falkner admits, That they who have sworn not to take Arms against the King, yet in some Cases may resist his Person; if he actually engage upon the de­stroying and ruining a considerable part of his People: For, Falkner's Christian Loy­alty. after citing Grotius his Judg­ment for Resistance in such a case; he says, Page 542. ‘If this be true, it must be upon this ground, Page 545. That such attempts of ruining do ipso facto include a disclaiming the Governing those Persons as Subjects: and, con­sequently, of being their Prince or King. And then, says he, the Expressions of our Publick Declaration and Acknowledgment would still be secured, that it is not lawful upon any Pretence whatsoever to take [...] against the King.’

[Page 82]3. I might cite several Passages in the Bishop of Worcester's incom­parable Irenicum, which make for the Right of the present Govern­ment; and by consequence, for swearing to it, exclusive of the supposed Right of the late King. But since some, who envy that great Prelate's Reputation, would have it thought that he has repented of that Book; Unreasonableness, &c. p. 5. ascribed to the Bi­shop of Worster. I shall refer this Considerer to the Unreasonableness of the new Separation; where he says,

‘I do not deny, that the chief Intention of those who require Oaths of Allegiance to themselves, is to bind men as fast as may be to them: There is a Personal Obligati­on consequent upon it: But then I say, that the Rule and Measure of it is not to be taken from such Intention of the Persons, but from the General Good, which was chiefly intended in such things. For there is a common Good of Humane Society, which Man­kind have an Obligation to, antecedent to that Obligation they are under to particular Persons. For as Magistrates were designed for a general Good, so the Obligation to them must be understood so, as to be still in subordination to the main end.’

‘And it is agreed on all hands, that an antecedent and superiour Obligation doth void that which is subsequent and inferior, when they contradict each other. Else an Oath might bind a man to sin: Which no man will assert.’

‘Therefore whatever the Intention of the Person was, how strict soever the Expressions may be, if the keeping the Oath be really and truly inconsistent with the welfare of a People, in subverting the Funda­mental Laws which support it, I do not see how such an Oath con­continues to oblige.’

He says further,

Page 13. ‘The Resolution of Conscience in this Case doth not depend upon the Will and Pleasure of the Person to whom the former was made: But upon the Grounds on which it was made, and from which it had its force to oblige: And if those cease, the Obligation of the Oath ceases, together with them. And whe­ther they do or not, no particular Person is so fit to judge as the Three Estates of the Realm, as I shall prove from several remarkable Instances to this purpose in our Histories and Parliament Records: Whereby I shall make it appear, That when a Dispute hath hap­ned about the Right of Succession, and to whom the Oaths of Allegi­ [...]ce were to be made; they have looked on it as their proper Right, [...] limit the Succession, and to determine the Oaths.’

[Page 83]In pursuance of which he, according to his great Judgment and Reading, makes many just Observations from the ancient History, fully warranting what he asserts: Which indeed an Vide the Enquiry into the remarkable In­stances of History and Par­liament Records, used by the Author of the Unrea­sonableness of a new Sepa­ration. Author, who, if I am not much mistaken, is the famous Advocate for Slavery, Dr. Brady, pretends to Answer, in his way: But in due time he may be shewn his Errors.

4. Tho Dean Sherlock is afraid of being Case of Allegiance p. 2. confounded, if he should enter into the dark Labyrinths of Law and History; He is express, that Page 54. what Prince we must obey, and to what particular Prince we must pay our Allegiance, the Law of God does not tell us: but this we must learn from the Laws of the Land. However, I do not find that he allows the Laws of the Land to give the Prince his Authority; I am sure in his Case of Resistance he says quite the contrary: ‘But if it will ap­pear, That the Kings of England have enjoyed the Crown no other­wise than under a Prior, or immediate Election or Declaration of them, who in Concurrence with their Prince, make and declare the Law, then it must not be denied but they receive their Authority un­der God from Men, and Humane Laws; in which Case he declares, that he cannot imagine that their Power is any other than a Trust, of which they must give an Account to those who have entrusted them with it, according to those Laws by which they were en­trusted to exercise that Power. For whether there be any express Provision made in the Law to call them to an Account, or not, the nature of the thing proves, that if they receive their Power from Men, they are accountable to them: For those who gave a Power, may take an Account of the Use and Abuse of it.’

But tho' he would not be thought Guilty of the supposed Com­monwealth Principle, received by the Great Divine and Lawyer Vide Dr. S's Case of Resistance. Reciting Bra­cton's Lex facit Regem. Bracton, ‘That the Law makes the King, (to evade the manifest meaning of which words, he takes the be­ginning and ending of a Paragraph, and leaves out the middle.) Yet he embraces another Principle equally democratical; for he is express, that he does not think the Right and Interest of any Prince so considerable, Case of Alleg. p. 33. as the Safety and Preservation of a Na­tion, and the Lives and Fortunes of all his Subjects.’

[Page 84]Besides which he subjects the Rights of Princes not only to the Judgment of the P. 52. Legal Rights must be determined by a Legal Authority; and there is no Authority can take Cognizance of the Ti­tles and Claims of Princes, and the Disposal of the Crown, but the Estates of the Realm. States of the Kingdom, but even of the Pag. 54. Speaking of a Legal Right to the Crown: Is it not most reasonable to think that to be the Sence of the Law, which learned Judges and Lawyers have agreed is the Sence of it, &c. ordinary Courts of Justice.

5. Since the Doctrine of the Church of England is thought to con­demn the present Settlement, and such Oaths as might bind the Subjects to the Defence of it; I shall shew some Passages in the Homilies of our Church, according to which all true Sons of the Church will be obliged to obey their present Majesties, and by conse­quence, to swear to them, if required by Act of Parliament, as the only lawful and rightful Sovereigns.

2 Hom. of Obedience, Ed. 8. p. 112. ‘We may not, say the Homelies, with­stand, or in any ways hurt an anointed King, which is Gods Lieftenant, Vicegerent, and Highest Minister in that Country where he is King.’

Then speaking of the Example of David when pursued by Saul, they say,

'By these Examples David gives a general Rule and Lesson, not 'to withstand their Leige Lord, and King.

And in another place,

2 Hom. against wilful Rebellion, p. 605. ‘Such as rebel against their own Natural gracious Sovereigns, however they call them­selves, or are named of others; yet they are indeed no Christians, but worse than Heathens, and such as shall never enjoy the Kingdom of Heaven, which Christ by his Obedience purchased for true Christians, being obedient to him the King of Kings, and to their Prince whom he hath placed over them.’

And whereas the Epithite of Natural might induce some to be­lieve, 6. Sermon against wil­ful Rebellion. that they meant this only of a King by Right of Birth; they charge the Sub­jects of this Realm, who fought for Lewis the Dauphin of France against King John, with breaking their Oath of Fidelity to their Natural Lord the King of England: Tho' at the same time Elianor, the Daughter of John's Elder Brother, was alive: Of which it cannot be thought that our Church was ignorant.

[Page 85]From all which these Inferences are natural:

1. That the Anoynted King upon the place, or for the time being, he who is the Liege Lord and King; is God's Vicegerent, placed over the Subjects by God's Act, Appointment, or Providence.

2. That tho' God may place two upon the Throne in a joint par­ticipation of the Sovereignty; he cannot otherwise be said to have two Vicegerents in the same Dominion. And therefore the Prince, who is dispossessed, cannot be God's Vicegerent, nor have Right so to be, while the Vicegerent of God's Placing keeps Possession.

3. That the Allegiance of the Subject is due to the Leige Lord and Lady, or Vicegerents of God's placing; and to none else.

4. That as the Obedience to Princes is resembled to the Obedi­ence of Christ to God the Father; and of Christians to the Son; the Allegiance due to our Princes, according to the Doctrine of our Church, is Active as well as Passive Obedience. And therefore we ought to obey their Commands, in fighting for them against the Dispossessed Prince, as well as against any other Person.

5. That, therefore, agreeably to the Doctrine of our Church, the Right of the present Leige Lord and Lady ought, if required, to be sworn to; and the Pretence of the late King to be Abjured.

6. That there can be no Objection against this, from the Suppo­sition, that his Majesty is not our Natural Lord, as not standing first upon the Royal Line: For then, neither could King John have been a Natural Lord.

(2.) I might shew several Arguments, in their own nature con­vincing; of which I shall name some: As,

1. No Temporal Peer can be suppos'd to scruple an Oath of Ab­juration, because he either has, or is presumed to have sworn Ho­mage to their Majesties; which is a devoting of Life and Fortune to their Service, against King James, as well as any other Enemy.

2. No Commoner is to be thought to decline this; because it is to be presumed, that he will be obedient to the Common Law; which, as I have shewn, obliges him to take the Common Law Oath of Fi­delity, either in the Turne or Leet. And that Oath, according to the Simplicity of ancient Times, and the natural Import of the Words, carries with it both a Recognition, and Abjuration.

3. No Man can reasonably scruple this, as contrary to the conti­nuing Obligation of a Former Oath of Allegiance: For,

[Page 86]1. How careful soever the Constitution has been to secure the Al­legiance of the Subject, by an Oath to the King for the time being; it has made equal Provision for the safety of the Kingdom. Vide supra. Tho' men have not lately been expresly sworn to the Defence of the Kingdom; the Constitution interprets the meaning and extent of the Word Allegiance. When, therefore, that which was sworn to the late King came to interfere with the Publick Safety; either the equal Obligation to both left Men to their Choice, or, rather, the supream Law of the Publick Safety took place; and that the rather, because Prince and People were jointly bound to the Defence of the King­dom, and the preservation of the Rights of the Crown of the King­dom. As appears by the Explanation of the Coronation Oath, Vide Infra. received with the Con­fessor's Laws.

2. As the English Subjects are sworn to their Princes, the Princes are reciprocally sworn to their Subjects. These Oaths make a mu­tual Contract; the wilful Breach of which on either side, discharges the other.

Sir Gloss. f. 271. Jura­bat aliquando & Rex ipse subditis suis fidelitatem, &c. Henry Spelman says,

‘Sometimes the King himself swore Fide­lity to his Subjects, I omit Foreigners; but so Florence of Worcester concerning King Cnute in the Year 1016; they swore Fidelity to him, and he swore to them, that according to God and the World, he would be faith­ful Lord to them.’

Sam. Puf. de Inter­vegnis. Pufendorf lays it as a General Rule, ‘That when the Government is confer'd upon a King, there is a mutual Translation of Right, and a Reciprocal Promise.’

And it is observable, that Sir Citing Cujacius d [...] feudis, & quibus ex causis Vasallus feud' amittit, &c. Henry Spelman applies what is held of Feudai Re­lations, to that which is between Prince and People.

And thus I take it to have been received in our Law, Glanvil, Lib. 9. c. 4. as antiently as the time of H. 2. For Glanvil says,

Which being laid generally, cannot be thought restrainable to that Dominion, which an inferiour Lord has over his Tenant.

The Customary of Normandy before cited, Supra, pag. 18. in M. speaking of the Allegiance of the Subject due to the Prince, which it expresses by words of Homage, says,

‘He also is bound to Rule, Protect, and Defend them, and to treat them according to the Rights, Customs, and Laws, of the Country.’

But the Confessor's Law expresly received in the Fourth of W. 1. if not oftner, Vide supea. is an Au­thority so full and indubitable to this Point, and yet so little of it has been mentioned by any late Author, that I may be very excusable in transcribing the whole Chapter of the Of­fice of a King, and the Right, and Appendages of the Crown of the Kingdom.

[Page 90]Here I may observe,

1. That this Law Declarative of the Rights of the Kingdom, and Office of the King, setled here with Christianity itself; exhibits the Contract on the Prince's side, which may truly be termed Ori­ginal; how many soever ridicule the Notion of it.

2. That this Contract, is, in relation to that entred into by the People, Pufend. Elementa Juris-Prud. p. 94. perfectly mutual: where, according to the learned Pufendorf, ‘The Heads of one and the same Contract, run into each other by way of Condition.’

For this Law says, If the End for which a King is Constituted be not answered, the Name of King shall not remain: And fully ex­plains the meaning of this, where it says, That Pepin and Charles made a very foolish Question, Whether a King might live contented with the Name only: which is as much as to say, they were so foolish as to enquire, whether they might keep, what they had wholly lost, both as to Name and Thing.

That this was the meaning of the Confessor's Law, will farther ap­pear, if we particularly consider what it refers to, as an Authentick President, and Standing Rule for the like Cases: Which was the Judgment of Pope Zachary (thro' the Mistake of some Transcriber, called John) encouraging the Francks to de­pose their King Childerick. Vide suyra, p. 6.

Defense de la Nation Bri­tanique Ed. Anno 1692. p. 219.According to the Account of this matter in a late French Author; the Answer of Pope Zachary, when he was entreated to give his Advice upon that occasion; was,

[Page 91]Tho' Du Haillan does not give the Words of the Pope's Answer, yet the Inducement to it which he mentions, gives yet farther Light into this matter.

‘ Pepin, he says, sent the Bishop of Wits­burgh to Pope Zachary, Du Haillan supra 46. [...]. to get him to di­spense and quit the French from the Oath made to their King. The principal Point which the Bishop was to remonstrate, was, That King Childerick was wholly unfit to be King, and that Pepin, Mayor of the Palace, upon whom all the Af­fairs of the Realm lay, was indeed King, being to support the Charges which belong to a King; of which the other had but the Name left. That the French had till then shewn great Patience in supporting the Imbecility and unfitness of Kings: That they had had one after another, altho' they were not subjected nor bound to obey them, but on the Condition of which we have spoken above: Vide the Oath cited supra. That Conditional Pro­mises ought not to be kept, if they are not reciprocally observ'd. But that Childerick had not done any thing of that which he was bound to by the Condition: Wherefore the French ought to be freed from their Oath. Besides that, the Bishop was to remonstrate to the Pope, that doing Pepin this Favour, he should have Succours against the Lombards, who made War against him. The Pope, therefore, being sollicited, and moved by the Reasons laid before him by the Bishop; and building upon the hopes of receiving Succours from Pepin against the Lombards, Ene­mies of the See of Rome, discharged the French from the Oath made to King Childerick.’

This having a manifest Relation to the nature of the Oath, which appears to have been expresly Conditional, yields a full Proof, That when the Law of England received the Pope's Judgment upon Chil­deric's supposed Breach of his Coronation Oath, it, in effect, declar'd the Oath of the Subjects to a King of England to be of the same na­ture with the Oath of the Subjects of France. And certain it is, that the Consequence of the King's Breach of the Oath, is declared to be the same here as in France.

That thus it was held in the Time of Hen. 3. appears by Judge Bracton, whom Fleta in the time of Edw. 1. in great measure transcribes. Fund. Const. f. 29.35. But having had former occasion to appeal to him, and being confirm'd in it by the Judgment of my Learned Friend Mr. Tyrrel, who puts the like Interpretation upon Bracton's Expressions, I may refer [Page 92] the Reader to what I formerly cited out of him; Bib. Pol. 10. Dial. p. 705, 711. but, chiefly, to Mr. Tyrrel's Bibliotheca Politica. Observing only here,

1. That whereas the Confessor's Law speaks of the end for which a King is [ Constituted], which is a word of doubtful meaning; Bra­cton, by way of explanation, has Bracton. l. 3. c. 9. ad hoc creatus est Rex & Electus. created and elected. 2. That whereas the Confessor's Law speaks of losing the Name of King, Bra­cton plainly does, of the loss of the Authority, declaring, That the Lib. 2. c. 24. Est enim corona ejus facere ju­stitiam, & judicium, & te­nere pacem, sine quibus non potest cam tenere. Crown consists in do­ing Justice, and maintaining the Peace of the Kingdom, and cannot be held without it. 3. Whereas that Law speaks of the Kings Duty to do all things in the Kingdom rite, or ac­cording to the Constitution, and by the Ad­vice of his Peers, Bracton is express, that those Peers are, to some purpose, Superiour, After speaking of the Superiority of God and the Law. Et Curiam suam, &c. as being Judges wherein a King exceeds his Regal Authority.

That the Coronation Oath is such a Condition or Contract on the Prince's side, that the Obligation of the Oath taken by the Subjects depends upon it, will be farther evident from the Rituals of the Co­ronations of our Kings, explain'd by the History of the Times.

Whoever compares the ancient Rituals of the Times before the reputed Conquest, with those since, will find them all agree in Sub­stance, and for the most part in Words: but as the confirming the Confessor's Law could be no part of the Rituals before his time; nei­ther was it till after Hen. 1.

But as it had been in the time of W. 1. so in his, the Confirma­tion of those Laws was the Condition of chusing a King to be Crown'd.

The Ritual of his Coronation shews plainly, that he was chosen to be King, before his being Crown'd: For,

It provides, That two Bishops should lead the King to be consecrated, from Coronat H. 1. Anno 1100. in Bib. Cot. sub Ef­ [...]g. Claudii A 3. Conse­ [...]randum Regem de Conventu Seniorum duo Episcopi per manus producant. the Con­vention of the Elders.

And Matthew Paris, whose Authority is generally received shews, [...]hat the maintaining the Confessor's Law was setled in a Convention, [...] a Condition of his being to be Consecrated King.

In the Charter then passed there is this Clause:

[Page 94]According to which it seems, that the Charter was Signed imme­diately upon the Coronation, in pursuance of a Promise made at his first being Elected to be Crowned.

And according to the most ancient of the Rituals, in which the maintaining the Confessor's Law is express'd, the Promise always pre­ceded the Coronation, as appears by the following Form:

Whether the Promise of maintaining the Confessor's Laws were, as in the time of H. 1. in a Convention before the Coronation, or made part of the Ritual; this was either way a Condition of Re­ceiving a King. And the Three Branches of the Oaths which we have an Account of to this day, have been no more than was con­tained in that general Promise; which may appear by the compa­ring together the Coronation Oaths of Edward the Son of Edgar, and of Ethelred, before the Reputed Conquest; and of W. 1, H. 1, H. 3, and W. M, since.

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[Page 101]The Uniformity of these Oaths, and the plain Contract which they import, as they stand in the Rituals, after the Question to the People, Whether they would have such an one for their King, is very obvious: I shall here only observe the great Wisdom of the Parlia­ment 1 W. M.

1. In freeing their Present Majesties, and all future Princes, from the Snare which lay in the general Promise to the Church; and maintaining the Confessor's Laws.

2. In putting an end to the Contest upon the doubtful meaning of quas vulgus elegerit.

For which, tho' they had full Authority in themselves; some For­malists would be apt to cavil at such Alterations, were it not for those more ancient Rituals above-cited, which have no express Reference to the Confessor's Law, nor yield that matter of Dispute which went to an unhappy height in the Reign of C. r.

But if what I have shewed of the Confessor's Law, and the Ritu­als of the Coronations of our Princes, left it yet doubtful, Whe­ther there be such a Contract between Prince and People, that the Prince's Breach of his Coronation Oath discharges the Subjects from the Oath of Allegiance; the Abstract which I here offer, of what Records, Histories and Law-Books will abundantly evince, may, as I conceive, silence this Controversie; both as to the late King's ceasing to be King, and the Legality of the Possession of their present Majesties.

In the time of the Heptarchy there was a Law in a General Council of all England, expresly affirming, Anno 789. or providing for, the Liberty of the States to chuse their King; which must relate to their respective Kingdoms: But this Law makes no Limitation, so much as to any Family: Yet from before that time, all the Anglo-Saxon Kings seem to have been of the Blood of Woden: And particularly Cerdic, the first of the West-Saxons: and Ina, who seems the first of that Kingdom, who was Monarch over all; was chosen, as being of the Blood of Cerdic.

In Ina we may lay the Foundation of the Monarchy; as he was the first Monarch of all England, after being King of that Kingdom, to which, as to the Head, all the rest were since united. From Ina to Brictrick no Lineal Succession was in the least regarded. His Successor Egbert, whom some make the first Monarch, because they suppose that then the Lineal Succession began, was chosen upon the account of his Merit, and being of the Blood of Ina. To Egbert suc­ceeded his Son Athelstan, as is gathered from Charters, tho' not men­tioned, as I remember, by any Historian which has occur'd to me. [Page 102] And this Athelstan was a King of some Parts of England in the Life-time of his Father. To Athelstan succeeded his Brother Ethelwolf, who had been bred a Clergy-man. His Son Ethelbald, was in the Father's Life-time King of the West-Saxons. Tho, as it seems, he left Male Issue, his Brother Ethelbert succeeded him: Then another Brother Ethered, who, for certain, left Issue. Him the youngest Bro­ther Alfred succeeded.

All these Successions of Brothers, as Alfred's Will proves beyond Contradiction, were by vertue of Settlements, or Elections, in Na­tional Councils. His Will also shews, that one Ethelbald, then alive, was the Son of one of his Brothers; and that there was a Cousen Osferth, who might have been the Son of Athelstan, Brother to Ethelwolf. To Alfred succeeded his Son Edward. But the Ethelbald last before mentioned, was chosen by part of the Kingdom, and made War against him: Wherein, tho' he lost his Life, his Party had the better. To Edward succeeded his Bastard Son Ethelstan; then the mulier Edmund: his Sons Edwi, and Edgar, were set aside for their Uncle Edred. Edwi succeeding, was rejected by the Mercians and Northumbrians, who chose his Brother Edgar, who afterwards was cho­sen to the whole. Upon his Death there was a Competition between Edward, who seems to have been Edgar's Bastard Son; and Ethelred, undoubtedly legitimate. Edward's Party prevail'd for his being King: But his Murder soon made way for Ethelred. The Ritual, or Pontifical, us'd at his Coronation, which appears to have been a Standing Form, is preserv'd to us in the Cotton Library; wherein, among other things, there is a Prayer to God to bless this Prince pure­ly Elected. He being guilty of Misgovernment, was rejected; and Swein the Dane received. Upon the Death of Swein, Ethelred was soon restored, upon promise to govern better than he had done. Soon after, Cnute the Son of Swein Lands, with a Claim, as it should seem, of the Divine Right of Succession, as the Son of Goldesburgh, Daughter of King Ethelbald, who either was the Son of an Elder Brother of King Alfred; or else, if it were another Ethelbald, the Claim from him as a King in England, shews, That a Qualification from the Saxon Blood Royal was accounted sufficient for any one, of Merit, and Power, to make good his Claim.

Notwithstanding which Claim, part of the Kingdom kept to Ethelred; and upon his Death they chose Edmund, who, as appears from undoubted Authorities, was a Bastard.

Cnute possessed himself of the whole; and was succeeded by his Son. Harold, who was Spurious, which is worse than a Ba­stard.

[Page 103] Hardicnute, the Legitimate Son, succeeded. Upon his Death Earl Godwin was chosen Administrator of the Affairs of the Kingdom, during a Vacancy: And, thro' his Influence, Edward the Confessor, Son of Ethelred by his Queen, was chosen; whose Parliament says, The Hereditary Succession was endanger'd by the Interposition of the Danes. In that Body of our Laws, which most of our Kings to this very Day have expresly sworn to maintain, they are declared to be Constituted to do Justice, and to cease to be Kings, if they Answer not the ends for which they are constituted. The Confessor, being jealous of the Power of Earl Godwin, and his 7 Sons, all of them Earls; to secure himself against them, by the Power of the Earls Leofrick, and Siward, obtains a Settlement in Parliament upon his Cosen William, Duke of Normandy, Grand Nephew to the Confessor's Mother Emma: Besides that, William's Wife Matilda, Daughter of Baldwin Earl of Flanders, came from a Daughter of King Alfred. W. 1. dying in Normandy, was upon his Death-bed press'd by some about him to appoint his Successor; which he declared, That he had no Authority to do, but left it to God's Providence: plainly intimating, That as he could not appoint his Successor, neither had any body a Right to succeed, till chosen or submitted to, by the States, or People. He wish'd indeed, that his Second Son William might suc­ceed; which prevail'd as a Recommendation: And tho' the Nor­mans would have had England to go as an Accession to Normandy, where Robert the eldest Son of William 1. was received, the English made the Younger Son King: And after his Death, chose a third Son Henry, tho' Robert was still alive.

The Ritual of the Coronation of H. 1. to be seen in the Cotton Li­brary, bound up together with that of Ethelred's, agreeing with it in substance, instead of purely Elected, has pre-elected; plainly relating to the Choice before the Investiture: Which, indeed, is suppos'd in both the Rituals, in that part which is intituled, The Designation of the Royal State; where the Kings are exhorted to retain the State, which they had to that time: He procured a Settlement of the Crown up­on his Son William; and after the Death of him, and of another Son, upon his Daughter Maud.

One Author indeed says, It was only, in case he died without Heir: Others say, without Heir Male. Certain it is, that Stephen, Sisters Son to H. 1. being with him in Normandy at his Death, made use of his Recommendation; which, together with his own Merit, and the Consideration of his being of the Blood Royal, induced the States to choose him. Nor had he any disturbance from Maud's Pretence of Title, till he began to play the Tyrant. And tho' she [Page 104] was near being Crown'd, she refusing the main Preliminary, the Promise of maintaining the Confessor's Laws, was rejected before she had been fully received, and ran away in a Fright. Which made way for Stephen's remounting the Throne.

Then her Son Henry became an Adventurer for the Crown. But the Chief Forces on both sides being English; and Stephen's brave Son Eustace his design'd Successor, dying, both submitted to the Umpirage of a Parliament, which decreed, That Stephen should Reign as long as he liv'd, and Henry after him, as Lawful Heir; That is, as the Charter then pass'd explains it, as Adopted Heir to Stephen.

Upon the Death of Stephen, H. 2. was made K. who, to secure the Succession to his Eldest Son, got him to be Crown'd King in his own life-time; which brought great Troubles upon the indulgent Father: Tho' in the Oath of Allegiance sworn to the Son, there was an express Salvo, not to prejudice what was due to the Father, as long as he liv'd, and would exercise his Right. This Son died in the Life-time of his Father; who was succeeded by another Son Richard, who was called no more than Duke of Normandy till Crown'd. After him, the States chose King John, as the Archbishop then expresly declared. And this they did, tho' John had been attainted in the Life-time of R. 1; and another Brother elder than John had left a Son, Arthur, besides a Daughter. But their Father dying in the life-time of Richard, John had the Right of Proximity, Arthur only of Representation.

John having broken the Original Contract with a witness, the Barons invited over Lewis, the Dauphin of France, to be their King; whose Right to be chosen, the French King's Advocate asserted, in that the Throne was become Vacant; that upon that the Admini­stration fell upon the Barons; who chose Lewis, upon the account of his Wife, whose Mother was the only Survivor of all the King of England's Brothers, and Sisters. Upon Lewis his Landing, great part of the Nation joyn'd his Arms against John: And in all proba­bility Lewis had obtained quiet Possession of the Throne, had he not discover'd an Intention to treat the English as Traytors against their Prince, in receiving him. This his Folly, and Ingratitude, made the Barons desert him. And John dying in the Quarrel, they chose Hen­ry the Son of John; tho the Father's Violations of his Oath, and their Rights, were fresh in their Memories. At that time Eleanor the Si­ster of Prince Arthur was alive, and lived till the 20th of the Reign of Hen. 3. in the 17th of whose Reign the Barons of the Kingdom, or they who believed they were able to influence the Body of them, threatned, by a Common Council of the whole Realm, to expel him and his Evil Counsellors; and to consult together for the creating a new King.

[Page 105] Henry dying while his Son Edward was absent in the Holy War, the States convened and chose Edward; upon whom, as they decla­red, the Government was devolved by Hereditary Succession, and the Will and Fidelity, or Submission, of the Peers of the Kingdom.

E. 1. in the 25th of his Reign publickly begg'd Pardon of his People for his Misgovernment; and being upon crossing the Seas, entreated them to receive him again, if he should return; if not, that they would make his Son King after him.

He was succeeded by E. 2. who for his Misgovernment was set aside, and his Son E. 3. chosen in his stead. Upon whose Death R. 2. came in, by vertue of a Settlement upon him in Parliament, tho' the Right of Proximity was in John of Gaunt, the eldest surviving Son of E. 3. R. 2. governing very arbitrarily, was, about the middle of his Reign, fairly admonished by his Parliament, who told him, That they had an ancient Statute, according to which they might abrogate him, and set up some body near of kin, of the Royal Stock: But he ta­king no warning by that, and the Example of E. 2. was deposed, and H. 4. Son of John of Gaunt, received: In whose time the Crown was entailed by Authority of Parliament. H. 5. came in under the Entail; yet it was thought a mighty Sign of the Confidence the Na­tion had in him, that the Lords swore Fidelity to him before he had taken his Coronation Oath.

His Son H. 6. being a weak Prince, was prevailed upon to advance Richard Duke of York, till he was raised to a Competition for the Crown, which he pretended to as Son to Ann, Daughter to Roger Mortimer, Son to Philippa, Daughter of Lionel Duke of Clarence, third Son of E. 3. and yet weighty Objections lay against that Claim: For,

1. The Right of Proximity was in H. 6. as descended from the El­dest surviving Son of E. 3.

2. There are ancient Authorities which tell us, That the Crown had been entailed in the time of E. 3. upon Heirs Male.

3. The like Authorities say, That Philippa, under whom Richard Duke of York claimed, was a Bastard.

However, notwithstanding Richard's Claim of Right, Hen. 6. was, by the States, adjudg'd to hold the Kingdom during Life. And Richard dying, his Son put in for the Crown, upon Suggestion, that Henry 6. had broken the Contract established in Parliament, and was unfit to Reign. But tho' Hen. 6. ran away from London, the chief Seat of Power, Edw. 4. was by his own Parliament accounted not to be King, till some time after, when the States had received and crown'd him: He leaving his eldest Son an Infant, Richard the Uncle assum'd [Page 106] the Government, as Protector of the King and Kingdom; with what sort of Consent does not fully appear: But a Convention assem­bling soon after, declare, among other things, That the Children of Edw. 4. were Bastards; because, as they alledged, the Father had been contracted to another before he married their Mother; and pronounce, that Richard had the only Right to be chosen.

The Power and Cunning of Henry Duke of Richmond, who had many Blots in his Escutcheon, caused him to be received so generally, that Richard made Head against him with a very unequal Number: and dying in the Field of Battle, his Body and Memory were left to be trampled on.

Henry 7. having first obtained a Settlement of the Crown, by Au­thority of Parliament, upon himself and the Heirs of his Body, mar­ries the Daughter and supposed only surviving Child of Edw. 4. from which Marriage came Hen. 8. who made several Settlements in Par­liament: In two of which he declared, That if the Limitations then made, should fail, the Kingdom would be destitute of a Legal Go­vernour. He dying, his Son Edw. 6. came in, according to his last Settlement, as did E's Half Sister Mary, tho' she lay under an Illegi­timation; as did her Half Sister, and Successor, Queen Elizabeth of Immortal Memory. She dying without Issue, James, descended from a Daughter of Hen. 7. married to the King of Scots, was received as next Heir; tho' being a Foreigner, he could not claim a Right of Descent; nor was within any Settlement then in force: And tho' the Parliament 13 Elizab. had made it Penal to assert, That any but the Issue of her Body had Right to succeed her. During whose Life, it was made Treason to deny the Parliaments Power to dispose of the Crown, and Forfeiture of Goods and Chattels after­wards.

Not to mention the frequent Sollicitations of Lords and Commons for her to name a Successor for their Confirmation; because the Law had not determined who ought to succeed.

Tho' the Parliament 1 Jac. 1. seem first to have set up the Di­vine Right of Birth; by good Fortune they accounted it so Sacred, or would have the King believe so; that they made no Settlement, only offer'd their Recognition to him, as the first Fruit of their Loyalty and Faith to him, and his Royal Progeny, and Posterity, for ever: which if it were a Settlement, would leave the States at li­berty to chuse any one of his Progeny and Posterity. This is the last Colour of any Settlement of the Crown, before that which was made upon their Present Majesties, directly agreeing with the Recognition, 1 J. 1.

[Page 107]If what I have represented above be true, it must be granted, that no reasonable Objection against the Authority to require an Oath of Abjuration, and the Duty of the Subject to take one if required, can remain with Honest Minds.

Since therefore it is not to be presumed that any considerable num­ber of Men would hold off, without being able to assign a Reason; till what I have shewn receive a clear Answer, it will be natural to conclude; Either that the Number of Non-swearers in such a case would be few, or that their apparent Obstinacy would make their Interest inconsiderable.

Since it has appeared, that the Author of the Case has very little observed what has passed in our own Kingdom, it is no wonder that he should take no notice of what has lately been done in the Kingdom of Scotland, without any such dismal effect as he would pretend to foretel, if an Oath of Abjuration should be required here, by Act of Parliament.

But whereas he affirms, that an Oath of Allegiance to the Possessors of the Throne, Page 30. is that which has secured our Government for many Hundreds of Years, and does secure all other Governments in the World besides: This Form of an Assurance to the present Government is required by an Act of Parliament in Scotland, to be taken by all People in any Trust or Power throughout the Kingdom.

‘I A. B. do in the Sincerity of my Heart assert, acknowledge, and declare, Act of Parliament pub­lished in Scotland, May 23. 1695. That their Majesties King William and Queen Mary, are the only lawful undoubted Sovereigns of this Realm, as well de jure, that is, of Right, King and Queen; as de facto, that is, in the Possession and Exercise of the Government. And therefore I do sincerely and faithfully promise and engage, That I with Heart, and Hand, Life and Goods, maintain and de­fend their Majesties Title, and Government, against the late King James, and his Adherents; and all other Enemies, who either by open or secret Attempts shall disturb and disquiet their Majesties, in the Possession and Exercise thereof.’

Which Assurance being required to be given at the time of ta­king the Oath of Allegiance, or Fidelity, is so manifest an Explanati­on in what sense the Oath is taken; that any man who has given this Assurance, and yet should declare a belief that the late King is the only Lawful Sovereign, might well be thought not to scruple to swear to any Form of Words.

[Page 108]But I challenge our Considerer to shew, that this Assurance, of the nature of an Abjuration, has had any worse effect in Scotland, than the turning King James's Friends out of Offices under their present Majesties; and occasioning the Preferments of Men, who are en­gaged in Interest, and Principle, to defend that Government, the Right of which they have maintained from the beginning.

After all, I pretend not in any thing that I have written to give Measures to an English Parliament; from which I cannot but expect, in due time, all things for the good of England.

I have only represented the Arguments without doors, nor can it be a Fault for a private Person to answer one who appears under no higher Character. Which of us has labour'd most in the Service of the Present Government, it is not for either to judge; Vide Case, p. 1. There are not two Men in Eng­land, that in their Hearts do more sincerely love their present Majesties, nor that according to their poor Capacities and Stations serve them better than you and I. but each best knows his own Sincerity: and happy is he who condemneth not himself in that which he approveth.