PROBATION.

1. THIS Enterprize, as intended to be, so really was a War; For there are only three States of any Nation, viz. War, Truce and Peace: And so we have no other Word but that of War to express the Nature of this Attempt, since it was neither Truce nor Peace. ‘War is the State of two (bellum quasi duellum) or more Princes contending by force and vio­lence of Arms;Grotiu [...]. Hostes non solum euistimantur qui jam navali aut terrestri praetio certant, sed pro talibus ha­bendi & qui Machinas admovent portubus out maenibus; etiamsi nondum pugnam incipiunt;’ sayes Philo de Legib. The Effects of War by a numerous Army, after de­nunciation, cannot be called the time of peace. The Sword hanging over the head; Acts of Hostility (tho indeed few) on Persons, Cities, and Goods; taking and Garrisoning of most places, are no wayes justifi­able but in War: Since the way of Fact (without form of Process) would be an unlawful, violent intru­sion, if it were not a lawful War; and (as K: J: calls it) in some sense a publick invasion. ‘Hostes sunt qui nohis aut quibus nos publice bellum decernimus; caeteri prae­dones aut latrones sunt.’ Hostes ff: v: s: [...]v: Zieg: in Grot: p: 531: In a word the mouth of a Cannon portends the pleading a cause by the Law of Arms †.

2. To preserve neighbouring Subjects from ruin in their Religion, Lives, Fortunes, and Liberties, [Page 18]and procure re-establishment of their torn Laws and Priviledges; with competent security for the Safety of all these, is a pious and most just cause of War. For After instituting Civil Societies there is a special and unquarrellable jus quaesitum to the Rectors thereof, over their respective Subjects; where these Subjects do by real transgression merit suffering, or the case is dubious; And to this effect only was ordained the distribution of Empires. But if the injuries be most manifest (as these of Busiris, Phalaris, &c.) the right of Humane help by Princes not-subject a­gainst such oppressing Governours is not precluded by this distribution of Governments. For it is the na­ture of civil Societies, that every one hath entered therein for his own benefite; and so this kindly pro­tection of a neighbouring Prince so necessarly bene­ficial to us, is not against the nature of Society; The advantage of this being also common to all Princes themselves, since he who (attacqued) is now burde­ned, at another occasion (when Attacquer) is there­by sublevate. Yea, this is not only, not prohibited (there being no intrinsecal or moral pravity therein) but is also so far a positive Right belonging to Prin­ces, that (each fearing his neighbour should use it) they think it necessar to exclude it in most treaties, (with this clause causa justa aut injustâ) as Bodinus observesp m. [...]54. There is one great Family and Society of Mankind, in which, Reges, non unius sibi creditae gentis habent rationem; sed totius humani generis Themist. in Orat: ad Valen:: even as (in Ecclesia turbata at least) he who is not Universal Pastor of the Church, is Pastor of the Uni­versal Church, and hath a care and wareth (with his Spiritual Armour) accordinglyConst [...]t: Clem Ʋ [...]iver­salis Ec­clesi [...] curam ae­cepisse.: or as when a Master of a ship, Father of a Family, or Husband of a Wife, (all Hierogliphicks of a Kingdom) is hin­dred by the adjacent neighbour (having no more Jurisdiction over him than one Prince over another) from irreparably injuring his Mariners, Servants, or [Page 19]Spouse; there is no Delict committed against, but favour done to the Maritime, oeonomical, and Mari­tal G [...]vernments. And a King hath no more Right to ruine his Subjects against Law, then these (consti­tute also in a ruling Capacity) to destroy theirs, and so may be equally gainstood by his charitable neighbour.

3. To profite neighbouring Subjects in what a Prince can, is not only Lawful but also Duty by the Natural Law of good Offices; and so what we see performed with so much praise, could not be omit­ted without blame. There is nothing more service­able to Man then Man, for which also he is born; says Seneta: And so he should answer that end. Bruts commonly help their fellows: mercy and propensi­on to Advantage others begins even in Infants; which must proceed in both from Natural instinct. Many are the Obligations betwixt Men engaging to Mutual Aid; for we are Cousins by Nature (says the Lawy­ers) as come all of one Parent; whence Solon pro­ [...]ounceth the State happy where every one thinketh ‘an others injury, his own: which holds equally in the great state of Mankind as Grotius * concludeth, Grotius 2.25.6. Latissime patens est hominum inter se Conjunctio qua vel sola ad opem ferendam sufficit. But the Conjunction of the same Faith also, addeth to, and maketh Indispen­sible this Natural Bond of Amity; For we ought to lay down our Lives for the Brethren: And let us not love in word neither in tongue but in deed John 2.16, 18.. Natura habemus ut indignationem nostram conjungamus cum iis qui male tractali sunt, etiamsi ad nos nulla pars injuriae pervener [...]t, says ChrysostomChryso. 13. de stat.. And Princes, say­eth Tacitus are like Gods; and so hear the Prayers of Supplicants if they be just: Et Fortitudo quae defenait infirmos plena Justitia est;’ as Ambrose hath itAmbr. l. 1. Off. C. 5.. Whence it appears, that the Princes preferring the safety of an innocent Multitude to his Own was the highest Act of Christian Charity; and as the Injurie [Page 20]was more signal to many than one; So also the Bene­ficence.Bodin: p. M. 326. In respect of all which, the great Bodinus (speaking of this Question) does in reason, conclude, De pulcherrimis omnibus factis Nullum illustrius est, qua [...] vitam, famam, ac fortunas innocentium ab injuria po [...] tiorum defendere, quando judiciorum aduus om [...]es [...]b­sidentur.

4. Injurie is the just cause of War; Iniquitas par­tis ad versae justa bella ingeris Augus. Civ. Dei. 4.4. And so there are as ma­ny Fountains of just publick War as of Legal private Actions. Action is granted for an Injury already done, or not done but justly feared. To evite a wrong justly feared but not actually done, we seek, Cautio de non offendendo; damni infecti; interdicta [...] visfiat. If the dammage be already done, we require it to be Repaired or Punished. Even so the three (of which one would sufficeGr [...]tius 2.1.2.2. just causes of War, viz. Defence of what we yet have; recovery of what is lost; and Punishment of our Oppressors are causes most justifying to this Pious War. For there are only two wayes to obtain Right from the Refractory; viz. By Actions and Accusations betwixt Subjects: And be­cause these fail (there being no Terrestrial common Judge) War betwixt Soveraigns; ‘Bellum naturall­ter incipit ubi judicia deficiunt Grotius pros. 5. & L. 2.1.2.’ And so since Natu­rally every man is Executer not only of his own right, but also of an other's: and in the Natural state (where none was subject to his fellow, as now no Prince is subject to his) every man might vindicate CrimesGon. 4.14.16. Grotius.. The Prince had good right to espouse our Interest, and make our injuries his own, and so make War to redress them. ‘Plato De leg. 4. judges him punishable who hinders not Violence offered to an other: Et Tulli­us, qui non defendit ne [...] obsistit, sipotest, injuriae, [...]am est in vitio quam si parentes, aut patriam, aut socios, De­sirat: So Euripides, praebent saxa Perfugiumferis, a­raeque famulis, urbibus pressis malo tutamen Ʋrbes: As Seneca, Succurram Porituro sed ut ipse non peream; nisi­sifuturus [Page 21]ero magnae rei merces.’ Which last was the Glo­rious Resolution of the Prince, viz. to carry thorow this great Work or perish in the Attempt.

Tho, in extreamest necessity it were Criminal in Subjects to demand these things by Arms, yet it re­mains most Lawful in a Prince not subject to do it for them: Since when there is a Personal (not real) Impediment, to any Action; that which is not law­ful to one is lawful to an other, if the matter be such as one may profit an other in. So a Tutor pursues for his Pupil who hath no personam standi in judicio; and a Defensor is admitted (even without a Mandate) for one who is absent and cannot defend himself. The Impediment which prohibits a Subject to resist comes not from the thing it self, Cause, or Matter, for that (viz. Defence, Recovery, and Punishment) is ma­terially the same in subject and not subject: But from his Personal quality of Allegiance; which being no­way in, could be no obstacle to, the Person and Actions of his Highness.

5. Not only doth this Right as Adopted afford a just cause of War: But even the Prejudice done to Rights properly the Princes own. And that as he is Head of the Protestant Interest, and principal Pillar of that (then much endangered) Religion: As (being so nearly of the Royal Blood) he is thence concerned in the future welfare of these Nations: And finally as being obliged to hinder any Intrusion on his own or Princess's Rights, till the reality of the Birth were suf­ficiently cleared. In respect of all which, we might have exclaimed (in case of Refusal) with (juster rea­son then) the Campani to the Romans, Quandoqui­dem nostra tueri adversus vim atque, injuriam non vul­tis justa vi; vestra cerie Defendetis. For,

Firstly, What Wounds the Protestants received in the Profession (by Law established) of their Religi­on, pierced his Highness thorow the sides; and so he was engaged, and had good right to cure them. [Page 22] ‘For. St. Paul teacheth, 1 Cor. 12.18. that all the Members of that one Body, being many are one Body. And God hath set the Members every one of them in the Body, as it hath pleased him. And whether one Member suffer, all the Members suffer with it. They must not love in word on­ly but in deed, and shew their Faith and Charity by their Works: as is above remarked.’ Whence this effe­ctually feeling one another's griefs and evils pertaing not only to each single Person, but also to a People as such, and Princes quá Princes; who should serve Christ not for themselves (in private) only; but also (as to publick) for the Power which they have in their hands. When a house is on fire, the Insurer (espe­cially) is bound to run to all Rooms where he may quench it: And when a Laik stricketh up in a Ship, he who is interested in the Cargo will (without, yea [...] against, the Master's Invitation) labour to stop it And so there being a great Family and Society not only of Mankind, but also more especially of Prote­stants; in it ‘Religio contaminata ad omnium pertines injuriam L. 4. C. dehaeret.:’ And consequently more particularly to the injuring of his Highness. And they who invited him (at that time no Enemy to K J.) to use his Right did no more then what is affirmed by Augustin Augus Epist. 50 ‘Maximinianus Episcopus vagiensis Auxilium pettie a [...] imperatore Christiano contra hostes Ecclesiae; non tam s [...] ulciscendi causa, quam tuendae Ecclesiae sibi creditae.’ To which end he used first all Peaceable Instances, and these not prevailing,Rosenth. Str [...]v. Pist Franzk. Ludio. Zas in Fe [...]dis. Mant. Lucub. Vatte. Tom. 2. Lab. 23. Tit. 20. [...]. this just War.

Secondly, In an Haereditary Legal, (not Despo­tick and Patrimonial) Monarchy, the Heir, succeeds the Father (or other Predecessor) not to him; is not necessarly Haeres Predecessoris, but Haeres Regni by ver­tue of the first Contract, Law, and Custome: By right proper to himself, not Derivative from his An­tecessor: Even as in a proper Feu (where the true Feu­dal Law lives) the Kinsman succeedeth by strength of the Original Investiture: or as a Substitute, in a [Page 23] commiss or entail, succeedeth rather to the Testator, then to the preceeding Institute. When it is certain who are Heirs to a Kingdom, Simul atque existere caepe­runt jus proprium eis quaesitum est ex Lege Grot. 2.7.26. (As the Roman Law affirms, that the Unemancipate Child is ‘Vi­vente Patre quasirerum paternarum Dominus;’ and the Patriarch's Servant calls his Master's Heir, Lord; And Heirs of a Kingdom have the same Right thô Emancipate, or never in Potestate (Heves quasi herus) from the Law it self which introduced that difference) Whence there Persons, Rights, and Eminencies are by Law specially secured. And so K: J's: even plentitudo potestatis could not deprive them (since not the meanest Subject) of the least present or future E­molument of this their Property, which was not in his Disposal. But if the Subjects were permitted (by the Prince) to be ruined in all their Religious and Ci­vil rights, and the interposed Child tamely suffered to exclude (without Cognition of the cause) their Highness's Birth-Rights: It were in effect, De­priving them not only of the Emoluments, but also Substance of their Properties; being not to succeed at all but Disinherished, or at most to succeed only to wretched Kingdoms. Wherefore the Prince (for himself, and as bound to defend and secure his Prin­cess's Rights whether Present or Future,) had a just title to prevent all Invasions thereon by obtaining a Legal Disquisition of, and then Caution for them,Peregrin. Fid. Art. 3. N. 29. & Art. 46. N. [...]o: Fusar. Q. 512. N. 1. & Q. 515 [...]cupscild de Fid. Fam. Cas. 11. N. 386. &c. which was all he (fruitlesly) demanded to be done in Parliament. So the Substitute, in a Fidei comiss in diem, may Legally seek Caution (yea force Restitution be­fore the day, if the Fiduciare egregiously abuse the Heretage. Much more if he, in effect, (quantum in feest, alienate the whole extra Familiam) when it is a Familiary Fidei comiss. The Caution decerned to Pri­vate persons runs, quod fiduciarii velint die venienie, aut conditione existente, aut si in judicio succumbant fide­ [...]omissa praestare integra *: And a Father must secure [Page 24]his Son hypotheca rerum suarum Tit. F ut Fid. Ca. Cav. L. 7. F. Eod.. Consequently no less could be allowed to a Prince, (considering the matters of Fact in the Memorial) then would, to the meanest of Subjects; since his interest (both evi­dently lesed, and at most controverted) was great­er and more inviolable than theirs can pretend to be.

6. The Justness of a War for punishing Offences deserves a more strict enquiry: since the very making war on K. J. is (in part) a punishment. Nature hath not, determined, who shall exact punishment for Ma­lefices; only that, it were most convenient it should be a Superior: but he who does evil, eo ipso detruds and makes himself Inferiour to one otherways his EqualThom. 2.2. Q. 64. Art. 1.161. Cajetan.. Hence sayeth Democritus, ‘Naturâ evenit melior ut sequiori imperet.’ This Chastisement is more specially recommended to near Relations because of their presumed piety in CorrectionTit. C. de emend. propinq.. Plutarch holds, ‘That a good Man is designed by Nature, a Per­petual Magistrate, for by the very Law of Nature, he hath a Principality who does justly.’ Whence the Learned Hugo Grotius 2.20.40., ‘Sciendum quoque, est Reges, aut qui parregibus jus obtinent, jus habere paenas poscendi, non tantum ob injurias in se commissas, sed & ob eas quae ipsos peculiariter non tangunt; sed in quibus vis personis jus naturae aut Gentium immaniter violantibus.’ But the violating our Propertie in our Goods, Liberties, and Laws is a violation of the Law of Nature and Nations; For, Natura non patitur ut aliorum spoliis, nostras facul­tates, copias, opes augeamus, sayes Cicero; And the same Grotius Grotius 2.14.8., Ʋbi enim dominium, aut jus aliud, alicui legittimo modo partum est, id ne ei auferatur, juris est naturalis. And so this Delict (in the name of Hu­mane Society thereby violated) orbis viribus expiari debuit, as Justin expressethJustin. Lib. 8. Yea, its not only more Noble, but Honest and convenient for a Prince to revenge an others, then his own injuries; because the moderation of his proper grief is more difficult: So the Hebrew Interpreters observe, that [Page 25]the Kinsman was permitted to exact Talion for his Friends blood even by private Authority; which was no wayes allowed to the lesed himself (when per­haps, wounded) and that for the same reason. From all which it appears that, the power of punishing is not an effect, proper to civil Jurisdiction; but comes from the Law of Nature: otherways no enemy would have right of punishing an enemy; which Right, not­withstanding, the use of all Nations does confirm. Whence it necessarly follows, that this war (as Pu­nitive of K. J.) was most Just: Since the Princes po­wer over him flows not ‘Ex ulla Jurisdictione Civili, sed ex illo jure Naturali quod & ante institutas Civitates fuit; & nunt etiam viget, quibus in locis homines Ju­ri Civili non sunt SubjectiGroti. 1.3.21.5.:’ And, ‘Ʋt quis Ʋltio­nem sum at ab eo qui peccavit, satis est ut ipse, et qui pec­cavit subditus non sit’ †.

7. This war which had so just grounds was De­nounced (by the Prince's Declarations) much as that of Camillus against the Gauls; ‘Omnia quae Defendi, re­petique, & Ʋlcisci sas sit: Or as in the Feciale For­mule, quas nec dederint, nec solverunt, nec fecerunt, quas res dari, fieri, solvi oportuit: ego vos testor popu­lum illum Injustum, nec jus persolvere.’ His Decla­rations were altogether a sufficient Denounciation: For, the Reason of making Declarations of War, and its cause publick, is, that all Mankind may Cog­nosce on, and be perswaded of, the Justice of its cause: and that it may be certainly constant, it is un­dertaken by Authority of a Supreme Power, (non pri­vato ausu) as Grotius and Gentilis testifieGrot. 3: 1: 11: [...]lber: Gentil. Lib: 1: C: 2:. The first being necessary to let the World (yea Enemy himself, and his Party) know the Authors Integrity; And the second; to inferr the peculiar effects which have not place in a war by, or against Subjects or Pirats. De­claration is pure, or Conditional. Pure Denounciati­on is, when a Delict is simply to be punished; with­out admission of Repentance, since Panitendo non, [Page 26]nocensesse, definit: But such was not the Prince's who before, and after Denounciation, did incessantly re­quest K. J. to repent restituendô ablatum, (property or safety) as a free Parliament would Advise; and he would proceed no furtherVid. Decla: and the publick papers.. Conditional Denoun­ciation is exemplified in Livius Liv. Lib. 8., ‘Eam se injuriam, nisiab ipsis qui fecerint, dematur, ipsos omni vi, depul. surum esse:’ And of this nature was the Prince's, viz. On Condition of granting his Demands in Parlia­ment; War and its effects were wholly to cease, and all that was done in the Interim (as necessary for, inducing K. J. to assent, the Prince's own Defence (as it is only a defensive war, tho to prevent and di­vert a Prince, enter his Enemies Countrey, on condi­tion of security of not being offended) and for pro­tecting the Subjects till Grievances were redressed) to be restored in Integrum. Repetion preceeding Indiction it self (for it differs therefromVid. Marcel. Donat. in Liv. Lib. 8. P. 18.) and the Solemnities of Indiction being of civil Institution (not the Law of Nations) ‘Iudictio nullum post se tempus, jure Gentium, requirit Grot. 3.1.13..’ Hence the third Punick War, Simul indictum simul illatumest: And so did Cy­rus to the Armenian: and Servius affirms (speaking of Denounciation (Pater Patratus jaciebat hastam, quae res erat pugnae principium tum certare odiis tum res rapu­isse licebit. Consequently there needed no delays af­ter once Declaring at the borders of the Enemies Ter­ritory: Since that also satisfies the foresaid reason of Declarations.

From which Deduction it is evident that the Prince did not only lawfully declare this war, but also did not use therein, the rigour of the Law of Nations. For besides the pressing instances made (beforeSee the Transactions about the time of Phagel & Stew­arts Let­ters. any de­sign of war) to remove the causes thereof: there were no Acts of Hostility till his just demands (as to the Principal, at least) were a second time rejected; and thereon Declaration made alsoVid. 3. Decla.. ‘Irritatio ani­mo cum ea prima fuit, poslea juslum bellum decretis civi­tatum [Page 27]ultro indicendo factum,’ as Livius in another case. After which second denyal and the Princes coming to England, a third time competent for con­venient granting was conceded; but K. J. by turning his back, at once confirmed the former, and shewed the third refusal. So much had the Prince the Law of God in his EyesDeut. 20.10.11., ‘When thou comest nigh to a [...]ity to fight against is, then proclaim peace unto it. And if it will make no peace with thee, but will make war a­gainst thee, then thou shalt besiege it. Salustius sayeth, Sapientes pacis causà bellum gerunt, & laborem spe otii sustentant: Cic toNicom: C. 7., Bellum ita suscipiatur, ut nihil aliud nisi pax quaesi [...]a videatur; and elsewhereDe Of. 1., Sic suscipienda bella sunt ob eam causam ut sine Injuria in pace vivatur.’ All which dictats of Reason Con­centred in His Highness Conduct.

8. Finally, The Prince followed the greatest Ex­amples (Reason and use making a Law of Nations) many of which are not near so just [...]siable as his High­ness's. So Constantine took Arms, against Maxenti­rius and Licinius for oppressing the Christians then se­cured by Laws: And abrogated all the unjust Edicts and Rescripts of Licinius Li: C. Theod: d. in [...]: [...]is quae sub [...]yran.: As other Christian Em­perors, against the Persians, for Injuries to Christian Subjects. Theodosius and Arcadius having killed Ma­ximus made this Law, Quae Tyrannus contra jus rescrip­sit non valere praecipimus Li: C. Theod d: infirma dis quae sub Tyr. L: valeat cod.. David sought and got pro­tection of the Philistines. Moses fred the Israelits of the Egyptian bondage. Which being by God's own Will, must be lawful in it self; since he willeth nothing un­lawful in its own natureVid: Syn. Crit. ibid. con­cerning the Jew­els.. The Maccabees are prais­ed by Ambrose Ambro: de off [...] Lib. 1: C. 40., that even on the Sabbath, they re­venged the Injuries done to their innocent Brethren. ‘The Governors of Sodom Rebelled against Chedorla omer (whom they had long served) yet Abraham did assist and protect his Kinsman Lot (who was al­so an Inhabitant) and them against their oppressing Soveraign.’ Where Observe; Melchisedeck says, [Page 28] ‘Blessed be the most high GOD which hath delivered (thine) enemies into thine hands.’ [...]e ests 14.20. So Hercules was Deified for freeing the World of Tyrannous Monsters: in which the just and vertuous Romans did goe beyond all others. Dio, Timoleon, Aratus, Harmedius, Aristo­gitón, Aratus, all imitators of Hercules, are exalted (by the best Writers) for being Tirannorum interfecto­res & Magistri. Ludovick XII. of France [...]ook the Pa­trociny of the Duke of Ferrara and other Subjects, (against Julius II.) whom also his Nephew Henry III. with Force and Treasure, protected (against Julius III.) Which Henry likew se, at the same time, de­fended the German Liberty against Charles. Gustavus Adolphus is in our Fathers Memories: and Luther had German Princes to protect him against the fury of the Emperor. If the Pope's decision will hold now a days we find him call in Pepinus against the then establish­ed Lombards: And to enumerate all instances of that nature in after Ages, would fill a Volume. Lately (in firmance of the former) his Holiness, by mediati­on of Philip; II.) made the Duke of Guise Head of the Catholick League and Protector of that Faith a­gainst Henry III. and IV. of France: Only for Cold­ness and Tolleration in the one, and simple being Protestant (and thereby Popery endangered) in the o­ther: But It is a Canon of Rome it self, Quod quisque juris in alium flatuerit, ipse endem jure uti debet. The Glorious Queen Elizabeth's Assistance of the Protestants in France, Scotland, Germany, and the Spanish Nether­lands; and King James 6th's traceing her happy foot­steps, (both most Pious, as Christians, and zealous of the Royal Dignity; as Princes;) carrieth greater then ordinary weight to satisfie, that this War was just and Religious.

PROBATION.

EMpire or a Regal Right is acquired (in a just and Solemn War) to the Victor, two wayes, viz. Only, and as much as the Conquered King had it himself; or moreover, all the Right that was both in King and People. This last, (called Absolute Conquest of a Kingdom) when the quarrel is against both King and Subjects, pertains not to our case or enquity: As the Prince truely declared that he had no intention of Conquering the NationVid & Decla. Conquest of the K [...]ng only and what is his (the Kingdom, and what is [...]he Subject's, remaining untouched) falls out, when the war is made for, (not against) them; against the King only: and so the Conqueror (as an Heir) succeeds Tantum in universum jus quod Antecessor habuit. For; as the goods and Rights of each single person are acquired to him who does subjugate the owner; so are also those of a King subacted. Vi­ctory is Aequiparate to Dedition; For ‘Dedition (say the Lawyers) gives over willingly, what Victory would extort by Force: But in Dedition, Omnia ei qui armis plus potest, dedita sunt;’ Whence all must be acquir­ed to the Victor in Victory. Hence all Incorporeal [Page 30]Rights of the Vanquished become the Victor's also: So the Romans (Alba conquered) did vindicate, Quae Albanorum jura fuerant Dion. 111. Grot. 3.8.4.1.2. & 3.6.26. & 3.9.9.161. Zieg. The Conqueror may ac­quire this Right without any (at least express) con­sent of the People; so Hornius Horn. de Civ. C. 9. Se. 2.3.5. (a great Royalist, and for the Divine right of Monarchy:) ‘As soon, says he, as GOD gives Victory, he confers on the Victor in­violable Majesty. If this were not admitted; Contro­versies about Kingdoms, and Wars and Desolations there­on should be Immortal (which is repugnant to the common sense of Nations) for many deny the Subjects Acquies­ence, or prescription, to prejudge the Soveraign.’ A Conqueror of a Kingdom may alienate it as his Patri­mony, but a Conqueror of a King only, canno: Since he hath no more Right then the King he suc­ceeds to; as an heir hath no more then his predeces­sor: so Cyrus desired the Assyrians to be of good cou­rage, their Lot should be better then it was for­merly: their Houses, Lands, right over Wives and Children should remain untouched; their King only changedEnoph. do Instit. Cyr. Lib.. Even as a friend, redeeming a Captive, acquires jus pignoris & recentionis in him: and he must serve his Deliverer (tho [otherwayes then formerly] without any real servitude) till the Lytron be payed: that being but a small Retribution of the great bene­fit of Liberty: But the Equity is greater in a publick then private Redemption; since both the slavery and delivery is of manyC. 34. Edict. Car. calv Tit: F: Cap. & C. de post­lim.. Hence Grotius Grotius 3.8.1.3.. ‘Potest autem imperium acquiri vel tantum ut est in rege, & tunc in ejus duntaxat jus succeditur, non ultra: vel etiam ut est in populo.’ AndGrotius 3.15.1., ‘Justo bello ut alia acquiri possunt, ita & jus imperantis in populum; ant jus quod in imperi [...] habet ipse populus:’ So speakingGrotius 1.4.13. of a King who hath only a part of the Supreme P [...]wer, and the Senate the other part thereof, ‘Potest rex suam imperii par­tem belli jure amittere;’ and, ‘Imperia armis quari,’ Tertullian affirmeth.

[Page 31] 2. Hence appears how the Regal Right was ac­quired to the Prince by Conquest of the King; not the Kingdom. For there were only two ways to obtain (in right of so just a war) the things demanded, and oft denyed, viz. by force on K. James's person or E­state. Wherefore the Prince (resolving unchange­ably to keep his sacred person inviolable) was neces­sitate to use Execution on his Estate. Whence accord­ing to the Law of Nations, he invaded his possessions, defeat tho mostly without blows his Forces; took his Forts, Cities, and Palaces; Finally got himself and whole Interest in his power. But leaving K. J. in Liberty to go about the granting our requests, K. J. left all to the Princes disposal. Then the Princes jus [...]drem becoming jus in re; officers Civil, and most Military, ceased to act in K. J. Name, and as Actors or Negotiorum gestores at least possessed in Effect all in the Conqueror'sTransit possessio, si colonus altri tra­diderit. L. 3, Se: 9. Cap. L. 33. cod. L. 32. S. 1. L. 25. S. 2. de acq. post.. He emitted Writs in his own name; and ordered the States to preveen confusion in the Interim; and was obeyed in all, before any de­lation of the Governments: before which also; all even greatest Royalists made their Addresses and Homage to him; which was an material acknow­ledgment of, and could not be lawful (to a publick Enemy) without the Translation of the Regal Em­pire from K. J. by such an entire tho bloodless Victo­ry over him. That Victory is most Absolute which is won without (even the Contest of) strokes; and none is more Absolute, then all possest none gainstanding. So K. James leaving all to the Prince for the present, (tho with a mind to be restored in the future) ‘Tan­tisper, voluit non possidere (as Lawyers speak Arg. L. 17. § 1. ff. acq. Poss. Si quis eâ mente possessionem tra­dit, ut postea ei rei restituatur, desinit possidere)’ and in his place the Prince possessed and so acquired.

3. That Empire, which was in the person subdued, is, the natural fruit of Victory; and immediatly af­ter victory competent to the Victor: i. e. the wages [Page 32]of War as it is called Ezech. 29.18. Seqq: Because they wrought for me, saith the Lord; is clear from the Actings, approved by the Writers, of all Nations and Ages. So GOD speaking of a City expugnate, after repudiating conditions of Peace,) decerns; ‘All the spoyl thereof shalt thou take to thy self Deut. 30.14..’ And it is said of the two Tribs and the half; And the Haga­tits were delivered into their hands because the war was of GOD (i. e. as it is declared in the foregoing verses) be­cause they put their trust in him; and they dwelt in their steads Chron. 5.18. Sc.. Jacob expresseth this right; Which I took out of the hand of the Amorite with my Sword and with my how Genesis 48.22.. Neither was the taking the Vanquished's Spoyl against the Piety of Asa (the great destroyer of the Images, and restorer of the Laws of Juda) for it is approved in the Text. When the numerous Army of Zera came against him he prayed, O Lord thou art our God let not man prevail against Thee; So they fled, and could not recover, for the fear of the Lord came upon them Chron. 14.. &c. And Abraham when Protector of the Sodomits, acquired property of the defeated Kings spoyle; else he could not have given, the tenth, meat, or porti­on, thereof to others. The Hebrews used to put im­mediatly, the Conquered's Crown on the Conque­ror: For Example on David 2 Sam. 12.30.: And all these were not Wars by any particular direction from God, Sed ex comuni jure Gentium, as Criticks observe on the re­spective places. Profane suffrage goes alongs with Sacred: so Alexander after the sight at Gaugamela, was saluted King of Asia: ‘Romani quae Cyphacis fue­rant sua dixêre lege belli Grot. in Not. ub. Sup.: cum Odoacrum devicisset, ejus quae fuerant belli jure tenuit Agath. 1. de Theodor.: Quo devicto, cum omnia quae illius fuissent, jure belli Setenci facta sint Liv. 43.: and Bocchus in Salust; ob regnum tutandum arma s [...] ­cepisse, nam Numidiae partem unde jugurtham expule­rat, jure belli suam factam.’ The Conquest of Willia [...] the First must have been only of Harald and his Parti­fans (against whom he pretended title,) and not o [...] [Page 33]of England; else his Successors had had Absolute Po­wer, or had not had a good right. From all which we shall conclude with the great Grotius Grot: 2: 18: 2.2.: At reges qui bello solenni victi, regnoquo exuti sunt, cum aliis reg­ [...]nibonis & jus legandi perdiderunt: So Paulus Aemilius did retain the Ambassadors of Perseus who was van­quished by him.

4. This Acquisition is not only Legal in the Exter­nal Law of Nations, but also most equitable in In­ternal Justice, which, besides what is already hinted at both in Right and Fact, is farther demonstrated by this Deduction. There is a just cause of Acquisiti­on by the Law of nature, when I acquire, that which was not mine, in place of what is mine, and what is due to me, and for repairing and punishing an injurious fact; from him who detained what is mine, and from whom I cannot obtain what is due tome, and who hath lesed me. For otherwayes, I could never be satisfied, the bare retention being fruitless and vain, if I have no right to use it. So when my debitor defers to pay, in lieu of my debt, I get, by Judicial Assignation, his Heretage: and exacti­on of punishment is payment of that debt which is due to the Delict. But war among Princes, is like Actions betwixt private men before a Supreme Judge; fore­goeing instances; and at last, Declaration, like to private Citations; finally entire and absolute Victo­ry, to a Sentence. So that as a Sentence (decerning to me my Adversaries estate, for what is mine, and due to me, and punishment of a bygone Crime, and refractoriness in not giving Caution for the future) jus firmum confert and is most just: so must also the like Acquisition by Victory. Let us consider the true matter of Fact in the Memorial, and Declarations, and there after; the unpayed expences due to, and unretracted injuries (by Proclamations and Letters) against the Prince himself, the short time K. James could, yea, he would not on just conditions, enjoy [Page 34]the Crown; and its coming to his Children, Paris of his own body; finally the difference betwixt this publick affair and private concerns; and we shall find the Reparation less then Equivalent. For he, who cited for one debt of cautio de damno infecto, to one person; or for one crime against a single man; is Contumacious; loseth the whole thing from which damage is (on Oath) feared, and whole goods (yea Estate,D. D. ad Tit. ff. D [...]mm. infect. & ad Tit. req: reis, & [...]bs: damm. in Notour Treason) yet he is judged, in Inter­nal Justice it self, from his implyed consent, to suffer only the Equivalent. How much more therefore, in our case, where there are many debts, to many persons, damage justly feared to a Multitude, re­peared injuries done to three Kingdoms, and that ones too of the highest nature; and a final Contumacious­ness to grant redress or security, for the present or future, in any of all these most weighty points.

Tho we poise this Equivalency Absolutely in the ballance of Civil or Criminal Judgments, we shall perceive its Adequateness to the debts and Delicts. For he that is Contumax, can not appeal; nor he who hath cōfessed, nor be who hath once assented to stand to the JudgmentStruv: Exer. 50.11. Tit. ff. de app. recip. vel non. But K. J. did assent to a Par: Vid. his Proposals Dec. 8. 1688. This is known by his pub: lick writs & deeds.; confessed partly expresly, partly materially, most of the violati­ons objected *; and at first and last was Contumax, ‘Non defendere videtur, non tantum qui latitat, sed & is qui praesens negat se defendere; aut non vult suscipere Actionem’ [...] 51. ff. [...] 1.: and Consequently cannot appeal, or alledge any inequality Even as the Merit of a Delict, in the opinion of all Lawyers; is heightned from the cause which moved the Committer; the cause which should have restrained him; and his Idoneity to con­sider both. Injustice is the greater, the great dam­mage is inferred thereby; when it is consummate; or the nearer it comes to the last Act; that which pre­judges many; and that from which its probable great loss might follow on. If there be joyned to i [...] [...]n other vice of, impiety towards Children, inhu­manity [Page 35]to Relatons, Ingratitude to Benefactors. [...]f it be frequent and habitual, in a Person of perfect Age, all these Aggravations augment its Atrocious­ness. Much Bile, great Power, consummate expe­rience, and above all if it be infused by Education, [...]nd opinion of Religion, make it the more formida­ble, and less evitable; and so must be the more Pre­ [...]autioned against. I leave those who know the mat­ [...]ers of Fact (1) the Transactions of Court; to m [...]ke [...]he Application. If their remain any scruple as yet, [...]s to the disproportion betwixt the Debts and Delicts [...]f K. J. and their recompence, and satisfaction ob­ [...]ained for them; the famous Royalist Zieglerus Grot. P. M. 538. will [...]olve it: For says he, ‘Magis igitur erit ut continuetur bellum etiam post acceptam satisfactionem, donec hostis Pacis expetat conditiones. Succedit enim in locum pristi­narum causarum alia nova, quae est causa periculi vi­ta [...]di. Siquidem ille adversus quem bellum motum fuit, brevi post tempore, insurget, bellumque nullâ just â causâ sibi illa tum causabitur, maximisque coptis, in­jurias vindicaturus, praesto est.’

It is true villanous Counsellors set this, otherways, [...]orious Monarch on so Enormous doings, whileas, [...]f himself, he was just and Clement: But this does [...]ot exoner him from Punishment in the Law of all [...]ationsRom 1. Fin. Se. interdum, Inst. [...]urt. L Impe­rator. ff. qui sine man: L. 2. st. de Nox. Act. since he sinned in not restraining and pu­ [...]shing them. For he who commends a vitious fact, [...]elps in, and lends his name to it; approves and raises it; does not Prohibite when he can, and [...]ould forbid it; who Refets the committers; does [...]ot disswade them when obliged thereto; or Succours [...]ot the Sufferers tho holden to do the same; assent­ [...]th to, and Participats in the guilt. Salvianus of Kings, Potestas magna & Potentissima, quae probi­bere scelus maximum potest, quasi probat dehere fieri si sciens patitur perpeirari: And Dion in Galba; Priva­tis sufficit, non delinquere. In Imperio agentibus in­ [...]nbit, & hoc curare, ne delinquat alius: As Augustin, [Page 36]Qui desinit obviare, cum potest, consentit: And, ‘Qui facinorosum, adstans, hortatar, pro faciente habetur Leg. Long. Li.b 1. Tit. 9. Sect. 251’ The reason of which is rendred by Arnobius, Quisqui patitur peccare peccantem, is vires subministrat audaciae Arnol. Adv. Gent. C. 4. And Salvianus, In cujus manu est ut prohibeat, jubet agi si non prohibet admitti. And so since these Concurren­ces suffice to make up a Merit answerable to the punishment inflicted on K. J. we shall make no more unfavourable gloss on his share in the Tragedy of our Miseries: And consequently the least, we can con­clude from the Premisses, is, that since this war was inferred for taking away, and continuing to withhold our Properties; the Brocard

Quae fecit; si quisque ferat, jus fiet & Aequum, holds of K. J. the Question being betwixt him, and the P. (1) two Soveraigns. Punishment is naturally an evil of Passion which is inflicted for an evil of Action; and so what hath befallen K. J. is most Just Quâ such a punishment: For Hierax defines Justice Paenae exactionem ab iis qui priores lae sêre; And Plato af­firms, Nec Deorum nec hominum quisquam hoc dixerit in juste agenti non luendam paenam.

5. When the Supreme Rulers of any People are overthrown, all that pertained to them becomes the overthrower's, wherever it lye and exist; (1) Al [...] their Territories. To evidence this truth, observ [...] that we speak only of the Conquest of a King's right which, being Incorporeal, & wholly in his Person, i [...] acquired (his person subdued) in Ʋniversum to the Con­queror: not of the Conquest of a Kingdom, which (be­ing Corporeal, and there being many persons Proprietars thereof who must be subdued; the design being to acquire the rights of all, both of King & Subject, requires to be possessed naturally by, and so confi [...] ­med to, the Conqueror. In a word the Incorporea [...] right accressing to the Conqueror by conquest of [...] King, is not the object of corporeal apprehension, and so any Act of use on the Conqueror's part, and [Page 37]sufferance on the Conquered's, is sufficient to the Acquisition thereof: just as usus & patientia suffice to the Transmission of other Incorporeal Rights, for example, a Liferent. But all the lands of the a Kingdom being the proper Object of Corporeal Apprehension; there are, as many Corporal acts of Possession re­quired to the Acquisition of each individual owner's portion, as were in the former case, to acquire the King's. Victory therefore, over a King only, falls out two ways, viz. either of, and over his Army; himself being free: or of, and over a King being present and his Army; whereby he comes in the Pow­er of the Victor. In the first case the Victor can ac­quire no Dominion or Empire as to the Territories; and that for defect of the matter of Acquisition in the persons of the Victi the Souldiers, and of the form in respect of the Territories: For the Souldiers having no such Right, it cannot be had from them; and the Territories, (their Master never having been in Po­wer, but they remaining possest in his name) are not acquired till actual and firm possession be taken there­of by making or taking Forts, and the likeGrot. 3.4 4.. The same holds, as Lawyers assert, when a King is Van­quished and taken without his own Bounds, as Fran­ [...]is. I. was in Italy. Because he had not, (at least) the full exercise of Regal Power extra Territorium, and being taken, only with his, then present, Qualities, could not lose it: and because there was Positive Re­ [...]uctancy of the Subjects, (the war being against them also) who designed not only to defend their King's right, (and so continued to possess in his Name, with­out the least actual desturbance by the Victor) but al­so their own Patrimonies.

But in our second case; when a King in person, [...]nd within his own Dominions is come in the Power, [...]nd Subjected to the Arbitriment, of the Victor: and [...]eaves all his Territores to the Possession of the Con­ [...]ructor; without any dissent, yea, with Homologa­tion [Page 38]of the Subjects: All wheresoever sited, acc [...]es­sed to the same Successor, as there was no Division in the subjugated person of the Author. For a King­dom is one united Totum, whose parts are Coherent as those of a house: so this Totum being individual, and unp [...]ssessed by another, (as, after desertion, Scotland was not possest by K. J) the least Act in the Conquerors name, (as the proclaiming his Declarati­on, &c.) In any part thereof, acquires, per Ʋnion sitatem, Civil Poffession, and consequently Imperi­al right, of the Whole: Just as the acquirer needs nei­ther come not send to all the rooms of a vacant house. What is an Enemie's, is in LawL. divus ff. jur. Fisc. L. bona, Se: apparet, de capt. & post lim. res nullius, & ips [...] pro nullo habetur: and so, even as a deserted Regio [...] is acquired by setting up the least Symbol of poffessi­on on on the border thereof, (which we have seen in the Indies,) the whole Complex of a King's Dominion is acquired to him who subdued his person, their Ac­ceding so evident Symbols of possession as were so the P. thorow all Britain. ‘Per Occupationem, says the LawyersBecler. L. 2. C. 2. pussen: L. 4. C. 6., quae fit per universitatem acquiritur domini [...] & Imperium in omnia quae isto tractu comprehendun [...] sola animi destinatione, citra actum corporalem speci [...] ­lem: non est opus ut quis singulas glebas circumambules­sed dum quis fundum, (idem de insula,) intrat ani [...] cum occupandi, statim Totum occupasse intelligiu [...]’ So the adjacent Sea is possest and in Dominion of an King of Britain, without any special Apprehension and the Venetian Marries the whole Adriatick by the simple Act of diving a ring therein; whence nothin [...] hindred the P. to acquire the Regal Right by Equipo­lent acts and means. This Acquisition is like that an Heir, (yea a Conqueror is in effect, at least, a Heir; according to that famous Title of Law, ‘P [...] qui in universum jus succedunt, Haevedis loco habenturL. 1 8. Se. ult. [...]. R. 1.’ who by Gestion of one Act acquires all his Predece [...] ­sor's Estate wheresoever it be. And as, when one made Captive, the taker acquires all things Copor [...] [Page 39]and Incorporeal which were his, (whether about his person when taken, or lying in the Victors Domini­ons, or in any Neutral's Territorry) as accessory to his personGrotius 3.9.6.. The Essence of Dominion consists, in being subjected to our Power and Disposal: Hence the word Possession comes from posse sedere, a Possi­bility of positio sedis in a place when one pleases: (As in the Civil Law possession is acquired, Oculis, quasi longis manibus, when the thing is patent, and no im­pediment to enter it) and so; since all K. J. had was in the P's. Power (Ireland follows England, as an ac­cessory its Principal, and the Roman Provinces; Rome Vid. Grotius 3.6.26..) and Legal disposal, for there was none to hinder it; he had also Possession, (External acts pre­ceeding and Concomitant) and Dominion thereof. That is to say, K. J's. Territories became the P's. Ter­ritories: whether that word comes a terrendis hostibus thence, by Forts and Forces; or a terrendi jure there, by the Magistrates not acting, what was done, (in K. J. Name) or a terra it self, which was then under the P. (not K. J.) Power and Government. So Hannibal to his Souldiers, ‘Quicquid Romani tot triumphis partum congestumque possident, id omne nostrum cum ipsis Dominis su [...]urumest Liv. 27..’ Menander concerning the Territories of the City ‘Daras, Cum Ʋrbs ipsa belli jure a se subjugata esset, Rationis esse, ut & quae sub Ʋrbe fuerant ad se pertinerent.’ The Vandals defeat, Bellisarius did vindicate Lilybeam [...]n Sicily, as pertain­ing to themProcor. 2. Vand.: Henry F. Barbarosas son. Sicily taken, did assert to himself Epidamus, Thessalonica, and others possest by the Sicilians Nicot [...]s Lib. 1.. Bajanus to the Emperor, Ad se ean Ʋrbem pertinere, ut quae Goepidarum fuisset qui Gaepidae ab ipso essent victi. And so these Authors, speaking of Democracies, speak, only, of the sole Su­preme Governors being subjugated, which is the case in hand, and so inserts our Conclusion.

If any after all this, pretend, that (thô the Ps: jus ad rem be undenyable, yet) those Acts of Civil pos­session [Page 40]by him, (which existed before delation of the Interregnal Governments,) were not compleat; and sufficient to his acquiring a plenary jus in re. Giv­ing but not granting this: he hath now a Consum­mate and compleat real Right (possession, altogether full, having now acceded to his Title,) and that, (as to K. J. and his Partizans) by Conquest confirmed by consent (which was manifested by Election) of the Subjects. For the state of war (not made up by a peace) remains; and so that Title of Conquest con­tinues still, (as to K. J.) and the P's. present possession is undoubted (possession, being, Detentio rei cum af­fectione & animo sibi habendi) and so it may be assign­ed to that Title when the Question is with K. J. since a man may possess a thing by two, or more TitlesL. 3. § 4. ff. acq. poss. L. 159. ff. de R. J. and thence K. J. is dispossessed entirly; for two can­not possess in solidum the same thing, in the same kind, & at the same time; no more then two can sit or stand in the same individual place at once: and whatever the P. formerly resigned in favours of, and Trans­acted with, the Subjects, cannot advantage K. J. who holds, that their actings are null; seeing, Res inter alios acta, aliis non prodest; ubi personae conditio locum facit beneficio, ibi, deficiente eâ, beneficium quoque de­ficit L. in omnibus causis. ff. R. J.; qui legem contemnit, non debet frui ejus benesicio, nihili nullae sunt proprietates, & quod nullum est, nullum, de jure, sortitur effectum. But the truth is that, the P's. Right was, (before now) entirely Consummated by K. J his desertion. A Contract, Emption v.g. is said to be perfected, when (its Effential Requisits being present) jus ad rem emptam is perfectly stated in the person of the Buyer: And it is said to be Consum­mated when, in vertue of that Right, he obtains jus in re, or the thing bought delivered to him. Even so was the P's. Right of Conquest perfected and con­summated according to the Law of Nations, which is a comune Contract of all Princes and consequently of K. J. also. For a Just and Solemn war against a [Page 41]King, (not satisfieing its causes) gives jus ad rem, O (as Livius calls it) Title to his Regal right: Acts of Capture and possession; and finally, full Victory; and that King's giving over (by desertion) all to the Victor: is the same with Tradition: and Conse­quently confers jus in re on the Conqueror.

It were expedient here to clucidate how K. J. his leaving us, was a Dereliction: but since his deserti­on not only left a real right to the Prince, but also free Liberty to the Subjects to acknowledge the same; that shall be expeded in the third Section, where both their rights are considered joyntly. Here only, a great Block shall be removed out of the way, viz. That K. J's. going off was occasioned by Fear; and so say they, it should not prejudge him. This is wholly false in a Solemn War; since the Hebrew Kings were accused by the Prophets, and punished by God, for coming against what was done out of such a fear and compulsionEzech. C. 17.. For,

Fear is a passion and Trepidation of the mind be­cause of some present, or certain future evil. What is done through this fear, & to evite that evil, is Spon­taneous and voluntar, and so once subsists: for of two evils, to do or suffer, he voluntarly (ex post facto, & pofito illo casu, licet non ab initio,) choiceth to do as the least evil, and in so farr good. Coacta voluntas etiam voluntas est sayeth the Law: AndGrot. 2.11.7.2. Qui metu ali­quid fecit, obligatur, quia consensus hic ad fui, non condi­tionalis, sed absolutus. In this, fear differs from Force and Absolute Violence. For what is done by proper force is acted only by the Forcer himself with­out any concurrence of the Sufferer: As when a man is dragged out of his house; which cannot be said of K. J. who had full freedom, and was intreated, to stay in his Kingdoms. Moreover, what is lost through fear, stands firm, and is not subject, no not to be restor­ed in integrum, on two grounds principally. First f it be a vain fear: Secondly, tho the fear be not [Page 42]vain, if the cause be just which occasioned it. As to the first: vanus timor is, when the fear is not such, that it would put a Moral necessity, on the most constant man, to do what is done therethroughBachov. Zoes.ad Tit. ff. quod met. causa.. So suspicion is no just cause of fearL. 9. pr. Q.M.C.; nor when one con­ceives fear to himself, from an other's great powerL. 6. C. cod. Michael de Luna & Arrol. de rati. imperti Lib: 1: c: 10., unless, at most, threatned thereby. So that fear, which would be just in a Peasant, is in Law, esteem­ed vain in a Souldier: and that which would afford restitution to a Pusillanimous man, will not be na­med to, as reflecting on a Nobleman. Hence, what shall we pronounce of K. J's. fear; he being so Mag­nanimous a Prince; and secured by most Solemn promises of a Faith never Temerated: Nature hav­ing garded him by the untainted honour of a Prince, and affectioned Intercessions of a Daughter: The Army being for, not against him, if he would have consented to be joyntly protected by his own Laws. The rejecting all which gave us just fears indeed, that it was a designed total Conquest (not fear) which caused his Desertion.

As to the second: Tho this fear was not vanus ti­mor, yet the cause being just which occasioned it, viz. A Solemn War, what is lost thereby, is irre­coverable. For K. J. gave cause to the war on him; and so his own Schol [...]sticks decide, ‘At qui causam dedit cur vim pati aut metu cogi debeat, habet quod sibi imputet: nam involuntarium ex voluntario ortum ha­be [...]s, pro voluntario habetur Lessius Lib. 11. c. 17. Dub: 6: Grot. 2.17.18:’. In a word, all LaywersStruv. Ex. 8. Th. 12: Mich de Lun. L. 2 c. 10. are express, that what is done out of fear (which a King hath driven on himself) of the effects in a Solemn war, can never be come against. ‘Sicut Gentium consensu introductum est ut bella omnia, sum­mae potestatis autoritate utrinque, gesta & indicta, pro justis habeantur quo ad effectus externos; ita & hoc, ut talis belli metus hactenus pro justo habeatur, ne quod ita obter [...]um est repeti possit Bodin. de rep: L: 4: c: 6. Grot. 2.17.19. & Lib: 3: 19: 11:: So Grotius again; Bel­lum sollenne (i.e.) publicum utrinque & indictum, si­cut [Page 43]alia habet Peculiaria in jure Gentium externo posita, ita & hoc, ut quae in eo bello, aut ejus finiendi causa, promittuntur adeo sunt valida, ut ex causa metus injuste illati in irritum deduci non possint:’ Which Law of Nations was Absolutely necessary, because (as Gro­tius adds,) ‘Ni id placuisset bellis talibus (ubi metus utrinque infertur) quae valde sunt frequentia, nec modus nec finis potuisset imponi, quod tamen fieri, interest humani generis.’ And to take away this Law were in effect, to banish Faith from all publick Negotia­tions, and Quiet from Mankind; since few Treaties but are made in Arms by Force, and thorow fear to lose Life, or goods; Liberty or the State: which are causes able to shake the most constant. From all which it most evidently appears, that the greatest fear could neither invalidate what K. J. did, or might have done, during his abode: nor consequently, at last, his Desertion: Even as he, who (made Captive in a just war) promiseth a sume for his Liberty is never exeemed from, but by his own party, forced to; PaymentChristin vol. 3. dec. Beli: 124. N. 9. Seqq.. And as, whatever right one, Legally Imprisoned, grants or renounces, is irreversibleL. 21. Pr: ff. Q. M C. 16. D. D.. And if he run away for that debt, he can make no Advantage of being forced by Bailliffs; because the cause of the Force was Originally from himself, and he might and ought to have prevented it.

PROBATION.

1. THE Regal Right being thus stated in the P: he, with a greatness of mind, rare in the Worlds History of our days; did resign the same to the Subjects considered in the Capacity in which they are represented in Parliament. Whence the P. (who alone had the whole Power & Empire, which before Conquest was K.J.) being denuded, Monarchy (as to K J:) necessarly ceased and was dissolved: and our State became a mixt Democracy, after the manner (only with Super-addition of the remanent Power which formerly was in the King) of the Ancient Represen­tative. So Lycurgus did spoile himself, and the next heirs of the Heraclid race, of Supreme Power; to con­ferr the same on his, even, Reluctant Citizens: changeing not only the State but Laws, of that thrice happy City. Even as those who wared befored Ninus did not seek Empire but GloryJustin. Lib. 1.. And as the P. glori­ous Ancestors, and he, have done in, and to the so great advantage, of the Provinces. Antigonus is cele­brated by Polybius, that when he had Sparta in his po­wer, he left to them their State and Liberty: and the old vertuous Romans did vindicate Asia, Greece, and most other Cities from their cruel Tyrants, and then left them to their Liberty: as Agapetus (Pope) did to the Children of Valtierus Juetatus, because their [Page 45]King Clotharius dispatched their Father before the Al­tar. Who is able or willing in this decrepite Age, to parallel the piety of the Noble Romans, but our Prince [...] For, as they permitted the Cappadocians to use what form of Government they pleased, so he transferred all his Right to us; to the end we might confer it again on King James, or any other, as we found the same most necessary for our safety and happiness: As Abraham took back the spoil, but re­stored what was become his by the right of War, to the first Owners.

2. This entire Conversion, and thereon Vacancy of the Government, was declared by the States, (ac­cording to their own inherent, and the Princes co-in­cident power,) each Member giving his vote on the grounds which convinced his own conscience: And all Men, of what Opinion soever, may see how clear Reason there was for that Declaration, the P: hav­ing over-given all his Right most evidently. For, a Man declares his mind three wayes, principally; viz. by Word, Write, and Deeds. But, First, the P: both by Word, Write, and Deeds, gave and enjoyned us absolute Liberty of Settleing and Disposing of the Government; And accordingly, in the second place, accepted the Government (in the interim) only cura­torio nomine in the Peoples name, without any Maje­sty. This charge, for, calling the States, keeping us in Ord [...]r, and the protecting allAc­cording to his Decla­rations, & Delations of the Go­vern­ments Ci­vil and Military, engaged him to wait here till the States final Determination; which being the Election of himself King: He, 3 ly, accepted that, as having then no Right of his own (by conquest) in which Quality he had accepted the former. The first of these was an explicite renunciation of all his Right; and the two last (tho the first sufficed, yet in confir­mation thereof) contained necessarly an implyed one, which is equivalent to express. For, taciti & expressi eadem vis est, so he who redeems a Captive, with his own Money, tacitely renounces all Right in [Page 46]the Redeemed, by subsequent embracing her in MarriageL: 13: c: de prost­lim.; and the Fiduciary restores the fidei com­miss, (not only verbis, but also) re, cum res à fidei com­missario possideri, permittit L: re­cusar: aq: haer.: So, sayes another LawL: 37: ff: ad sest Treb:, recusari haereditas non tantum verbis, sed etiam re, po­test, aut quovis indicio voluntatis: | And he who (being Proprietar of a thing) wittingly contracteth with an other, who possesseth it, as Lord thereof, is judged to have remitted his property ‡:L: qui­dam de re jud: Even as returning the Bond, contains a Remission of the Debt due to the ReturnerL. la­beo. de pact.: And a Superiour conceding or commanding a Subject to do that which he cannot do lawfully, unless loosed from the Law, is under­stood to have dispensed with the Law to that effectDD: ad l: Bab a rius de off: praefi:.

3. Whence now appears, wherefore the P: did not, then, take the name of King by conquest; and so short while retained the Right; viz. because moved thereto by Reason and Example. By Reason, for, (knowing that a Proprietare may have Dominion tho he call not himself Lord) he intended to acquire no more then was Absolutly ne­cessary to satisfie (in omnem eventum) the Consciences of all Subjects; i. e. the Power: the which also, re­solving immediatly to resign (since it was for us only, not himself, he came hither) he would not be called a King of some few dayes. By example, for, how many Hero's have Conquered, not only Kings, but Kingdoms; without ever assuming their Title? Wherefore, since we see the Advantage Translati Im­perii; and that the P. proceedings, were such, as in their own nature, and in the meaning and use of all Ages, imported animum acquirendi Imperii: And since his promises to us all (to procure, omni habili modo, us Liberty of being once more happy) and his Charity to many (whose Scruples, and Insurrections thereon, he knew could not be otherwayes stoped; because they would judge their using that Liberty Criminal) did oblige him to the same: we must con­clude [Page 47]that, after K. J. desertion of all other means, he intended this Acquisition as the only remaining mean, (since any contrary Propositum, in animo, re­tentum nihil operatur) to make all happy, and that in­tuitu, and to the end, of this Translation: (Since this exeems all from the possibility of incurring any Delict.) In dubio (it self) ea capienda est Interpretatio, ut quis praesumatur deliquisse L: 51: ff: pro so­cio.: Semper in dubio, be­nigniora preferenda L: 56: de R: J:: & quoties idem sermo, duas sen­tentias exprimit, ea potissimum acciptatur, quae rei ge­rendae aptior est, ut valeat potius quam pereat societas, & quae est secundum ejus naturam L: 67: d [...] R: I: 16. DD.: But the P's: having Right (thô not nomine yet re, and not as to the out­ward form, yet as to the substantial matter) and its union with the States own power, excludes all de­lict from the Acquiesence in their Determinations; and so is the most benigne interpretation, being ac­cording the Nature; (i. e.) the maintenance of So­ciety, as the contrary gloss tends to its ruine; and consequently, thô the matter were doubtful, as it is clear, all, who cannot be satisfied otherwayes, should follow this interpretation, else they are enemies to the GOD of Order and Peace, as being enemies to, and disturbers of, Humane Lawful Society.

Hence also is clear, that it was not free for any Mutineer to dissent from the subjection he (even) then owed by vertue of this Acquisition and Tran­slation of the Regal Right; for he was oblieged to Obedience and Complyance on two accounts; First, as to the P: become his Soveraign; since the debt of Allegiance remained unextinguished, the creditor therein, and object thereof, being only changed. Secondly, as to Fellow-subjects, (i. e. the State) since the Obligation to them as parts of the same body (which was Anterior to (and so separable from, and is as binding as) that to the head; whose Society with the Members was only dissolved; but not that of the Members between themselvesQuod non ex­presse mu­tatum est cu [...] stare prohibe­bitur.) Remaining with­out [Page 48]any change, even in the Creditors and Object, obstricted him, to the publick good of the Major part, that being the indispensible bond of all those who have once consented to a perpetual Society. For which cause also; the States Determinations did ob­liege such a Dissenter tho he was unwilling to accept the P's. gracious benefit of Liberty: since, (all his Brethren Subjects being peculiarly interested therein) cum alterius interest, publice aut privatim, invito de [...]u [...] beneficium DD. ad L. invito R. J.: And since he was freed Antecedently by the P. and K. J's. own facts, from his debt of Allegi­ance to K. J. for Debitor liberatur, cum quis, eo invito, solvit ejus Creditori Tit. In­stit. Q. M. O. Tol.; Et desinit debitor esse qui nactus est exceptionem justam, nec ab aequitate naturali abhorre [...] ­tem L. 68. de R. 1.. Finally, tho this Acquisition and Translation was not particularly known to some, even good Pa­triots; yet (that being Internal and so Latent to us, and the States having willed generally, all means ne­cessary or conducing to their end;) the external effects are not impeded thereby: since, Quod animo retentum est nihil operatur; & licet in causis dissenserint, tamen in hoc convenerunt ut jus transiret omni habili mo­do See the DD. who write at large, ad Tit. de Aq. re­rum dom:.

4. That which summes up all reasonings, and re­moves all (even) difficulty from the Premisses, i [...] K. J. Desertion. For K. J. resolved not to keep hi [...] Crowns in the quality, and on the conditions offere [...] (else he had acquiesced in them) but intended to hav [...] a new Right without any of those Legal Cloggs; (els [...] he had continued to exerce his old right in that quality; a thing then, so necessary and implored:) An [...] so dispairing to retain his Kingdoms (as he woul [...] have them) left the Subjects in confusion, and th [...] Prince to order them. This was a real and absolut [...] present Desertion; and consequently gave all righ [...] desireable both to Prince and Subjects. It is th [...] dictate of Nature that we collect the Will from Sign [...] proper and fit to declare it by Moral (not Mathematical) [Page 49]certainty: For the Nature and Non-perturbance of humane Society require that those signs have some efficacy; since it is not possible to know the mind otherwayes. And so K. J's. going off is a sign morally demonstrative of a present desertion by the feet, in im­moveables; as Abjection by the hands, is of Dere­liction in moveables. For since he willed, not to keep his possessions, (which he had Power to do by once saying, Le Roy le veut, to our demands,) he willed to leave them as (being so hemmed) things of no value: And this leaving them is Dereliction and Desertion; relinquo and desero signifying only to leave. Government is so necessary for the preservation of Subjects, that he who intends to have Subjects must at the same time intend to Govern them. No man can serve two Masters; and so In consistencie (the will of reigning, and the will of leaving us to the P's. Regiment, [for he knew what the Subjects would do after his removal,] being inconsistent) he hath Abdi­cated. At least he hath really given over his Possession at present; but on condition (Resolutive) in effect, of recovery or being restored in the future; which suf­fices to the Conqueror: Since, Si quis eâ mente posses­sionem tradit ut postea ei rei Restituatur, desinit possidere †.L. [...]17, Sect. 1. ff: Aq: Poss. And the Conqueror is not obliged to admit that con­dition, he having once jus quaesitum, and the state of War (to whose causes much is superadded by K. J.) still continuing. The truth is: any purpose of an After-game (being only Vagrant, and uncertain fu­turity, contrarium facto of present Retention, and mostly animo retentum) nihil potest operari, as the La­wyers speak, to intervert what he hath explicitely and actually done, and our present just right of Pos­session thereon: Since, Nemo potest mutare consilium suum in alterius injuriam L. 65. de R. 1.; & paenitendo non, nocens esse desint.

‘He who suffers his Child or Slave to be exposed to an­others compassion which he hath not himself (says L. 2. [Page 50]C. de infant. expos.) is judged to have deserted his Pa­ternal or Dominical Power, which he hath shown himself unworthy of:’ And are not Subjects a Kings Chil­dren, and were they not (when permitted and ex­posed to the P's. Compassion) K. J's. Slaves. It is cal­led Desertion, in a Commander, when once leav­ing his station and Souldiers; he, in the day of Battel, flyeth from his Colours: and in a Master of a Man of War, who in the sury of the Fight, gives over the Helm and permits (as to him) the Ship to Split: and in the Governour of a tenible Castle, who, when (in a Siege) there is most need of his Presence, slips from his Office out at a Postern: all which will hold more firmly, when the Enemy demanded nothing but what those Officers were obliged to by the Law of Arms, their King had commanded to grant, and their Souldiers supplicated to conced. Even so K. J. (the Commander, Master, and Governour of these Kingdoms, which are like an Army, Ship, or Castle †.) leaving that Post in which GOD had set him;Sen. Epist. 102. when the P. required nothing but what was the Law of Na­tions, according to the Word of the KING of Kings, and the Subjects humble Remonstrances; must be acknowledged to have Deserted. If Subjects once leave their King in his greatest straits when he exacts nothing of them but what their own Laws do bind them to; this is Defection: and so a King's once leaving (a Prince and) his Subjects, (in their greatest needs,) craving meerly what his own Laws (and consequently that of Nations) do determine, is De­sertion: since Correlativorum eadem est ratio & Disci­plina.

A Kingdom is a Body (Political) and the King (Analogically) its Spirit, (Spiritus vitalis quem tot milia trahunt Sen. de Clem. L. 1 C. 4.) Form, or SpeciesL: pro­ponebatur de jud.. Government is the full and perfect Consociation of the Members and parts cohering by the commontye of this Spirit and Form (as to the Head it self.) When this Spirit [Page 51] [...]d Form do not appear, it is all the same with Non- [...]istence: Quod non apparet pro eo est quasinon sit Grotius 2.8.7., [...]n esse & non apparere tantundem valent, quoad eum cui [...]napparet Grotius. 2.10 9. qui in urbe Roma est ita ut lateat, nondum [...]ptus paulo videtur; opus enim est ut cognoscatur ‡ [...]nd in Law, sub factis comprehenduntur non facta. L. Ult: ff: de capt. So [...]at as when sickness vehemently encreasing; the [...]oul separates from the Body; Man rests dead (as [...] that form) unless of new inspired; and a toured [...]pring, the Form or Impediment removed, returns [...] at least) to a more lax posture: the Government [...] abandoned by its life, (K. J.) was revived, and con­ [...]rained Liberty rested at its scope, in his Highness [...]osome. There is an egregious example among ‘the Jews, where, if the poor did partly Collect, partly Neglect the Corn lest to them by the Lord of the Ground, that which they neglected might be taken up by any as DerelinquishedSeld. lib: 6: c: 6: p: 699:.’ Which we [...]hall apply to our case, in the famous Conringius wordsConring: de fin. c. 19. N. 5. we heard befor [...], that in War, in­volunta­rium pro volunta­rio habe­tur. ‘Derelinquit ille Imperium in civitatem qui sciens volensque * Patitur eam perire, aut in summum discrimen adduci; nec in salutem ejus quicquam movet dignum memoratu: nec enim ita se gerit circa rem quam pro sua vindicat, vir bonus & prudens, sed erga rem alienam. Grotius asserts, Amissum censetur cujus recuperandi spes projicitur:’ But K. J. having firmly concluded not to grant our demands, could have no [...]opes of recovering his Estate at present (else he had not left it but granted and recovered) and so, pro tempore, he hath lost it, (at least) by Desertion. A Kings right in such cases is more easily amitted, then a private mans which he hath only for himself, and in which publick Peace is not concerned: But even a private man, Rem suam possideri resciscens, & vel non est admissus, vel majorem vim veretur, possidendi ani mum omississe censetur etiam invitus L. 3 S. 6. l. 6.7. acq. post. Bruner: diss: de poss: th. 11.; (For whileas it is said, Animo retinetur possessio; that is understood, not of a naked and vain Imagination and Cupidity, [Page 52]but of that rational mind and will which may at plea­sure exert it self, Corporis ministerio, in Imperat [...] ActsStruv: Ex: 42: ch: 34.) And so all this must much more hold in K [...] James's Desertion.

We may rationally presume from K. J's. Noblene [...] and Charity, that he Dispensed, like Solomons true Mo­ther, who, for the sake of her Child, would rather resign him up wholly to the Enemy, then reserve to he [...] self, a share made dead and useless by the Sword; with his present frail Right, (in hopes of one mo [...] fitting his Counsellours humour) whereby (at least) his own friends (whom he knew it was Morally im­possible to have Protection or keep Life or goods o [...] any other terms) might not be involved in Perma­nent Rebellion in complying, or ruine in gainstan [...] ­ing: since, if by his ill Administration, he had give [...] occasion of sin or such damage, he were obnoxi­ous to Divine displeasure. These Conjectures which also favour Piety, present Peace, and humane So­ciety (whose Interest it is to have Empire fixed and incontrovertible) are to be extended to the outmost. Hence Custome (which is Law,Grot. 2.4.8. only by tacite con­sent) is introduced by Subjects, only because th [...] King does permit and Tolerate; but is not K. J. a [...] ­parent leaving, and giving up all to the Conqueror [...] determination, expresly to permit and Tolerat [...] A Liferent is not only amitted by Non-usage, bu [...] also by inundation Intercepting Possession thereo [...] and by Civil Death:DD. ad Instit. q. m. u. a. but most Lawyers call the Reg [...] Right a Liferent, and here was Non-usage culpa us [...] fructuarii, and the Possession intercepted, and K. J. Civilly dead as to the Kingdom (after Desertion:) And so why was not his Liferent amitted; since the space o [...] time is only of Civil Institution, and pertains to pr [...] ­vate, not publick business, the reason and state o [...] these being most different. Finally even as the Su [...] being absent, and the Earth Ecclipsing its beams t [...] be reflected from the Moon, we remain in Darkness [Page 53]and the passages, of the Spirits directed from glandula [...]i, stopt or marred, the Members have no, or on­ [...] convulsive, motion; and the Primum mobile cease­ [...]g to act, the inferiour Orbs must sist also; and the [...]un [...]ain dammed, the rivulets run dry for want of [...]ntinued influence: So had we as to K. J. by his [...]esertion; if the P. (come in his place and right) [...]d not given light, Spirits, Motion, and Influence [...] our Government: i. e. the same Body remained, [...] Head only changed.

Many would make much curious dissertation here, [...]w K. J. deserted all his Legal Regal right; even [...]ore the Childs birth. For (would they add) K. J. [...]d Derelinquished, said aside, and neglected de­ [...]nedly and voluntarly, the Administration of the [...]vernment by Law (which was his only true, com­ [...]ent and Legal Right) in all the parts thereof, Ci­ [...], Ecclesiastical, and Military; with intention no [...]re to use it: But this is a full definition of Deserti­ [...], Go: &c. Legal and Illegal are inconsistent and compatible in the same Subject of Government: [...] so the sole use of Illegal Exercise totally exclud­ [...] the Legal as Deserted. King and Tyrant (qui tire [...]) are repugnant: and so he is no more a King who [...]theast off the Fetters of the Law, then he is a Pr s [...]n­ [...] who hath got at Absolute liberty by breaking, and [...] deserting his Prison: and he remains a M [...]n, but [...] a King, who leaves his line of Subordina [...]ion to [...]OD; as he remains a Man, but not a Subj ct (as [...] the Priviledges) who swerves from, and leaps [...] of his line of Subordination to the King. He can­ [...] be called a Father of his Subjects, who treats [...], not as Children, bu [...] as Slaves: Or a Pastor [...] does not feed, but only fleece the Flock. Some [...] materially just, but not formally so, do no [...] im­ [...]de this entire Desertion, and so the Actor's be ng [...] King: since they are ex [...]rced, Ex usurpata p [...]st r [...] [...] Legitimá hactenus Derclictâ) and the real re [...] [Page 54]Nature, and so Denomination of things, are taken from the Major and Prevalent part: Even as he wh [...] hath a servitude, amits the same either by an tota [...] non-use thereof; or useing it, but not jure Servi [...] tis, L. fin. l. 18. l. 10 S. 1. quem ad: serv. amitt. or not after the due and (by Law or Paction) pre­scribed mannerL. 18: pr [...]l. ult eod. l. 1. S. 6. de i [...]in acta­que prio. or after a manner contrary to i [...] Constitution: As Adam (Lord of the Creatures) b [...] his Ambition yet mounted a step higher; and so (b [...] one act) deserted that whole happy Post in which [...] stood and consisted formerly: and a Man is a Robbe [...] (having thrown off honesty,) thô he affect some Justice in dividing the Prey or otherways; even as [...] Satyr is no Man, tho resembling him in face, g [...] ­sture, and speech.

Hence (would they proceed) the King becomin [...] such a Man; the being meerly Passive, in not co [...] ­curing with him (against a Forreign Prince come [...] rescue us by a War which was Lawful, and cons [...] ­quently unlawful to resist) was no resisting the Ki [...] nor consequently the Powers. For K. J. indeed U [...] ­urped (in place of the, already Deserted, Leg [...] and Limited) an Illegal and Despotical Powe [...] which being null, unwarrantable, and he having [...] right to make use of (for mandatarius nullam habet p [...] ­testatem extra fines [quoad Materiam aut Formam] m [...] dato propositos; and a King is at most but GOD's M [...] ­datare.) He had no Power, and consequently no [...] was obliged to obey it, (at least) actively; since [...] whole Legal frame did then lye unhinged; and ad [...] ­licitum nemo obligatur; and non Imperata jure nee jus [...] exequi. No Mortals precept (especially when nul [...] can excuse Suicide, if killed, or murder, if I kill, i [...] wicked cause (such is the opposing a just war, sin [...] Bellum nequit esse utrinque justum;) and so we did rig [...] ­in obeying rather GOD then Man; since both bo [...] and free must make count for their own Actions So Josephus tells us,Eph. 6.8. That the brave Jewish Souldi [...] in Alexander the Great's Army, could neither by stri [...] [Page 55]nor reproaches be forced to carry (only) Materials for re­pairing Belus's Temple in Babylon. Much less could any Law or Oath oblige Subjects here, to assist any Officer or Minister, in that crime against the P. see­ing it is permitted by the Law of all Nations (and con­sequently the Antecedent consent of all Soveraigns) even to actively resist them, exacting any thing unjust or illegal. For this is not resisting the King (in so far not represented by them, their Commissions be­ing in so far null; since rei illicitae nullum est Manda­tum) but holding their hands, and Parrieing the Rod. This was enacted by Kings as a Caution, that any thing Surreptitious, or formerly made Law by the King himself (with advice of his great Council that it was for the publick good of the State) were not obtruded for his real pleasure, or subverted by his less Solemn will (by the Delusion of any Particu­lar lesser Council; to the publick ruine of the State.) Hence is the check of Seals, And Chancellours; and Rescript of Antiochus 3. Ne Magistratus sibi parerent si quid Legibus adversum jussisset; and Constantine, Ett­amsi Imperatoris rescriptum proferatur Vid. L. 1. C. de peit bon. subl. & ibi Cit: a brunem. and the sa­mous Law (Devotum, C. de Metat) with the enlarg­ments of the Doctors thereon. Hence it appears, that the Major part of Subjects (especially Scotland) being meerly Passive till K. J. final Desertion, were altogether blamless: (since all their Active concur­rence sisted within their breasts without any fait ou­vert.) Even in the Principles of the rigid [...]st Mutineer.

On this ground (of K. J. ceasing to be Lawful King by his own Spontaneous and deliberate Deserti­on) would they justifie their inviting, and thereafter actively Assisting the P. (in both their Defence) a­gainst him. But I shall relate the more moderate judgment of a Gentleman (and perhaps the remain­der [Minor part of the Kingdom] were of the like o­pinion) both as to the Invitation and active Assist­ance, I, (said he, being a zealous Royalist) seeing [Page 56]that without the safe-guard of a Non-subject-Prince, our Laws securing Religion, Lives, Liberties, and Properties, were but trifles (being without Sanction, since it is not permitted to Subjects to defend them, by themselves, say some Men) and seing the ruin of my self and Brethren in the overthrow of these Laws: concluded it lawful to invite the P: to use his Right of Defending them and us; and (ceasing to be K: J's: Subject and become the P's) to assist him, (come to England) as my present Soveraign. As to the First, Though it be Criminal in a Servant (be­cause of his personal tie, and want of power) to pu­nish his Master, delinquent against himself and the State; yet it is lawful, to him, to invoke another (no wayes unde [...] that tie, and having power) to use his right therein: and consequently to SubjectsNota. T [...]s is the strain of [...]e P [...] lists w [...]i [...]gs vid: Survey of Napht:. CHRIST, as Man, submitted himself (in our Na­ture) to fulfi [...] all righteousness; And consequently as a Subject, to all the Duties which Subjects owe to Kings: since he came in the forme of a Servant and Subject; and was made under the Law. Hence what might have been lawful to him (in His estate of hu­mi [...]i [...]tion) towards Magistrates, must be (now) lawful to us. But, though CHRIST would not resist Authority, & condemned the resisting it in Peter; (for that injurie was private,) YetMatth: 28: 52: He could have prayed to the Father, (who might do it) for legions, to His assist­ance in that extremity of danger; (for all Judea was then tyrannized over, also;) And the only reason given (he [...]) for omitting it, is, (not unlawfulness, but) because He was willing to be taken, knowing that it m [...]st be so: This clearly implyes the possibility, of such a Call, (in Him) and consequently the law­fulnes [...] of such a Call (in us) of force against the oppressing Magistrate: And our King's by assisting o [...]h [...]rs on [...]heir supplication, have approved and con­se [...]ed i [...] sh [...]uld be so. As to the second, I was indeed once under K: J: but (for the foresaid Reasons) I renounced and deserted my Domicil, and estate, animo [Page 57]nunquam redeundi (on the resolutive condition of Non-Redress) and submitted to, and owned, the P: as my (now) Soverraign: which Surrender he accepted (which was meerly giving Sanctuary [causâ cognitâ] to a innocent flying thereto) by his DeclarationsVid: Decl: where he requires &c.. And so my Allegiance was transferred from King James, to his Highness; (Protection and Allegiance being na­turally reciprocal;) and then I entered in a Religious Covenant under his conduct. LawyersGrotius Gail: Brunem: Struv: Wissenb: ad tit, st: ad mu­nic: are express that, by the Law of Nature, Nations, and Recent customs, I had right of Liberty of Transition from, and then submission to, any Soveraign I pleased; And consequently to the P: (no Prohibition of this [...]articular case preceeding, nor he pre-declared Enemie;) especially on grounds, so important to me, and profi [...]able to K: Ja: I having left to him my whole Estate (the taking of which, I believed, [...]ould be called Forefeilture) as the price (to con­duce an other Souldier in my stead) of my necessary [...]bsence. Nothing is unjust which hath not a neces­ [...]ary Repugnancy with the Rational and Social Na­ [...]ureGrot: 1: 2: 1: 3:: But this was not repugnant to the Rational Nature; summa enim ratio est quae pro Religione, & [...]bertate facit: Nor to the Social; for I took this [...]ourse for the good of both my New and Old Socie­ [...]. Even so many Israelites (without consent of their [...]en Kings) submitted themselves to,2 Chro. 29: 10: and 30: 25: were incor­ [...]orate under, and entered in covenant with Asah [...]d Hezekiah as become their King for carrying on a [...]eformation, according to the Law †: They fell to [...]mout of Israel, when they saw the LORD his GOD [...]s with him 2 Chr: 15: 9: 15., Junius renders it defecerunt ad eum; [...]hers, Transfugerunt ad eum, dejecerunt se ei; im­ [...]rting both their Defection from Baasha and Sub­ [...]ssion to Asah, as his Subjects; Whence, V: 15: [...]y are comprehended under the name of Judah.

If it be pretended that, this Doctrine opens a door [...] perpetual Revolts of Subjects, Resp: 1: ab incom­modo [Page 58]nullum est argumentum: since incommodum and illicitum are quite different; and the abuse of a law­ful thing by an other, does not take away from me the lawful use of it, else they might part us shortly with the BIBLE it self: Wherefore maneat usus, tol­latur abusus, since Pirates also saile, and Robbert use weapons. 2: There is no such frequent incom­modum in this: for, (besides, that this is commodious to the multitude of Subjects, yea, to the King him­self [detained, for fear thereof, from sinning] and so to Humane Society;) there will be but too sel­dome the concurrence, of a forreign Prince, univer­sal unanimity of the Subjects, and sufficient causes in their King; all which are indispensible Requisits. Hence, a forraign Prince, and Subjects here, are ei­ther conscientious, or not: if they be conscientious, there is no fear of their attempting without just cau­ses; if they be not conscientious, they will attemp [...] without any, or on other pretences (though we tak [...] from them this:) And consequently there is no Ad­vantage in not admitting this Doctrine; but grea [...] Disadvantage to the Happiness and security of Mankind. In a word, it is certain that Subjects wi [...] never ruin their own Quiet (if not possessed) causelesly: and so the King will remain secure (if he b [...] not raving.) And so we see from this Deductio [...] that, at least, the major part (by which all Societ [...] are estimate) of the Subjects being innocent; the [...] acceding to the Prince; (even before K: James's la [...] Desertion, and so the perfection of the Prince's righ [...] did not impede or vitiate his Right, (subsequent a [...] ter that Desertion) through Conquest. Wh [...] would hold also as to its real effect, though some [...] these Subjects had laboured of some personal defe [...] since accessorium non potest mutare principale, utile [...] inutile non vitiatur; propositum in animo retentum n [...] operatur: And it is lawful to use evil instruments [...] good ends, and lawful to himself: (he forced so [...] [Page 59]too, whom he might have treated, as enemies to be meerly passiveTrans­fugam jure bel­li reci­pimus l: trans­fugam ff: de acq: rer: Dom::) as GOD himself does Devils and Sinners. From all which it is demonstra­ble, that [this First being consummate by a Se­cond, Desertion and final Disappearing as to any Capacity whatsoever] neither Prince nor Subjects have dethroned K: James, but he hath, by his own Facts, depoed himself: And that, it is not by Vi­gour of any sentence he is un-King'd; but before any Act declaring meerly what was past, (the Mem­bers being in effect, so many witnesses; [not Judges] not each to himself, but to the rest and the publick; just as, on that account, Legatarius potest esse testis in testamento ubi aliquid ei relictum est; & civis potest esse testisin causa suae universitatis;) he ceased to be King, ipso jure, (as Gracchus proved in the Tribunus-plebis himself, though most inviolablePlut: in Grac­chum An Sacro­sanctus erit, cui nihil aut sa­ [...]rum aut fanctum fuit.) his remanent Right having ceded to the Conqueror, and from him to the Subejcts.

PROBATION.

1. THE People, having now the whole power in their own hands, might have declared it [Page 60]to whom they pleased. i. e. King James, or King Wil­liam, and Queen Mary. It is well known that they being Legally quite of K. J. the current of the Kingdoms ran against recalling and re-establishing him. Their general reasons were (not only the just­ness of so punishing him [if it can be called any pu­nishment] for bygones, but also) at home; the new danger of Popery and Slavery, against which K. J. would never have granted sufficient Security, (Re­ligion and humour being perpetual Barrs thereto) and tho he would from within, yet he could not from without: since there was no way to do it (Pa­pists promises [to Hereticks especially] being fides punica) from Forreign Combined Invasions: And Abroad; the cutting our selves off from the Protestant Allies, and them from us; a thing grosly against Interest, Gratitude, and Charity, considering their kindness to us, and both their, and our, present and future, Common Perils. Particulars were infinite, of which we had many in the Debates and Writings. Wherefore the States seeing, the Justice, Necessity, & Utility of Electing this time to declare the P: their Mo­narch; did make that happy choice which he was graciously pleased to accept accordingly. This Con­descention of His, was an Act of the greatest Justice, and Conscience, and Necessity of Duty and Honour; and consequently, nothing derogating from, but adding to, his former Renown and Glory. For His Majesty may be considered all along this Enterprise, either as a Soveraign Prince (Abstractly from any Relation;) or (Concretly) as K. J's. Nephew and Son-in-Law. I shall shew that, as the first, he hath been blameless; and as the second, nothing unduti­ful: and Consequently, that as both, Virtue rears him up rather to Wonder then Imitation: For that (like Fabricius.) he was innocent even in war (which is so hard,) Et qui aliquid crederet & in hostem, nefas. This shall be done first in general; then in special both as to his Right by Conquest and as to his Right by Election.

First, in General. Since this was a Just and Solemn War, and also justly Prosecuted (as hath been pro­ven) the P. (both as a Prince and Kinsman) is neces­sarly blameless therein: (both as to its Consequen­ces of Conquest and Election.) For as the Acheans said to the Senate, ‘Quonam modo quae jure belli acta sunt in Disceptationem venient? quicquid in hostibus feci, jus belli defendit Liv. 26.:’ And as Marcellus, of Souldiers, ‘Quae commissa capite luerent, tum quia palludati fecerunt, Laudamus Sen. Epist. 96..’ That Mean which is necessary for ob­taining a good and Lawful end, is also good and Lawful; for in ‘Moralibus, qui dat finem, dat ea quae ad finem perducunt; & dato consequente, datur Antece­dens sine quo ad consequens perveniri nequit.’ Neither must this necessity of the Means (requisite to a Law­ful end) which we have right to use, be examined ac­cording to a Physical Subtility, but Morally in a Moral Matter, such as War is. In particular, Theologues teach, that War being a means, is destinat to, (and so must preceed) the end (which is to remove those things which perturb Peace:) And so War and its effects continue still just, till by its means that end be gained and fully satisfiedThom. 1.2. Q. 40. Art. 1.. But the P's. end (viz. our Preservation from Popery and Tyranny, present or future) was Lawful; as hath been Demonstrated. And it was Morally impossible to obtain this end but by the means of War: (all others being rejected by K. J.) and to come at this one end by the means of War, there were only two Adequate and Plenary Manners Morally possible, viz. K. J's. own Concessi­on, or the P's. become, in effect, King by Conquest for denyal of that. But K. J. first would conced but little, and at last (having deserted) could grant no­thing at all: and so the Prince was Absolutly necessi­tate (since he knew then [what appeared before Pro­bably, and thereafter in the Meetings, certainly] that the Subjects would have it no other wayes) to use his own right. This he did most Justly and Noblie; [Page 62]and that in special, first as to his Right of Conquest, then of Election.

1. As to the Right by Conquest: the Justice of in­flicting that Punishment; and the necessity of duty and honour (by cause of the state in which K. J. him­self had cast affairs) and so the Moral impossibility (by K. J. own fault) of hindring the Subjects pro­ceedings (some way or other) against him; did ob­lige the P. to use it.

1. As to the Justice of inflicting that Punishment (of useing the Right of Conquest:) The war and punishment being most just in themselves (as is pro­ven formerly) both being inferred only, after K. J. was obstinatly Inflexible: the inflicting this punish­ment in right of this war, must be fully justified; be­cause K. J. hath consented thereto both by his Acts of first Transgressing, and then Deserting. For a De­lict is a kind of involuntary Contract: since he who wills to, directly transgress (against the Law of Na­tions V. G.) Indirectly, by Consequence, and imply­edly, Wills also to merit punishment: So, Ipse te huic paenae subdidisti, say the Emperors L. Im­peratores: Jur. Filc. L. Ult. [...] ad L. jul. Maj.; and he who suffers himself to be Circumcised (when he might avert it by granting some thing in his Power, much more by paying a Debt) consents to the Circumcision and is punished accordinglyStruv: Ex. 8. th. 12.. Hence any damage sustained by the delinquent thorow the inflicting pu­nishment, cannot be properly and truly called loss: since it's payment of an [implyedly] consensual debt due to the Delict; and ‘Quidamnum sua culpâ sentit, non videtur damnum sentire; & nemo damnum facit nisi qui id facit, quod facere jus non habet L. 151 R: J:; Et non­dum videtur vim facere qui jure suo utitur L. 155. R. J.; ut & nul­lus videtur dolo facere qui jure suo utitur L. 55. R. J..’ Whence there is no Injurie done to the Nocent when he is punished: Since, ‘Non exiguo falluntur errore qui cen­suram sive humanam sive divinam acerbitatis & mall [...]i [...] nomine infamant; putantes noeentem dici oportere qui [Page 63]Nocentes afficit paena Lvctant de ira Dei. C. 17.; And, Removeantur patroci­nia quae favorem reis & Auxilium facinorosis imperti­endo, maturari scelera fecerunt L. 3. Cod. Theod. P.’ Consequently it is Justice (to which Princes are obliged [since the Law enjoyns, let not thy eye pity them] in so far as able and the Law of Nations permits) to punish Delin­quents: and so it is no Inhumanity: For GOD, him­self most Merciful; CHRIST most PatientMatth; 22.7. and Moses; the meekest on Earth; did most severely damn the disobedient. All which holds much more in our case, where (K. J. Person untouched) there is nothing taken from him, but his Deserted Estate: [...]. e. the Power of farther Injuring. For the [...]. as Seneed speaks, Non ira scitur sed cavet: did not Acquiesce in K. J's. evil; but respect His, Ours, and Others good. which did perfect the Equity and Moderation of this punishment. K. J. own good is expressed by Sene­ca Sen. de ira. C. 6. (more largely then we require,) ‘Interdum ut pe­reant interest pereuntium,’ Because a Delinquent, as Plutarch hath it, is, ‘Caeteris noxius at sibi Maxime:’ Wherefore it was less evil to die (at least as to the Estate only) then (without Repentance which Ad­versity occasions) by living (thereto) to go on in sin­ [...]ing; as a Medicine, which tho ungrateful to the taste, [...]s healthful, must be given to those (at least) who are otherways irrecoverable. Our good is evident; for [...]hereby we are secured from suffering the like hereaf­ [...]er either from K. J. or others. All Mankind reaps Advantage from the terror of this publick Example: For Princes will be just, (and so Subjects rest happy) [...]east their Neighbours should come and Vindicat [...]esed Humanity; there being no barr of Rebellion.

2. Necessity of Duty and Honour (by cause of the [...]tate to which K: J: had drawn Affairs;) and so the [...]oral impossibility (by K: J's own fault) of impeding, [...]t least, the Subjects even dethroning him; did [...]ge the Prince indispensibly to use his Right by Con­ [...]uest. That is, the Prince seeing an end, (viz. [Page 64]Self-preservation; and consecutively thereto, [at least a probability of their firm Resolution of] the keep­ing out of K: James; unalterably concluded by the Subjects: this mean (as most all-satisfying) to that end (the first part of which he would not, and the other [when concluded by the States] he could not, stope) was necessarly concluded by the Prince; yet so as also Legally; it being the inflicting that punishment which he had so just right to inflict. For first, As to Duty. It is known to all in what a strea [...] the Subjects (as their Representatives [as freely elected as ever any were] also told, when advised were carried against K: Iames's return, when K: J himself had once se [...] them free by Desertion. And s [...] would the Prince himself (against Justice) in no using his own Right, (by a strange turn of th [...] Tables,) once more ruin us: since K: J: neithe [...] would in Humour, nor could in, his Religion, an [...] Respect of Forreigners, sufficiently secure us there from: Or could the P: (in power) bring K: J: ba [...] against Milions gainstanding; because they wer [...] perswaded (be the Truth as it will) he went o [...] to destroy them; and that they could expect no le [...] at last (since Papists Religion cannot change, an [...] there was a new subject of Revenge) by borrow­ed aid; All outward appearances of safety notwithstanding. And if the P: had left us (which alon [...] [if that same] was in his power) exposed to confusion, or our Enemies (both which were ine [...] table by his deserting his Right, also;) he had, [...]gainst the dictates of Nature, Law, and most s [...] ­lemn promisesVid: his Decl:, (to cause our full Redress a [...] Security) turned our benefit received (but impe [...] ­fect as yet) to our Calamity. But the P: did [...]therwise, as indeed, all that is Sacred did oblie [...] him, in Duty. For, Thou shalt not deliver unto Master the (oppressed) Servant who is escaped fr [...] his Master, unto the — thou shalt not oppress him † Deut: 23: 15, 16. [Page 95] [...]nd Non debet beneficium in calamitatem converti L. 20. ff. de cap­tivis.: [...]nd so, we being given up and intrusted to his never [...]otted Faith, Fides agi visa, deditor non prodi Liv. VII. Se­ [...]ondly, as to Honour. True Honour is the reward [...] Virtue and Glorious Actions: Whence it hangeth [...] on the Airy esteem of Vulgar ignorant opinion; [...]ing indeed of it self, Essential and Absolute, in­ [...]rent and Natural, and so can have its Lustre (as [...]e Diamond) from it self alone. Wherefore this [...]ving been justice and Duty cannot be but honour­ [...]le: whatever the Ignorant (of Right and Fact) [...]ink; or the (knowing of both, but) wicked, [...]ed, or interested pretend. Honour would not [...]rmit such a mean Act; as to sist re infecta, and [...]e over (to our irrepairable loss) that right K. I. [...]mself had given, and thrown on, him, and that [...]th so injurious Threats: since this had been bely­ [...]g what he had already done, and tamely sitting down to acknowledge his former Errour. His Glory [...]d Courage were incapable of such Pusillanimity: For if thou faint in the day of Adversity (such was to him K. I's. being Finally remediless) thy strength is small; if thou forbear to deliver them that are drawn to [...]eath; & wilt thou not preserve them that are led to be [...]ain Prov. 24.10.11.12. ? Neither would it excuse the P. that what knew in this, we neither did, nor could, know [...]rfectly (it being contrived of purpose, so as no [...]gal Probation could be had: to do which is al­ [...]ys easie to so great Masters and Secretaries as the suits, [for Example the Massacres never known [...] actually seen;] those of them who [for Money] [...] it to any, being sure [for their own future [...]ety and honour of the Society] to do that, on word Honour and Oath never to discover the informers [...]d witnesses.) For the Text adds. If thou say, [...]old we know not of it; He that pondereth the hearts, [...]b not He understand it? Finally, let us hear [...]oncerning the right by Conquest) the Noble Ro­mans [Page 96]to the Volsci Halic. Lib. 7. ‘Cum non a nobis hoc jus sit institu­tum, sed a Diis verius quam ab hominibus profectum, Omniumque Gentium tam Graecarum quam Barbarar [...] usu probatum; nihil vobis per ignaviam concedem [...] Maximum enim id probrum foret quae virtute & sor [...] tudine quaesua sunt, ea per formidinem aut stupore [...] amittere: AndLib, 6. Neque enim induct possumus ut s [...]ul [...] facilitate deleamus virtutis monuntenta, si ea illis r [...] damus quibus semel perierunt.’

From all which it is perspicuous that no Commise­ration or Clemency (entailed by Succession on ou [...] great Prince) did engage him, not to use his Righ [...] by Conquest. For the most Holy Altar it self, she [...] ­ed no favour to those who troubled the State of the [...] Countrey deliberatly: And (as Gilippus saysDiod. Sicul Lib. 13. ‘These who (Dolo malo & injusta alieni cupida [...] Very Coveting, much more Stealth, being a breach of th [...] Commandments) fell into these evils; let them not ac­cuse Fortune, let them not usurp the name of Suppli­cants: for those Mens lives full of unjust deeds, ha [...] left open no place for Pity or Refuge.’ Menander distin­guisheth excellently Misfortune and Injurie.

Whence Cicero Cic de invent. 2. concludes, ‘Misereri oportet [...] propter fortunam, non propter malitiam in misen [...] sunt.’ Hence, since the injuries were done no [...] only to the Prince, but the Subjects, and the dange [...] impended over both; it could be no Clemency o [...] Greatness of Mind in him, to remit their rights, a [...] Seneca Sen. de Clement C. 20: (speaking of a Prince) does argue, ‘Na [...] quemadmodum non est magni a nimi qui de alieno Liber [...] lis est; it a Clementem non vocabo in alieno dolore fa [...]t [...] ­lem.’ So we shall conclude with the Sentence of the Admirable Livius Liv. 7., ‘Satius judicemus pancos aliqu [...] mala ferre quam immen sam multitudinem.’

We see likewise from the Premisses, that the P. [...]tended (abinitio) to take nothing from K. J. (that as truly his) on condition of granting the things de­ [...]anded, but to leave the Scepter to him on the Con­ [...]tions (noways truly Noxious, as himself and Pre­ [...]cessors had prejudged in many Parliaments) of our [...]reservation: as Hercules to Priamus,

[...]ut when K. J. would not keep it on these (first, long [...]ifting the most of them, then all, by Desertion) [...]ustice, Conscience, necessity of duty and honour, [...]ompelled the P. (ex, post facto, & causa supervenien­ [...]) the condition failing, to use his right of Conquest. [...]ven as, when I pursue my Father for a Personal [...]ebt of the duty or fact to which he is obliged, I in­ [...]end not to evict his real estate; yet, he delaying, I'm [...]onstrained to affect it by Adjudication: So in the [...]ummonds of Denounciation, Conquest is not the Will [...]ut implyed Certification. And as, when I wound a [...]an in Self-defence, I intend not Primarly, and [...]rom the beginning, his hurt (which would be Sin) [...]ut my own Preservation: and in the Act it self, (be­come necessare) I wish it were Morally possible, I might do any other thing to deterr or debilitate him: [...]ut while as himself will not permit it, I remaine [...]lamless.

2. As to the P's. right by Election; What is said of Conquest holds much more in his Accepting the Right by Election: since as K. J's. deeds and the Subjects ir­ [...]epressible Resolutions have conferred and forced on [...]he P. the first Right; so the Subjects by themselves (tho in a different manner) the second. The States might have run to Extremities (as the Suisses and Gri­s [...]ns after getting out under the German Empire, or the [Page 98]Provinces, Spain) or, he refusing, declared an other ( [...] which they would have been torn with great Divisi [...] err done; and when done, less happy; which his [...] ­clared promises tied the P. to prevent:) and t [...] would no more (being at Liberty) by recalling K. [...] be shot (like the Eagle) with their own Pens: an [...] the P. was engaged, to accept the offered Declar [...] on of his own and K. J's. Childrens Rights, by [...] love he bore to them, and the Zeal and Obliga [...] himself had to embrace all Lawful means of ser [...] the Protestant Religion here, or elsewhere. The [...] signs of K. J. against both him and all Britain, appe [...] ­ed from injurious Threatnings and great Prepara­tions: Wherefore to have left us destitute of his C [...] ­duct (armis & consilio) and Alliances (wh [...] strength we had already, so Beneficially know [...] had been to expose us to the very same ruine which came to Avert. But Justice, Duty, Necessity Conscience and Honour, did oblige him; that ( [...] came at first, for us and our Religion) so to stay last, for us and our Religion; and (not only to beg [...] but) continue in well-doing: especially consideri [...] the very same causes (yea Augmented) continu [...] (both as to K. J. and us) should produce the sa [...] effects. And Potestates summae vim non presentem [...] tum, sed quae de longe imminere videatur praevenire [...] junt, ulciscendo delictum, caeptum jam, sed non C [...] ­summatum Grot, 2.1.16.

As to the Prince's Relation, (in being Kins [...] and Son in Law to K: J:) it renders, what he hath d [...] (as a Prince) both as to his Right to Conquest a [...] Election, no wayes undutiful. For, no Natu [...] Bond obliegeth me to gift over the Right I ha [...] from the Law of Nature or Nations; at least wh [...] Justice, necessity of Duty, Conscience, and Hono [...] obliege me to use it my self; No Relation bei [...] iniquitatis vinculum; And Qui jure suo utitur, nulli [...] cit injuriam: and so that Relation could not hind [...] [Page 99] [...]e P. (seeing the necessities from the Peoples irre [...]table bent against K. J's. return) from doing these [...]ties to his Religion, Glory, and Countrey. By [...]e Law of Ordinate Charity we must do more [...]e good of the Innocent then Nocent; and common [...]en private: whence such an effectual love to our [...]ood Friends, should only be exerted, except a [...]eater, and more just, to many others (which is the [...]rigine of all Pious censure and war) hinder it: be­ [...]use inordinate Mercy to them were Cruelty to all [...]hers; and punishing those, is, to these, Mercy. [...]ence Augustin, Sicusest aliquando Misericordia puni­ [...], ita & Crudelitas parcens, And Chrysostom Chrysost. ad. 1 Cor. 3.12. Non [...]sevitiâ, sed ex bonitate talia faciunt homines. For [...]ere are three, Successive Orders and Degrees of [...]atural ties, viz. First to GOD, then our Country, [...]d lastly to each single Man. And the inferior de­ [...]ee, (to each single man) must by the order and [...]aw of Nature, being Ballanced with, cede to, its [...]wo Superiours. (To GOD and Countrey.) Hence [...]e must leave Father and Mother and follow CHRIST; [...]nd Cicero concludes, Patriam debere Parentibus esse [...]iorem, and out of Demosthenes,

So a Tutor, thô being the King's Advocat, is oblig­ed in Law and Honour to defend his Pupil against all Mortals; and so the King himself and nearest Rela­tions: as in all private judgments (to which War is Assimilate) GOD hath prescribed, Neither shalt thou [...]utenance a Poor man in his cause, —Nor honour the [...]erson of the mighty Exoa. 23.2. That is, (as Philo expresses) [...]portet res abstrahere a Litigatorum respectu: Whence [...]he doing the same (necessarly at least) in war, is [...]owayes undutiful; especially since such a desperate Disease was irrepressible, unless by the sharpest Me­dicines [Page 100]Finally, Paul only requires Children themsel­ves to obey Parents in the Lord; And Quintilian Qutil. Decls. 271. S [...] Imperesfilio ut sententiam dicat contra quam existimet, lice dicere, haec sunt quae sieri non oporiet: and so K. J's Commands could not break off the P. from what h [...] was perswaded in his own mind. Approved exam­ples go further then we require in our Circumstances For Thebe is praised for killing her Husband; and T [...] ­moleon his Brother; and Cassius and Fulvius their Som [...] for Tyrranny or endeavours to reduce it: Even a [...] Presbiters (tho Brethren) depose incorrigible Bro­thers. The Eleven Tribes did near Extirpate the Be [...] ­jamites, (which breach, yet, the LORD made) after requiring, and their not hearkning, but making head against their Brethren: and that for one Crim [...] of not delivering up the guilty of one MaleficeJud. 20.18.21.10.15. And smote Jab [...]sh Gilead for not assisting. And Asa [...] did that which was right in the sight of the Lord: and b [...] heart was perfect: and Maacha his Mother, even her [...] he removed from being Queen: because she had made [...] Idol in a Grove 1 Kings 15. [...]1, 13, 14. 1 Kin. 2.. Solomon accepted his Brother Ad [...] ­ [...]ijah's Crown; and smote himself that he died2 Chron. 26. 2 Kin. 15. And Jotham, his Father Ʋzziah's; so soon as he wa [...] cut off from the Congregation, for, his Usurping th [...] Church's Right, and thereon, Leprosie †. So Sele [...] ­cus King of Asia keeped the most famous Demetri [...] (his Father in Law) in Perpetual Prison: and H [...]g [...] Capet (which I mention, only to stop the Frenc [...] King's mouth) his near Kinsman. Christiern King t [...] Denmark thought it not against his Honour (his Bro­ther being expelled) to accept his Crown; and Im­prison himself (returning) in Calemburgh Castle Eadem Pietate (says Bodinus) Iohn King of Swede [...] was forced to keep in Custody his Brother Henry, re­pudiate by the People, lest he should have vexe [...] himself and the Publick. The great Henry III. [...] England was Crowned in his Fathers lifetime. And I [...] (1. & 6.) retained his Mothers Scepter, as the Pious Q [...] [Page 101] Elizabeth (a near Cousin) retained her Person long Captive. All these I hope, either in respect of their high Qualities, deep Knowledge, signal Piety, and be­ [...]ing informed by the greatest Casuists and Lawiers, had sufficient sense of true honour, right, and Con­science.

Finally, To a just war (so called as justa nuptiae, justum testamentum) and to inferr its peculiar effects and consequences whatsoever; (without any respect to its cause or prosecution] there are only two things required in the Law of Nations, viz. Soveraign Power on both sides, and DenunciationGro [...]. 1.3. Q. [...]. 118. de V. S. and pos­session on both these: and consequently after obtain­ing Possession, all lawful Obedience is due to the Powers in such Possession. This Law was introduced by Nations for publick Utility and eviting grievous incommodity: So that it being a common Paction of all Mankind (as Civil Law is communis reipublicae spon­sio) on so just grounds; the possession throw Con­quest and by occasion of such a War, hath right transmitted by consent, not only of the Conquered (posito [...]o casu) but of all other Mortals. And so the effect of this is, to be acknowledged by Forreigners, and obeyed by Subjects; and that he should be main­tained in that Possession by both, according to that consent. ‘Caeterum jure Gentium, non tantum is qui ex justa causa bellum gerit, sed & quivis, in bello so­lenni, & sine fine modoque, dominus sit eorum quae hosti eripit: ut a Gentibus omnibus & ipse & qui ab en Titu­lum habent, in possessione rerum talium tuendi sint Grot. [...] 6.2. & 3.4.4’ War among Princes is like Actions betwixt private men before a Supreme Judge; Victory and effect following thereon, to a Sentence and Execution: so that as, Res judicata proveritate habetur, & praetor jus dicit etiam cum iniq [...]é decernit, Because in Tali jud cio quasi contrahitur; Conquest gives External right to the Conqueror, without respect to the internal ju­stice. The Reasons that induced all Nations to this consent were evident.

[Page 102] I. Since many things both of Fact and Right escap [...] the most acurate observation; and its impossible t [...] observe exactly the precise measure of Defence, Re­covery of what is due to us, or ours; or the Equiva [...] lent merit of inflicted Punishment; necessity urget [...] to leave the justice of the cause in War, and the mo­deration used in its effect (and all following thereon) to the Religion of its Authors; since there is no com­mone Judge, each party pretending he alone hath [...] just cause; and other States will not Pronounc [...] therein, least they should be implicate in the Contro­versie. It would be an endless task, and requite an Infallible History of the World (which is not to be made by Man) to prove clearly the just Titles from which any King whatsoever derives his Right: and therefore Possession of the Power and Force have been fixed as sufficient Charters thereof; there being no less necessity of securing this Dominion (for evit­ing confusion) then of introducing Dominion at first (for that cause) by such an Universal tacit Renunci­ation and consent of those interested in common. Necessity of it self, Legittimats exceptions (not ex­prest) from general duties certainly incumbent by the Law of GOD in Expressum; as the instances of the Sabbath, Shew-Bread, plucking cars of (other mens) Corn, and Alliances betwixt Husband and Wife, do make manifest. But absolute Necessity engages (especially) private men, who are not able to judge a controverted Right, and ought not to prefer (in these Points of Law) their own ill infor­med opinion, to the judgment of all other knowing Concitizens (since it was our consent and will, in first entering Society, that the Major part should ob­lige each single man in those things for which that So­ciety was institute [i. e. publick Determinations and common good] and not that there should be no pos­sibility of establishing peace and calming differences: much more when there is a new consent by choicing [Page 103]Representatives for that effect) to follow the guide of Possession in their Obedience. And Consequent­ly this necessity much more Legittimats this obedi­ence (not certainly prohibited by the Law of GOD, but) certainly enjoyned by it: as shall be proven hereafter.

2. The Advantages of private possession (ut ab armis abstineatur) especially obtained by Sentence (to which Victory is Equivalent) shews us the Rea­sonableness of this Law. For any Possessor what­somever, eo ipso, hath more right then he who pos­sesseth not; and, in dubio, is judged for against the Petitor: for there is a Dominion of Possession it self besides the Presumptive Dominion of the thing pos­sest. None is holden to produce the title of his pos­session: and there is a presumption that he possesseth Lawfully. None is to be deprived (even of unjust) Possession without Cognition of the cause (or Citati­on to that effect) and Moderamen inculpat tutelae is al­lowed the possessor to defend it, even against a judge proceeding without that. Possessors have retention (at least) for necessar Expences: Et in pari causa (it self) semper melior est conditio possidentis See for all these Cit. a Struv. Ex. 51. th. 23. Since all this obtains where there is little hazard of publick Peace, how much more must it obtain where publick Peace wold be, otherways, totally ruin'd: which solid ground made Cyrus Xenoph. instit. Cyri [...] Plato de Legib. Cicer. Orat. ad Quir. cont. Rullum. Liv. Li [...]. 35. to Relate, ‘Lexest sempiterna inter homines, capid hostium Ʋrbe, eorundem res at­que pecumas, victori cedere; And Plato, Bona, quae victus habuit, omnia Victoris fiunt; And Augustus judge him a Good Man and Citizen who would not have the present state changed; And Cicero, That it behoov­ed a Patron of ease and concord to defend the Settlement of the Common-wealth, which is in Beeing for the time; And Livius, Optimum quemque presenti statu gaudere.’

3. The necessity of admitting Possession obtained by, or by occasion of War, the only [...] [Page 104]that Demonstrateth Right (in its several kinds) among Supreme Princes, and over the Subjects; is Demonstrable from the context of the Worlds Hi­story. For the first Origine of Kingly Power (at least after the Flood) was from, or by occasion of, Force (excepting perhaps, some Patriarchal and Consensual RightsBodin. rep. P. 579.:) which begune by Nimrod, the Assyrian, Persian, Grecian, and Roman Monarchies, were derived down by the same Title. So, the old Egyptian, Ethiopian, Graecian, Macedonian, Corinthian, Athenian, Lacedemonian, Cretian, Latin Kings, have got their Empires by Arms, transmitted the same by Succession to their Posterity. Four Emperours held the Roman Empire in one year, the Right ceding to the Stronger successively. The Grand Seigneur hath no other Title to all his Dominions; nor most that ever were setled under, that Mistriss of the World! Rome; or under the conquests of the Goths, Normans, Van­dals, Hunns, &c. For their Liberty; against the ex­tant Representatives of these Soveraigns. In a word (not to swell up particular Histories of Denmark, Sweden, France, &c.) remove all Right from pos­session following on War as to Princes; and the Do­ctrine of Ressistance as to Subjects (and one of these must have given the foresaid Rights) so that neither can afford a good title; there will not be one Law­ful King, or State in all Europe: (especially in our times; when some Lawiers (particularly French, conclude neither Prescription nor Subjects consent to prejudge a Soveraign [...]) And yet both Neighbour [...] and Subjects have acknowledged them all Lawful [...] as both Christians and Pagans did, and do, in the for­mer instances. All which irrefragably evinces that Mankind hath consented, Possession (on [at least a Lawful Denounced War) should decide all Controversie of Debatable pretensions to the Right po [...] sessed, both as to Prince and Subjects. Which is special Providence of GOD, who, otherways, ha [...] [Page 105]left Men more miserable then beasts; and the con­fused World to flame in inextinguishable Combusti­ons born Civil and Publick: Whileas now (for he is a GOD of Order) Possession, in a great measure, prevents these dreadful Convulsions. In the Con­troversie about Olynthius, in Seneca: ‘Vobis, Athenien­ses, expedit; alioquin Imperium vestrum in Antiquos finesredigetur quicquid est bello partum: And Quinti­lian Testifies, Jure belli Regna, Populos, fines Genti­um, atque Ʋrbium Continert.’ We must not there­fore, condemn and upbraid all the Princes and Sub­jects (in every Revolution) since the Creation, in Criminally denying ObedienceNulla enim tam pro­pria Re­bellio est quam reitera­tio belli [...]emel sediti) contra victo­rem. Rosenth: 10.35, 24. to our present hap­py Government.

4. Domestick Precedents and Municipal Laws (to which K. J hath also consented and sworn, and so, on condition of the existence of such a case, re­nounced his Right) go along, (as indeed, they can­not hinder) this Law of Nations. For by the express Law11 H: 7. C. 1.4 Ed. 4.1.9 Ed. 4.12. Cook. just 3. fol. 7. of England; the People investing any, their King he becomes King Regnant; & so Treason is committed against him; yea which, the King out of Possession (whom it is no Treason to kill, and whose Pardons are null) coming again to the Crown, may punish as Treason. So Ed. IV. chased out of England, and Henry, VI set up, the Leagues with the former King and Realm subsisted; the right of the Successor and Body being the same, the Head only changedComines 3.6. Vid. Cambden. an. 1572.. Charles I. having sworn to the King of Spain expresly as King of Portugal, did receive Ambassadors from the then new King of Portugal, without being judged, in Eng­land or Spain, to have broken his former Oath and League. Even as Charles VIII. having Conquered Naples his Discharges on receipt of publ ck dues, were sustained valid by the Vanquished being restoredAfflict. decis. Neip. 114.509.. Yea the Acts of a meer Tyrant and Usurper. (i. e. who without War Denounced, or being a Subject, hath [Page 106]got Possession de facto, but no Right de jure Gentium, which is noways our case) subsist and obliege; least, otherways, Order and Justice taken away, all ran to ruineGrot. 1.4.15.. So Cicero and Florus argue for Sylla's Laws; and Cromwel's needed Rescinding, Et priva­tio praesuppouit habitum. This Law of Nations holds much more, when the Possession hath the absolute consent both Tacite and Express, of, (yea proceed­eth from) the People; as it was in all the steps the P. made both in first coming over; then taking on the Temporary; and at last, the perpetual Government. The last was by precedent consent of the whole Peo­ple; and the first two by the wholes Ratihabition: which may be cleared by this Example. The Electi­on of the Roman Emperors, by the Citizens of Rome (which was the Mistress, and alone had the Disposal of the Roman Empire) staying at Constantinople, (Bi­santini Quirites, says Lucan) was valide by the tacite consent of the Senate and People Gros. 1.9.11.. Then the Election of them by the Senate became valid by the Peoples Ratihabition and Acquiescence: As the Legions Ele­ctions (of themselves insufficient) were also confir­med: and at last they declared their minds by the mouth of their Bishop and Principal Citizen: and the Emperors so established were, and are, acknow­ledged by all Forraigners and Subjects. K. J's Muti­ning Friends were, and are more, specially obliged to this Acquiescence and Consent; since they might have been prosecute as Rebels, Banditi, and Rob­bers, but were (of admirable Clemency) spared: Even as a Captive in a just war cannot in Conscience, flee from the taker; for the right acquired in him should not be frustrated; and he owes him service by whom he is continued on life, in compensation of that Donation and BenefiteLessius Lib. 1. C. 15.. Whence also appears the natural reason of the Premises, viz. From whomso­ever we get Protection, we owe to him as a return, Allegiance: and whosoever will, or can, not give us [Page 107]Protection, hath no title to exact our Allegiance, i. e. Nature doth oblige us to preserve our selves, (un­der the Conduct of a friend) and not to perish (for the sake of an enemy, especially) in every Revolution.

5. But that which absolutely Enforces, our con­sent to this Law of Nations, and Obedience to the Powers that (in presenti) are, is the Authority of the holy Scriptures, and the Example of the Primitive Christians, and so, the Obligation of that Humility, Submission, and Peaceable Behaviour which our Re­ligion teacheth us. For; the Power as it is a Pow­er, and as it is in it self; and so as a Real Being and for our Good; is good and ordained of GOD: (since every real Being (evil is no being, but priva­tion) is good of it self and effectively from GOD; And it is GOD that (by what means soever obtained) putteth down one, and setteth up another) without con­sidering the justness of its Acquisition. Now, it is known that Nebuchadnazar's power over the Nations (was unjust in its Acquisition; and yet) when acquired, GOD calls him His servant, is said to set up his Throne Jer. 43.10., and threatneth him with destruction that, unlawfully, disobeyed him Ezek. 17.2 Chron. 36.13. conferred. He made Zedekiah, as King under, and to give Oath of Fidelity to, him; while his own Prince Jeholachin was yet alive: this Oath, GOD (calling it mine) did approve; and therefore punished its breach, and the Re­bellion against the Conqueror. The like Title had Cyrus, and yet in respect of his Power, the Lord calleth him his Shepherd, and his Anointed, and telleth that it should be himself that would confer that power upon him Isaiah. 44.45.. But which is more, it is certain from all Histories, that the Right; to the Roman Empire, from Caesar down­ward so long as possessed (at least) by title of Succes­sion was meer Usurpation (because both assumed by Subjects, without Denounciation of war; yea with­out a Lawful cause:) Yet St. Paul testifieth, That the Powers that were then were ordained of GOD; and commandeth Submission to them, under the hazard of Re­sisting [Page 108]the Ordinance of GOD, and receiving damnation; And was obeyed by the Primitive Christians and Mar­tyrs (sufficiently able to resist) accordingly. And they swore the Military Oath to every one that pre­vailed: and so never adhered to the Dethroned Em­peror but acknowledged the new one. Nor is there one instance of (Clergy especially) in any part or Age of the Christian Church, doing otherways. The Sacredness of the Power once in possession (multa non recte, fiunt, quae facta valent) hath been so universally observed that, indeed, it seems to have been a part of the Traditional Religion conveyed from Noah to his Posterity, (so necessary that was for first Peopling, and then maintaining, the World peopled.) And at last, Authorised by Christ himself, who (because he saw Caesar was in Possession of the Civil Power, by his Image) commanded to give unto Caesar that which was Caesars, (yea he owned the possest Usurper Cajaphas; as St. Paul did Annanias) which perhaps is the reason of our Axiom, that the Crown purgeth all Defects. Finally, since meer possession, without considering the justness of its cause; yea where its cause is evi­dently unjust; and without Denounciation of War; yea in a Subject who hath no Power of war or to de­nounce; and without the Peoples good and consent; yea (in some kind) against both; gives such right to the possessor in the Subjects Allegiance: how much more in our case, where there is evidently the justest of causes; yea a concurrence of all the just causes of war; and these declared; and that by a Non-Subject Prince who hath right to War and Declare; and all (in all respects) for the Peoples good and with there consent; yea from both.

In respect of all which, if there be an Invasion; our natural ties, to King William, and fellow-Sub­jects, and Allies, and Our-selves; by our Allegi­ance, Duty, Gratitude, and Charity: indispensibly oblige us to defend Church and State; from Popery [Page 109]and Slavery (which will be surely the reward of an unnatural concurrence thereto, by concurring to this Invasion) once out o [...] doors: From French and Irish Dragooning Inquisitions; the necessary consequent (both from their Religion and new Engagements) of sufficient Power: from a Forreign Prince and a Forreign Prelate (such are, at least, the French King, Princes of Italy, and the Pope) whose Forces and Treasure come against us: from stranger Miscreants and Savages (whom no command [especially if wanting pay] can possibly with hold from sacking Friend and Enemy; and a fair prospect of undoubted Victory will make a most fit nick of time [we know what the Jesuits private instructions, and their Reli­gion and spite to execute, can inspire] unquarrelab­ly to dispatch Hereticks, Qua Rebels: Quibus & sides servanda non est cum existit potestas) whose Com­missions from K. J. are null; and so to be resisted as so many Irish Wolves and Armed Robbers: Finally, from bearing (as being the cause of) that Aceldama of innocent Blood (spared, hitherto, by such Mira­culous Providence) and the lasting ruine (now guar­ded against) of Religion and Liberties, here and elsewhere. For we need not think the Tragedie will end on this Stage, since (in caise of sudden Victory) all that K. J. esteems bonds, (viz. Religion, Pro­mises, Honour, Gratitude, and Interest) will in­dispensibly engage (all then, lying prostrate at plea­sure without reserve) to mutually relieve the pressed French King, and be revenged on the Protestant Con­sederats. And in case of a long intestine Desolation (while the French run down all others being destitute of, yea weakned by sending to, Britains Assistance,) what speedy concurrence will be denyed to the fa­vours of K. William, must be sacrificed with sorrow, to the sury of K. Lewis: since we know his Pretensions and intentions (only stopable here) for an Universal Monarchy, and against Protestancy; and that Reli­gion [Page 110]or Faith given, are no barrs to his Majesty.

The Advantages, of a Non-subject Prince; and that the next Prince, and, next Princess [...] Husband, in Blood: miraculous, unanimity of the Princes (in most other things at Enmity) Protestant and Popish, abroad; and universal concurrence and con­sent of the People (as different in Judgements as Faces) at home: Undenyable evidence of Fact giv­ing Occasion to both; and obstinate inflexibleness of the late K: James, to remove the same: His, first, Abdi [...]ting, then, Deserting, his Right, and King­doms; and the Singularity of matter of Right arising from all these: Finally, That no less, and no more, was necessary to stope the scruples of diversly prin­cipled Men; and so to confound even the Objections against all other Revolutions in the World: are the uncontestible manuduction of Heaven (as GOD indi­cate him, whom he would have the Israelites own as Judge, by some signal pre-deliverance) to our pre­sent Establishment. Therefore we'le conclude with