I &*>*-' **2Zffi- I • ■ ^/ ,f. t i* .J*> ^. aa. 3, 16: JejTouiiBa*) •s-#itTO k* # / ,ui P R O C E E D I N - O F T H E Prefent Parliament justified By theO P I N I O N of the moft Judicious and Learned UV GO* GROT IV S; With Confiderations thereupon. WRITTEN For the Satisfa&ion of fbme of the Reverend ClergJR who yet ieem to labour under fome Scruples conr cerning the Original Gijghtof IQngs, their ^fU\7ri|l of Empire, and the Peoples inieparable Right of fye ft fiance, Depofing, and of Difpojing and Settling, of the Succcjjion to the Crown. " ' - * ' ' ' m • $y a Lover of the Teace of his Country. aaitfj allowance. *~k. * T The Opinion of the mojl Learned and fudicioM Hugo Grotius, &c. THere are fome, I do obferve, amongft the Clergy of the Church of England, who feem veiy much concerned for the late King's Jnteieft, and difiatisfied with the Management and Difpofurc of Affairs relating thereto, by this Great and Honorable Convention of the Lords and Commons now aflemblec: Parliament. All who chenfti Refentments of this kind I dare not indiftinguifhably condemn, becaufe they may poffibly be dire&ed in ibme by a Principle of Honor and Honefty : But thofe whole Intentions are honeft, and do not principally defign thereby to betray their Country into Popery and VafTalage ( for luch will be the natural Con- fequences, tho not the Inducements to their VVifhes ) I dc- fire they would fcrioully weigh thi* flight they fo much contend for , in the Ballance of Law and Reafon, be- fore they pafs a Ccnfure, or ground an Opinion. There can be no Right pretended either to Property or Dominion, but by the Laws of Nature. Nations, or the Municipal Laws of the Country where fuch^ijht L claimed, and ahho the latter of ihcle are grounded upon and derived from the two former, yet do they notwith- flanding take place in the deciding of all Difficulties, ib tar as their Statutes or Prefidents do extend; But v. municipal Laws are lilent or defe£Hve, there Recourle is to be had to the Laws of Nature and Nations. Upon this ac- count it was, that the Grave and Learned SerjctM M xard, being applyed unto, as the fitted perfon, in refpeft *> Iiis great Age and Learning, to fignifie what the Laws of 1 the Land did direft in fuch an Exigence as this, replyed, That it was trnejne was the meli ancient of all thofe who attend* td that Profejfion, that he had outlived (everal Kings, and Several Sets of Judges^ but novo he had alfo outlived the Law it felf. Intimating thereby, that the Cafe wasfo unufual and extraordinary, that it went beyond the Direction of the municipal Laws, and therefore muft appeal to a more remote Tribunal. The Reafon why I do more particularly fingle out the Opinions of this famous Civilian upon this Occafion, is becaufe of the great Credit and Authority he has obtained in the World*, efpecially amongft the Clergy , and is above all other of his Faculty, moft tender of the Rights and Prerogatives cf Crowned Heads. Upon this account there can nothing reasonably be obje&ed to his Senfe of thofe Scruples and Difficulties which fomeat prefent labor under. Therefore I defire they would hear him in his own Words, with the moft fair and genuine Translation they will admit. Grot, de Jure B c V/i & Pacify Lib. i . Cap. 4. SeQ. 1 6. Si Bella injuiio & cut \ If any one by an unjuft War, Juris Gentium requifta non fuch as wants thofe Requifits *dfwt^ Imperium arripuer/t I which by the Laws of Nati- jliquis. neque paUio ulla fe- ons it ought to ha ve,does ufur p wta fit aut fides Hit data, a Government, nor afterwards fed fola vi retineatur pof enters into any' Compact with fejjio : videtur manere belli the People, nor is there any jf*y, ac proinde in eum lice re qu£ in hojiem licet , qui, a qUolibet etiam privato^ jure Truft repofed in him, but his Poffeffion f is maintained by Force } the right of War does in this Cafe ftill continue, wherefore it is lawful to deal with him in all things as with ^- j poteji wierfici. In rcos Majeftatis, inquit Terthlli- amis , & publicos hoftes cmnis homo miles eft. an Enem j\for he may be juftly (lain by any private perfon.7cr- tullim tells HS^Tkatagaiftfi thofe who are guilty of usurping Mj le- fty, and again ji common £ mies % every one is a Soldier. I know but of three ways whereby Empire can be ori- ginally acquired. The firft is by Nature, and the Governor a Patriarchy who immediately prefides bvcf a Family or City of his own natural Generation, or claims the Go- vernment by a Lineal Defcent from him who was the common natural Ancejicr of all his Subjects. To this Title I think there is no Prince now in the World lays claim: it there be, let him produce his Pedegree, and prove himfelf the Primogenitus by an Hereditary Line from the natural Fa- therof his People,and I will not farther contend it with him. Theftcond fore of Empire \s by Conqueji^ of which you fee what Grotius frys. But put the cale the Conqueror had a flight prior to his Covqueji , fo that the War cannot becalled w/juft, yet after he has acquired the Government, he cannot at once be in, by two Titles, foas to exercife the refptcVive powers given by both; becaufe if he holds by Conqneft his power is Absolute 5 if by Contract ^ then limit and directed by the People 5 and hecannot be both abfol- and limited at the fame time. From hence it mufc nee farily follow, that by every Aft wherein he tranfgrtflcs his limited pow er, in ufurping what he had no manner of Right to, he renounces bis lawful Title, ar 1 rilktby force and violence only, and thereby the Conquerors unjuft War,and the Peoples j*ift flight to vindicate themfelves from this unjuftufurpation, is ltill continued. As the Cafe ftands now with us in England, if the late King could have claimed by Conqueft, as many havepre- r I he might, from l i Villiam the Conqueror, only to j 1— iii^^ palliate fome illegal Proceedings* what has been done againtfhim, and much more, intheOpinion of this learned Man , had been both lawful and juftifiable. But if he chirrs neither as a Patriarch, nor by Conqueft , then there is only left for him to claim by Compaft, under which Qualification I defire you would farther confider him by the Rules which our learned Author lays down. Grot, de 'jure Belli, Lib. 2. Ch. 14. Se&. 4. Promiffz quoque plena & abfolnta atque acceptata, natnraliter jus transferrer demon fir atuin fupra eji 3 quod itidem ad Reges, non 'minus quam ad alios perti- net 5 it a ut improbanda fit^ hoc qui dent fenfu^ eorumfen- tentia , qui negant Regem teneri nnqnam hk qu<£ fine canfa promijit. That Promifes fully made and accepted do naturally transfer a Right, is already (hewn. Now this holds as well in Kings as in private Men: their Opinions there- fore are not to be allowed of, who hold, that what a King promifes without a good caufe, is not obligatory. Contrary to this fundamental Law of Nature and Rea- fon is the Opinion of thofe Divines who hold all Kings to be Jure drvino, and confequendy their Power abfolute 3 fo alfo of thofe common Lawyers who would juftifie that all Conceffions made by the Prince to his People, in diminu- tion of his Prerogative Royal, (tho dangerous and deftru- ctive) are -void and revokeable. lb. Lib. 1. Ch. 4, Se&. 7. N. 3. Nctazdftw eft, primo ho- mines non Dei pr >jtne Ordtnance^becauk* infiitutum Deus probavit. God did approve thereof as Deus autem humanam le- J fuitable and convenient for the gem probans , cenfetur pro- good of Mankind; but when bare ut humanam & huma- God approves of an Humane no more. \ 1 Law, he rauft be fuppos'd to do I it as humane, and after an hu~ I mane manner. In this Paragraph our Author traces a lawful Empire its Originals: he finds it then to refidc in the People, and derives it, together with the realons thereof, from Them, to fuch Perfon or Pctfons in whom it is by their Aft and San&ion plac'd and conrirm'd. lb. Lib. i. Cap. 4. S*<7. 7. A T . z Ftrri enim leges ab i.le nectiiuv ) fetfDS to zilcm tenfociant, a qu/bus Hid upon the Inc. I o! jus porro ad imper antes thofc who firft ti.icr'd i an at. Hi r L rogarentHr, an velint omni- bus hoc onus impoxere } ut rnori praoptent) quam ullo I u Right of Governing is tranf- ferr'd to the Governor. If fueh were ask'd, Wheiher they in- cafo vim fuperhrum amis \ tended to impofe a Yoke equal arcere , mjcio an vel/e fe Jint refp ox fori, ni/t forte cum hoc additawento , jl refijli #equeat> m(i cum maxima^ Rtvpuhliatptrturbatione aut exiito plurimorum innoctn- tinnti quodenim tali circum- to Death it (elf upon all who (hould offer to refift the Ty- rannies of a fuperior Magi- ftrate, by force, upon any ac- count whatfoever$ I much doubt, whether they would decjsre themfelves in the Af- Jlantia caritas commendaret^ firmati^e unlefs perhaps to. id in legem quoq^httmanam deduct pojfe nan dulito. avoid the Inconveniencies* which might attend fuch a Storm in the State , and the deftruction of many Innocents : for what in this cafe Cha- rity would oblige, may be received as a Law. a Here our Author gives another touch at the Original of Empire, and in effedt tells us, that as it firft was in the power of the People to make the Laws of Government^ io it is abfurd to think, that they (hould not by thofe Laws fecure themfelves againft the Paffions and Infirmities of the Governonr^ which they then made,that thereby they might be juftifiable in re-affuming their native Liberty, fo far as to repel by force the violence he fhould offer either to themfelves or their Laws. To this effefr , and more clofejy, does Vafquius write, Lib. n. cont. lllttft. cap. 82. n. 3, Semper licet fubditfe (i pojfwt^ in libertatem earn, fcili- cet qn$ populi eft , fe vindicare : Quia quod vi par turn eft imperium vi pojfit dijjolvi 3 quod aut cm ex voluntate fit profe- &um, in eo pxnitere liceat & mutare voluntatem. Grot. Grot, de Jure Belli, Lib. I. Cap, 4. Self. 1 j Si Rex partem habet fummi imperii, partem alte- ram populm ant Senatu* , Regi in partem non fuam involanti y vis jnfta opponi potejl, quia eatenus Impe- rium non habet : Quod lo- cum halere cenfe* etiamft di&um fit, Belli pote/latem penes Regem fore, id enim de hello externo intelligent dum eji : cum alioqui, qirif tjriK Imperii fummi partem hakeat, non pojjit non /a# habere earn partem titendi. Quod ubi [it , pot eji etiam Rex f/t imperii par tern, Belli ' jure amitterc. : \ IftheSupreme Power bedi vided between the King and the People, he may juftly be refifted by Force if he invade that part which is not his own, becaufe his Power extended not to it. This I conceive muft be allow'd, though the King have the Power of Peace and War 5 for this is to be un- derftood of Foreign War. Who- foever hath any part of the Su- preme Power, muftalfo necci farily have a Right to defend it 3 and where the Govern- ment is foconftitutcd, the King himfclf maj juftly.by the Right of War, lofe even his own part of the Empire. This is plainly the Cafe of England, where the Supreme Pontr is divided between the King, Lords, and Commons, and where the King in his greiteft Magnitude is ahvat s ac- knowledged to be Mv/or \)wk 1 It K That if cither of thtle three do break in upon tjje R/tgl and Priviledges of either of ihc other t is ju- lnfiable to repel] this Invafion : as tor ihltance, If any new Preeept, Ordinance or Command fhould be introdu- ced as an obligatory Law* or if tfty Lirtv fbrmerlr (houkf b pfttftl or difpenc d \ in ; both the fame, by any one of thefe thr out the Concurrence of the other two hi Parliament i 5 fuch an Invafioa as Grotius here fpeaks of, becaufe this Power of making and repealing a Law is jointly in the King and People, but in neither of them feparately. Nov/ whether the eredting of an High Commiffion Court dircft- ly contrary to an A& of Parliament, be not a virtual re- pealing of that Aft } Whether the difpenfing with feveral other Statutes be not equivalent with the afTuming of a Power to abrogate them 5 Whether the eftablifhing a itanding Army in time of Peace be not a virtual Intro- dudion of a new Law in it feif, and a Repeal of all the old ones in its Confequences 5 and whether all thefe be not fuch an Invasion of that part of the Government which belongs to the People as will juftifie Refiftance, let the World judge: If fo, the Legality then of all that has been done or is farther likely to be done againft fuch an Invader, will ea.fily appear. Theodofw the Emperor ok ten ufed this excellent Expreffion, Tantum mihi licet quan- tum per leges licet 5 and St. Paul acquaints us with the Con- ditions of our Submiffion not for Wrath but Confcience lake, knowing that he is the Minifter of God for our Good. Nor indeed does it feem Chriftian or reafonable, to im- pofe Obedience farther than it (hall appear to be for the general Good of the People, for whofe Safeguard and Pro- tection, not their Ruine and Deftru£Hon, Government, nay Religion it felf, was firft inftituted. TJnicus imperii finis eft populi utilitaS) faith Junius Brutus 3 and I cannot but con- cur with this fundamental Maxim, Salus populi eftfuprema Lex. Grot dejure Belli, Lib. 1. Cap. 4. Seff. 10. Si tamen Rex reipsa eti- \ If a King (hall endeavour to am trader e Regnum ant l give up or fubjeft his King- Jukjicere moliatur , quin ei dotn to another, I doubt not refifti in hoc pojjit non du but he may be refifted 5 for bito. Aliud eft emm ut du [Empire is one thing, and the ximus xh/JUf imperium : aliud ha- bcndi modus, qui ne mute- tur objiare poteji populus : id eni/n fub imperio com- prehenfum non eji : Quo non male aptes illud Scnei£ in re non difimilt, Et fi pa- readum in omnibus patri, in eo non parendum, quo efficitur ne Pater fit. manner of holding it anotbt the Alteration whereof i People miy hinder, for that is nor comprehended under the Notion of Empire it fel£ To this may that Saying of Sent be well applied, being in ef- fe& the fame cafe, Although an univerful Obedience is required to Parents , yet not in th things wherein they ccafc to a& like Parents. What Dtfigns have been carried on to alter the Go- vernment by fubverting the fundamental Laws thereof, and by private Leagues and Combinations with a neigh, bouring Prince, to fubject the Kingdom to his Power by admitting of a foreign Army into it, is in part evident by the French King's Teftimony, and in convenient time will farther appear, to add to thofe many other weighty In- ducements, which the People had, to proceed by fuch Meafurcs as the Wifdom of the Nation has thought fir. Grot, de 'jure Belli, Lib. i. Cap. 4. Seft. 9. Si Rex aut alius quit impcrium abdicazit Ant ma nifefte habet pro dereliflo y in eum poji id tempus om- nia licent qu£ in privatum fed winimepro derelifto ha- bere rem cenftndu4 eji qu earn trattat ncgligcntius. If a King or any other Su perior Magiftrate fhall abdicate or manifeftly defer t the Go* vernment, any thing may be lawfully done againft him that may be done againft a private Pcrfon : but he who governs only negligently, is not to be elteem'd as one who hath de* fertcd. The Word Abdicate in its proper Senfe, is ufed to fignifte, when a fuperior MagUtrate does renounce and utterly withdraw himfelf from the Government, or from that (hare of it which he holds. This may be done volun- tarily and defigrredly, by transferring the Government to another by fome formal method of Conveyance, as Charles the Fifth did to his Son, being himfelf inclined to become $ Reclufe$ or elfe there may be an involuntary and un- deiigned Abdication^ as when an Office* and the executing of the fame, does determine by Misfeasance, or Nonfeafance. The Word Desert implies only a Nonfeafance, and muft naturally amount in all Minifterial Offices (that of a King, who hath only the Executive Power, being no o- ther^ to an end and determination of the fame, and thereby does veil: again in Him or them who firft created or inftituted the Office, an immediate power to ereft and inflitute a new one, together withfuch an Officer as they they (hall approve of to execute it, with fuch Reftri&ions and Limitations as they (hall think expedient. How far this poor Government has been abdicated, renounced, de- ferred and forfaken by Malefeafance, M/sfeafance Ncnfea- fance, and at laft by an utter Derelt&ion, I need not repeat, it being too evident to all, but tkofe who will not fee, than whom there is none fo blind and incorrigibly ignorant. Grot. Demure Belli, Lib. I. Cap. 4. Sctf.8. PrimumerQO.quiPrirci- | Thofe Princes who are inferi- pes fub Populo font, five ab or in power to the whole Body initio tahm atcepermt po- I of the People, whether by tejiate/n, five pofiea it a con- » original or fubfequent Com- venit ut Lactd&mone .; J/ | padt, as in Lacedtemcn, if they peccant in Leges o^ Rem- ; violate ihe Laws, or wrong the '- public am non iantum vi re* { Commonwealth, fuch may not u ■ ) J petti ftffiwt* ftdji optts fit \ only be refitted by force. I puniri morte, quod Paufa- j if neceiTary, be punifhed bym vi£ Regi L*ceduare, ji populns^ a cujus voluntate jus regnandipro- am. Sjckt aulem populus exfrejjc nmtare voluntatem potejt, ita & tacite credi mntajfe. Mutata igiturpo- puli voluntate^ nequt dum exiftente eorum jure qui ex- petfari pojjunt , ' purentibus autera e quibus vafci pof fimt, qui jus fuo tempore ef- fort kabituri, id ipfum jns derelinquentibiH J nihil eji cnod objiet quo minus illud ui dereli&nm^ ab alio occu» thus derelinquifhed by, to injure them who have* yet acquired no Right. And as the People may be believed to change their Will by exprefs words , fo they may tac'r likewife: allowing then, it the People have changed their Will ^ and that fuch future Rights have no real exigence in thofe who are only in ex- pectancy 5 but that the Parents from whom they may be born, having in them this Right, did relinquifta the fame, what (hould hinder but that whic! may be poilefled by anoth This Point of Snccejfion^ upon fuppofition that the pre- tended Prince of Wales orgs really born of the Que _ requires a decifion, for it happening before any «alterati* on actually made in the Government, leaves the point turn upon the Cfunge of the Peoples Wil Our A thor here takes notice of an exprefs and a t.icit L That the People did in a publick formal manner change their Will as to the Succeffion, before the Birth of this Child, I cannot fay 5 but it is certain, that they did nerally (hew their Averfions to fuch a Succellion, lc before this Birth, and would undoubtedly have donei; a more publick legal Method, had they not be. ed by an illegal ftanding Arr As u Change of their one can bu( it h id a full Ex \ Prince had hi , bearing date Irora t hit day, wher publick 1 rs and Thanks by O ?d up I Queens preccn d i, and'm this I ment, be accordingly io declare Grot, de Jure Belli, Lib. z. Cap. y. Se&. 26. Similis eft qu quin pro fe quifque ah- the Right of Succejfton to his dicare pojjit non eft dubi- , Son. That he may abdicate urn: an & pro liber is, ma gis controverfum. lb. Illud interest inter Natos & Nafcituros, quod Nafcituris nondum qurel tes of any other Nation: and they, according to this ^earned A uihor's Opinion, have regularly and juftly pro- ceeded to afiert their own Rights, and to fettle both them and the Succeffion of the Crown, for the future, upon fuch an Eiiab!ithmenr,that we may reafonably hope and believe, that'^ll the Powers of Frame, or Prayer» of Rome, no nor the very Gates of Hell," (hall ever befftble to prevail againft them. FINIS. " ■■ ", ' % V m l I iVf/ • '■'•-