blamed for standing to their defence, being thus necessitated, as they would not betray the land, their laws, their liberties, and their religion, and so sell their soul and consciences and all into the hands of their malicious enemies. So then, when this shall be made the state of the question, whether or not the parliament, and body of the kingdom of Scotland, may not lawfully take up arms (having no purpose to wrong his Majesty's person, or to spoil him of his just rights and privileges) to defend themselves, lands, liberties, and (no less than) their religion, after it had been settled by law: when the king (instead of granting their just and necessary desires, namely, security that they should be ruled by lawful General Assemblies, and other inferior church judicatories, in church matters, according to the ancient discipline of the church; and, by a free parliament, in civil matters, according to the fundamental laws of the land; and that they might be free from illegal courts and alteration in their religion; and that the articles of agreement should be kept, and that granted which was promised under hand and seal) is raising a strong army of foreigners, Irish, popish, prelatical, and malignant enemies to the church and kingdon of Scotland, intending to destroy their land, lives and liberties, to overturn their religion and privileges; and, for this end, blocketh them up by sea and land, fortifieth castles in their bosom, giving them commission to destroy all they could, and denounceth them all rebels and traitors? Sure it may be supposed that, seeing this is the true state of the question, it shall easily be granted that this was a necessary defensive war, and that Scotland could do no less than they did, unless they would have willingly betrayed their religion and all which they had as men or as Christians, into the hands of their bloody and cruel adversaries; which no law would have warranted them to do. But to put a close to this. This their practice is abundantly warranted, 1. By lawyers, affirming that such a defensive war, cui libet, omni jure, ipsoque rationis ductú permissa est," Such a war is warranted to all by all laws imaginable." Spigelius tells us, in his Lexicon tit. Bellum, that "that is a just war which is undertaken for defence;" and citeth l. ut Vim. ff. de Just. et Jure. Yea, he tells us, that if a war be not undertaken for defence it is sedition, though carried on by the emperor; for he can no more hurt by war than he take away a man's life without a cause; and again he telleth us, that that is a just and necessary war, quod fit se et sua defendendo; that is, " for defence of a man's life, lands, and goods, and liberties, and what is dear unto him." Hence is that common saying, Vim vi repellere omnia jura permittunt," It is lawful by all law to resist violence by force of arms." And, Defendere se est juris naturæ et gentium, "The law of nature and nations teacheth every man to defend himself." And Cajus, the lawyer, saith, "That the very law of nature permitteth a man to defend himself against danger." And Florentinus, "It is right that whatever a man hath done in the defence of his own body should be accounted lawfully done." Yea, Ovid tells us the same, Armaque in armatos sumere jura sinunt,— 2. By the concessions of adversaries; for they grant that it is lawful to flee from the tyranny of abused authority, as Moses did, Exod. ii.; David, 2 Sam. xix.; Elisha, 1 Kings xix.; Joseph and Christ, Matt. ii.; and this Christ warranteth expressly, Matt. x. Now this flying is a plain resisting of rulers; and if resisting be unlawful, this must be unlawful likewise, and if this be not unlawful, resisting cannot be unlawful; for the same justice and equity which warranteth men by flight to decline unjust assaults doth also warrant an escaping of them by resistance when flight will not do it (which was indeed the case of Scotland; for it is not imaginable how a whole land, man, wife and child, old and young, sick and whole, can flee from their habitations, and go seek their livelihoods in other kingdoms: beside, that it is a great question if the states of a land, the peers and inferior judges, were bound, by flying, to leave the land, liberties and all unto their enemies, if they had power to defend themselves); for if the law of nature oblige men to preserve themselves by flight from tyranny, it doth also oblige them to defend themselves by resisting when they cannot conveniently secure themselves by flight, or when they cannot flee without betraying of the country, religion and all. All this will be so much the clearer if it be considered, that if a tyrant hath legal power from God M to kill, he hath the same legal power to summon legally, and sist before his tribunal such and such persons; and therefore if it be unlawful to resist his tyrannous murders, it must be also unlawful to resist his legal citations to that effect, and so unlawful to flee; for one and the same power citeth and judgeth: therefore if the law of defence warrant one to resist his summons, and not to compear, it warranteth one to resist his tyranny if he can be able. It is true the one resistance is more, but majus et minus non variant speciem; and if the one be a fault in conscience, so must the other be. See Lex, Rex, p. 152, &c., edit. 1843. Next, they grant that it is lawful for subjects to resist a foreign enemy, invading the land with arms, and thus their practice is justified. It is true their enemies had the king's commission; but the having or wanting of such a commission will not alter the case of the land which is put to defend itself; for whether these enemies have such a commission or not, they are strangers and foreign enemies to the land, and they come with a hostile mind to destroy and to conquer the same; and, therefore, whatever commission they have, the people are bound to defend themselves, their families, young and old, their lands, their liberties, and their religion, and all which they have. They grant also that a private man may defend himself when violently assaulted, and his life is in danger, and when he can no way escape, he may rather kill as be killed. So Grotius, de Jure Belli ac Pacis, lib. 2, cap. 1, sect. 3: Si corpus impetatur vi præsente cum periculo vitæ non aliter vitabili, tunc bellum esse licitum, etiam cum interfectione periculum inferentis. Much more will this hold good in the case of a whole kingdom, when they are assaulted by cruel enemies, and cannot escape with their wives and children, but must needs fall upon the sword of these bloody enemies, unless they use an innocent and lawful resistance; yea, ibid., sect. 6, he granteth, that in case a man be in danger to suffer mutilation, he may resist, seeing the loss of a member, especially if it be a chief member, is sad, and, in some respect, comparable to the life; and moreover, saith he, it cannot be known whether or not the life may not be in danger thereby. Will not this then serve abundantly to justify Scotland when their enemies came with a purpose not only to mutilate, but also to kill? They grant likewise that a maid may resist the king when he is seeking to abuse her. And shall not an army of malignants be resisted, who, if they get their will, would abuse virgins and married women also? 3. By the law of nature, nature hath given to beasts and birds power and ability to defend themselves, hence that -Omnibus hostem 'Tis given to all, their foe to know, And that of Horace, Dente lupus, cornu taurus petit, unde nisi intus Monstratum ? That wolves with tearing teeth and mouth, And bulls with pushing horns pursu'th, Whence is it that this skill they have? Nature within it to them gave. And that of Lucretius, Sentit enim vim quidque suam, qua possit abuti, Cornua nota prius vitulo, quam frontibus extant: Illis iratus petit, atque infensus inurget. Creatures their strength do early know, Which they may use, abuse also: The calf his horns doth know before On's forehead they show less or more; Pushing with them in tender age, And pressing hard as in a rage. And shall beasts be in a better condition than man? Shall a bull have liberty to defend itself with horns, and shall man have no liberty to defend himself against tyrants, or soldiers, in their name, coming to kill, plunder, burn and slay all? Nature alloweth, Vim vi repellere,-" to resist violence with violence," to all, and against all violence, without exception. Nature can put no difference betwixt violence offered by a magistrate and violence offered by another person. Defensio vitæ necessaria est, et a jure naturali profluit," it is necessary by the law of nature that a man defend his life." And the reason is, because God hath implanted in every creature inclinations and motions to preserve itself, each are bound to love themselves better than their neighbours; for the love of themselves is the measure of that love which they owe to their neighbour. The law of nature alloweth one rather to kill than to be killed, and to defend himself more than his neighbour. Cicero, lib. 1, de Officiis, saith, Injustitia duo genera sunt, &c. "There are two kinds of wrongs; one of those who do the wrong, the other of those who, when they may hold off the wrong, do it not: he who without cause setteth upon any, being angry, or some other way stirred up, layeth violent hands upon his neighbour; but he who doth not defend nor resist the injury when he may, is as far in the wrong as if he should desert his parents, his friends, and his country." And again, Cum sint duo genera decertandi, &c.-" There are two kinds of contending; one by arguing, which is proper to men, the other by force, which is proper to beasts: we must flee to this last when we cannot make use of the former." And again, in his Orat. pro Milone, he saith, Est hæc non scripta, &c.-"This law is not a law written but a law born with us: we have not learned it, nor acquired it, nor read it, but we have taken it, drawn it, and extracted it from nature itself, to which we are not taught but made, we are not instructed but are endued with it, that if our life be in hazard by snares, by violence, and darts of thieves or enemies, all honest ways must be assayed to free our life. So reason teacheth this to the learned, necessity to the barbarians, and custom to nations; and to beasts nature itself hath prescribed this, that whatever way they can they should resist all violence, and save their lives." Thus you see nature itself, and such as spoke by the light of nature, do warrant such a practice. 4. By the law of nations, the actions of some of which have been mentioned already, and he who desireth to see more may consult Prynne's appendix to his Sovereign Power of Parliaments, &c. : 5. By the law of God, as we see by many examples 1. Of David, who, being but a private man, and a subject, and now unjustly persecuted by Saul, the king, who was seeking his life, is forced to defend himself with arms, by taking to him first six hundred men, 1 Chron. xii., and then a great host, ver. 22, 36; and this was warranted of God; for the Spirit of God commendeth them for their valour, ver. 2, 8, 18, 21. And the Spirit coming on Amasai, ver. 18, prompting him to speak what he spoke, cleareth it also. 2. Of Elisha, 2 Kings vi. 32, he keepeth out the house, against the king, by force, and resisteth him who was coming to use unjust violence. 3. Of the eighty priests who resisted Uzziah, 2 Chron. xxvi. 17. Those are called "most valiant men," and, it is said, "they withstood Uz ziah, and they thrust him out." 4. Of the people's rescuing of Jonathan, 1 Sam. xiv., unjustly condemned to die; they resisted the king's act and edict notwithstanding of his oath yea, they did swear the contradictory of the king's oath. 5. Of Libnah revolting from Jehoram, 2 Chron. xxi. 10, because he pressed them to idolatry, as is probable from ver. 13. So saith Lavater, Zanchius, and Cornelius á Lapide. See also that noble commentator, [Boyd of] Trochrig on the Ephesians, p. 923.1 6. Of the city Abel resisting Joab, 2 Sam. xx. 7. Of Elijah (2 Kings i.) killing many hundreds of the king's men and emissaries sent to apprehend him. 8. By Christ bidding his disciples (Luke xxii. 36-38) buy swords. Nor is there any thing in Scripture contrary to this; for the passages of which the adversaries make use do either speak against opposing of lawful acts of just governors, as Eccl. viii. 2-4; Num. xvi.; Rom. xiii.; 1 Pet. ii. 13, 14, or against opposing of inferior magistrates as well as others; and so serve not their purpose, such as 1 Pet. ii. 1, 4, &c.; Rom. xiii.; Exod. xxii. 28; Job xxxiv. 18; or speaketh not of a pure defensive war, but of seeking the utter destruction and ruin of the supreme magistrate, as some of David's expressions which they make use of. 6. By right reason; for, 1. There is no stricter obligation betwixt a prince and his subjects than betwixt parents and children; yea, not so strict; and yet, if the father become distracted, and rise up in a fury to kill his children, the children may lawfully join together and resist him, and bind his hands; so may the wife resist the unjust violence of her unnatural husband: much more may subjects resist the unjust violence of their king. 2. Otherwise a king, who was an ordinance of God ordained for a rich blessing, should become the greatest curse imaginable; if, actú primo, he be invested of God with power to tyrannise, and the people be put out of all capacity to resist, he should become the greatest of curses to a people. 3. This should cross the end for which people did set up a king over themselves: it was to preserve them, and to keep them from wrongs, and not to put power in his hand to kill and murder them as he pleaseth. 4. This would put rational creatures into a worse condition than the beasts are into; 1 Bodii in Epist. ad Ephesios. for if their king will he may cut all their throats, destroy all their liberties, ravish all their wives and daughters, destroy all their lands and livings, and that without any control or the least resistance imaginable. But who can believe this? Yea, put the case there were but three or four kings in all the world, all the lives of the rest should be at their devotion; so that if they, in a fit of fury and madness, give out the word of command, they may cause kill all without any resistance. And would not this reflect upon the wisdom and goodness of God if he ordered matters so? But the absurdity of this is abundantly clear, so that more needeth not be said. He who desireth more satisfaction in this question may peruse Junius Brutus's Vindicia contra Tyrannos, quest. 3, a book as yet unanswered by any; and Lex, Rex, which got never another answer than a fagot, a quick way, forsooth, of dispatching an answer; and Mr Prynne's Sovereign Power of Parliaments, &c., where the matter is fully cleared, both in point of law and conscience, which was published by order of parliament; and a book entitled de Jure Magistratus in Subditos; and Trochrig's commentary on the Ephesians, where he will find this question prudently, judiciously and satisfactorily handled, from p. 911-925. Thus, in some measure, is this ninth particular cleared, and the lawfulness of Scotland's defensive war clearly shown; and hereby the unlawfulness of swearing any oath which might have imported a condemning of that war is also demonstrated. By what hath been said to this ninth particular, the tenth and last is likewise cleared, namely, "The lawfulness of Scotland's seizing upon the castles within themselves." For if it be lawful for a land to defend themselves, and to use resistance by arms in their own necessary defence, it is also lawful for them to seize upon such castles and strengths as may prove a fit and necessary mean of defence. It is lawful to possess these, and keep them out against the enemies of the country, who, if they had them, would make use of them for the destruction of the land and for the subversion of religion, lives, and liberties. Whatever law will allow of self-defence will also allow the use of all fit means for that end; for the end includeth the means leading to the end. Moreover, these castles and fortifications were originally appointed for the safety and security of the kingdom, and of none else; and therefore, at the large treaty, it is concluded, in answer to the second demand, "That the castle of Edinburgh, and other strengths of the kingdom, should, with the advice of the estates of the parliament, according to their first foundation, be furnished and used for defence and security of the kingdom." So that hereby the king approved of all which was done in this business before; and acknowledged that, according to their first foundation, they were for the kingdom's advantage. It is true these castles were annexed to the crown, parl. 11, act 41, King James II.; but that was done "to guard against the poverty of the realm;" and for all that "the king might not give them away in fee or heritage, nor in frank tenement, without the advice, deliverance and decree of the whole parliament,-and for great, seen, and reasonable causes of the realm, otherwise any alienation or disposition was to be of no avail." And it was enacted that the kings of Scotland should be sworn, at their coronation, to keep this statute in all points; and act 9, parl. 9, King James VI., saith, that "these castles are for the welfare of the realm, as well as for his Majesty's behoof." So act 125, parl. 7, King James VI., the castles are called "the keys of the realm." So, though the king hath the custody and command of them, yet it is always in order to the right end, that is, for the safety and good of the country; and if he should make use of them for the ruin and destruction of the country, they should be abused, and might lawfully be taken out of his hand, and converted to the right use as when a father, turning mad, will kill his children with a sword, the children may lawfully take the sword from him, with which he was bound to defend them against the common enemy, and make use of it in their own defence. Castles and fortifications are not the king's patrimony, but belong to him as king and governor of the land; so that he is to make no use of them but for the country's good: he cannot dispone and sell them as he may do other things that belong to his patrimony; therefore Scotland cannot be blamed for seizing on these for their own safety, seeing this is their native end, and the only thing they were ordained for. Nor can any be blamed for refusing that oath which would have imported a condemning of this lawful and necessary deed. Thus, reader, thou hast shortly laid before thee a hint of what clear grounds there were of stumbling at the taking of this oath as to the very civil part thereof, seeing this civil supremacy is and must be the same with his prerogative, and his prerogative is such as hath been shown. A difference betwixt the supremacy and the prerogative is not imaginable, unless it be this, that the supremacy is more comprehensive, and taketh in all the prerogative, and something more; yea, by some posterior acts, they are made of one and the same latitude, as in the act for "the national synod" the settling of the external government of the church is said to belong to his Majesty, as an inherent right of the crown; and how? "By virtue of his prerogative royal and supreme authority." So that his prerogative royal and supreme authority are made one. And if they be one as to ecclesiastical matters, much more must they be one and the same as to civil matters. And more clearly in the king's commission for the High Commission, where it is said, "His Majesty, by virtue of his royal prerogative in all causes, and over all persons," &c.; so that any may see that his supremacy over all causes is one and the same thing with his prerogative. Moreover this is certain, that whosoever do acknowledge and recognise the king's power and supremacy all causes, and over all persons," do acknowledge and recognise all that which they say agreeth to him as a king; and whosoever do acknowledge and recognise this, do acknowledge and recognise his royal prerogatives; for his royal prerogatives are such things as agree to him as a king, because they are annexed to the crown, as they say. It is true, in their 11th act of parliament, the acknowledgment of his Majesty's prerogative is mentioned beside the oath of allegiance; but that will not make them to differ so far; yea, the acknowledgment of his Majesty's prerogative is but explicatory of a part of that supremacy mentioned in the oath of allegiance. So that his prerogative over parliaments and over their actions, and over all other subjects, is but a part of that supremacy which they say he hath over all persons and in all causes. So in the oath for asserting his Majesty's prerogative, defensive arms, and the kingdom's entering in a league with England, and all "in their proceedings in the work of reformation are condemned; and this cannot be denied, though there be an express oath afterward conceived of purpose for that end, namely, the "declaration," set forth Sept. 2, 1662. SECTION XII. THE MEANING OF THE OATH OF ALLEGIANCE, AS TO ITS ECCLESIASTIC PART, OPENED; AND SOME REASONS WHY, UPON THAT ACCOUNT, IT COULD NOT BE TAKEN. The civil part of this oath of allegiance being thus spoken to, in the next place the ecclesiastic part must be handled; and when this is but explained, reasons, without much difficulty, will appear, why, as to that part of it, it could not then (nor as yet can) in conscience be subscribed unto. In this part, as in the other, the sense which the tenderers thereof do put upon it must be searched and sought for out of their acts; for though it could have been wished (and both reason and religion would have required it) that, after the example of Abraham, they had made the oath as plain and easy as might be, so that the sense and meaning of it had been obvious to all, or had annexed such a gloss and meaning as the words, in ordinary construction, would bear, and tender Christians might safely assent unto, yet there was no such thing done; yea, nor being desired to do it, would they do it; yea, nor would they suffer any one to inquire at them in what sense they would have the oath taken; yea, which is more, they made an act discharging all to offer any sense of the oath under the pain of treason. So that there is no way now left to find out the meaning of the oath, as to this part, but by their acts and actings, which, when considered, together with some other things useful in this business, will help to clear the true sense thereof. Three things then must be spoken to: 1. The rise and progress of this business, which is imported by this part of the oath, namely, the king's supremacy over persons ecclesiastic, and in ecclesiastic causes, in England. 2. The rise and progress of it in Scotland. 3. Some acts and deeds of the king and parliament who now tender it. |