Reasons of the present judgement of the Vniversity of Oxford, concerning [brace] The Solemne League and Covenant. The Negative Oath. The Ordinances concerning discipline and vvorship. Approved by generall consent in a full convocation, 1. Jun. 1647. and presented to consideration.

§. VII. Of the Salvo's.

THe Salvo's that we have usually met withall, for the avoy∣ding of the aforesaid scruples, either concerning the whole Covenant, or some particulars therein of speciall importance: We find upon examination to be no way satisfactory to our Con∣sciences.

The first is that we may take the Covenant in our own sense: but this (in a matter of this nature, viz. an imposed promisory Oath, in the performance whereof others also are presumed to be concerned) seemeth to be

[ 1] 1. Contrary to the Nature and end of an Oath, which unlesse it be full of simplicity, cannot be Sworn in Truth and Righte∣ousnesse, nor serve to the ending of controversies and contradictions, which was the use for which it was instituted, Heb. 6.

2. Contrary to the end of Speech: God having given us the use of Speech for this end, that it might be the interpreter of the minde; it behoveth us as in all other our dealings and con∣tracts, so especially where there is the intervention of an Oath, so to speak as that they, whom it concerneth, may clearly understand our meaning by our words.

3. Contrary to the end of the Covenant it self. Which being the confirmation of a firm union among the Covenanters, that by taking thereof they might have mutuall assurance of mu∣tuall assistance & defence: If one may be allowed to take it in one sense, & another in a contrary; the Covenanters shall

have no more assurance of mutuall assistance each from o∣ther after the taking of the Covenant, then they had before.

4. Contrary to the Solemne profession made by each Cove∣vanter (in expresse termes in the conclusion thereof) in the presence of Almighty God, the searcher of all hearts, that he ta∣keth it with a true intention to perform the same, as he shall an∣swer it at the great day.

2 This will bring a scandall upon our Religion,

1. That we practice that our selves, which we condemne in the Papist, viz. Swearing with Jesuiticall equivocations and mentall reservations.

2. That we take the glorious and dreadfull Name of God in vaine; and play fast and loose with Oathes: in as much as what we swear to day in one sense, we may swear the direct contrary to morrow in another. And

3. It will give strength to that charge which is layd to the Presbyterian party, in speciall, both a 1.1 by Jesuites and b 1.2 Sectaries; that there is no faith to be given to Protestants, whatever they swear; because they may swear one thing in their Words, and in their own sense mean another.

The second way is, to take the Covenant with these or the [ 2] like generall Salvo's express••d, viz. So far as lawfully I may; So far as it is agreeable to the Word of God, and the Lawes of the Land; Saving all Oathes by me formerly taken, &c. But

1. We beleeve this mocking of God would be so far from freeing us from the guilt of Perjury, that thereby we should rather contract a new guilt of most vile and abominable Hy∣pocrisie.

2 It seemeth all one unto us (the thing being otherwise suppo∣sed unlawfull) as if we should swear to kill, steal, commit adultery, or forswear our selves, so far as lawfully we may.

3. If this would satisfie the Conscience, we might with a good Conscience not only take the present Covenant, but even subscribe to the Councell of Trent also; yea, and to the Tur∣kish Alcoran; and swear to maintain and defend either of them, viz. so far as lawfully we may, or as they are agreable to the Word of God.

[ 3] Thirdly, for the second Article in particular, in the branch con∣cerning the extirpation of Church-Government, we are told that it is to be understood of the whole Government, taken col∣lectively and in sensu composito, so as if we doe endeavour but the taking away of Apparitors only, or of any other one kind of infe∣riour officers belonging to the Ecclesiastcall Hierarchy, we shall have sufficiently discharged our whole promise in that particular without any prejudice done to Episcopacy. But

1. Neither the composers of the Covenant by their words, nor the imposers of it by their Actions, have given us the least signification that they meant no more.

2. Yea rather, if we may judge either by the cause or the effects, we may well think there was a meaning to extir∣pate the whole government, and every part thereof in the Article expressed. For

1. The Covenant being (as we have no cause to doubt) fra∣med at the instance of the Scots and for the easier pro∣curing of their assistance in the late War, was therefore in all reason so to be framed and understood as to give them satisfaction, & (considering what themselves have c 1.3 decla∣red) against Episcopacy, we have little reason to beleeve the taking away Apparitors, or any thing, lesse then the rooting out of Episcopacy it self, would have satisfied them.

2. The proceedings also since the entring of this Covenant in endeavouring by Ordinance of Parliament to take away

the Name, Power, and Revenues of Bishops doe sadly give us to understand, what was their meaning therein.

Fourthly, as to the scruples that arise from the Soveraignty of the King, and the duty of Allegiance as Subjects; we find two [ 4] severall wayes of answering, but little satisfaction in either.

1. The former, by saying (which seemeth to us a piece of un∣reasonable and strange Divinity) that Protection and Subje∣ction standing in relation either to other, the King being now disabled to give us protection, we are thereby freed from our bond of subjection. Whereas

1. The Subjects obligation (Jus subjectionis) doth not spring from, nor relate unto the actuall exercise of King∣ly protection; but from and unto the Princes obliga∣tion to protect (Jus Protectionis.) Which obligation ly∣ing upon him as a duty which he is bound in conscience to performe, when it is in his power so to doe; the re∣lative obligation thereunto lyeth upon us as a duty which we are bound in conscience to performe, when it is in our power so to doe. His inability therefore to performe his duty doth not discharge us from the neces∣sity of performing ours, so long as we are able to doe it.

2. If the King should not protect us, but neglect his part, though having power and ability to perform it; his vo∣luntary neglect ought not to free us from the faithfull performance of what is to be done on our part. How much lesse then ought we to think our selves dis-obliged from our subjection, when the Non-protection on his part is not from the want of will, but of power?

2. The later (wherein yet some have triumphed) by saying that the Parliament being the supreme Judicatory of the Kingdome, the King, wheresoever in person, is ever present there in his power, as in all other Courts of Justice: and that therefore whatsoever is done by them, is not done without the King, but by him. But craving pardon first, if in things without our proper sphere we hap to speak unproperly or amisse; We must next crave leave to be still of the same mind we were, till it shall be made evident to our understandings,

that the King is there in his power, as it is evident to our sen∣ses that he is not there in his Person: Which so far as our naturall reason and small experience will serve us to judge, all that hath been said to that purpose can never doe.

For, first, to the point of presence:

1. We have been brought up in a beliefe that for the making of Lawes the actuall d 1.4 Royall assent was simply necessary, and not onely a virtuall assent supposed to be included in the Votes of the two Houses: otherwise, what use can be made of his Negative voice? or what need to e 1.5 desire his Royall assent, to that which may be done as well without it?

2. The f 1.6 Statute, providing that the Kings assent to any Bill signified under his great Seal shall be to all intents of Law as valid & effectual, as if he were personally present, doth clear∣ly import that as to the effect of making a Law, the Kings Po∣wer is not otherwise really present with the two Houses, then it appeareth either in his Person or under his Seal: Any other real presence is to us a riddle, not much unlike to that of Tran∣substantiation: an imaginary thing, rather devised to serve

turnes, then believed by those that are content to make use of it.

3. Such presence of the King there, when it shall be made ap∣peare to us either from the writs, whereby the Members of both Houses are called together, or by the standing Lawes of the Land, or by the acknowledged judgement, and continu∣ed practice of former and later ages, or by any expresse from the King himself, clearly declaring his minde to that purpose, we shall then as becometh us, acknowledge the same, and willingly submit thereunto.

And as for the Argument drawn from the Analogie of other Courts, wherein the Kings Power is alwayes supposed to be vir∣tually present, under submission we conceive it is of no conse∣quence.

1. The Arguments à minore and ȧ majore are subject to ma∣ny fallacies; and unlesse there be a parity of reason in every requisite respect between the things compared, will not hold good: A Pety Constable (they say) may doe something which a Justice of Peace cannot doe: And the Steward of a pety Mannour hath power to adminster an Oath, which (as we are told) the House of Commons it self hath no po∣wer to doe.

2. That the high Court of Parliament is the supream Judicato∣ry, we have been told it is by vertue of the Kings right of pre∣siding there, he being g 1.7 the Supream Judge, and the Mem∣bers of both Houses his Councell: Which being so, the reason of difference is plaine between that and other Judi∣catories in sundry respects.

1. The Judges in other Courts are deputed by him, and doe all in his name, and by his authority; and therefore the pre∣sence of his power in those Courts of ministeriall Jurisdicti∣on is sufficient, his personall presence not necessary, neither hath he any personall vote therein at all. But in the high

Court of Parliament, where the King himself is the Supreme Judge, judging in his own name and by his own authority, his Power cannot be presumed to be really present without either the actuall presence of his person, or some virtu∣all representation thereof signified under his great Seal.

2. The Judges in inferiour Courts, because they are to act all in his name, and by his Authority, doe therefore take Oathes of fidelity for the right exercising of Judicature in their severall places; sitting there, not by any proper interest of their owne, but only in right of the King, whose Judges they are, and therefore they are called the Kings Judges and his Ministers. But in the high Court of Parliament, the Lords and Commons sit there in Councell with the King as Supreme Judge for the good of the whole Realm; and therefore they are not called the Kings Judges, but the Kings Councell: and they have their severall proper rights and in∣terests peculiar and distinct both between themselves, & from that of the Kings; by reason whereof they become distinct h 1.8 Orders, or, as of late times they have been stiled (in this sense as we conceive) i 1.9 three distinct Estates. Each of which being supposed to be the best Conservators of their own proper interest; if the power of any one Estate should be presumed to be virtually present in the other two, that Estate must needs be in inevitably liable to suffer in the pro∣per Interests thereof. Which might quickly prove destru∣ctive to the whole Kingdome: The safety and prosperity of the whole consisting in the conservation of the just rights and proper interests of the maine parts, viz. The King, Lords, and Commons, inviolate and entire.

3. The Judges of other Courts, for as much as their power is but ministeriall and meerly Judiciall▪ are bounded by the present Lawes, and limited also by their owne Acts: so as

they may neither swerve from the Laws, in giving Judgement, nor reverse their owne Judgements after they are given. But the High Court of Parliament, having (by reason of the Kings Supreme Power presiding therein) a Power Legislative as well as Judiciall, are not so limited by any earthly Power, but that they may change and over-rule the Lawes, and their own Acts at their pleasure. The Kings Personall assent there∣fore is not needfull in those other Courts, which are boun∣ded by those Lawes whereunto the King hath already given his personall assent: but unto any Act of Power beside, be∣yond, above, or against the Lawes already established, we have been informed, and it seems to us very agreeable to reason, that the Kings Personall Assent should be absolutely necessary: Forasmuch as every such Act is the exercise of a Legislative rather then of a Judiciall power; and no Act of Legislative power in any Community (by consent of all Na∣tions) can be valid, unlesse it be confirmed by such person or persons as the Soveraignty of that Community resideth in. Which Soveraignty, with us, so undoubtedly resideth in the person of the King, that his ordinary style runneth,—Our k 1.10 Soveraign Lord the King: And he is in the Oath of Supre∣macie expresly acknowledged to be the onely Supreme Gover∣nour within his Realmes. And we leave it to the wisdome of others to consider, what misery and mischief might come to the Kingdome, if the power of any of these three Estates should be swallowed up by any one or both the other, and if then under the name of a Judiciall there should be yee really exercised a Legislative power.

4. Since all Judiciall Power is radically and originally in the

King, (who is for that cause styled by the Lawes l 1.11 The Fountaine of Justice) and not in any other Person or Per∣sons, but by derivation from him: it seemeth to us evident, that neither the Judges of inferiour Courts of ministeriall Justice, nor the Lords and Commons assembled in the High Court of Parliament, may of right exercise any other power over the Subjects of this Realm, then such as by their respe∣ctive Patents and Writs issued from the King, or by the known established Laws of the Land formerly assented un∣to by the Kings of this Realm doth appear to have been from him derived unto them. Which Lawes, Patents and Writs being the exact boundary of their severall Powers, it hath not yet been made appeare to our understandings, either from the Lawes of the Realme, or from the tenour of those Writs by which the Parliament is called, that the two Houses of Parliament have any power without the King to order, command, or transact; but with him m 1.12 to treat, con∣sult, and advise concerning the great affairs of the Kingdome. In which respect they have sundry times in their Declarati∣ons to His Majesty called themselves by the name of His great Councell. And those Lawes and Writs are (as we conceive) the proper Topick, from which the just power of the Honourable Houses can be convincingly deduced: and not such fraile Collections as the wits of men may raise from seeming Analogies and Proportions.

Notes

• a 1.1

  Haeretia nec Deo, nec hominibus ser••••••t fi∣dem.—Spe∣ciatim h•••• addo, Calvinistas in hac re deteriores esse qu••m Lutheranos. Nam Calvi∣nistae nullam servant fidem: Jura, perjura.—Lutherani moderatiores sunt. Be∣can. 5. Manual. Controv. 14. n. 4. & 6.
• b 1.2

  Invent Oathes and Covenants for the Kingdome, dispence with them when he pleaseth, sweare and forsweare as the wind turneth, like a godly Presbyter. Arraig. of Persec. in Epist. Ded.
• c 1.3

  By the Covenant, both Houses of Parlia∣ment, & ma∣ny thousands of other His Majesties Subjects of England and Ireland stand bound as well as we to hinder the setting up of the Church-Government by Bishops in the Kingdome of Scotland: And that we as well as they stand bound to endeavour the extirpation thereof in England and Ireland. Scots Declar. to the States of the United Provinces, 5. Aug. 1645. recited in Answer to the Scots Papers, pag. 23.
• d 1.4

  The old formes of Acts of Par∣liam. were, The King willeth, pro∣videth, ordaineth, establisheth, granteth, &c. by the assent of Parliament, &c. See Statutes till 1 H. 4. After that, The King, of the assent of the Lords Spirituall and Temporall, and at the speciall instance and request of the Commons of this Realm, hath ordained, &c. See Statutes 1 H. 4. till 1 H. 7. A forme of such Petition of the Commons, see 1 R. 3. 6. Prayen the Commons in this present Parliament assembled, that where, &c. Please it therefore your Highnesse, by the advice and assent of the Lords Spirituall and Temporall in this your present Parliament assem∣bled, and by the authority of the same, to ordaine, &c.

  No Bill is an Act of Parliament, Ordinance, or Edict of Law, although both the Houses agree unanimously in it, till it hath the Royall Assent. Ancient Customes, pag. 54.

  Assemblee de ceux troys Estats est appellee un Act de Parliament: car sans touts troys nest ascun Act de Parl. Finch Nomotech. fol. 21.

  We admit that no Acts of Parliament are complete, or formally binding without the Kings assent. H. P. Answer to David Jenkins, pag. 6.
• e 1.5

  —Which if your Majesty shall be pleased to adorne with your Majesties Royall assent, (without which it can neither be complete and perfect, nor—) Stat. 1. Jac. 1.
• f 1.6

  Stat. 33. H. 1. 21.
• g 1.7

  Dominus Rex habet or∣dinariam ju∣risdictionem, dignitatem & potestatem super omnes qui in regno suo sunt.—Ea quae jurisdictionis sunt & pacis—ad nullum pertinent nisi ad coronam & dignitatem Regians, nec à coronâ se∣parari possunt. Bracton cited by Stamford, lib. 2. cap. 2.
• h 1.8

  For in our Lawes, the Clergie, Nobility, & Communal∣ty are the 3. Estates.—We your said most lo∣ving, faith∣full, and obe∣dient Sub∣jects, (viz. the Lords Spirituall and Temporall, and the Commons) represent∣ing your Three Estates of your Realme of England, 1 Eliz. 3.—the State of the Clergie being one of the greatest States of this Realme. 8 Eliz. 1.
• i 1.9

  See Finch supra ad lit. [d].
• k 1.10

  The Crown of England hath been so free at all times, that it hath been in no earthly subje∣ction, but im∣mediately to God in all things touching the Regality of the said Crowne.—16 R. 2. 5. Omnis sub eo est, & ipse sub nullo, nisi tantùm sub Deo. Parem autem non habet Rex in regno suo, quia—Item nec multò fortiùs superiorem aut potentiorem habere debet, quia sic esset inferior suis subjectis. Bracton. conten. 1. Rubr. 36.

  —Cui 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, legibus ipsis legum vim imponendi potestatem Deus dedit. Finch Nomotech. in Epist. Dedic. to K. James.
• l 1.11

  Fon•• Justitiae. Bracton. By War to intend the al∣teration of the Lawes in any part of them, is to le∣vy War a∣gainst the King, and consequently Treason by the Statute of 25 E. 3.—because they are the Kings Lawes. He is the fountaine from whence in their seve∣rall channels they are deri∣ved to the Subject. Ma∣ster Saint John's Speech concerning the Earle of Strafford, page 12.
• m 1.12

  —Et ibidem vobiscum colloquium habere, tractare super dictis negotiis tract: vestrum{que} consilium impensur: Writ to the Lords.