all Emergencies and occasional Mischiefs and Inconveniencies without being cloathed with and having in some Sense inherent in it an absolute and arbitrary Power So that taking the whole compound and all the constituent Parts of the English Government in their Bulk and Complex together our Government is no less arbitrary and unconfined than the Government of France is But then that arbitrary and unrestrained Power as it referreth and belongeth not to the Executive Part of Government but meerly and solely to the Legislative so it appertaineth not to any that have Accession unto and Share in the Legislative separate and apart from one another or as they are taken disjunctively and distributively but as they act in conjunction and are taken collectively That is although the whole Executive Power of the Government be in the King only and alone and not any ways in others than as they derive and receive the respective Authorities and Branches of Power which the Law vests in such and such Officers by and from his Nomination and Commission yet neither the King singly and apart and much less either or both Houses in separation and disjunction from the King can either Make and Enact or Repeal and Abrogate Laws But then whereas the whole Executive Power of the Government lodged and trusted with the King is in all the Parts of it placed in and and committed to him under the Direction and Circumscription of known and existent Laws so that his very Prerogative which no Laws have nor can give particular Directions for the Exercise of it in all Cases and to all the Degrees and Dimensions that it may be needful as well as convenient is nevertheless in all the just Exertions of it only besides the Laws but never can be put forth righteously no more than it can be wisely in opposition unto or against them Yea all the honourable Exercises of the Royal and Sovereign Prerogative are for and in order to the great End of the Laws namely the Publick Good and thereby lie under the Guidance and Conduct of the first and highest Law of the Society which is that of Salus Populi It is much otherwise as to the Legislative Part by which the King with the Consent of the two Houses may without any foregoing Restriction or Limitation arbitrarily and with an absoluteness of Power either enact and establish or cancel and abrogate whatsoever Laws he pleases provided they overthrow not the Constitution nor alter the first and main Essentials of it Nor is the Legislative Power of France more despotical and arbitrary than this is and no Man will say that the French King is arbitrary or acts otherwise than according to his own Edicts in the Executive Part only we give it that Name because the whole Legislative Right and Authority is lodged entirely in that King without the Intervention Concurrence or Consent of any others save what is meerly obediential in Registring his Edicts but not Consultative and much less in any Sense Authoritative whereas we preclude the Terms absolute arbitrary and despotical out of the Stile of our Legislation notwithstanding it be in reality and effect so meerly because the whole Power of making Laws is not so solely lodged in the King as that he can do it without the Concurrence and previous Consent of the two Houses I said that the Power of enacting and abrogating Laws is unlimitted and arbitrary in the King and the two Houses He and they acting conjunctly and each in their own and proper Spheres provided they be not such Laws nor Repeals of Laws as do overthrow the Constitution or alter or change the chief and principal Essentials of it For the preservation of and adherence to the Constitution is the Measure and Standard of the whole Legislative Power and Authority of England Nor can the King grant nor the two Houses desire or accept nor all of them together in their several and respective ways of Concurrence and Influence into the making Laws enact any such Things Quae neque dari neque accipi salva Republica possint that I may use the Words of Tacitus which may subvert or change the Nature of the Government For as the Parliament is become an Ingredient into the Constitution in order to preserve the Liberties and Privileges of the People and not to betray them so they stand confined limitted and restrained by the Form Nature and Quality of the Constitution from all Right Authority and Power of making us Slaves Bondmen and Villains and from surrendring giving up and parting with our Fundamental Freedoms Title to Property in our Goods and Estates or any Thing reserved unto us when we entered into Society and became Subjects of the English Monarchy And on the other hand the King hath also by the Frame and Condition of the Constitution such Monarchical Powers and Prerogatives vested in him of which he is not Proprietor to dispose and alienate but Trustee to keep and maintain descendable to his Royal Successors having himself no higher or farther Interest in them than of Tenent Right for Life so that he stands restrained and disabled by the Constitution from parting with them Nor can any Bill that hath both passed the two Houses and which is by the Royal Assent ratified into an Act of Parliament divest him of or take them from him 'T is true that it falleth under the Power of a Parliament not only to make a Grant and Gift to the King of so much of the Goods and Estates of the Subjects as may be either necessary for the support and splendor of his Sovereign Dignity or needful to empower him upon all Emergent Occasions to defend the Kingdom but they may likewise alienate and take from a People Qui nec totam servitutem pati possunt nec totam libertatem Who can as ill bear too much Liberty as too much Slavery all those pretended Privileges and claimed Rights and Immunities which naturally tempt if not enforce them to be Restless Turbulent and Seditious But no Parliament hath or can have Authority to divest the Subjects of a Title or Right to the Freedom of their Persons and of a Property in their Estates save in Cases wherein by the common and known Laws they are forfeited And on the other hand it lies under the Royal Power of the King to make such Acts at the Desire and Petition of the Lords and Commons in the way of Bills by which those Flowers Ornaments and Prerogatives of the Crown may be alienated and granted away from it which were needless burthensom and obviously dangerous to the People That thereupon Sovereignty in the Prince may amicably consist with Freedom and Safety in the Subject and that our Princes may have the Honour and Praise which Tacitus gives Nerva when he tells us That res olim dissociabiles miscuit Principatum ac Libertatem He reconciled Sovereignty in the Monarch with Liberty in the People But then they can make no such Acts and Statutes nor
will the Constitution allow they should by which the King may either be barred of the Allegiance Fealty and Obedience of his Subjects or be deprived and divested of the Counterpart of it inseparaby appendent unto and resident in himself namely of Trust and Power to rule and defend his People And should either a Parliament be so passionate and encroaching as to present and demand these Things in Bills or a King so weak or indiscreet as to raise them unto the Title of Laws by giving the Royal Assent to them yet they never would be good and legal Acts nor have the force and virtue of Laws though they carried the Name but they would ipso facto be void in themselves as being directly repugnant unto and perfectly subversive of the Constitution So that how large extensive and unlimitted soever the Power of a King and Parliament acting in conjunction may be yet there are some Essentials and Fundamentals of the English Government whereof a few relate to Privileges incident to the People of England as they are a free Nation and divers are intrinsical to the Royal Authority and inseparable from the Person and Dignity of the King that the very Constitution makes them Sacredly unchangeable and sets them out of the reach of King and Parliament to meddle with And should they ever attempt it they would thereby immediately destroy themselves and become divested of all the Power and Authority they have or claim because deriving all their Jurisdictions from the Constitution and having no other Title to them but what that gives whensoever that is overturned and subverted all other Powers sink and fall with it Nor is there any Thing more common in our Books than that notwithstanding the Almightiness of Parliaments yet there are some Things that cannot be taken away by them As no Attainder by Parliament lies against a King rightfully gotten into the Possession of the Crown but he stands ipso facto Guiltless and Innocent in the esteem and account of the Law Nor is it in the Power of a Parliament to take away or dispose of the Right of a Kingdom as the Case has it 1 Hen. 7. Neither can a Parliament barr a King of the Right of his Regality as that no Lands shall hold of him and therefore when there was an endeavour carrying on in the beginning of the Reign of King James the First to have taken away all Tenures by Act of Parliament it was resolved by all the Judges That such a Stature had it been enacted would have been a void Statute This might be enlarged in many other Instances but these are enough to illustrate and confirm what I have mentioned only before I dismiss this Head give me leave to make those Reflexions upon the two Revolutional Parliaments and their pretended Parliamentary Proceedings as will serve to set it in a Meridian Light That they have not only exceeded the Bounds prescribed in and by the Nature Frame and Quality of the Constitution but they have altered changed subverted and overthrown the very Constitution itself and thereby destroyed the Ancient Legal Government of England and have acted Traiterously towards their Country as well as Treasonably and Rebelliously against the King And to begin with some Instances in matter of Fact wherein they have departed from and have acted in opposition unto all those main Essentials of the Constitution which relate to the Community whose Trustees they were originally intended to be for the preserving the Constitution entire and inviolated to them and to their Posterity For Parliaments are so far from being by their primitive Institution appointed to be the Representatives of the People to destroy that which was and rightfully still is the English Government that the great end of their Ordination and of their being successively chosen trusted and empowered by the People is that they may assert maintain and uphold it Nor can Five or Six hundred Men though they were both elected by Six hundred thousand which I am sure is a far greater Number than all the allowed Electors of Members to Parliaments amounts unto and though they should receive Credentials and Authorities from those Electors to alter the Government stand empowered by those means to do it but they should and ought previously to the attempting of it to have either an antecedent Signification of the Will and Pleasure of the many Millions of the Community and the Nation besides those or to receive a Substitution by and from them by which they are made their Representatives and Plenepotentiaries to act for them in that matter as they in their Wisdom shall find to be most for the Safety Good and Interest of the whole Society or of the universal Body of the People But instead of this neither was the Community in the least consulted with either as to the knowing their Mind and Sense in that Affair or as to the obtaining from them a Deputation to act and do in their Names and Room whatsoever they in the Place and Quality of Deputies should judge to be necessary and most useful Nor yet came these Parliaments together authorised and empowered for any such matter by those few upon whom the Right of electing Members of Parliament is devolved for the transacting Affairs in subordination unto consistency with and subserviency to the maintenance of the Constitution Neither indeed could these Electors conveigh any such Right Authority or Power unto them seeing all that they stood in a Capacity to chuse them for was that they might be their Representatives for the preserving of the Constitution and for the upholding of the Government on the Basis and Foundation upon which it was originally established and did then stand And yet these Parliaments have in defiance of all the Rules and Measures of the Constitution and in a treacherous Violation of all the Trust and Confidence reposed in them by their Country changed the whole Essential and Fundamental Frame of the Government of England and from an Hereditary Monarchy have made it an Elective For abstracting from the barbarous and treasonable Injustice they have done the King till hereafter they have broken the Chain of the Lineal Succession and by dissolving that Link in the Instrument and Machine of our Government they have destroyed it as to what it was and what it still ought to be according both to the Fundamentals of our first Establishment into a Polity and the Common and Statute Laws of the Kingdom And this they are become guilty of before God and accountable for in their Lives and Fortunes to their Country not only by barring the Right of the Prince of Wales who is lineal lawful and immediate Heir to the King his Father and by their vesting the Regal Administration in the Prince of Orange previously unto the Claim and Title of the late Princess of Orange but by postponing and justling out of its natural lineal and due Place the Right of the Princess of Denmark And herein our unthinking
quod injuriam suam corrigat emendet cum superiorem non habeat nisi Deum satis erit ei ad paenam quod Dominum expectet ultorem None can correct the King in that he hath no Superior but God and that will be sufficient Punishment that he expect the Lord for his Avenger Indeed the Constitution both instructs Princes for what end we pitched upon this Species and Kind of Regal Government and directs them to rule for the Safety Interest and Prosperity of their Subjects but there is no Original Contract nor Stipulatory Agreement by which it is provided That if Princes do not as they should they do either forfeit their Sovereign Authority or that we may lawfully rebel against and dethrone them Nor do any Presidents or Examples of that kind as those of deposing Edward the Second and Richard the Second shew that it was lawful or a Thing that either the Constitution or subsequent Laws did authorise and countenance but they only declared what a provoked People will sometimes do though it be never so much against their Allegiance and Duty to their King and most highly offensive to God However vivendum est legibus non exemplis we are to live according to the Laws and not according to a few occasional ill Practices and Examples And via facti is not always via juris Nor will the Repetition of evil Things change the Nature of them and render them Justifiable For as Civilians say Multitudo criminum peccantium non parit crimini patrocinium What can be more inconsistent with the Legality of the Abdication than the King 's being vested by the Constitution with such Incidents to Government as lie in a direct Contradiction to our being allowed either a legal or moral Capacity of doing it namely That no act of Parliament can barr the King of his Regality and thereupon that the Allegiance and Fealty of his Subjects to him are indefeasable and that they can neither be lawfully withheld nor transferred from him That the Power and Right of Peace and War are wholy solely and unalienably in the King and that all the Subjects of England cannot make and denounce War Indicere bellum without him as Coke tells us in his 7 Rep. 25. Nor need we go farther for understanding the Nature of our Institution in this matter and for knowing what was involv'd and implied in it relative to the particular before us than to those many Statutes that are Declarative and Explanatory of the meaning of it As that 13 Car. 2. act 6. wherein it is enacted That the Sole Supreme Government Command and Disposition of the Militia and all Forces by Sea and Land c. is and by the Laws of England ever was the undoubted Right of the Kings and Queens of England And that both or either Houses of Parliament cannot nor ought not to pretend to the same nor can or lawfully may raise or levy any War offensive or defensive against his Majesty his Heirs and lawful Successors And that other Act 13 Car. 2. wherein it is ordained That whosoever shall hold that both Houses of Parliament or either House of Parliament have or hath a Legislative Power without the King shall incur the danger and penalty of a Premunire according to the Statute of the 16 Rich. 2. And that other of the same Year of Car. 2. Which made it Treason during his Life to compass imagine invent devise or intend to deprive and depose him from the Stile Honour or Kingly Name of the Imperial Crown of this Realm The President whereof we had 23 Eliz. namely That whosoever shall wish or desire the Death or Deprivation of the Queen that every such Offence shall be adjudged Felony To which I would only subjoyn that known Statute which makes it Treason to take up Arms against the King upon any Pretence whatsoever And to shew the Impudence that always attendeth Disloyalty notwithstanding all that these Parliaments have perpetrated they have suffered all these Laws to remain still unrepealed to remain Monuments of their Treasonable Guilt and to abide Warnings to all Kings that shall come after how little Safe they are under the Fence Covering and Protection of Laws when they have false and treacherous Men to deal with And that which heightens the Crime and enhaunceth the Guilt of those Parliaments is that they have usurped and exerted a Power inconsistent with and subversive of the Constitution in the abdicating and driving away a Prince who was the least chargeable with Miscarriages and Excesses in his Government of any that ever fat upon the Throne For as his greatest pretended Faults were rather Mistakes he was led into by others than Injuries he chose to do of himself so most of them proceeded from an excess of Love to his People and from an Ardour of making them happier than they were willing to be and not from Disaffection to them or a Design to render them miserable Nor did those flight Grievances of which his People so clamourously complained flow from his being a bad King but from the having bad and treacherous Friends about him For though no Prince did ever by Condescention Bounty and Confidence deserve to have had better Ministers and Friends yet with respect to too many about him few Princes ever less had them So that what Tacitus says of one may with a great deal of Truth be applied to his Majesty though not so much to his Dishonour as to the Infamy of those whom he employed and trusted namely That Amicos meruit magis quam habuit He was worthy of faithful Friends rather than had them I would not be thought to intend what I have said of all that had the Honour to be esteemed his Friends Ministers and Servants it being only designed to affect a few of them but they were such as had frequentest and nearest Access to him and greatest Interest in and Influence upon his Councils whom he trusted too much to be well served by them and put himself too much in their Power to have them remain Faithful For that of Tacitus will always hold true Nec unquam satis fida potentia ubi nimia est In a word never did a People run head-long into Rebellion and War upon so few and small Faults in Government and so easy to have been borne with or obviated in modest and legal ways So that had the means which we fled unto for Relief been Lawful whereas they were Criminal and Treasonable in the highest degree yet it was the height of Folly and Madness to use them upon such flight Occasions where the Remedy hath been a Thousand times worse than ever the Disease could have been Common Prudence had we renounced Loyalty should have taught us That Force is never to be practised where Laws and humble Applications would have served and that violent means should not have been used where gentle would have done Non utendum Imperio says Tacitus and I will add
First they had a legal Right to continue to sit until both themselves should consent that they might be dissolved and until an Act were past for their dissolution I do confess that the Statute 1640. which I have mentioned was one of the greatest Encroachments upon the Regal Power that ever was and therefore in my Opinion was void in it self because of the direct repugnancy in which it lies to the Essential Rights of the Sovereign and of its Irreconcilableness to those Incidents which are inseparable from Royal Power And as it proved by the Event The day that King Charles gave the Royal Assent to that Bill he put the Scepter out of his own hand and the Sword into the hands of his Enemies Which made the Earl of Dorset salute the King the next Morning after his passing the Bill by the Stile of Fellow Subject because he had by that Act transferred Crown Sword and Scepter to the Parliament And Archy the King's Fool being asked whether the King had done well in passing that Bill Answered That he knew not whether the King was the greater Fool to pass it or they the greater Knaves to ask it And I have been told that the greatest Lawyers at that time in the Kingdom said That it was void in it self And indeed the Law presupposeth that all the Grants and Concessions of the King are to be construed to be made with this Proviso That they are granted salvo jure Coronae But to proceed in what I have undertaken to lay open and demonstrate namely That supposing the King to have been legally and justly Abdicated and Deposed and that his Son the Prince of Wales was rightfully and lawfully Barred and Precluded upon the Score and Foot of Supposititiousness from succeeding immediately to his Father though all that was done Traiterously and Rebelliously yet this Parliament ceased to exist and became dissolved by the Death of the Princess of Orange For these very Gentlemen will not deny neither can they upon their own Principles that upon the Abdication of the King and the Exclusion of the Prince of Wales the Princess of Orange became immediately vested in the Sovereignty as having therein an Estate Tayle unless she had been shut out by some Act or Statute expresly made to exclude and barr her though indeed such a Statute would have been in it self void and treasonable For according to the standing known and acknowledged Laws of this Kingdom the Crown of England upon every Voidance of the Throne is to descend to the next lineal and immediate Heir Female as well as Male and the said Heir according to their own disloyal Hypotheses unless barred by some Act of Parliament becomes actually vested in all the Rights of the Sovereignty Accordingly we have not only a Law in force at present by which it is declared that the Law of the Realm is and ever hath been and ought to be understood that the Kingly and Regal Office of this Realm and all Dignities and Prerogatives Royal c. being invested either in Male or Female are be and ought to be as fully wholy absolutely and entirely deemed judged accepted invested and taken in the one as in the other c. 2 Par. 1 Mar. cap. 1. but we have also another Statute in actual being stiled an Act of Recognition that the Crown of England is lawfully descended to King James viz. the First his Progeny and Posterity which containeth the Words following That we being bound thereunto by the Laws of God and Man do recognize and acknowledge that immediately upon the Dissolution and Decease of Queen Elizabeth the late Queen of England the Imperial Crown of the Realm of England and of all the Dominions and Rights belonging to the same did by inherent Birth-right and lawful and undoubted Succession descend and come to your most Excellent Majesty as being Lineally Iustly and Lawfully next Heir of the Blood-Royal of this Realm c. So that nothing can be more demonstratively Evident than that upon whatsoever Hypotheses or Principles the Conventionists and those who have succeeded them in this Parliament have acted yet that immediately upon the Voidance of the Throne by the abdication of the King and the barring the Prince of Wales to succeed the whole Royal Power became vested in the Princess of Orange And though the exercise and execution of that Power came to be lodged in the Prince her Husband yet that it was in the Administration of the Power of Sovereignty which by the Laws appertained unto and was essentially stated in her which they neither did nor pretended to take from her but the whole which they assumed and took upon them a Right to do was to make a Donation Communication and Conveyance of the same Royal Dignity with all its Powers Prerogatives and Jurisdictions unto him And whereas therefore the Regal Power was owned and acknowledged to reside likewise in the Princess thence it was that her Name was used in the whole executive Part of the Government and that not in Compliment and meerly to testify Respect and Deference but as indispensably Necessary on the foot of the Sovereignty Regal Authority and Power whereof she stood indefeasably seised possessed and vested So that unless her Name had been mentioned in all the executive Acts of Government all those Acts would have been in themselves void illegal and null through the want of the Stamp and Impression upon them of a Person that stood cloathed with the Sovereignty And as to that separating in the late Princess of Orange the exercise of the Regal Power from the Royal Dignity and from the Jurisdictions and Authorities belonging to the same it not only looks like unto and indeed is a plain and manifest Contradiction but it was done in revival of that old Republican and Traiterous Proposition and Notion of distinguishing and severing between the King's Person and his Authority and was intended by the crafty Suggestors of it for the Service of a Commonwealth Design when an Opportunity and a convenient Season do offer For if one Parliament can take the entire and full Exercise of the Royal Power and Government from and out of the hands of a Queen whom themselves acknowledge to have been vested in the Royal Dignities with all the Honours Stiles Titles Regalities Prerogatives to the same belonging another Parliament may by the same Right and with the like Justice take the whole executive Power and the entire Administration of the Government from any King or Queen whatsoever and may place it in both or in either of the Houses or in whom else they please So that a King of England may come in time and by this President if allowed cannot avoid it to be a meer Pageant a King having a glorious and guilded Title but made wholy useless to all the great Ends and Purposes of one and who will serve only to be gazed upon to have the Knee bowed to him and to be made a publick Mockery and
Derision in all the Regal Acts of the Government by having his Name mentioned while others have the Exercise and are in the Exertion of the whole and entire Sovereign Power Nor was the late Princess of Orange upon the Abdication of the King and the Exclusion of the Prince of Wales meerly seised and possessed of the Sovereign and Royal Dignity over this Realm as she was next lineal and immediate Heir to his Majesty but she had also the legal Authority and Power granted and conveyed unto her by the Gift and Donation of the Convention which the present Parliament instead of controuling retracting and annulling did recognize own and confirm Nor had she meerly the bare and naked Name of Queen given and conveyed unto her but she was declared to be vested with the whole and entire Royal and Sovereign Power save that the Exercise of it was limitted and confined to the Prince of Orange Now you must not think that I am so thoughtless and weak as to endeavour to prove her being possessed of the Sovereignty and her being cloathed with the Royal Jurisdiction because Treason might have been committed against her yea and against her natural Person seeing it was not only made High Treason by the Statute of the 2 Parl. in the first Year of Queen Mary to compass the Death of King Philip or to deprive him of the Stile or Kingly Honour of this Realm but because it had also anciently been made Treason by the Statute of the 25 Ed. 3. to compass the Death of the King 's eldest Son and Heir to violate the King's Companion or the King 's eldest Daughter unmarried or the Wife of the King 's eldest Son and Heir or to slay the Chancellor Treasurer or the King's Iustices of the one Bench or the other Iustices in Eyre or Iustices of Assise and all other Iustices assigned to hear and determine being in their Places and doing their Offices But I will do it by laying before you so much of the late Act of Parliament as relates to my purpose which that I may give the greater light strength and vigour unto I shall likewise represent to you the Act of the 2 Parl. of Queen Mary which was held in the first Year of her Reign that by your Observation thereupon in what different Terms and enlarging Expressions of Power the Princess of Orange was made declared and enacted Queen from those by which Philip was precluded and shut out from the having or exercising the Regal Power even when he was honoured with the Regal Stile and Dignity you may easily and fully know that the whole Sovereignty and Regal Power and Jurisdiction were in the late Princess whereas no part of them was allowed to Philip For at the same time and by the same Statute when and by which Philip had the Royal Stile Title and Honour given and imparted unto him and was constituted and pronounced King elevated above the Quality of a Subject which a King or Queen Consort are not it was ordained and enacted That the Queen might and should solely and as sole Queen use have and enjoy the Crown and Sovereignty of and over all these Realms Dominions and Subjects with all the Preeminencies Prerogatives Dignities Authorities Iurisdictions and Honours thereunto belonging c. And that no Right or Claim of Sovereignty should be given come or grown unto the said Philip over these Realms and Dominions But now the Act of Settlement in and by which a Donation is made of the Crown and Royal Dignity to the Prince and Princess of Orange runneth in a much other and far different Stile For after that Assembly had assumed and usurped to it self a Right and Authority of disposing and bestowing the Crown of this Kingdom and after they had in their signal Goodness Condescention and Bounty made a Donation of it and of the Sovereign and Royal Dignity to the Prince and Princess of Orange declaring that thereby they did become our Sovereign Liege Lord and Lady King and Queen of England c. they then further add to those Princely Persons the Royal Estate Crown and Dignity of these Realms with all Honours Stiles Titles Regalities Prerogatives Iurisdictions and Authorities to the same belonging are most Fully Rightfully and Entirely invested incorporated united and annexed So that we may by comparing the Communication of the Royal Name Stile and Dignity made by the former Act with the Conveyance of the same with the subjoined and annexed Jurisdiction c. made by the later Act come to understand that the whole Sovereign Royal Power and Authority over these Realms became vested in the Princess as well as the Prince of Orange which they were not in Philip but only in Queen Mary But to all that which I have already advanced I go on further to add That even on the Principles of the Gentlemen of the two Revolutional Parliaments the whole Sovereignty was not only as wholy and as entirely in the Princess of Orange as it was in the Prince but that it was one and the same Individual Sovereignty though lodged in two different and distinct Persons and I must withall say That though they were Two in genere Physico in the Predicament of Substances yet they were but One in conspectu Legis in the esteem and account of the Law The Royalty and Legal Authority was not divided between them one Share falling to the Lot of the Prince and another becoming the Portion of the Princess but it was the same entire undivided numerical Sovereignty in them both For this the Act of Settlement doth as plainly declare as Words can express it namely That the Prince and Princess of Orange being become our King and Queen that therefore in and to their Persons are the Regal Estate Crown c. fully entirely invested incorporated united and annexed And therefore all Commissions Grants and the many other Exercises of Sovereignty were ordained to be and have accordingly been in both their Names Nor did that Union and Conjunction of their Names in all Cases wherein the Royal Authority did or could exert it self proceed from a Contribution of Regal and Sovereign Efficacy and Authority which each of them gave to every Act of Jurisdiction both clubbing those distinct Shares and Parts of Regal Power which they possessed separately and by Moyeties but it had its Foundation in and flowed from that numerical Unity of Regal Power Authority and Jurisdiction which they stood vested with as one legal Sovereign though two physical Persons In a Word though William and Mary were two several and distinct individual Persons of the human Species they were but un Roi one singular King in their Politick Station And to place iâ— beyond being contradicted by any reasonable and discreet Man that the Sovereignty was as fully in her as in him and that it was but one and the same Sovereignty lodged in both not only all the Acts flowing from the executive Part of the Government do run
be a Parliament notwithstanding the Death of the late Princess nor can either the Wit or the Malice of Man invent and produce more and therefore I shall represent them in all the fairest Colours of Beauty and Strength that they are capable of having put upon them and then I shall give those irresistable Answers to them that Men must sacrifice Reason to Passion and prefer Darkness to Light that can have the Face to alledge them again in behalf of the Westminster Iuncto's remaining to be a Parliament The first is That though by the Act of Settlement there was a Donation made of the Crown to William and Mary and the whole and compleat Sovereignty placed and settled Joyntly in them both as one Regal Head of the Kingdom yet by the same Act The entire and full exercise of the Royal Power and Government was only to be in and to be executed by William in the Names of them both And therefore that the issuing forth of the Writ by which this Parliament was called and had a legal Existence and Being given unto it being an Act of the executive Part and Power of the Government and done by William alone in persuance of that Right and Authority vested in him by the Act of Settlement and he still surviving that consequently this Parliament surviveth also and will continue so to do until he either dissolve it by an Exertion of his Sovereign Regal Authority or until it come to be dissolved by his Death which when it comes I do suppose the Gentlemen of the Club in St. Stephen's Chapel will not be so frontless as not to acknowledge it to be a Demise Now to this Objection I shall take the Liberty and be at the Pains of returning three Answers and all of them evidently Clear and demonstratively Satisfactory The first is That it is not the bare having the Right of executing the Regal Power and Government that enableth a Person to give Being to a Parliament but it is the whole and entire Sovereignty vested in such a Person and then exerted in some executive Act that can and doth give a legal Existence unto it That is every Act that is or can be constitutive of a Parliament must have its Foundation and flow and result from the whole Sovereignty before the exercise and application of such an Act in the issuing out of Writs can in that way of Power that is meerly executive be capable of giving a Legality to what is done And therefore the most Rightful King that is and who hath both the whole and entire Sovereignty and the legal Authority and Power of executing it fully and inherently lodged and vested 〈◊〉 him may nevertheless command and do Things illegal and arbitrary if he extend his executive Power in commanding and doing those Things which by the Rules of the Constitution and the Laws of the Land do lie out of the Verge of his Royal and Sovereign Power For every act that a Prince exerteth his Authority in and about must first lie within the Circle and Precinct of his Sovereign and Legal Power before his Exercise of his Authority in and concerning it can be Lawful and Justifiable otherwise all Exercises of Executive Royal Power though by the most legitimate and lawful King are so far from being legal Acts that they are Acts of force and violence No Man will deny but that King James was a Lawful and Rightful King and that he had both the entire Sovereignty and the executive Power of Government fully and legally vested in him and yet the Convention in their Act of Donation of the Crown to William and Mary and which Act stands confirmed by this Parliament do not only declare that the Power to which he pretended of dispensing with the Laws or the execution of the Laws by Regal Authority was illegal and that his issuing out a Commission for erecting the late Court of Commissioners for Ecclesiastical Causes and all other Commissions and Courts of the like Nature are illegal and pernicious Not to mention that large Roll of many Exeâ—â—ises of his executive Power which they do there declare to have 〈◊〉 also illegal but they make assign and lay them down as the Grounds Reasons and Motives why they withdrew their Allegiance from him and abdicated and renounced him Now when the present Parliament was called the Prince of Orange had no Sovereign Power distinct and separate from the Sovereign Power that was vested in the Princess but the entire Sovereignty was incorporated in them both Joyntly as one political Head And therefore there being an Abatement by her Death of the Validity of those Writs by which this Parliament both received its Being and was supported and upheld in it it unavoidably followeth That the Parliament became thereupon actually dissolved through the ceasing of the Legal Authority of the Writs upon which its Existence depended For her Sovereignty being once absolutely necessary to give Vertue Vigour and Authority to those Writs and to make them good in Law and operative to the Ends for which they were issued forth and that Sovereignty of hers being wholy departed the Writs and they thereupon in Law being become Nullities it naturally and uncontroulably follows that through the Nullity that by her Death hath overtaken those Writs that which was once a Parliament upon their Hypotheses of Government is also become cassed disabled and annulled from remaining one any longer For as the Author of the Letter to a Friend in the Country hath very well observed It is not Sovereignty in genere that preserveth the Life Power and Authority of a Parliament but it is the Sovereignty of the same individual Royal Person that gave Validity and Efficacy to the Writs by which it was at first called For otherwise as a King never dyes so no Parliament could ever be dissolved by the Death of any nor could any Thing dissolve a Parliament but his pronouncing it to be so that first called it By our Law the King is immortal he never dyeth the King liveth over 〈◊〉 the Regal Dignity and Power do always subsist though there be a Change of the Persons in whom it was inherent 1 Com. 177. 11 Rep. 7. 21 Ed. 4 c. so that according to our Law there is never a Cessation of the Sovereignty but only a Cessation of this or that individual Subject or Person in whom while he survived it was incorporated and inherent So that upon the whole unless you can make William alone to be both William and Mary and can render one single individual Person to be two the Sovereign that we have noâ— is not the same identical Sovereign that we had before the Death of the late Princess And by consequence this Parliament mast in Law be actually dissolved seeing its whole Being and Existence depended upon the Life of the Sovereign we had then and that preclusively from all legal Capacity and Possibility of borrowing a Duration and Continuance in its Existence
from the Life of any other though of one then vested with the Sovereignty if he was not sole and alone Sovereign But to advance to my second Answer to the forementioned Objection I do say that at some Times and upon some Occasions the executive Power of the Government hath been by Acts of Parliament transferred unto and settled upon those who had no Share or Portion in the Sovereignty and Regal Dignity I will not enquire whether it was done either wisely or legally it being enough for my purpose that it has been done and that oftner than once Of which the first Instance and Example I will assign is that of the 10th Year of Rich. 2. and the 20th Year of his Age For a Parliament being then held and having found that during his Minority there had through the ill Council and Advice of some Persons that were much in his Favour and Confidence been many and great Miscarriages in the Government they thereupon prepared a Bill which upon their obtaining the Royal Assent unto it became an Act or Statute wherein they awarded a Commission to Twelve several Peers and others of great Wisdom and Fidelity giving them Power and Authority in all Things concerning the King's Houshold Courts of Iustice Revenue and every thing else that concerned the good of the Realm to put in execution and finally determine for the Honour of the King Relief of the People and the better Government of the Peace and Laws of the Realm and this Commission to remain in force for a Year at the end whereof the King would be of Age. Now I suppose that no Man will have the Folly as well as the Impudence to say that the Sovereign and Regal Power was vested and inherent in those Commissioners and yet they were possessed of and had thereby given unto them the whole executive Power of the Government So that how much soever this was or at least looks like a Derogation of the Crown an Usurpation upon the Royal Power and a Disherison of the King yet we find it hath been awarded authorised and enacted by a Parliament which demonstratively sheweth That the executive Power of the Government has not only been thought separable but has been actually separated from the Sovereignty and Regal Dignity And consequently that the Prince of Orange's having the full and the sole Exercises of the Regal Power given unto him by the Act of Settlement and his having in the virtue thereof issued out the Writs for the calling of this Parliament doth not entitle it to a Continuance or a Right to sit after the Death of the late Princess there being now a Change and Alteration in the Sovereignty of what it was at the time of calling the said Parliament and before the Death of Mary Forasmuch as the Regal Dignity which was then incorporated in two natural Persons though only one political is now become vested in one single Individual one But the second Instance which I shall mention is yet both more plain and more directly home to the Matter and Subject which I am upon and that is the Statute of the 17 Car. 1. for the calling and holding Triennial Parliaments in which it was ordained and enacted That if the King did not by such a time as was there expressed issue out his Writs for the calling and assembling of a Parliament that then upon such a Failure of the King 's in the executive Part of the Government the Lord Chancellor or Lord Keeper for the time being and so onwards to others till in case of the Neglect of all those whom they there mention and do both empower and require to do it they give Authority to the Freeholders themselves to meet at or before such a day and to chuse and elect Members Now it will not be denied but that as the Right of calling Parliaments is one of the most noble inherent and essential Prerogatives of the Crown so the exertion of this Sovereign Royal Power in the sending forth of Writs for the actual chusing and assembling of one is one of the most eminent and illustrious Acts and Exercises of the executive Power of Government And here by a Statute introductive of a new Law which had no Foundation in the Common Law and which was besides very derogatory to the Crown was there a Power of issuing out Writs for the calling and assembling of a Parliament transferred unto and devolved upon such as had nothing of the Sovereignty and Regal Dignity Now if through the King 's failing to call a Parliament within the time which was prefixed and limitted by that Act the Lord Chancellor or any of those that were empowered to call it upon the King's neglect to do it should have issued out Writs in persuance of the said Act for the calling and assembling of one all which in fact might very well have been seeing we are to suppose nothing in Statutes to have been idle and impertinent Yet any such Parliament and so called would have been as much and as really dissolved by the Death of the King as if the Writs for the calling of it had been issued out by himself and by his own Personal Authority and Command For through their being called by an Exertion of the King 's Regal and Sovereign Power though applied and exercised by one distinct from him and through the Writs being issued forth in his Name whosoever were the Issuers of them and through the Members being chosen in the Virtue and Persuance of those Writs and through their coming together entrusted by the Electors to confer with the King about the quadam ardua Regni such a Parliament upon the Death of the King in whose Name and Time it was chosen could not escape the being dissolved So that nothing can be more alien to the Matter under debate as well as weak in it self then to pretend because the Prince of Orange is yet Living in whom the Exercise of the Government was at the time of the issuing forth of those Writs by which this Parliament was called that therefore the Parliament it self remains still in Being and is in Law indissolved Seeing in this Case it is not in whom the Right and Power resided to put forth exercise and apply the Sovereignty that the Duration Continuance and Existence of a Parliament does bear and depend but in whom the full and entire Sovereignty and Regal Dignity was then vested and settled preclusive of all others And I am sure that no Man who stands not a Candidate for a Preferment in Bedlam will say That the whole and full Sovereignty was then in William to the barring and excluding of Mary But to add a third Answer to the foregoing Objection I do say That the very placing of the Exercise of the Royal Power in the Prince of Orange in the manner it was done by the Convention and as it stands expressed in the Act of Settlement and is confirmed by this Parliament does beyond all contradiction