no Imperial Law beyond what is allowed by the Political Constitutions and could produce good Authority to prove that a King who Renounces that Power which the Law gives him ceases to be King in a legal Acceptation as much as if he should in the most formal manner resign his Crown Yet I shall make shorter work of it T. It may be you think to bring an Act of Parliament recognizing and acknowledging that their present Majesties were are and of right ought to be by the Laws of this Realm our Sovereign Leige Lord and Lady c. W. You Name but one Act when in truth there are two for the Bill of Rights in the last Parliament agrees almost in words T. Can such Recognitions alter the Right W. At least Acts of Parliament may be allowed to settle and declare the Right You know the Rule urg'd by your Advocate Third Part of the Magistracy c. Vindicated P. 2. It is a good and sure way to believe the last Judgment If this be a Rule among your Party even in Relation to the most Arbitrary Judgments of Westminster-Hall methinks it should persuade you to submit to the Judgment of the highest Authority of the Nation T. What Argument is that to one who questions the Authority of this Parliament and the Being of the last which you call a Parliament W. Whatever you think of the last I am sure this has been call'd by Writ from a King in Possession and the Laws made in such Parliaments have in all times been adjudg'd good and effectual And this Parliament has enacted That all and singular the Acts made and enacted in that which you call only a Convention were and are Laws and Statutes of the Kingdom and as such ought to be reputed taken and obey'd T. I very well understand your concern to have the Acts of the late Parliament as you call it pass for Laws for you well know unless they do you have no Parliament which can Act now But I need not urge that here since this Act of your present Parliament is unintelligible and signifies nothing for to Enact that they were Laws is neither good English nor good Sense W. You might have spar'd one of your Reflections at least for if it be not good English it will be difficult to make Sense of it without putting a meaning upon it which the English words will not bear T. However you must grant that to enact that they were Laws is not good English for to enact is to make a new Law W. As if it were improper by a new Parliamentary Consent to declare a former Law to be in force What is enacting that they were other than declaring as a Parliament that they were Or could they declare this as a Parliament without enacting T. If it were good Sense to enact for the time past it must be the declaring of the Laws to be good which past in a Parliament not call'd by Writ or due form of Law which is destructive of the Legal Constitution of this Monarchy and may be of evil and pernicious consequence to our present Government under King William and Queen Mary W. I am glad you own the Constitution of this Monarchy to be Legal and I am sure no Man who has look'd into its Ancient Constitution can think there is any weight in the Objection Such may observe that the Constitution provided for the Meetings of the Great Councils at stated times as appears by what I before observed of the Folemotes and if Writs of Summons were then in use it was only upon Emergencies happening within the time fixt by the Constitution which has likewise warranted the Assemblies and Acts of the People in many Vacancies of the Throne But it is very pleasant that you should urge the Consequences here as dangerous to the Government under Their present Majesties when you strike at the very Foundation of it and besides would have it fail for want of necessary Supplies from the People for according to you neither the last Parliament nor This nor any which can be called by Their present Majesties can be of any Authority T. Yes they may when King James and the Prince of Wales are dead but till then there can be no Parliament with power of acting for if this Parliament has none you must allow me that no other can but this Parliament could not be qualified to act till it had taken the Oaths of Allegiance and Supremacy which were altered by the last Parliament or Convention chuse you whether So that unless this and following Parliaments will take the Oaths as they were before the Alteration made since King James went away I see not how they can act W. Very fine they should under King William swear to bear Faith and true Allegiance to King James and to assist and defend all Jurisdictions Priviledges Preeminences and Authorities granted or belonging to him and to avoid all question whether any belong to him they should profess testify and declare that King James is lawful and rightful King of this Realm T. There is no help for it this must be done if they will act regularly Besides the want of Writs of Summons is our least Objection against the last reputed Parliament which gives the only Authority which this or any other under King William and Queen Mary can pretend to for the last which you will have to have been a Parliament made the supposed qualifications of future Parliaments before the Members had taken the Oaths which should qualify themselves for they altered the Oaths in the very same Act wherein they declared themselves a Parliament W. I foresaw that though you were loath to say so much you were not only for disabling Their Majesties and their Parliaments from levying Taxes or making any Laws but for denying that King William is so much as King in fact in a legal consideration T. Whatever I think I have not yet said so much W. To use the words of your old Friend Dr. W. Considerations for taking the Oaths p. 53 A due Title may be either such as according to the strict Rules of Justice bears that name as being obtain'd by due means and conferr'd without injustice or injury done to any person T. Admirably well said I am sure King James had wrong done him W. You are so transported with this that you cannot hear out what makes for you The Doctor says farther Or that may be styled a due Title which is legal or allowed of by the Law and which is conferr'd with those formalities of Law and with those usual Ceremonies and Rites which customarily are observed in the most regular Collations of Titles T. Bating what he says about conferring Titles which savours of the Republican this may not be much amiss and puts me in mind of the Objection made by our Friends that you Commonwealths-men who would have the choice of the People at least to design or mark out the Person of your King
THE ANATOMY OF A Iacobite-Tory IN A DIALOGUE BETWEEN WHIG and TORY Occasioned by the ACT for Recognizing KING WILLIAM AND QUEEN MARY LONDON Printed for Richard Baldwin near the Black Bull in the Old-Baily 1690. THE ANATOMY OF A Iacobite-Tory In a DIALOGUE between Whig and Tory occasioned by the Act for Recognizing King WILLIAM and Queen MARY Whig WHither away in so much haste One word with you for the sake of Old Acquaintance when we were fellow-Murmurers in the late Reign Tory. Pray be brief then for I am upon the King's Business and must lose no time W. It is very well if His Majesty's Affairs have lost no time in the hands of Men of your Opinion But you may pardon me if I ask what King you mean King William or the late King T. What a Question is that to one in such an Office as I have under King William W. I very well know your Office tho' how you came into it is a Mystery and I cannot but observe the steps which you have taken since you had it Nay know how much you value your self with your Party upon being the same Man which you were when you shewed your parts in opposing this King 's coming to the Crown and therefore I may very well ask you under the Rose whether you will own King William to be your King T. I should be very unworthy if I did not since I have not only Protection but Profit and Preferment from him W. I grant it would be Unworthiness and downright Treachery not to own him but that makes it never the clearer to me that you do T. I have sworn Allegiance to him and do you think I would Perjure my self W. I cannot tell how far you may have improv'd in Romish Equivocations to evade the plain meaning of what you have sworn T. I make no Evasion for I either declared at the time of swearing or it is implyed in my Oath that it obliges me no farther than not to oppose him or his Arms till I may be able to do it with a fair prospect of Success and without the imputation of acting like a Mad-man W. Did you mean no more when you swore Allegiance to King James T. Yes much more and upon very good Reason for in my very Oath I recogniz'd him to be lawful and rightful King and I swore to do my best Endeavour to disclose and make known unto His Majesty his Heirs and Successors all Treasons and Traiterous Conspiracies which I shall know or hear to be against him or any of them W. I can see no cause to doubt but if you had never sworn Allegiance to King William yet you are bound to the same Allegiance to him which you owed to the late King in vertue of that very Oath which you took to the former as King William is his Successor T. That is very good indeed a Successor to a man alive and in Possession of his Kingdom and the Possession of part is in Law a Possession of the whole befides 't is Heirs and Successors and you will not say that this King or Queen can yet at least be Heirs to the last W. I have long since learnt from Bracton and others that an Heir is from the Inheritance and where-ever the Law or Lawful Authority places that our Allegiance is to follow T. I know of no Authority that can make this King more than King in Fact W. Have not the Nation duly declar'd him King upon the other's Abdication And does not that Declaration manifest or make a Right T. King James could not lose his Right it was inseparable from his Person which he cannot but bear about with him should he go to the Indies Indeed this King got into Possession of part of his Dominions by force King James retir'd out of fear with an intention of returning and we submitted to the Prince of Orange in the day of his Power W. According to you he is neither King of Right nor in Fact as long as the late King is Powerful in Ireland T. Not a word of that I beseech you till his Rival has left England who in the mean while may be called King he has the Sword in his hand and we may be allowed to take Quarter and promise not to fight against him especially since we never lay under any Obligation to fight for the other W. You seem to believe that King William has conquer'd England T. Yes surely does not the Fate of a Nation depend upon its Head If King James was beaten or ran away this must be a virtual beating of the whole Nation W. Then at least King William is Rightful King as he is King by Conquest T. I beg your pardon for that For 1. There ought to have been just cause of War What had he to do to call a Soveraign Prince to Account if he had treated his Subjects as Slaves Besides all that has been said against him or the Servants of his Crown are but the Clamours of Male-contents and blushless Lies as has been well observed by the Eloquent Author of The Magistracy and Government of England Vindicated Third and last Part of The Magistracy and Government Vindicated p. 1. 2. Admit this King had Right to free an Oppressed People and they really had been Oppressed however he ought according to the Law of Nations to have made a Formal Declaaation of War before his coming W. Tho' I admire not your Author whose Character you may see in the Man-Hunter Vid. The Man-Hunter in Answer to the third and last Part of the Magistracy c nor believe that King William coming for our Rescue had need to Proclaim a War yet I must confess the want of Proclaiming War may be a full bar to a Right by Conquest of the Nation But all you say against King William's Right by Law and the Declaration of the People is but a begging the Question T. You will not easily convince me that I go upon wrong grounds W. Whatever your lurking Reasons may be me thinks you should consider the Obligation of the Oath which you have taken to be faithful and bear true Allegiance to King William and Queen Mary by which as much is plainly implyed as was expressed in the Oath of Allegiance sworn to James II. and requir'd by the Statute 3 Jac. I. No more being required by that Statute setting aside what relates to the Pope than was at the Common Law meant in being faithful and bearing true Allegiance to a King of England And by consequence if the late King is still King with you the Oath which you have taken to this is contradictory to the former T. Do you think a Man shall be Perjur'd by Consequences W. Yes no doubt but he may if they are so palpable that he cannot but discern them T. As a Divine of our Church tells us A Modest Examination of the New Oaths by a Divine of the Church of England Printed for Randal
Taylor p. 4. All Oaths and Promises are to be taken in the sense of the Imposer but had the framers of the Oath any design to impose an acknowledgment of the King and Queen's Title they might easily have made use of such Expressions as would have put the Matter out of all doubt W. Could our Law-makers think true Allegiance due to a King without a Lawful Title Besides you must admit that if there is Evidence that they lookt upon the Title as Lawful it is not to be doubted but they required Allegiance upon that account T. I do not remember any Act of theirs from whence you can clearly shew this W. The Lords and Commons in the Bill of Rights as the Representatives of the Nation truly firmly assuredly and in sincerity of their hearts Recognize Acknowledge and Declare That King James the Second having Abdicated the Government and Their Majesties having accepted the Crown and Royal Dignity Their said Majesties did become were are and of Right ought to be by the Laws of this Realm our Soveraign Liege Lord and Lady King and Queen c. Here is of Right as well as by Law T. That was no Parliament W. If it were not yet God is become a Witness and Party to that Oath which you have taken in their presumable sense T. This Declaration was not made till after I had taken the Oath W. At least it referring to the time of the Acceptance of the Crown is a fair Evidence upon what account they required the Oath of Allegiance T. Let them have required it as to Lawful and Rightful King and Queen yet I deny that the Common-Law-Allegiance requires more than Passive Obedience and I am sure our Divines who are the best Directors of our Consciences tell us so W. It seems Sir Roger has lost his Office But for these matters I take Lawyers and Historians to be much the better Directors and could produce Testimonies of Divines for this But what Reason can you give why the Clergy should be tyed to Active-Obedience to their Ecclesiastical Superiours in all things Lawful and Honest and yet Temporal Superiours may be glad to get Obligations from their Subjects only not to fight against them T. The Law requires no more W. I shall hope to satisfie you that Active-Obedience is due by Law to our Liege Lord and that this is the true Allegiance or Tye to him which your Oath obliges you to T. As sure as can be you will bring something from amongst the Records of the Obsolete Gothick Feudal-Laws Reasons why the Rector of P. took the Oath of Allegiance and would infer that it must needs signifie at this day some Active Warlike Endeavours in behalf of the Soveraign because the tenure of those times was upon Condition that the Tenant should attend his Lord to the Wars and the Security they gave to perform this was swearing to bear faith and true Allegiance to them W. Tho' this is no contemptible Evidence what has from the beginning been meant by Allegiance yet I shall confirm this by the positive Law of this Realm for which end I must take leave to detain you with a Translation of part of the Confessor's Law expresly received by William the First and his Great Council or Parliament That Law speaking of the Folkmote Legâ—s St. Edw. Tit. Grevâ— or General Assembly of the People to be held every first of May yearly where among other things they were to provide by Common Council for the Indemnity of the Crown of the Kingdom and for repressing the Insolence of Malefactors for the profit of the Kingdom T. I find already this is a Cheat devised by some Common-wealth's-Man in the time of Noll's Usurpation when they would have made him King it talks of the Crown of the Kingdom and repressing Malefactors for the Profit of the Kingdom as if any but a King could have Interest in the Crown or the benefit of the Kingdom could be of any weight without regard to its Head I am sure Bishop Sanderson has admirably explain'd that Maxim The Safety of the People is the Supream Law by shewing that the safety of the King is principally intended as he is the Head of the People W. You will not hear me out Popull omnes Gentes universae The Confessor's Law Ordains That all People and all Counties shall meet once in every Year and there with a true Faith and Oath Confederate and consolidate together as one Man and sworn Brethren to defend the Kingdom against Strangers and against Enemies together with their Lord the King and to preserve his Lands and Honours with him and that they will be faithful to him as their Liege Lord and King within and without the Kingdom of Britain T. A very pleasant Sham you have invented a Law for an Oath to suit your purpose as if you were bound to the King no longer than he is with you and defends the Kingdom But that will not help you since he is at the Head of a French and Irish Army in its Defence But if your Quotation were true do you think I am bound according to the meaning of Obsolete Antiquity W. The Confessor's Laws how Ancient soever are not Obsolete or out of date but as far as they are express are a fair transcript of the Common-Law of England And that Common-Law must shew what is meant by Allegiance T. If William the First and others since swore to maintain the Confessor's Law they must needs have done it as they were forc'd to it not voluntarily and of their own motion W. Nay if you look into the Laws particularly Enacted by William the First made by the Common-Council of his whole Kingdom you will find a Law more express for Active Service Leges W. 1.59 if possible There 't is required That all Free-men of the whole Kingdom be sworn Brethren to defend and manfully preserve his Monarchy and Kingdom with their Strength and Fortunes to the utmost against Enemies and to maintain the Peace and Dignity of his Crown entire and to give right Judgment and do Justice constantly by all means to their power without fraud and without delay T. This Law was very imprudently penn'd to make People Judges of Right and wrong and joyn them in a Confederacy against the Crown whenever they think that a King wholly departs from the Rule of Law W. If these Authorities will not satisfie you that you were bound actually to serve and obey the Lawful Commands of James II. while he continued King and that by vertue of your Oath to this you now owe him that Duty which before was owing to the other I will make it plain to you that in swearing Allegiance to this King while you believe the Obligation to the other to remain you must needs swallow palpable Contradictions T. I love you for that do you think I understand not how to avoid Contradictions as well as any Whig of ye all Or at
Potestas designativa Person◠cannot pretend that here was a Choice or Designation made by their Representatives for the Convention had not taken the Oaths which should qualify them to act as their Representatives W. That is to say you would have them swear to be true and faithful to the late King when they believ'd that he ceas'd to be King and the Contract between him and the People was broken If it were broken then no doubt but they might do all that was necessary for subjecting themselves to King William and Queen Mary without regard to the Obligations enter'd into to the other as he was King of England T. I thought I should draw you into an Ambuscade Last part of the Magistracy c. p. 8. If you urge the Vacancy as the Author of the last part of the Magistracy and Government vindicated has smartly argued you must grant that the Government was dissolv'd every thing reduc'd to its primitive state of Nature all Power resolv'd into Individuals and the Particulars only to provide for themselves by a new Contract W. To use your Friend Dr. Brady's Expression yours is but an aiery Ambuscade suitable to the Judgment of your wordy Author according to whom our Common and Statute-Laws have had many an interruption But the great Civilian Pusendorf would tell him that no Nation can be presum'd so sottish to intend at the first setting up of a King that their Laws should determin with their Prince's Life or Title T. You still talk of the People's Choice when it is contrary to the Maxims of our Law that there should be any instant of time wherein we are without a King W. You mean when the course of Descents goes on but have there never been Interruptions T. Yes but not of right W. But had the Laws no force while they who you suppose to have had the right were out of possession T. That may deserve consideration but I am sure the Right could never be lost for it was first acquired by Conquest and it is not to be presum'd that a Conqueror would have his Right depend upon any Condition W. Not to trouble you with too many things at once I shall put you to prove four things 1. That W. I. was a Conqueror 2. That his Conquest was absolute without any manner of Terms 3. That he gain'd a Right for himself and his Heirs by proximity of Blood 4. That the Rule to judg who was his Heir is not the Law of the Land but something more sacred for as your own Historian has shewn J. I. History of passive Obedience sup had no right by the Law of the Land Prior to the Peoples Choice more than any body else of the Blood-royal and consequently according to your Advocate the People have been without any Government ever since the death of Queen Elizabeth Nay the Consequence will strike off both the Protestant and the Catholick Queen T. I never trouble my head with Consequences at such a distance But nothing in the English Government except what is done by the Monarch can be justified unless a Precedent can be shewn for it And I am sure no Precedent can be found where ever any English Parliament declared any one to be lawful and rightful King while one who had the Right remain'd alive W. I will grant it while the Right remain'd but they have transferr'd the Right from one to another and declared the Right to be in one who excepting that he was of the Blood-royal had no Right but from their Declaration as to go no backwarder appears in the Case of H. VII T. He had it in right of his Wife W. What think you if I shew this before he married T. The People of that time were better Catholicks than to be guilty of such an Injury to the next Heir W. To convince you of this I will shew you the form of such a Parliamentary Declaration before his Marriage which follows in these words Enry par le grace de Dieu Roy Dengletere de France In that Parliament he was desir'd to marry Seigneur Dirland au Parlement tenuz à Westminster le septisme jour de November l'an du Reigne du Roy Henry le septisme puis le Conquest primer au plesir de Dieu tout puissant bien publique prosperite suertie di cést Realm d'Engletere à la singular comfort de toutz les Subjects du Roy del mesme en remoevement de toutz ambiguitez questions del assent des seigneurs Espirituels Temporels à la request des Communes il est ordeigne establie enact par auctorite du dit Parliament Que les inheritaunces des Corones des Realms d'Engletere de Fraunce ove toutz Preemynence Dignite Royal a yeest appurtenant Et toutz autres Seigneuries au Roy regardantz oultre le mere ovesque les appurtenaunces a queaux en ascun manere duez ou perteignauntz soient estoient remaignent en le tresnoble Person nostre Soveraign Seigneur le Roy Henry le Septisme en les Heirs de son Corps leialment issantz perpetualment ovesque le Grace de Dieu ensy d'endurer in nulls-auters Henry by the Grace of God King of England and France and Lord of Ireland at a Parliament held at Westminster the 7th day of November in the First year of the Reign of King Henry VII since the Conquest For the pleasure of God Almighty the publick Good the Prosperity and Safety of this Realm of England to the singular comfort of the Subjects of the said King and for removing all ambiguities and questions of the assent of the Lords Spiritual and Temporal and at the request of the Commons it is ordained established and enacted by authority of the said Parliament That the Inheritances of the Crowns of the Realms of England and France with all the Preheminence and Dignity Royal to the same appertaining And all other Seignories belonging to the King beyond Sea with the appurtenances in any manner due to them or appertaining be stand and remain in the most Noble Person of our said Sovereign Lord K. H. 7. and in the Heirs of his body lawfully issuing for ever with the Grace of God there to endure and in no other persons This is to be found in the beginning of the Statutes of H. 7. and was sent to the Sheriffs of the several Counties of England to be proclaimed T. I listened to hear the words Lawful and Rightful W. I take the Recognition in the time of H. 7. to be more full for tho the declaring that King William and Queen Mary are Lawful and Rightful King and Queen and that the Royal Power is entirely vested in them as the Bill of Rights and the last act of Recognition declare strongly implies that King James has no Right Yet it is not so express as the other which places it in H. 7. and the Heirs of his Body and renounces the