by those that chose them not to alter the Fundamental Constitution of the Government but to strengthen and confirm it so that if by this Act of Non-resistance the Government might easily be altered and the Legislative Power as well as that of raising Money may be taken out of the Power of the King and the Two Houses and should be put solely in the King's person the whole frame of the Government would not only be altered but actually dissolved and consequently Resistance in this case would not be a crime but a duty since Parliaments were instituted for the maintenance of the King 's Legal and not Tyrannical Power and for preserving the people in that share of the Government which by the Fundamental Constitutions of the Kingdom belonged to them F. But pray tell me Sir Is there any express Law for this Resistance for indeed I could never hear of any such and therefore I doubt that if those Noblemen and Gentlemen who went in lately to help his present Majesty when Prince of Orange had been taken Prisoners and himself defeated by the King's Army but they would have all of them been guilty of High Treason by the Statute of 25 of Edward the Third and sure it would have been no good Plea to be allowed by the Judges that they took not up Arms against the King of Government because the Government was dissolved by the King 's exercising an Arbitrary Power I. I would not argue with you what would have happened if the King had got the better and either taken the Prince of Orange prisoner or driven him out of the Kingdom for I never knew in all the Histories I have read but that a Prince who had the Armed Force of the Nation on his side could hang whom he pleased and will always find Judges and Jury-men enough ready to side with him in it as we have found by many late Examples But this is no Argument for the Right or justice of such Proceedings for we know King Charles the First was tried and condemned by the Pretended Authority of the Rump Parliament notwithstanding his denying that they had any Authority over him and though it be true there is no express Act of Parliament to tell us when the Government is dissolved and when and in what case men may resist the King or those commissioned by him yet does it not follow that no such thing can ever be lawfully done for it is sufficiently proved from the reason and necessity of the thing it self though no express Law or Conditions be made for it which may be also observed in all Moral or Religious Promises or Contracts Thus if I promise or swear to a man never upon any account whatsoever to beat or kill him this-is still so to be understood that he does not go about to beat or kill me for then my right of self-defence will take place notwithstanding my Oath so when people are married they mutually promise each other to live together till death do part yet no man will say a man or woman commits a sin or breaks this solemn Promise if the former by reason of Adultery in the Wife or the latter by the extream Cruelty or Harshness of the Husband do separate from each other and that perhaps for ever But I shall now shew you that there is a Resistance allowed even by the Law it self in some cases against those that have the King 's personal Commission as may appear by this Instance Suppose an Officer with a Company of Soldiers should under a colour of such a Commission take upon them to keep possession of a House contrary to Law do you not believe but the Sheriff may upon a legal Process issued out thereupon raise the Posse Comitatus and restore the Possession by Force to the Right Owner notwithstanding this Commission and the Reason is plain because though the Officer may have the King 's personal Command for so doing yet it is the Sheriff alone who acts by a Legal Authority and who alone can justifie the using of this Force Now if any man should be killed in this Action no doubt but the Officer and his Soldiers and not the Sheriff and the men that assisted him would be found guilty of murther F. I grant this may be so but is not this the true reason of it because the Sheriff acts by the King 's implyed Authority without which no man can lawfully take up Arms But how can this be justified in case Arms were taken up upon supposition the Government is Dissolved which is all one as to affirm That the King is no longer King I. I allow that great part of what you say is true but not all for in the first place it is plain that there is a Legal Resistance of those Commissions though issued by the King and which is justifiable by Law as appears by this instance which rule holds good as long as the Laws can be permitted to have their due course But what if the King will not permit that they shall but will take part with this wicked Officer and his Soldiers and maintain them in these violent Actions and either not let the Law pass upon them or if it does should constantly Pardon them as soon as they had committed any such violent illegal Acts by his Commands contrary to Law Can any man believe that such Proceedings if commonly practiced would not quickly dissolve the Government and make such a King cease to be so since he refused to Govern and Protect his Subjects according to Law and his own Coronation Oath which virtually contains those Conditions on which he holds his Crown for when there is no Justice to be had in the Kings Courts it then becomes a meer Anarchy wherein there can be nothing but Rapine and Confusion and consequently puts men in a State of War F. I have I know not what to say to this But can you shew me any express Law for the King 's ceasing to be so in case he thus leave off to Protect his People and Govern them according the Laws of the Land I. Yes that I can for I can shew you a good old Law of King Edward the Confessor which is also among those that were confirm'd by K. Will. I. whereby it is expresly declared That the King who is God's Lieutenant is appointed to this end That he defend his Kingdom and People and above all things Reverence his Holy Church and Defend it from Injuries and take away Wicked doers from it which unless he do not so much as the name of King shall remain to him neo nomen Regis in eo constabit as it is in the Latine which is likewise confirmed by Bracton an ancient Lawyer who tells us That it is the King's Crown or Authority to do Justice and Judgment and to maintain Peace without which it follows That this Crown or Authority cannot Consist or be retained So in another place he says That it
Liberties and Estates were only insisted upon in my said Charge F. But pray Sir tell me as to the King Is he not the sole Supream Power in England I. No certainly for then he could make Laws and raise Money without the Peoples Consent but every printed Act of Parliament will shew you where the Supream Power resides wherein it is expresly recited in these words Be it therefore enacted by the King 's most Excellent Majesty and by and with the Advice and Consent of the Lords Spiritual and Temporal and the Commons of this Realm and the Authority of the same or as I can shew you in several Statutes of King Henry the VIIIth wherein it is recited thus Be it enacted by the Assent and Consent of our Sovereign Lord the King and the Lords Spiritual and Temporal and the Commons in this present Parliament assembled and by Authority of the same whereby you may see that not only the words Assent and Consent but the word Authority is referred as well to all the Three Estates as to the King F. This I confess is plain enough but what are the King 's chief Prerogatives I. I will tell you in as few words as I can his Majesty's chief Prerogatives for to enumerate them all would be endless are these First to call Parliaments once a year or oftner and Dissolve them if he pleases to give the last hand or sanction to all Laws for raising of Taxes and for the enacting all other things that his Majesty joining with the Two Houses of Parliament shall think fit to be Enacted to appoint Judges to Try Condemn and Execute Traytors and all other Malefactors for Treason and other Crimes and to grant Pardons for those Crimes if his Majesty shall think fit yet still according to his Coronation Oath to grant Commissions to all other Magistrates and Officers both Civil and Military no Arms being regularly to be Rais'd but by his Authority also by the Advice of his Privy-Council to issue Proclamations according to Law and for the Publick Good for enforcing the observation of such Laws as shall be thought fit in case those that are entrusted with the execution of them prove too remiss Lastly to make War and Peace though the latter as well as the former of these were anciently very seldom made without the Advice and Consent of Parliament These are the chief Prerogatives which I mentioned in my Charge tho' I grant there are divers others tho' less material F. But pray Sir cannot the King by his Prerogative do some things against the Laws and Dispence with them in all cases which he himself may judge for the Common Good of the Kingdom I. The King had anciently no Power to Dispence with Statutes with non Obstantes and so it is solemnly declared in the Kings Bench in the 39th of K. Edward the 3d. by all the Justices as a Rule in Law well known at that time and I could tell you were it not too tedious how this Prerogative of Dispensations first began but even then the King could not Dispence with any thing that was morally Evil in it self or with what was Enacted by Authority of Parliament for the common Good and Safety of the whole People or Nation in General And this is the true reason why the Late King Iames could not Dispence with all Statutes concerning the taking away the Test because the whole Nation had an Interest in them nor could he Dispence with any Act which conferred a particular Right or Priviledge on a third Person and lastly he could not commonly Dispence with any Statute wherein there was a particular provision to prevent the King from Granting Charters with Clauses of Non-obstantes But now all Dispensations with such Statutes are taken away by a particular Clause in the late Act of the Rights and Liberties of the Subject which you may see if you please and which I take to be no more than a Solemn Declaration of what was the Ancient Law of England before non obstantes came up F. I am very well satisfied in this but pray Sir tell me the reason Why the King cannot as the Supreme Executive Power of the Kingdom exercise his Royal Prerogative though it were to the prejudice of some particular Persons I. I can give you a very good reason for this because this would be contrary to that Trust which was at first reposed in the King by the Representative Body of the Nation when this Limited Monarchy was first instituted and which that ancient Treatise called the Mirror of Iustices writ above Four hundred years since very well sets forth the Common Law of England as it stood before the Conquest as also the Original of the Government of this Kingdom by one Person or Monarch which he thus recites That when Forty Princes that is Aldermen or Earls of Counties did Elect one King viz. Egbert to Reign over them to Maintain and Defend their Persons and Goods in Peace by Rules of Right they made him at first to Swear That he would maintain with all his Power the true Christian Faith and would Govern his People by Right without any respect of Persons and would also be Obedient to suffer Right i. e. Justice as well as others of his People By which it appears That all the Prerogatives of the Crown are trusted in the King by Law for the Good and Preservation of his People and not for the exercise of an Arbitrary Will or Power contrary thereunto As also Sir Iohn Fortescue once Lord Chancellor to King Henry the VIth in his Treatise in Praise of our English Laws has thus handsomely set forth viz. That the King was Made or Elected for the safeguard of the Law the Bodies and Goods of his Subjects and he hath this Power derived from the People so that he cannot long Govern them by any other Power and he also gives us the reason why he cannot regularly Dispence with Acts of Parliament Because says he they are made by the general Consent of the King and the whole Realm and if there be any thing in them that proves inconvenient the King may quickly or in a short time call another Parliament to amend it but not without that as it certainly would if the King had an Absolute and Unlimited Power of Dispensing with all Laws So that you see the King is entrusted with his Prerogative by Law that is by the Consent of the People only for their Benefit and Preservation therefore if the Judges or any other inferior Officer act contrary thereunto though by the King 's express Letters or Messages they are Forsworn and may be punished for it and in this sence it is that the King whilst acting thus by his subordinate Officers or Ministers is said to do no wrong because they are liable to be questioned for it and if he acts otherwise by his own personal Power or Commands it is not as King of England but as a private Person
is not the King where only Will and not Law Governs and in another place he gives this reason for it Because the King was Elected to do Iustice to all men Therefore when he thus abuses his Power and deviates from the main end of his Creation his Authority ceases or is at an End so that nothing seems plainer to me than that all our Ancient Laws and Lawyers have declared that a King who willfully Acts contrary to these known Laws of the Land by turning Tyrant and by endeavouring to alter the Ancient Constitution and by thus breaking his Contract above-mentioned looses or forfeits all his Regal Dignity and Power F. But pray Sir How can this be since our late Statutes declare the King not to be subject to any Coercive Power of the Two Houses of Parliament I. I grant the Law to be so now but from the beginning it was not so as I said but now many of the Saxon Kings before the Conquest were Deposed by the great Council of the Kingdom and since that time King Edward and Richard the IId were solemnly Deposed by Authority of Parliament and that proceedings against them were never expresly Condemned or repealed by any subsequent Statute that I know of but admit the Law is not so now does it not therefore follow that because the King is not Punishable nor Accountable to the Parliament that therefore he is wholly also Irresistable and can never fall from his Royal Dignity let him behave himself as he will towards his People for sure it is one thing to be accountable or Punishable by the Parliament as his Superior and another to be Disobeyed and Resisted by the whole Nation when it shall judge he has broken this Original Contract made by himself and his Predecessors in violating the Fundamental Laws and Constitutions of the Government by vertue of which he became King since the former course of Proceedings must be according to some Law but for this there is no Law now extant but the contrary declared by several Statutes whereas Resistance in those cases I have now put upon a total breach of the Original Contract is not only justifiable from the very Constitution of the Government but also from the Right of Nature viz. Self-defence whereby whoever violently Assaults me in Life Liberty or Estate I am justified in Defending my self against him for otherwise any Right were wholely insignificant if it might not be Defended by Force when endeavoured by Force to be taken away F. But methinks this seems hard and of evil consequence to take this Power of Judging the King's Actions whether Legal or not out of the Parliament and to place it in the diffusive Body of the whole Nation whereby we of the high shoos would be made as capable of Judging when this Original Contract is broken as the best Gentleman of you all which the temper of the meaner and beggarly sort of People considered seems very dangerous since this would give them a Right to Rebel and take Arms whenever they had a mind to it as I have read in our Chronicles they did in Richard the IId and Henry the VIth and Henry the VIIth's time and as they did lately in Plundering Pulling down and Burning Popish Gentlemen's Houses c. I. You very much mistake me for I do not put this power of Judging any where but where it ever was much less to give a Power of taking up Arms and raising Rebellion to the Mob or most common sort of People but first to shew you that every man in his several Station and at his Peril is to judge of the Legality and Illegality of the King's Commissions or Proclamations Pray let me ask you this question Suppose that the King grants a Commission to certain of us Country Gentlemen to raise a Tax contrary to Law are we obliged to Obey it or not F. No sure you are not because you should be Punished not only in Parliament but at Common Law if you did I. Well then it seems that we Justices and Deputy-Lieutenants may judge in this Case but pray tell me suppose we should notwithstanding order this Tax to be levied and you were High-Constable of the Hundred Do you think your self obliged blindly to obey our Orders being so Notoriously contrary to Laws F. I think truly I should not but should plainly tell your Worships that I was not obliged either by Law or in Conscience to have any hand in oppressing my self and my Neighbours and should desire you to put this ungrateful Task upon some Body else since I thought my self liable to be called to Account one time or other if I did it I. Very well but if you and the other High-Constable of the Country should agree with us Justices to raise this Tax Do you think the Petty-Constables and Assessors were obliged to act by this New Commission contrary to Law F. I do not think that if we High-Constables should be such Fools and Knaves the Petty-Constables and Assessors were obliged to be so too I. Well then you see that not only we Gentlemen but you Yeomen can judge nay are obliged at your Perils to do it when things are imposed upon you contrary to Law nay and to refuse to execute them too F. I grant all this is true but this is not Resistance by force but I suppose you Gentlemen would count it downright Rebellion in us Country-Fellows if you should tell us such a Tax already imposed was according to Law and we should be so far from paying it as to raise the Country and fall upon you Commissioners that went about to raise it by distraining or imprisoning the Refusers I. By your favour Neighbour your very Refusal to levy this Tax is a Civil Resistance since all Disobedience to the Command of Superiors is so as proceeding from a Right that those that disobey suppose they have of judging of the Legality or Illegality of such Commands but as for forceable Resistance though I do not allow it to you or any man else as long as no Force is used against them yet so much let me tell you that if we Deputy-Lieutenants and Justices of the Peace should ever be so foolishly wicked as to take upon us to assist the King by the power of the Trainbands or a standing Army to levy any Tax without Act of Parliament or colour of Law at least but that not only you of this County but of all the Counties in England might lawfully stand upon your defence and resist this Rapine and Violence since if this were once permitted it would in a moment alter the Constitution of the Government in a main Fundamental Point The like I may say of any other matter of the same nature if it should be imposed upon you by Force contrary to Law that is contrary to or without any Act of Parliament to warrant it Nor would this justify all the Rebellions you mention to have been raised by the Common People in
therefore used the word Abdicate as that which though it implied both a Renunciation and also a Forfeiture of the Royal Power yet not being commonly so understood made some men only to understand it of the King's Desertion of the Throne by his going away a Notion which because it served a present turn mens heads were then very full of But indeed if this Desertion be closely examined it will not do the business for which it is brought as you have already very well observed F. I confess I never understood the true sence of this word Abdicate before much less the reason why it was made use of therefore commend me to the honest bluntness of the Scotch Convention which as I am informed did not stick to declare That King Iames by subverting the Fundamental Laws of that Kingdom had forfeited the Crown But pray Sir tell me what those Acts or Violations of this Original Contract were which you suppose to cause this tacit Renunciation of the Crown I. As for these I need not go far since they are all plainly expressed in the Convention's late Declaration as striking at the root or very Fundamental Constitution of the Government it self viz. Raising of Money contrary to Law that is without any Act of Parliament as in the late Levying of the Customs Excise and Chimney-Money upon Cottages and Ovens contrary to the several Statutes that conferred them on the Crown 2dly His Assuming a Legislative Power by Dispensing with all Statutes for the Protestant Religion established by Law whereby he at one blow took away above Forty Acts of Parliament and he might at this rate as well have Dispensed with the whole Statute-Book at once by one general Declaration 3dly Raising a Standing Army in time of Peace and putting in Popish Officers contrary to the Statute provided against it for these being but the King 's half Subjects as King Iames the 1st called them in a Speech might be looked upon when in Arms as no better than Enemies to the State so that by thus Arming our Enemies it was in effect a declaring War upon the People since it was abusing the power of the Militia which is intrusted with the King for our Safety and Preservation in our Religion Liberties and Civil Properties and not for the destruction of them all as we found by woful experience must have inevitably befallen us 4thly The Quartering of this standing Army in Private houses contrary to Law and the Petition of Right acknowledged by the late King his Father 5thly His Erecting a new Ecclesiastical Court by Commission contrary to the Statute that took away the High Commission Court 6thly And by the pretended Authority of this Court suspending the Bishop of London from his Ecclesiastical Jurisdiction and turning out almost all the Fellows and Scholars of Magdalen Colledge because they would not chuse a President uncapable of being Elected by that Colledge Statutes 7thly By Imprisoning the Archbishop of Canterbury and the Six other Bishops only for Presenting him with an humble Petition not to impose the reading of his Declaration of Toleration upon the Clergy of the Church of England as being contrary to the known Laws of the Kingdom and then Trying them for this as a High Misdemeanor though it was contrary to the Opinion of Two of the then Judges of that Court of Kings-Bench There are also other things of lesser concernment as Packing of Juries and unjust and partial Proceedings in Tryals with excessive Fines and cruel Whippings which because they were done by the Lord Chief Justice Iefferies and the other Judges contrary to Law I leave them to answer for it whereas the instances I have now given were in such grand Violations as were done by the King 's own personal Orders and Directions or else could never have been done at all So that by his willful acting these things and obstinately refusing to let a Free Parliament sit to Settle and Redress them but rather chusing to leave the Realm than he would give way to it when he might have done it I think upon consideration of the whole matter it will appear that the Convention had good and just Reasons for declaring the Throne Vacant since the King had not only broke his first declaration he made in Council to maintain the Church of England as by Law Established and the Liberties and Properties of his Subjects but his own Coronation-Oath besides if he took the same his Predecessors did and if he did not he ought not to receive any benefit by his own default but is certainly bound by the Oaths which his Grandfather King Iames and his Father King Charles took before him F. I confess these seem to be great breaches of the very Fundamentals of our Religion Liberties and Civil Properties if done by the King 's express Order and Directions and if that he afterwards refused to disclaim them and suffer the Authors to be Punished in Parliament as they deserved makes all those faults indeed fall upon the King himself and consequently seem to amount to a Forfeiture of the Royal Dignity according to that Law of Edward the Confessor you have already cited That if the King fail to Protect the Church and Defend his Subjects from Rapine and Oppression the very Name or Title of King shall no more remain to him But pray Sir shew me in the next place how the Convention could justifie their Voting the Throne Vacant for Granting that King Iames had implicitly Abdicated or Renounced all his Right to the Crown by the Actions you have but now recited Yet if this Kingdom as I have always taken it to be is Hereditary and not Elective I cannot conceive how the Throne can ever be Vacant that is void of a Lawful Heir or Successor as long as one of the Blood-Royal either Male or Female is left alive since I have heard it laid down as a Maxim in our Law That the King never dies I. I grant this to be so upon all ordinary Deaths or Demises of a King or Queen as the Lawyers term it But there are great and evident Reasons why it could not be so upon this Civil though not Natural Death of the King as First the natural Person of the late King being still alive none can claim as Heir to him whilst he lives since it is a Maxim as well in our Common as in the Civil Law That no man can be Heir to a Person alive F. I grant this may be so in ordinary Estates of Inheritance in Fee-simple but I take it to be otherwise in Estates Tail for if a Tenant in Tail had become a Monk whilst Monasteries were in being in England the next Heir in Tail might have entered upon the Estate because the entering into a Religious Order was looked upon as a Civil Death now I take the Crown to be in the nature of such an Estate-Tail where the Heir Claims not only as Heir to the last King but to their first or
not as well suppose a like tacite consent in the Princess of Denmark's not making any Opposition or Protestation against this Act whereby the Crown was settled upon his Majesty during his Life but rather agreeing to it for I have heard that several of her Servants in both Houses did declare that the Princess did not design that her future Right should be any hindrance to the present Settlement Pray therefore tell me why may not King William hold the Crown after the Death of the Queen if she should happen first to die without any Usurpation as well as King Henry the Seventh held it after the Death of his Queen notwithstanding his two Sons Prince Arthur and Henry both lived to be Married before their Father Died and Henry the Eighth was then in his nineteenth or twentieth Year of his Age old enough of conscience to govern himself F. I confess these things were altogether unknown to me before as they are I believe to most of my condition and I give your Worship many thanks for your kind Information But pray Sir resolve me one Question more and I have done Do you think a Man may Lawfully take the new Oath of Allegiance to Their present Majesties notwithstanding King Iames is still alive and do you think I could justifie it in Law should I be called to an account for it if he should again by some unexpected means or other obtain the Throne I. Well Neighbour to satisfie you as to the first of your questions I answer thus I doubt not but you may Lawfully take this Oath since the Parliament have done no more in thus setling the Crown than what many former Parliaments have done before in like Cases whose Proceedings have been still looked upon as good and held unquestioned unto this day as appears by the President of Henry the VIIth I now gave you and upon which Declarations of Parliament who are the only proper Judges who have most Right to the Crown in case of any dispute about it the People of this Kingdom have still thought themselves sufficiently obliged to take such Oaths of Fidelity and Allegiance as the Government thought fit to frame and require of them according to Law But I confess the latter of your questions is somewhat harder to be answered because it depends upon a matter that is farther remote since we cannot tell whether if ever at all King Iames should re-obtain the Throne by what means it may happen for if it should be by the Force either of the Irish or French Nations I doubt not but we should be all made mere Slaves and Vassals without any Law or setled Property but his own Will But if it should be by any Agreement or Composition with him upon his Engagement to Govern according to Law the◠le◠me tell you Not only your self but every other Subject that takes this Oath will have a good Plea in Law for taking it by the Statute of the 11th of Henry the VIIth whereby it is expresly Enacted That every Subject by the duty of his Allegiance is bound to Serve and Assist his Prince and Sovereign Lord at all seasons when need shall require and then follows an Act of Indemnity for all those that shall personally serve the King for the time being in his Wars Which were altogether unreasonable if Allegiance had not been due before to such a King as their Sovereign Lord mentioned in the Preamble and if Allegiance were due to him then certainly an Oath may lawfully be taken to observe it since it is no more than what the Law hath ever required from Subjects to such a King not only by this Statute but at Common Law too as appears by my Lord Cookes Comment on the Statute of Edward the IIId where he asserts not only from the Authority of this Statute but also from the old Year-Books that a King de Facto or for the time being is our Lord the King intended in that Statute and that the other who hath a Right and is out of Possession is not within this Act. So that you see according to this Act of Henry the VIIth as also by the Judgment of the best Lawyers of England whatever Person is once solemnly Crowned King of England and hath been so Recognized by Authority of Pariiament as Their Present Majesties have now been are and ever have been esteemed Lawful and Rightful Kings or Queens though they had no Hereditary Right of Succession as next of Blood as I have proved to you from the instance of King Henry the 4th and 7th and could do also by the Examples of Queen Mary or Queen Elizabeth take which you please since they could not both of them succeed as the Legitimate Daughters and Heirs of King Henry the Eighth So that it is plain one or other of these Queens had no better than a Parliamentary Title to the Crown Therefore upon the whole matter whether Their present Majesties are Heirs to the Crown by Lineal Descent is not the Question but whether by the Law of England they are not to all intents and purposes Lawful and Rightful King and Queen so that an Oath of Allegiance may be lawfully taken to them and all men obliged to serve them in all their Wars and other Affairs even against King Iames himself since we cannot serve Two Masters that is owe Allegiance to Two Kings at once F. I cannot deny but what you say seems not only very reasonable but also according to Law but I heard the Squire and the Parson we but now mentioned positively assert That the King and Parliament had no Power to alter the Succession to thē Crown though they would and that therefore this Statute of Henry the Seventh you now mentioned which indemnifies all those that take up Arms in defence of the King for the time being is void First Because made by an Usurper who had no Right to make such a Law in prejudice of the true King or the next Heirs of the Crown but also because as they said it was but a Temporary Act and was to last no longer than during his life and lastly because this Statute hath never been allowed or held for good in any cases of Assisting Usurpers since that time for the Duke of Northumberland was Arraigned and Executed for Treason in the time of Queen Mary because he had Assisted and Taken up Arms on behalf of the Lady Iane Gray who was Proclaimed Queen and Reign'd as such for about a Fortnight and yet tho the Duke Pleaded afterwards that he had Acted nothing but by Order of the Queen and Council for the time being yet this Plea was over-ruled by the Peers who were his Judges and he was Executed notwithstanding Lastly they said That this Statute was implicitly or by consequence Repealed by those Statutes of Queen Elizabeth and King Iemes which appoint the Oaths of Allegiance to be only taken to the King his Heirs and lawful Successors besides a Statute of
the 28th of King Henry the Eighth by which it is made Treason in any of those on whom he had setled the Crown or should bequeath it by his last Will to Usurp upon the Right of each other which could never have been if the King or Queen for the time being must have been Assisted and Obey'd by all the Subjects of this Realm as if they were Rightfully so and therefore they concluded that this Statute of Henry the Seventh could make no alteration in the ancient Law concerning the Succession but that it stands still as it did before that Statute was made and as it was declared in the Case of Edward the Fourth by which it was affirmed That the Henries the Fourth Fifth and Sixth were Kings only in Deed and not of Right and but pretended Kings and that the Statute which setled the Crown upon Henry the Fourth and his Issue was absolutely void against the Duke of York and his Heirs I. If this be all they had to say I doubt not but to answer it well enough and therefore as to their first Objection which would make this Statute of Henry the VIIth void because made by an Usurper methinks they might have been so civil as to have allowed him to be lawful King in Right of his Wife at least this Statute being made during the time of his marriage with the Princess Elizabeth but indeed nothing more betrays these Gentlemens ignorance in our Laws since if they will but look on any ordinary Statute Book they will find that the Statutes of those Kings they look upon as Usurpers are of as much force at this day as those enacted by Princes in a right line unless it were such as have been since Repeal'd by some subsequent Statutes 2dly Their Objection of its being a Temporary Law only during that King's Life is also as vain since the Statute it self mentions no such thing but speaks of the King for the time being in all succeeding times without any mention of King Henry the VIIth in particular 3dly That the Judges have lookt upon it as a void Law or else Repeal'd it also as false for the Case of the Duke of Northumberland does not prove it to be so for though the Duke did not as we can ever find plead this Statute at his Trial yet I think if he had it would not have helpt him since the King or Queen for the time being within this Statute I only take to be he or she that have been solemnly Crowned and Recognized by a free Parliament or such a one on whom the Crown is entail'd by Statute which it never was on the Lady Iane on whom the Crown was only bestow'd by King Edward the VIth's Letters-Patents and consequently had no Title by Act of Parliament And lastly that this Statute of 11th of Henry VIIth was never Repeal'd by any subsequent Act is likely as certain for I never heard before that any Act of Parliament could ever be Repeal'd by Implication but only by express words But indeed none of those Statutes you mention have done it so much as by Implication for though the Oaths of Allegiance and Supremacy are to be taken to the King or Queen and their Heirs and Lawful Successors yet who those Heirs or Lawful Successors shall be can only be known by some Law or other now who can declare what this Law is or shall be but the King and Parliament the sole Supream Legislators And that this is Law at this day appears by this undeniable Authority that it is by the Statute of the 13th of Elizabeth declared to be Treason during the Life of the Queen for any Person to affirm that the Queen and Parliament had not Power to make Laws to limit and bind and govern the Succession of the Crown in Possession Remainder or Reversion and to shew you that this Statute is still in force every Person so holding or affirming after the said Queen's Decease shall forfeit all their Lands and Goods But as for the Statute of Henry the VIIIth that will help them least of all for it appears by the Statute it self that the Treason thereby Enacted could only arise from thence and extend no farther than the Persons therein mention'd nor is the Succession of the Crown in a right line setled or confirmed by this Statute but the clear contrary since King Henry had Power by this Statute to bequeath the Crown by his last Will and Testament under his Seal and Sign Manual which he afterwards actually took upon him to do so that the Law still continues as it did before that Act of Edward the IVth you now mentioned was made since it is declared by that unprinted Act of Henry the VIIth I have now cited that King Henry the VIth was unjustly deposed and his attainder reversed and consequently his Right to the Crown is thereby declared to be good and valid to all intents and purposes F. I confess you have throughly convinced me in this matter and I think it highly reasonable that it should be so for how can we ordinary Subjects know to whom to pay our Allegiance in cases of any disputes that may arise about the different Titles of Princes to the Crown without appealing to some proper Judges of it and who can these Judges be but the great Council of the Nation in which every person thereof is either personally present or vertually represented and if this were the effect of your late Charge at our Sessions I wonder any persons should be so malicious as to misrepresent you for a Commonwealths-man but pray tell me what I shall say to those Gentlemen if I happen to come again into their Company I. Pray assure them from me that I am no more a Commonwealths-man than themselves and am not only for keeping up and defending the Original Constitution of King Lords and Commons and the Rights and Liberties of the People but am also for an Hereditary Monarchy by Lineal descent by all those lawful means by which our Ancestors have maintained them and that in all cases except where the exigency of our Affairs and the necessity of providing for the Publick Peace and Safety of the Commonwealth have not obliged the Estates of the Kingdom several times to take a different course when it could not be avoided without inevitable Ruin and I suppose the same Estates have still by the very Constitution the same Power and Right of Providing for the Peace and Safety of the Nation and the Preservation of our Religion Liberties and Properties as ever they had in all precedent times So that granting the most that can be said that the Convention have now exercised that ancient Power in placing Their present Majesties on the Throne yet this would be no more an Argument for our making a common course of it upon every Succession to the Crown than it would be for you when you were a Travelling upon the Road to break into any bodies ground you
all private Subjects should submit and acquiesce in their final Judgments since they are all virtually Represented in such Assemblies as the Representative Body of the whole People or Nation Therefore if the Convention of the Estates of England have for divers weighty Reasons thought fit to declare their present Majesties Lawful King and Queen and to place them on the Throne as then vacant by King Iames's Abdication I think all the Subjects of this Kingdom are bound to bear true Allegiance to them and to confirm it by the Oath appointed for that end whenever they shall be lawfully required thereunto F. Well Sir but is not this to alter one part of the Original Contract which those that are against the present Settlement suppose to be the Right of Hereditary Succession to the Crown and that in a right Line So that if the supposed Prince of Wales be lawful Heir to King Iames to place any body else therein seems to render the Crown for the future not Successive but Elective for if it may be bestowed now according to the humor of the present Convention it may be done so again the next Succession and so the right Heirs put by from time to time for the same or some like Reason as now I. That does not at all follow for if you will allow that the Throne was vacant by the Abdication of King Iames and that her present Majesty Queen Mary is lawful Heir if the pretended Prince of Wales were away I will prove to you that the late Convention and present Parliament have done all they could or were obliged to do in this juncture in placing Their present Majesties on the Throne and Recognizing their Title without taking any notice of this pretended Prince of whose Birth whether true or false I shall not now say any thing one way or other nor shall trouble my self to inquire into the Validity of those Suspitions that may render his Birth doubtful to the generality of the Nation And therefore in the first place I desire you only to take Notice that this Child was carried away by his Mother when he was scarce yet six Months Old 2dly That the Midwife and all the chief Witnesses who could Swear any thing concerning the Queen's being really with Child and brought to Bed of him were likewise conveyed at the same time into France F. I grant it but what do you infer from hence I. Why only these two Conclusions 1st That neither the Convention nor Parliament are Obliged to take Notice of the Rights of any Person tho' Heir to the Crown that is out of the Dominions of England if he be no necessary part or Member of Parliament if neither himself nor any Body for him will put in his Claim to the Crown upon the Demise of the King either by Death or Abdication as in the Case now before us there being then a Claim made in the late Convention by his Highness the Prince of Orange on the behalf of his Consort the Princess as Heir apparent to the Crown The Convention were not obliged to look any farther after this supposed Prince or to know what was become of him whether he was Drowned or taken at Sea by Pyrates or he being Dead another put in his place or carried by his Mother into France Since any of these might have happen'd for ought they knew no body appearing to put in any Claim for him or to desire that his Cause might first be heard before he was Excluded 2dly That if such Claim had been made by any body for him yet the Convention could by no means be obliged to do more than lay in their Power or to hear or examine the Validity of this Child's Birth unless the Midwife Nurses and others who were privy to all the Transactions concerning it were likewise present and sent back to give their Testimonies in this Case for if the Convention had proceeded to examine this matter without sufficient evidence they could only have heard it ex parie on but one side and so might have sat long enough before they could have come to any true decision in this matter whilst in the mean time the whole Nation for want of a King were in danger of utter Ruin and Confusion F. But pray Sir why could not the Parliament have sent over Summons to those Witnesses which they say are no further off than France to come and give Testimony in this great Cause before they had proceeded to have declared the Prince and Princess of Orange King and Queen I. There may be several good Reasons given for it First Because this Child being carried into the Dominions of a Prince who is a declared Enemy of our Religion and Civil Interest of the English Nation he would never have consented to his being sent over to be viewed by those that the Convention should appoint for that purpose without which Inspection the Nation could never have been morally assured that this was the same Child that was carried away since every one knows that Infants of that Age are not easily distinguisht one from another but by those that have been about them from the very time of their Birth Secondly Because his Reputed Parents counting themselves already injured by the Convention in declaring that the King had abdicated the Government and that the Throne was thereby become vacant would never have obeyed any Summons the Convention should have sent over because they looked upon them not to have any Authority at all as not being summon'd nor sitting by vertue of that King's Writs Thirdly Admitting that the French King would have permitted this supposed Prince to have been sent back and that King Iames and his Queen would have obeyed this Summons yet was it not for the safety of the Nation to stay for or rely upon it since before this Question could have been decided great part of this Year had slipt away and we being left without a King to head us nor any Parliament Sitting able to raise Money which cannot be legally done without the King's Authority in Parliament the French King might whilst we were thus quarrelling amongst our selves about a Successor to the Crown have sent over King Iames with a great Fleet and an Army of old Soldiers and so have placed him again in the Throne more Absolute than ever he was before since besides that Legal Right of Succession which I grant he once had he might also have set up a new Right by Conquest over this Kingdom So that all things being seriously considered since the safety of the People ought to be the Supream Law as ever hath been agreed as an undoubted Principle by all wise Nations I think we have done all that could well be done in this Case nor have broken the Hereditary Succession in declaring King William and Queen Mary to be our Lawful King and Queen since if she were Lawful Queen they might also declare him to be King and make it Treason to
conspire against him as well as the Parliament could do in the case of Prince Philip of Spain who was declared King joyntly with Queen Mary tho' he had no other Right but by Act of Parliament So that if the late Convention have declared That the Administration of the Government should remain solely in King William during his Life this was only to put it out of all dispute that none might at all doubt in whom the Supream Power lay since it will not admit of any Division F. All this seems reasonable enough but pray how comes it to pass that King William is to enjoy the Crown not only during the Queens Life but his own also this I heard Squire High-Church and the Parson I last mentioned cry out upon not only as a horrid Breach of the Hereditary Succession but also as a great wrong to the Princess of Denmark and her Heirs were the supposed Prince of Wales now dead since it is directly contrary to the Act of Recognition of King Iames I. whereby the Parliament do not only declare him to be lawful and lineal Heir of the Crown as descended from the Eldest Daughter of King Edward IV. But also they do thereby engage themselves and their Posterity to yield Obedience to King Iames and his Right Heirs I. Pray satisfie those Gentlemen when you meet them that if they once will grant that the late King Iames could Abdicate the Crown without his own express consent and that declaring this supposed Prince to be King was altogether unpracticable and unsafe for the Nation as I have already proved I think they need not be concerned whether his present Majesty enjoys the Crown for Life or not as long as it is for the Peace and Safety of the Nation that it should be so since it was for those ends alone that King Iames was set aside and the supposed Prince past by without so much as Enquiring into his legitimacy If the Convention had lawful Authority to decide the greater points they had certainly after they became a Parliament much more Authority to decide and settle the less material parts of this Controversie viz. The settlement of the Crown after the Queens decease since it is no more than what all former Parliaments have done in like cases Thus Henry the IV. and Henry the VII were formally declared nay the latter recognized for lawful Kings by Authority of Parliament notwithstanding the lineal Heirs by blood were then alive and in being and not only so but before ever Henry the VII married with the Princess Elizabeth Daughter to King Edward the IV. the Crown was settled upon him and the Heirs of his Body by an Act which you may find in Print in our Statute-Books Tho' he had no Right at all by Succession since his Mother the Countess of Richmond from whom all the Right he could pretend to the Crown was derived was then alive nor had made any Cession of it to him So that if this be true which I am able to prove that an Hereditary Succession in a right Line was never any Fundamental Law of this Kingdom And Secondly That after the Crown came to be Claimed by an Hereditary Right which was no older than Edward the Ist's time the Parliament have often taken upon them to break in upon this Hereditary Succession whenever the safety and necessity of the Kingdom required it And Thirdly That all those Kings who have thus succeeded without this lineal Right of Succession have been not only during their own Reigns owned for true and Legal Kings Attainders of Treason holding good against all Persons that conspired against them but also after their Reigns were ended for we see all such Acts of Parliament made under them stand good at this day unless it were those that were Repealed by subsequent Parliaments and can there then be any Question made but that the present Parliament have as much Power to settle the Crown upon his present Majesty for Life as they had to settle it upon King Henry the IV. or Henry the VII and the Heirs of their Bodies since those Princes could not deserve more from the Nation in freeing it from the Tyranny of the two Richards the II. and III. than his present Majesty hath done by freeing us from the Arbitrary Power of King Iames. And let me tell you farther that the Gentlemen you mention were mistaken in their Repetition of that Act of Recognition of King Iames the Ist's Title for though it is true they acknowledged him for undoubted lineal Heir of the Crown yet they do no where in that Act tie or oblige themselves and their Posterity to him and his right Heirs by that Act of Parliament but only in general that they promise Obedience and Loyalty to that King and his Royal Progeny and sure none will deny Their present Majesties to be the true Progeny of King Iames the Ist. F. I grant this seems very reasonable but those Gentlemen I now mentioned also said that Henry the IV. was in the Reign of King Edward the IV. declared an Usurper by Act of Parliament and as for Henry the Seventh he had either a Title from the House of Lancaster by the tacite concession of his Mother or else from that of York by the like tacite concession of the Princess Elizabeth his Wife or else if there were no such concession he was an Usurper till he had Married the said Princess she being Heiress of the Crown Pray what say you Sir to this I. Pray tell those Gentlemen from me that they are quite out in their Suppositions for if an Act of Parliament of Edward the Fourth be of sufficient Authority to prove Henry the Fourth an Usurper I can give you another Act of Parliament though not Printed which reverses the Attainder of King Henry the Sixth Margaret his Queen and Prince Edward their Son wherein it is expresly declared that King Henry the Sixth was contrary to all Allegiance and due order attainted of High Treason in the first Year of King Edward the Fourth wherefore it is by the Advice and Assent of the Lords Spiritual and Temporal Assembled in Parliament Enacted That all Acts of Attainder Forfeiture and Disablement made in the said Parliament against the said Blessed Prince King Henry are made void Annulled and Repealed So that if the Attainder of Henry the Sixth was against all due Order and Allegiance then certainly the said King must have been a Lawful King and not an Usurper at the time of his Death and if he were not so then certainly the like must be affirmed of Henry the Fourth from whom he was descended and under whom he claimed And as for Henry the Seventh there was no formal Cession of their Right ever given by the Countess his Mother or the Princess his Wife either before or after his coming to the Crown And as for a tacite and implied Cession expressed by saying nothing against it pray tell me why we may