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-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
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
so that if we will consider our own happiness we Englishmen are blest with such noble Priviledges and Liberties that I think there is no Nation in the world where all degrees and ranks of men may live more happily than we do And as for the King though it is true he hath not an Absolute Unlimited Power of doing whatever he will yet he hath sufficient to Protect his Subjects and bountifully to Reward those that serve him faithfully and whenever he undertakes any Foreign War with the general Consent and Assistance of his People in Parliament he most commonly proves a Terror to those who dare oppose him F. I am very sensible of this Happiness we enjoy and therefore when I think how miserably the poor Country-men live in France and other Countries we of the Yeomanry have all the reason in the world to venture our lives in the defence of our Ancient Constitution since if ever we should be reduced to an Arbitrary Government either by a standing Army at home or a Conquest from abroad we can expect no better than Wooden-Shoes and Canvass-Breeches and to drink nothing but Water with the miserable French Peasants and I doubt if things should once come to that pass you Country-Gentlemen would be but in little better condition But since the greatest part of your Charge was to justifie the Right of their present Majesties to the Throne and that you insisted pretty long upon that Head yet methoughts you were a little too short in telling us only that King Iames who was once our Lawful King could cease to be so for you seem to rest contented with the bare words of the Convention's late Vote viz. That King Iames having endeavoured to subvert the Constitution of the Kingdom by breaking the original Contract between the King and the People and that having violated the Fundamental Laws by withdrawing himself out of the Kingdom he had Abdicated the Government and that the Throne was thereby become Vacant So that tho you speak pretty largely of King Iames's Violations by Raising of Money without Consent of Parliament and of exercising his Dispensing Power yet methoughts you seem chiefly to place this Vacancy of the Throne upon King Iames's Abdication or Desertion of it which let me tell you as plain a Country Fellow as I am will not down with me for I can never believe the King would have deserted the Government if he thought he could have staid here with safety therefore pray tell me your meaning of these hard words Constitution of the Kingdom Original Contract and Abdication of the Throne I. I was not willing to insist too long in the face of the Country upon these nice Points which were not proper to be handled before an Assembly of ordinary Countrymen but since you have always appeared to me to be above the ordinary Capacity of those of your Rank I will tell you what I conceive was the true Sense of the Convention in every one of those expressions first for the Constitution of the Kingdom which King Iames went about to violate I take that to be the Government by King Lords and Commons in Parliament which he endeavour'd to violate by his taking away of Charters from Corporations and doing his utmost to impose a Parliament upon the Nation of such men as would not only take off the Penal Laws from Papists and all other Dissenters but who would also have confirmed to the King that Arbitrary Power of dispensing with what Laws he pleased which would indeed have render'd Parliaments wholely useless and was as good as putting the whole Legislative Power into the sole Person of the King F. But the Original Contract puzzles us yet more than all the rest and I heard Parson-Slave-all at a neighbouring Gentleman's house the other day ask Whether the Speaker of the Convention had not the keeping of it under his Cushion for he could never yet light upon it in any English History or law-Law-Book I. Pray tell that witty Parson next time you meet him that if he pleases to look over our Histories and law-Law-Books that in the very same Leaf where the Divine Hereditary Right of Succession to the Crown in a Right Line is established as an unalterable and fundamental Law in the very next Clause he may find this Original Contract But not to banter you I will tell you my sense of this expression which in my opinion signifies no more than that Compact or Bargain which was first entred into between King Iames's Ancestors or Predecessors and under whose Title he enjoy'd the Crown whereby they bound themselves by a solemn Oath when they took the Crown upon them at their Coronation to keep and maintain the Laws of the Realm and to govern the People according to these Rules of Justice and Mercy that is in short acting according to Law Which Oath or the substance of it having been constantly renewed every fresh Succession to the Crown as soon as the King was capable of taking it sufficiently declares that as the King upon observing this Compact by governing according to Law had a Right to his Subjects Allegiance so if he refused to act according to it but would wilfully violate the Ancient Constitution of the Kingdom he thereby ceases to be King by Law and by destroying his own Title to the Crown thereby also dissolves that Bond of Allegiance which before bound his Subjects to him as well in Duty as Affection F. But how can you prove that this Contract was mutual or that the King was to enjoy his Crown only upon this Condition That he observe the Fundamental Laws of the Kingdom since I have heard it positively asserted by those that are very well skilled in our Laws that the King is as much King before ever he is crowned as afterwards and that he may chuse whether he will ever take any Coronation Oath or not I. I will not now dispute that Point with you but yet let me tell you if a King should at this day refuse to be crowned because he had no mind to be tied by his Coronation Oath I doubt whether the People if they understood the force of that Oath his Predecessors have all along taken for so many Successions might not as well refuse to take him for their King since he refused to hold the Crown upon those Conditions that his Ancestors at first took it and so might look upon themselves as good as discharged of all Oaths of Fidelity to him since those Oaths were no doubt at first instituted on this mutual Consideration that both should observe their part and not that one side should be loose and the other fast but to shew you in the first place that every Coronation Oath was in the Saxon times and long after the Conquest a Renewal of this Original Contract may appear from these Considerations 1. That all the Kings of the West Saxons were elected or at least confirmed by the great Council or Parliament
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-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