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
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
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