and I can shew you a particular Law of a General Synod or Parliament of all England wherein is particularly set down the Laws or Rules for the electing of their Kings as that they were not to be Bastards c. And pursuant to this Law of electing their Kings this great Council often preferred the Younger Brother before the Elder or the Uncle before the Nephew when either greater Merit or the pressing Necessities of the Kingdom required it which when once agreed upon by the Bishops and great men of the Kingdom in the great Council after their Election and upon the day of their Coronation the Archbishop of Canterbury whose Right it has always been to crown the King went to the King Elect and before ever he proceeded to the Coronation tender'd him a solemn Oath whereby he was to swear three things First That God's Church and all the Christian People of his Kingdom should enjoy true Peace and Quiet Secondly That he should forbid Rapine and all Injustice to all sorts of men Thirdly That he would command Justice together with Mercy in all Judgments And then and not till then was the Crown set upon his Head and the Scepter put into his Hand by the Archbishop and till this was done the Prince Elect was not looked upon as King nor had any Right to the Subjects Allegiance And thus stood this immemorial Custom unaltered not only during the Saxon times but long after the coming in of the Normans for the first seven Kings after William I. who till their Coronations were never owned nor stiled Kings until King Edward I. who was Elected or Recognized for King in a great Convention of the Estates who then assembled of their own Accord when he was in the Holy Land and they caused an Oath of Fealty to be taken to him two Years before his arrival in England and though I grant since that time the Crown hath been claimed as Hereditary yet has it rather been by vertue of those Entails that have been successively made of it by express Acts of Parliament and not from any Fundamental Law or Constitution of the Kingdom This was the ancient Form of electing and making our Kings the Footsteps of which Election still remain to later times when the Archbishop used to lead the King or Queen to all parts of the Scaffold as at the several Coronations of King Edward VI. and Queen Elizabeth asked all the People standing below Whether they would have this Person to be their King or Queen F. I confess you tell me more of this matter than ever I knew before but yet I am still to seek how this old Coronation Oath exprest in so few words should tie those Princes to observe the Laws of the Kingdom since it seems that by this Oath he was rather to govern according to Equity than Law I. That is because you do not understand the Legal Force of those words contained in this Oath for by the first Branch of it whereby God's Church and all Christian People should enjoy true Quiet is meant not only that the Clergy in particular should under him enjoy all their lawful Rights and Priviledges but also all the other Lay-Members of Christ's Church should enjoy the free Profession of the Christian Religion as by Law establisht without any molestation or disturbance 2. By forbidding Rapine and all Injustice is meant not only his hindring Robberies and all violent takings of his Subjects Goods but also the illegal taking them by his own personal Commands or by his inferior Officers or Ministers 3. By commanding Justice together with Mercy in all his Judgments is meant no more than his not pardoning the Guilty when condemned and also not to condemn the Innocent or such whose particular Circumstances might deserve Mercy and is no more than what was afterwards granted by Magna Charta the sense of which is That the King there promises neither to deny nor defer nor yet to sell Justice to any man which extends likewise as well to his great Officers and Judges as himself since they being the Keepers of the King's Oath and Conscience he is guilty of the like Perjury if he either connive or is a wilful Partaker or Encourager of their Injustice And it was also declared for Law by the Judges in the Reign of King Edward III. That not only the King but the Prelates Nobles Governors and Justices c. of this Realm were tied by their Oaths to maintain the ancient Laws Franchises and Customs of the Kingdom of England And also in a Letter sent from the Parliament in the 29th of Edward I. to the Pope the States of the Kingdom do there declare That since the Premises required by the Pope were to the disherison of the Crown and subversion of the Kingdom and to the prejudice of the Liberties Customs and Laws of their Country and to whose observance and defence they were bound by the Oaths they had taken and which they would defend to the utmost of their power nor would permit even the King himself although he would do it to attempt the same Now pray tell me what greater Assertion of a right of Resistance in some Cases than this Letter from the Parliament sent by the King 's own privity and consent F. But you have not yet shewn me how the King who is an Hereditary Monarch at this day can be tied by the Oath of his Predecessors since as your self cannot deny he is King before ever he is Crowned I. I will not deny but the Law is taken to be so at this day yet it is also as true that from the beginning it was not so as I have here sufficiently made out and yet for all this I can prove that tho the Succession to the Crown is now become Hereditary and so may alter the manner of acquiring it and this for the avoiding of Contests between Competitors at Elections yet notwithstanding this Hereditary Succession it does no ways alter the Conditions on which the Crown was at first conferred any more than if the Office of Lord High-Constable or Earl-Marshal of England having been at first granted for Life and being afterwards by subsequent Grants made Hereditary those that thus enjoyed them should have pretended that they were now no longer forfeitable for any Male-administration tho never so enormous Now let us but apply the Case of those great Offices of Trust to that of Kingship which is certainly an Office of the highest Trust and then we may easily discover that whether it be for life or else entail'd to them and their Heirs they are still obliged by the first Contract of their Ancestors which is for memory sake still renewed at every King's Reign so that tho the manner of their Accession to the Crown be alter'd from what it was at first yet the Conditions on which it was first taken remain the same as long as the Oath it self continues so being renewed at every King's
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
one in respect of themselves as if it were by their Election or that of their lawful Representatives Nor could the first Conqueror mighty Nimrod for example ever conquer the neighbouring Nations by the sole assistance of his own Children and Servants without the conjunction of other Fathers of Families and Freemen who 't is most likely followed him for a share of the Spoil and upon certain Conditions agreed upon between them for the like we find of all other Conquerors in Ancient as well as Modern Histories F. But pray shew me Sir how this can be since most Nations have been conquer'd at some time or other but few of them have given their Consents as I know of either in a whole Assembly of all that Nation or else by their lawful Representatives as we do in England I. 'T is true they have not given their Consents all at once but singly and one by one they have done and constantly do it every day in Towns and Countries that pass from one King to another by Conquest for it is certain that all such Subjects as do not like the Religion or Government of the Conquering Prince or Commonwealth may lawfully retire out of the conquer'd City or Countrey and carry their Estates with them or else sell their Lands and carry away the Money if they can without any crime so that it is apparent it is only from the Acknowledgment or Recognition of each particular Person who stays there that this Conqueror comes to have any Right to the Subjects Allegiance F. Pray how is this Consent or Acknowledgment given since Oaths of Allegiance as I am inform'd are not exacted in all places of the world where Conquests are made I. I grant it but where they are not so imposed nor taken the persons that have not sworn to this new Government can never be oblig'd to an Active Obedience or to fight for or serve the Conquering Prince against perhaps their former lawful Sovereign yet I think thus much I may justly maintain That whatever Prince be he a Conqueror or Usurper who is much the same thing in respect of the Subjects who shall take upon him to administer the Civil Government by protecting the conquer'd people punishing Malefactors and doing equal Justice by himself or his Judges between man and man whosoever of this conquer'd people will continue in that City or Countrey and receive his Protection and enjoy all the other Rights of other Subjects is so far obliged by virtue of that Protection he receives as to yield a Passive Submission to all the Laws that such a Conqueror shall make and not to conspire against or disturb his Government by Plots or Rebellions But indeed this tacit Consent or Acknowledgment of the Conqueror's Authority because not given by the People at once makes many men believe that their Consent is not at all necessary to make a Conqueror's Power obligatory as to them not but that I do acknowledge that Oaths of Allegiance are of great use in any Kingdom or Common-wealth to bind men to a stricter Observance of their Duty and also to an Active Obedience to all their Conqueror's lawful Commands even to venturing their Lives for the Government since it is for the Publick Good of the Community if they are so required F. I am well enough satisfied as to the Original of Government and the Right that all Kings and Commonwealths have to their Subjects Allegiance whether they began at first by the express Consent or Election of the People or else by Conquest and their subsequent Consents but pray satisfy me in the next place concerning the Government of England you said it was a Limited Monarchy and I have never heard that questioned but how did this Limitation begin whether from the very first Institution of the Government or else by the gracious Concessions of our Kings I. Without doubt Neighbour from the very Institution of the Government for our first English Saxon Kings were made so by Election of the People in their great Councils or Parliaments as we now call them and could do nothing considerable either as to Peace or War without its Consent and this Council was to meet of course once a year without any Summons from the King and oftner by his Summons if there was any occasion for it and it is certain that the Freemen of England have always from beyond all times of memory enjoyed the same Fundamental Rights and Privileges I mean in substance that they do at this day F. Pray Sir what are those Fundamental Rights and Privileges that you say we have so long enjoy'd tell me what they are I. I will in as few words as I can First then The Freemen of England were never bound to observe any Laws either in matters Civil or Religious but what were made by the King with the Consent of the Great Council consisting of the Clergy Nobility and Commons assembled in Parliament Secondly That no Taxes could be lawfully imposed upon the Nation or any man's Property taken away without the Consent of this Council 3. That this Great Council had ever a power of hearing and redressing all Grievances and Complaints of the Subjects not only against the Oppressions of any of the King 's great Officers or Ministers who were too great to be called to an account in any other Court but also the particular Wrongs of the King himself the Queen or their Children F. Pray how could this be done since the King may at this day dissolve the Parliament whenever he pleases I. I grant it is so now but certainly it was otherwise when Parliaments met of course at a certain place once a year without any summons from the King yet after that time I find it in the Ancient Treatise called The Manner of holding Parliaments That the Parliament ought not to be dissolved whilst any Petition or Bill dependeth undiscussed or at least whereto no determinate Answer is given and that if he do or permit the contrary perjurus est i. e. he is perjur'd And even at this day the Two Houses may justly refuse the King any supply of Money whilst he refuse to redress their just Grievances F. This is more than I ever heard of before but pray proceed to tell me what are the rest of the Liberties and Priviledges of an Englishman I. In short they are these Not to be banisht the Realm or imprisoned without just cause nor to be kept there only as a punishment but in order to a legal Trial not to be tried condemned or executed without a lawful Jury of his Peers first passed upon him unless in time of War by Martial-Law lastly no man is oblig'd to quarter Soldiers without his own consent and then paying for what they have There are other less Rights and Priviledges exprest in the Petition of Right acknowledged and confirmed in Parliament by King Charles I. all which I omit but these being the chiefest that concern our Lives
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
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
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