Reign And hence it is that our Kings enjoy their Crowns be it for Life or Intail Now it is certain that this Solemn Oath or Contract which was taken by the first King ought by Law to be renewed at the beginning of every King's Reign and hence it is that our Kings are not only bound by their own express Oaths or Contracts with their Subjects but also by the implied Oaths or Compacts of their Predecessors under whose Title they claim And King Iames I. was so sensible of this double Contract that he expresly mentions it in one of his Speeches to 1609. both Houses of Parliament where he very well distinguishes between both those Contracts telling them That a King in a setled Kingdom binds himself by a double Oath to the Observation of the Fundamental Laws of his Kingdom tacitly as being a King that is claiming under his Ancestors and so bound to protect them as well as the Laws of his Kingdom and expresly by his own Oath at his Coronation So as every Just King in a setled Kingdom is bound to observe that Paction or Covenant made to his People by his Laws in forming his Government agreable thereunto according to that Paction which God made to Noah c. And then goes on to tell them That therefore a King governing in a setled Kingdom leaves to be a King and degenerates into a Tyrant as soon as he leaves off to Rule according to his Laws And then concludes That all Kings who are not Tyrants nor Perjured will be glad to bind themselves within the limits of their Laws and they that perswade them otherwise are the worst Vipers and Pests both against them and the Common-wealth So that you see here by King Iames's own Concession that there are not only Fundamental Laws but an Original Contract which he there calls a Paction or Covenant to observe them from the time of the first King or Monarch to this day and that when he ceases to Govern according to this Compact which he here calls his Laws he then becomes a Tyrant F. But I have heard some say That William the First after he had conquered England distributed almost all the Lands to his Norman and French Followers and that if there were any Original Contract ever entred into by the English Saxon Kings it was quite void upon the Conquerors obtaining the Crown and subduing all the People of this Nation so that whatever Liberties we now enjoy they were but the gracious Concessions of himself and his Successors without any such Original Compact I. I confess it is so alledged by some high flying Gentlemen who if they could would make us all Slaves to the King 's Absolute Will but without any just grounds in my Opinion since every one of their Suppositions are either false or built upon rotten Foundations For in the first place a Conquest in an Unjust War as I have already proved can confer no Right on the Conqueror over a free People and if this War were never so Just yet could not he thereby have acquired any Right over the whole Kingdom since the War was not made against the English Nation but Harold only who had usurped the Crown contrary to Right so that King William could have no Right to it without the People's Consent in their Great Council or Parliament which most of the Historians of those times say he obtained but indeed King William whom you call the Conqueror never claimed by that Title but by the Donation or Testament of King Edward the Confessor and the Consent or Election of the People of England as all his English-Saxon Predecessors had done before him nor did he give all nor yet a third part of the Lands of England to his Norman Followers as you suppose or if he had would it do the business for which it is urged since his Norman and French Followers to whom he gave those Lands were never conquered but were if any thing the Conquerors of others and from them most of our Ancient English Nobility and Gentry are lineally descended or else claim under their Titles by Purchases Mariages c. and so succeed to all their Rights and Priviledges And at the worst supposing King William to have in some Cases governed Arbritrarily and like a Conqueror over the English this was not so till he was provoked to it by their frequent Plots and Conspiracies against him and yet even that was done contrary to his Coronation-Oath which was the same that all the Saxon Kings had taken before only with this Addition That he should govern as well his French as his English Subjects by equal Law or Right so that his wilful Breach of this Oath could not give him or his Successors any just Right by the Sword over the Lives Estates or Liberties of any Englishman who had never fought against him nor offended his Laws And tho I should grant that this King and his Son William Rufus governed his Norman as well as his English Subjects very Arbitrarily and contrary to his own Laws yet did his Brother King Henry 1st make both his English and Norman Subjects large amends by the great Charter of their Ancient Liberties which he granted immediately after his Election to the Crown by the Chief Bishops Lords and Free-men of the Kingdom and upon which the great Charter of England renewed by King Iohn and afterwards confirmed by his Son Henry the 3d were founded being but larger Explanations thereof F. I confess this is more than ever I knew before but what if a King of England as King Iames lately did will cease to govern like a legal or limited King and prove a Tyrant by breaking this original Compact which his Predecessors made with the people does it therefore follow that he may be resisted if he does or can he ever cease to be King or forfeit his Royal Dignity if he acts never so Tyrannically for sure if all resistance of his Power be unlawful as being so declared by several Acts of Parliament in King Charles the Second's Reign he can never cease to be King except he will wilfully turn himself out of the Throne I. I am very well satisfied that those Acts you mention were only made upon this Supposition That the King would never violate the Fundamental Laws of the Kingdom by which he became King or go about to change the Constitution of the Government since that had been to give the King an Irresistible Power to make us all Slaves whenever he pleased so that our Religion Lives and Civil Liberties would lye not only at the King's mercy but at the mercy of those Ministers that govern him and therefore as it can never be supposed to have been the intent of that Parliament to tye up themselves and the whole people of this Nation to the King on such hard terms nay supposing that the Parliament had done it I do not think they had any right so to do since they were intrusted
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
pleased because you may have been forced when the way has proved unpassable either through Water or Dirt to leap a Ditch perhaps for safeguard of your life into a Neighbour's Enclosure F. Sir I am so well satisfied with what your Worship hath now said in these grand Points that with your good leave I shall not fail not only to vindicate your Person from those aspersions but also to maintain the lawfulness of our present Settlement upon the same Principle you have now laid down since I know of none that seem to me more agreeable to Right Reason and the Laws and Constitution of this Kingdom and therefore I hope you will always believe me to be your honest Neighbour and humble Servant and so I take my leave of your Worship I. Neighbour I am yours and bid you heartily farewel FINIS Books Sold by Richard Baldwin THE Works of F. Rabelais M D. In Five Books or the Lives Heroick Deeds and Sayings of the Good Gargantua and Pantagruel and his Voyage to the Oracle of the Bottle As also his Historical Letters To which is added the Author's Life and Explanatory Remarks By Mr. Motteux Never before Printed in English Bibliotheca Politica Or an Enquiry into the Ancient Constitution of the English Government with Respect both to the just Extent of Regal Power and to the Rights and Liberties of the Subject Wherein all the chief Arguments as well against as for the Late Revolution are Impartially represented and considered In XIII Dialogues Collected out of the best Authors both Ancient and Modern To which is added An Alphabetical Index to the whole Work The remarkable Sayings Apothegms and Maxims of the Eastern Nations Abstracted and Translated out of their Books written in the Arabian Persian and Turkish Language with Remarks by Monsieur Galland who lived many Years in those Countries Translated from the Paris Edition into English Twelves Printed for Richard Baldwin near the Oxford-Arms in Warwick-Lane The World bewitch'd is now publish'd containing an Examination of the common Opinions concerning Spirits their Nature Power Administration and Operations as also the Effects men are able to produce by their Communication Divided into Four parts By Belthazer Bekker D. D. and Pastor at Amsterdam Vol. I. Translated from a French Copy Approved of and Subscribed-by the Author 's own hand A New and Easie Method to understand the Roman History With an exact Chronology of the Reign of the Emperors An Account of the most Eminent Authors when they flourish'd And an Abridgment of the Roman Antiquities and Customs By way of Dialogue for the use of the Duke of Burgundy Done out of French with very large Additions and Amendments by Mr. Tho. Brown A Collection of Speeches of the Right Honourable Henry late Earl of Warrington viz. I His Speech upon his being sworn Mayor of Chester in November 1691. II. His Speech to the Grand Jury at Chester April 13. 1692. III. His Charge to the Grand Jury at the Quarter-Sessions held for the County of Chester on the 11th of October 1692. IV. His Charge to the Grand Jury at the Quarter-Sessions held for the County of Chester on the 25th of April 1693. Letters of State Written by Mr. Iohn Milton To most of the Sovereign Princes and Republicks of Europe From the Year 1649. till the Year 1659. To which is added An Account of his Life Together with several of his Poems And a Catalogue of his Works never before Printed Mathematical Magick Or the Wonders that may be performed by Mechanical Geometry In Two Books Concerning Mechanical Powers Motions Being one of the most easie pleasant useful and yet most neglected part of Mathematicks not before treated of in this Language Mercury or the Secret and Swift Messenger Shewing how a man may with privacy and speed communicate his Thoughts to a Friend at any distance The Second Edition By the Right Reverend Father in God Iohn Wilkins late Lord Bishop of Chester Printed for Rich. Baldwin where are to be had The World in the Moon England's Interest Or a Discipline for Seamen Wherein is proposed a Sure Method for Raising Qualified Seamen for the well Manning Their Majesties Fleet on all Occasions Also a Method whereby Seamen will be obliged mutually to Relieve each other on board the Men of War yearly or thereabout except where any Seaman by his own voluntary Consent shall be willing to stay longer Likewise is shewed the Advantages which by these Methods will accrue to the Nation in general and in particular to the Merchants and Seamen For hereby the Wages now given in Merchant-Ships will be brought lower and every Seaman will have the liberty of chusing his own Commander after the first year and continuing with him if he so likes By Captain George St. Lo. An Answer to a Paper written by Count d'Avaux the French King's Ambassador in Sueden concerning the Proposals of Peace made by France to the Confederates An Essay concerning Obedience to the Supream Powers and the Duty of Subjects in all Revolutions With some Considerations touching the present Juncture of Affairs An Essay concerning the Laws of Nations and the Rights of Sovereigns With an Account of what was said at the Council-board by the Civilians upon the Question Whether Their Majesties Subjects taken at Sea acting by the Late King's Commission might not be looked on as Pirates With Reflections upon the Arguments of Sir T. P. and Dr. Ol. Both by Matth. Tyndal Doctor of Laws The Second Edition The Antiquity and Justice of an Oath of Abjuration In answer to a Treatise Entituled The Case of an Oath of Abjuration considered A Sermon preached before the Right Honourable the Lord-Mayor and the Court of Aldermen of the City of London at St. Mary-le-Bow on the 29th of May 1694. By Iohn Trenchard M. A Recto of Wrexhall in the County of Somerset and Chaplain to the Right Honourable the Earl of Manchester A Poem on the Late Promotions of several Eminent Persons in Church and State By N. Nate Servant to Their Majesties The Doctrine of the Holy Trinity placed in its due light by an Answer to a late Book Entituled Animadversions upon Dr. Sherlock's Book c. Also the Doctrine of the Incarnation of our Lord asserted and explained Liturgia Tigurina Or the Book of Common-Prayer and Administration of the Sacraments and other Ecclesiastical Rites and Ceremonies usually practised and solemnly performed in all the Churches and Chappels of the City and Canton of Zurick in Switzerland c. The Tragedies of the Last Age consider'd and examin'd by the Practice of the Ancients and by the common sense of all Ages in a Letter to Fleetwood Shepherd Esq Part I. The Second Edition A short View of Tragedy its Original Excellency and Corruption with some Reflections on Shakespear and other Practitioners for the Stage Both by Mr. Rimer Servant to Their Majesties A New Plain Short and Compleat French and English Grammar whereby the Learner may attain in few months to
A BRIEF ENQUIRY INTO THE Ancient CONSTITUTION AND Government of England As well in respect of the Administration as Succession thereof Set forth by way of Dialogue and fitted for Men of Ordinary Learning and Capacities By a True Lover of his Country LONDON Printed for Richard Baldwin near the Oxford-Arms in Warwick-Lane 1695. THE Publisher's PREFACE TO THE READER THERE being many Treatises already Publish'd upon the Subjects handled in this ensuing Discourse you may think it needless to trouble the World with more of this kind but those who think so may be of another Opinion when they have considered not only the Design of this Treatise which is to Abridge into a small Manual what others have writ in many Volumes but also the manner of handling the Matters herein treated of which you will find to differ very much from most of the Books written before upon this Subject some Writers having screwed up the King's Prerogative to so extravagant a height as to place the whole Essential Frame of the Government in the King 's Sole Will and Pleasure not considering the Fundamental Rights and Liberties of a Free-born Nation more than as the forced Concessions of some Weak Princes not otherwise able to appease an Angry People and which they may therefore contract or wholy abrogate as their Power or Opportunities may either dictate or permit Whilst on the other side there are some who have too much debased the Royal Prenogative by placing all Power immediately in the People and supposing the King accountable to their Representatives for every small Miscarriage in Government There is without doubt an Error in both these Extremes since as the King can have no Prerogative which is inconsistent with the Ancient Rights and Liberties of the Subject set down in Magna Charta and other Ancient Statutes which were only declarative of the Common Law of England So likewise if the King be the Supreme Magistrate of the Nation he cannot without a Soloecism in Government be rendred accountable to any Power superior to his own these things considered hath induced the Author to chuse a middle and more moderate Course by preserving to the King all such Prerogatives as are inseparable from the Supreme Executive Power and which are necessary for the Common Safety yet without leaving the King absolutely irresistible in all Cases whatsoever and without a supposed impossibility of his falling from his Royal Dignity in case of the highest Breaches of his Coronation Oath and the utmost Violations of that Usual and Ancient Contract which his Predecessors have so often renewed with the People of this Nation upon their Succession to the Throne For the proving of which the Author hath made use of the best Authorities he could collect either from our ancient Histories Records or Law-Books beginning with the Grounds and Institution of Civil Government in general and ending with that of England in particular And though he hath so far adapted this Discourse for men of ordinary Learning and Capacities as not to stuff the Margin with many Quotations yet he hath not fail'd to put them down where-ever the Niceness or Uncommonness of the Subject might otherwise chance to shock the Understandings of Readers not thoroughly vers'd in things of this Nature Not but that the Author is very well satisfied that even where no Authorities are expresly cited he is able to maintain what he there lays down by Arguments drawn from Law as well as Reason if any man shall think it worth while to call it in question but if he requires larger and fuller Proofs on this Subject he may if he pleases first consult the last Eight Dialogues of a late Treatise called Bibliotheca Politica as also Mr. Atwood ' s Learned Treatise concerning the Antiquity and Justice of an Oath of Abjuration And I hope he may thence receive sufficient satisfaction that the Principles here laid down are founded not only upon right Reason but the ancient Constitution of the English Government This may suffice for the manner of handling this Argument But now to say somewhat more of the ends of publishing this Discourse and they are these First to make every man though of never so common a Capacity understand as well as the Author is able to perform it what is the true ancient and legal Government of this Kingdom 2dly What are the main and most considerable Prerogatives of the Crown And lastly What are the fundamental Rights and Liberties of the People And that these are so far from being contradictory or inconsistent that they rather serve to defend and strengthen each other so that it hath been for the defence and preservation of all these that this wonderful and happy Revolution hath been brought about and Their Present Majesties placed upon the Throne as also to convince those who traduce by the Nick-names of Whigs and Commonwealths-men those that have been in the worst of times the only true Assertors of this ancient limited Monarchy so that if they plead for Resistance in some Cases it is only in those of utmost and absolute necessity and in order to preserve the Original Constitution and to prevent the Head of the Legislative Power from devouring the Body nor can they have any other Notions of Loyalty but their Obedience to the Government establisht and exercised according to Law as the ancient Sense as well as Etymology of that word imports To conclude Whosoever shall think fit to bestow a little money to buy and time to peruse this small Treatise the Publisher hopes he will find the design to be truly English that is sincere and honest that all good Subjects may know how to render to Caesar the things that are Caesars and to God the things that are Gods without blindly sacrificing under the will-worship of a pretended Loyalty the Religion Civil Liberties and Properties of their Country to Caesar's Will as some of late Years have done who made these the darling because most gainful Doctrines as well of the Pulpit as the Bar and the Press A BRIEF ENQUIRY INTO THE Ancient Constitution and Government of England ctc. In a Dialogue between a Justice of Peace and an Understanding Freeholder I. GOOD Morrow Neighbour What brings you hither so early If you want a Warrant I 'll call my Clerk and then hear your Business F. No I assure your Worship the Business I come about is of greater concern and that no less than the Rights and Liberties of the Subject as well as the Power and Prerogative of our Kings which though I heard you Treat of in your late Charge to the Grand Jury last Quarter-Sessions yet since I could not come near enough to hear it distinctly not being of that Jury my self pray give me the substance of that Discourse and I the rather desire it because I have since heard it much censured by some of our Neighbours as savouring of Commonwealth Principles But to save you the labour of a needless repetition I will
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
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
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
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