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
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
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