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
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
those several Kings Reigns since those were raised upon levying of Taxes imposed by the King and Parliament which is the sole Supreme Legislative Power of the Nation where I grant it is Rebellion to resist whereas that Resistance which I only now suppose to be Lawful is against the King's personal Commands or Commissions in opposition to known Laws which is not to resist the Supreme Power of the Nation but only the King's Person when he acts not as King but as a private man F. But pray Sir is not this to separate the King 's Personal from his Politick Capacity to suppose the man may be resisted and not the King or the King 's Personal but not his Legal Commissions or Commands for to do this I have heard has been declared to be Treason I. This is also justifiable by Law in some Cases for if the King should happen to prove mad as divers Kings have pray do not his Servants about him hold or tie the Madman and yet how can they do this without binding the King And pray tell me what difference is there between Madness which is a Natural Disability and Tyranny which is a moral incapacity to govern since both are alike destructive to the Common Good of the Nation And when you suppose we may lawfully disobey the King's personal Commands what do we but then by disobeying the King distinguish between the King 's politick and his personal Capacity that is when he acts legally as King and when he issues out his Commissions or Commands without any Law to warrant him or else when the Persons commissioned are made by Law incapable of the King's Commissions as the Popish Officers lately were since otherwise we were all obliged to yield the same Obedience to the one as well as to the other Nor is it at all harder but much easier to judge when such Commissions or Commands are attended with Force and Violence and when they are not since certainly every plain Country-Fellow can much better tell when a thing contrary to Law is put upon or exacted of him by Force than when it is only barely commanded or required of him by a Commission or Proclamation seeing the latter only reaches the Understanding but the former not only touches the Understanding but the outward Senses of Hearing Seeing and Feeling To conclude I would not have you therefore believe that I allow this general Resistance to the whole Nation but only when by a General Violation of our Fundamental Liberties the whole Constitution of the Government comes to be in danger of an utter Ruine and Subversion by breach of the Original Contract abovementioned and that these Violations and Oppressions do some way or other concern the whole Body of the People of this Nation that is all Orders and Degrees of men and then only and not till then I look upon such a general Resistance of the King and those commissioned by him to be lawful that is when all other Remedies are become absolutely desperate and impracticable thro' the King's wilful Obstinacy to amend such Violations F. I grant this seems very reasonable but pray tell me what those grand Violations are that can thus alter the Fundamental Constitution of the Government and can make a total breach of this Original Contract I. They do I conceive consist but in a few Points and they are these First If the King should take upon him to make Laws either concerning Religion or Civil Matters and to impose then upon the People without their Consent in Parliament Secondly If he take upon him to dispense with all Laws and especially when his hands are tied up by a particular Clause to the contrary that he shall not so dispense with them Thirdly If he take upon him of his own head without the Advice or Opinion of his Judges to raise Money upon the Nation Or Fourthly If he corrupt the Judges to give their Opinions according to his humour either by promising of Rewards or threatning them if they refuse and will put none into those places who will not do whatever he commands them or turns them out as soon as they act otherwise Fifthly If he go about to alter the ancient Constitution of Parliaments and bring the Election of the Members of the House of Commons only into the hands of those of his own Party or Opinion whereby our Liberty of Electing and Voting by our Lawful Representatives would be quite taken away The like I may also say of the House of Peers if he should go by Force either to exclude the Bishops or Temporal Lords who have a Right of sitting there by Prescription and should under pretence of his Prerogative bring such as had no Right to sit there at all Sixthly and lastly If he should go about commonly or generally to take away the Subjects Lives Liberties or Estates by an Arbitrary Power contrary to Law upon pretended Crimes and without such due Trial as the Law requires Now I think you cannot but acknowledge that most if not all of these Heads are easily to be judged of by all the People of England when they are come to that extremity that we can have no reason to doubt of it F. But pray Sir tell me who shall judge of these Violations or what number may be allowed to rise and redress them I. The Judges are I told you before the whole Body of the Nation or People every one in his private Capacity that is not the Clergy alone or the Lords alone or the less Nobility or Gentry and much less you Yeomen or landed men and least of all the meer Rabble or Mob but all men of all Orders and Conditions taken together and as for the number it is any though never so small that are able to make a head till more can come into their Assistance F. But would not a Free Parliament be a much better Judge of these Violalations than this general Body of the People I. I grant it if a Parliament may be had that were free and unbiass'd but what if the King resolves not to call any or if he does will not give them leave to sit till they have redrest our Grievances Or what if he will not call one till he thinks he can make or pack it according to his own mind The Nation may at this rate be enslaved as much nay worse by having the appearance of a Parliament to confirm the King's Arbitrary Power than if he had acted by none at all so that in these Cafes there can be no other Remedy left us but an Appeal to the General Body of the People with whom that Original Contract I mentioned was at first made not but that a Free Parliament or Convention when ever it can meet may be of excellent use to examine what the People who thus take up Arms have acted in defence of their just Rights and Liberties and to judge and declare it to have been well or ill done and upon what
grounds and this hath been the course of all Parliaments that have been called immediately after any great and general Resistance or Revolution made upon the Accounts abovementioned This I could prove to you from several Instances in divers Kings Reigns since the Conquest were it worth my pains but still in all those Cases the first opposition hath been from the great Body of the Clergy Nobility and People together as you may particularly read in the Reign of King Iohn not long before the great Council at Runney Mead. F. But pray Sir can you also justify those Lords and Gentlemen who took up Arms and declared for the Prince of Orange and also those Lords together with the Officers and Soldiers who deserted the King and went into the Prince's Army Pray Sir did you look upon the Government to be then actually dissolved when they went in to him and that the King by the breach of the Original Contract was then no longer King I. I do not say so for though those Violations if obstinately persisted in without amendment were enough to create such a Dissolution and consequently a Forfeiture of the Crown as they wrought at the last yet the Government can never be dissolved so long as there remain any hopes that the King will amend those Violations he has made in a Free Parliament for the obtaining of which as it was the chief cause of his Highness's coming over so was it also of those Lords Gentlemen and Officers going in to him or declaring for him and this I think they may very well justify both in Honour and Conscience And though there be no express Law for it yet it is no more than what the Nobility Gentry and People of other Kingdoms as well as this have many times done before in former Ages when their Kings being misled and deluded by evil Councellors or Ministers of State have made the like Breaches upon their Liberties And though I confess such taking up of Arms have not always met with the desired Success yet for the most part they have and then such wicked Judges and Councellors have not failed to be punished and those Lords Gentlemen and others who so nobly and stoutly stood up for the Rights and Liberties of the Nation have been also pardoned by Act of Parliament and that with the King 's own consent when those wicked men were once removed but the King himselff was never touched till by his own wilful and obstinate persisting in such violent courses he let the Nation see that he was wholely irreclaimable and obstinately bent to destroy our Liberties and set up Arbitrary Government and Tyranny in this Kingdom as I could shew you from several Instances in the Reigns of King Iohn Henry III. Edward I. and Richard II. if it were necessary to give you a particular History of all those Transactions so that I suppose a twofold Right of Resistance in the People the one warranted by the Laws and Constitution of the Government which may well consist with our Loyalty to the King and to the intent only to obtain a Free Parliament to redress Grievances and punish those evil Councellors who have been the chief Ministers and Designers of Arbitrary Power as in the Case of King Iames before his departure the other Natural when the Government by the King 's wilful and obstinate refusal to redress such Grievances by ceasing to govern us according to Law he thereby also ceases to be King and then the Commonwealth or Civil Society being without a Head to execute Common Justice was absolutely dissolved F. What then is meant by these words in the late Vote and Declaration of the Convention viz. That King James having withdrawn himself out of the Kingdom hath abdicated the Government Do you believe that the King 's bare delertion of the Kingdom when he declared he could not help it should be looked upon as in Abdication of the Government methinks that seems somewhat hard to conceive I. To deal freely with you I never understood the word Abdicate in that Sense but only according to all the precedent Clauses in this Vote viz. That the King by endeavouring to break the Original Contract between the King and his People and by the Advice of Iesuits and wicked Persons having violated the Fundamental Laws and having withdrawn himself out of this Kingdom hath abdicated the Government Where you may observe that the word Abdicated relates to all the Clauses aforegoing as well as to his deserting the Kingdom or else they would have been wholely in vain so that the meaning of this word in this place is no more than that King Iames by violating the Original Contract abovementioned and by endeavouring to subvert the Fundamental Constitution and by refusing to restore it to its former Condition all which was expressed by his withdrawing himself out of the Kingdom hath abdicated the Government that is by refusing to govern us according to that Law by which he held the Crown he hath implicitly renounced his Title to it as when for example a Tenant for Life aliens in Fee though he take back from the Grantee a Lease for Life or Years yet he thereby forfeits his Estate and the Tenant in Reversion may enter and the reason is because he parts with that Estate which he held by Law and will hold by another Title which the Law doth not allow for abdicare in the Latin Tongue signifies no more than to renounce or disclaim as I could shew you from divers Phrases in that Language were you a Scholar good enough to understand them and this may be done by divers other means besides express words For if Kingship be a Trust for the preservation of the Rights and Liberties of the People than such Actings contrary to that Trust as plainly strike at the very Fundamentals of the Constutution are not only a breach of that Trust but a tacite Renunciation of it also which I prove thus the doing of any Act that is utterly inconsistent with the Being and End of the thing for which it is ordained is as true a Renouncing or Abdication of that thing as if it were made in express words as I have now proved in the Case of Tenant for Life F. I confess this is more than ever I heard before but pray What do you think was the reason that the Convention made use of this Hard word Abdicate which I confess to us Country Fellows seem'd as bad as Heathen Greek when they might as well have made use of plain Expressions such as Renounce or Forfeit which you have now made use of I. I will tell you Neighbour my Opinion of this Matter and if I am out you must pardon me because those Wise men in the Convention who had the Wording of this Vote were afraid that those plainer words you mention would have been of too hard digestion to a great part of the Country Gentlemen who had been bred up with different Principles and
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
conspire against him as well as the Parliament could do in the case of Prince Philip of Spain who was declared King joyntly with Queen Mary tho' he had no other Right but by Act of Parliament So that if the late Convention have declared That the Administration of the Government should remain solely in King William during his Life this was only to put it out of all dispute that none might at all doubt in whom the Supream Power lay since it will not admit of any Division F. All this seems reasonable enough but pray how comes it to pass that King William is to enjoy the Crown not only during the Queens Life but his own also this I heard Squire High-Church and the Parson I last mentioned cry out upon not only as a horrid Breach of the Hereditary Succession but also as a great wrong to the Princess of Denmark and her Heirs were the supposed Prince of Wales now dead since it is directly contrary to the Act of Recognition of King Iames I. whereby the Parliament do not only declare him to be lawful and lineal Heir of the Crown as descended from the Eldest Daughter of King Edward IV. But also they do thereby engage themselves and their Posterity to yield Obedience to King Iames and his Right Heirs I. Pray satisfie those Gentlemen when you meet them that if they once will grant that the late King Iames could Abdicate the Crown without his own express consent and that declaring this supposed Prince to be King was altogether unpracticable and unsafe for the Nation as I have already proved I think they need not be concerned whether his present Majesty enjoys the Crown for Life or not as long as it is for the Peace and Safety of the Nation that it should be so since it was for those ends alone that King Iames was set aside and the supposed Prince past by without so much as Enquiring into his legitimacy If the Convention had lawful Authority to decide the greater points they had certainly after they became a Parliament much more Authority to decide and settle the less material parts of this Controversie viz. The settlement of the Crown after the Queens decease since it is no more than what all former Parliaments have done in like cases Thus Henry the IV. and Henry the VII were formally declared nay the latter recognized for lawful Kings by Authority of Parliament notwithstanding the lineal Heirs by blood were then alive and in being and not only so but before ever Henry the VII married with the Princess Elizabeth Daughter to King Edward the IV. the Crown was settled upon him and the Heirs of his Body by an Act which you may find in Print in our Statute-Books Tho' he had no Right at all by Succession since his Mother the Countess of Richmond from whom all the Right he could pretend to the Crown was derived was then alive nor had made any Cession of it to him So that if this be true which I am able to prove that an Hereditary Succession in a right Line was never any Fundamental Law of this Kingdom And Secondly That after the Crown came to be Claimed by an Hereditary Right which was no older than Edward the Ist's time the Parliament have often taken upon them to break in upon this Hereditary Succession whenever the safety and necessity of the Kingdom required it And Thirdly That all those Kings who have thus succeeded without this lineal Right of Succession have been not only during their own Reigns owned for true and Legal Kings Attainders of Treason holding good against all Persons that conspired against them but also after their Reigns were ended for we see all such Acts of Parliament made under them stand good at this day unless it were those that were Repealed by subsequent Parliaments and can there then be any Question made but that the present Parliament have as much Power to settle the Crown upon his present Majesty for Life as they had to settle it upon King Henry the IV. or Henry the VII and the Heirs of their Bodies since those Princes could not deserve more from the Nation in freeing it from the Tyranny of the two Richards the II. and III. than his present Majesty hath done by freeing us from the Arbitrary Power of King Iames. And let me tell you farther that the Gentlemen you mention were mistaken in their Repetition of that Act of Recognition of King Iames the Ist's Title for though it is true they acknowledged him for undoubted lineal Heir of the Crown yet they do no where in that Act tie or oblige themselves and their Posterity to him and his right Heirs by that Act of Parliament but only in general that they promise Obedience and Loyalty to that King and his Royal Progeny and sure none will deny Their present Majesties to be the true Progeny of King Iames the Ist. F. I grant this seems very reasonable but those Gentlemen I now mentioned also said that Henry the IV. was in the Reign of King Edward the IV. declared an Usurper by Act of Parliament and as for Henry the Seventh he had either a Title from the House of Lancaster by the tacite concession of his Mother or else from that of York by the like tacite concession of the Princess Elizabeth his Wife or else if there were no such concession he was an Usurper till he had Married the said Princess she being Heiress of the Crown Pray what say you Sir to this I. Pray tell those Gentlemen from me that they are quite out in their Suppositions for if an Act of Parliament of Edward the Fourth be of sufficient Authority to prove Henry the Fourth an Usurper I can give you another Act of Parliament though not Printed which reverses the Attainder of King Henry the Sixth Margaret his Queen and Prince Edward their Son wherein it is expresly declared that King Henry the Sixth was contrary to all Allegiance and due order attainted of High Treason in the first Year of King Edward the Fourth wherefore it is by the Advice and Assent of the Lords Spiritual and Temporal Assembled in Parliament Enacted That all Acts of Attainder Forfeiture and Disablement made in the said Parliament against the said Blessed Prince King Henry are made void Annulled and Repealed So that if the Attainder of Henry the Sixth was against all due Order and Allegiance then certainly the said King must have been a Lawful King and not an Usurper at the time of his Death and if he were not so then certainly the like must be affirmed of Henry the Fourth from whom he was descended and under whom he claimed And as for Henry the Seventh there was no formal Cession of their Right ever given by the Countess his Mother or the Princess his Wife either before or after his coming to the Crown And as for a tacite and implied Cession expressed by saying nothing against it pray tell me why we may
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