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
common Ancestor on whom the Crown was Entailed otherwise Brothers or Sisters by the half Blood could never Succeed to each other as Queen Mary did to King Edward the VIth I. Well Neighbour I see you have either read Littleton or else been very well instructed in this Law concerning Entails and therefore I will argue this Point no farther with you but if the Throne were not Vacant pray then tell me whom think you the Convention should have immediately Declared King or Queen whether the Titular or pretended Prince of Wales or the Princess of Orange Since only one of these can Claim as Heir by vertue of the Entail you now mentioned F. No doubt but the Prince of Wales would have been the Right Heir could we have been assured of his being really born of the Body of the Queen but since I confess there is a great doubt in most Persons throughout the whole Nation concerning it I must so far agree with you that he could not well be declared King till his Legitimacy were cleared and those just suspicions we lye under to the contrary taken away but then on the other side till this were done I do not see how the Convention could well justifie their placing the Princess of Orange or any Body else in the Throne I. We shall come to that by and by but in the mean time pray observe that here was a great and general doubt who was the next lawful Heir whether the Prince of Wales or the Princess of Orange now in Disputes of this nature in all the hereditary limited Monarchies in Europe the States of the Kingdom have always been the sole Supream Judges of such Controversies and whom they have owned and admitted as next Heirs have always been taken and owned for Lawful Kings both at Home and Abroad as I could shew you from divers Instances not only in England and Scotland but France Spain and Portugal And till this were done the Throne must necessarily remain vacant and all this without making the Crown Elective for what is this vacancy of the Throne but when through the Ignorance of the ordinary Subjects whom to place therein by reason of divers Claims of different Competitors none can be admitted to fill it that is to the exercise of the Kingly Office till these disputes could be decided by their proper Judges viz. the Estates of the Kingdom which is all one as to declare the Throne to be vacant since it must necessarily be so till they were fully satisfied who ought to fill it F. I confess what you have now said carries a great deal of reason with it but how can you justifie the Convention's placing their present Majesties on the Throne without ever so much as examining whether the supposed Prince of Wales were really born of the Body of the Queen or not which in my Opinion ought to have been the first thing to be enquired after whereas I do not find that the Convention nor yet the present Parliament have taken any more notice of him than if there had been no such thing in nature as a Son then born or pretended to be born during the Marriage between the late King and Queen I. If the Convention have done well in declaring the Throne vacant I think I can easily justifie their filling it with their present Majesties and that upon two several Considerations The First is that I suppose the Prince of Orange by his Victory over King Iames sufficiently declared by his flying from Salisbury and disbanding his Army and then quitting the Kingdom if he had done nothing else did thereby lose his Right to the Crown and so consequently to the Peoples Allegiance and the Nation being then free and without any King who had a better Right to be placed in the Throne than the Prince of Orange their Deliverer and besides this in respect of the Nation King Iames as I have already proved having Abdicated or Forfeited his Right to the Crown by his notorious Breach of the Contract above-mentioned and by his wilful persisting in it I look upon the whole Nation at his departure as fully discharged from all Oaths of Allegiance not only to King Iames but to his Heirs likewise and therefore were not obliged to look after this supposed Prince nor to examine his Legitimacy as Heir apparent to the Crown F. I cannot comprehend how this can consist with those Acts of Parliament of Queen Elizabeth and King Iames which oblige all the Subjects of this Realm to take the Oaths of Supremacy and Allegiance to the King or Queen and to their Heirs and Lawful Successors and sure I think nothing less than an Act of Parliament can alter these former Statutes and solemn Declarations concerning the Succession in a Right Line And I suppose you will not say that the Convention who certainly were no Parliament could without the Authority of a Lawful King and Parliament alter the Ancient Laws of Succession since I have heard it is a Maxim in Law that nothing can be undone but by the same Power that made it And therefore in my Opinion the Convention was too quick in Declaring their present Majesties King and Queen before they had examined the Prince of Wales's Title who was commonly reputed and prayed for in all our Churches as Heir Apparent to the Crown I. I confess you have in few words urged all that can well be said against the late Act of the Convention in declaring their present Majesties King and Queen Therefore in Answer to this Objection give me leave in the first place to tell you that you have been misinformed That because the Acts for the Oaths of Supremacy and Allegiance obliged us to take it to the late King and his Heirs and Lawful Successors that therefore no Person can be such a Lawful Successor unless he Claim in a right Line by descent from the last King since long before these Acts were made by the Ancient Oath of Fidelity at Common Law and which used to be required in all Court-Leets men were as much obliged to the King his Heirs and Successors as they can be by any of these later Oaths and yet no body then doubted before those Acts were made to pay Allegiance to that Person whom the Estates of the Kingdom had solemnly declared to be lawful King or Queen without ever examining whether such Kings or Queens were really and truly next Heirs by Blood or not as I can shew you from divers Examples had I now time for it And there is indeed great reason for their so doing for since all disputes about the right of Succession to the Crown must be decided by some proper Judges or else be left wholly to the Decision of the Sword and since as I said but now in all the limited Kingdoms of Europe the Estates of such Kingdoms have been always appeal'd to by all the contending parties as their only proper Judges of their disputed Titles it is but reason that
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
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
ask you those Questions which I desire most to be satisfied in I. Pray use your discretion and begin when you please I will do my endeavour to satisfie you as well as I can though without putting my self to the trouble of quoting many Authors which perhaps you never heard of and therefore pray believe that whatever I shall tell you I have not only Reason but Authorities also for what I then said F. I have no cause to doubt what you say therefore pray Sir in the first place tell me what you then said about the Natural state of Mankind as to Civil Liberty Pray Sir what think you Were men at first Born Subjects or did they become so by some Human means I. As to this Adam for example being the First man could not as a Husband to Eve or as a a Father to Cain Abel and the rest of his Children be an Absolute Lord or Monarch over them His Power as that of all other Fathers of Families not being a Civil Power but that of a Husband or Father only for the direction of his Wife in all things relating to the affairs of the Family and over his Children in order to their good Education in the Fear of God and for their Maintenance whilst they continued Members of it so that Subjection to Government could never begin from mens being born Servants or Subjects as some will have it F. Pray then tell me Sir what is Civil Government I. I think Civil Government is God's Ordinance which he has ordained for the Good and Happiness of Mankind to preserve men from the Violence both of Foreign and Domestick Enemies since the nature of man depraved by the Fall of Adam is too apt otherwise to fall into all manner of mischiefs and enormities as well towards himself as others F. How then did it begin Was it by any Divine Precept or else by the Consent of many men who had found the Inconveniencies of living without it I. Before the Flood there is no mention in Scripture of any sort of Civil Government or any Precept left for it the first that seems to prescribe it being after the Flood when God gave Noab that positive Precept Gen. 9. 6. That whoso sheddeth man's blood by man shall his blood be shed whence Divines argue a necessity of Magistrates for putting this Law in execution but who were to appoint them the Scripture is wholly silent and though indeed there is mention made of Kings in Genesis very early in the world yet is it not there told us how those Kings were made therefore it is most reasonable to suppose that they either at first began by the tacit Consent or Election of the Masters of Families and other Freemen of the same Lineage or Nation or else by Conquest of other Nations by force of Arms. F. But pray Sir is there not an account given us in Scripture of Judges and Kings made by God's own Appointment among the Iews I. Yes but that concerned no other Nation but them who are the only People that I know of that had a Civil Government as well as Divine Law from God's own Appointment F. But Sir did not God's thus giving the Iews Kings or Persons at least endued with Kingly Power though not under that Title render Monarchy to be of Divine Right so as that all other Nations are thereby obliged to have no other Government but that I. No sure not at all for till the time of Saul they had no visible King over them God himself was their King and those that Governed under him could do nothing of moment without his express Command and where that did not interpose the Government was by Moses and a Senate of Seventy Elders and also by the Heads or Princes of the several Tribes as Subordinate to them and after his Decease by Ioshua and the other Judges whom God raised up who if they had been Kings in Power but not in Title it would have been in vain for the Israelites to have desired a King to be like other Nations and you see when they desired such a King God was angry with them as if they had rejected himself so that there is no other consequence to be drawn from all these Examples but that Kingly Government is the most Antient and may also be the best if kept within due limits F. Pray whence then do Kings now-a-days derive their Power since God hath long since left off making any Kings by Divine Precept Whether is it from God or from the People I. I told you before that all Power is from God and consequently Kingly Power must be so too yet this is so to be understood that this Power cannot Rightfully be acquired without the People's Consent I mean all those who being Master's of Families and Free-men at their own dispose had at first a Power of setting up what sort of Government they pleased and hence it is that we find so many sorts of Governments in the world as for example Monarchy which is either Absolute as in France and Turkey or Limited as in England and as it was not long since in all the Northern Kingdoms of Europe or else Aristocracy that is the Government of the best sort or Nobility or else Democracy where the Common People Govern alone or else have the predominant Power But all these as they derive their Power from God are alike ordained by him though in respect also of men who first found out and instituted these several Governments they are also called by St. Peter the ordinance of men or a human creature as the Original words it F. But do we not also find in Scripture that most of the great Kingdoms or Monarchies of the world have began from Conquest Does not therefore Conquest of a Nation by Arms give the Conqueror a Power from God to Rule over that People without their Consents I. I will not dispute what Authority the Babylonian Persian Macedonian and Roman Monarchies might have over those Nations they conquered by a particular Donation from God who had long before foretold those Monarchies by Daniel and the other Prophets and as for the first of these Empires the Iews are particularly Commanded by the Prophet Ieremiah to serve the King of Babylon the like is foretold by Isaiah of Cyrus yet for all this I think no other Conquerors can pretend to the like Right over any Nation at this day since all Conquest is either by a just or an unjust War that the latter can give no right at all to the Conqueror all Writers agree and that even the former can give no right without the Peoples consent either tacit or exprest seems also as certain since in respect of them who are not capable Judges of the right or wrong of the Quarrel it can lay no obligation of Obedience farther than they please by some act of their own to acknowledge the Conqueror for their Lawful Prince which being once done voluntarily is all
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
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
by those that chose them not to alter the Fundamental Constitution of the Government but to strengthen and confirm it so that if by this Act of Non-resistance the Government might easily be altered and the Legislative Power as well as that of raising Money may be taken out of the Power of the King and the Two Houses and should be put solely in the King's person the whole frame of the Government would not only be altered but actually dissolved and consequently Resistance in this case would not be a crime but a duty since Parliaments were instituted for the maintenance of the King 's Legal and not Tyrannical Power and for preserving the people in that share of the Government which by the Fundamental Constitutions of the Kingdom belonged to them F. But pray tell me Sir Is there any express Law for this Resistance for indeed I could never hear of any such and therefore I doubt that if those Noblemen and Gentlemen who went in lately to help his present Majesty when Prince of Orange had been taken Prisoners and himself defeated by the King's Army but they would have all of them been guilty of High Treason by the Statute of 25 of Edward the Third and sure it would have been no good Plea to be allowed by the Judges that they took not up Arms against the King of Government because the Government was dissolved by the King 's exercising an Arbitrary Power I. I would not argue with you what would have happened if the King had got the better and either taken the Prince of Orange prisoner or driven him out of the Kingdom for I never knew in all the Histories I have read but that a Prince who had the Armed Force of the Nation on his side could hang whom he pleased and will always find Judges and Jury-men enough ready to side with him in it as we have found by many late Examples But this is no Argument for the Right or justice of such Proceedings for we know King Charles the First was tried and condemned by the Pretended Authority of the Rump Parliament notwithstanding his denying that they had any Authority over him and though it be true there is no express Act of Parliament to tell us when the Government is dissolved and when and in what case men may resist the King or those commissioned by him yet does it not follow that no such thing can ever be lawfully done for it is sufficiently proved from the reason and necessity of the thing it self though no express Law or Conditions be made for it which may be also observed in all Moral or Religious Promises or Contracts Thus if I promise or swear to a man never upon any account whatsoever to beat or kill him this-is still so to be understood that he does not go about to beat or kill me for then my right of self-defence will take place notwithstanding my Oath so when people are married they mutually promise each other to live together till death do part yet no man will say a man or woman commits a sin or breaks this solemn Promise if the former by reason of Adultery in the Wife or the latter by the extream Cruelty or Harshness of the Husband do separate from each other and that perhaps for ever But I shall now shew you that there is a Resistance allowed even by the Law it self in some cases against those that have the King 's personal Commission as may appear by this Instance Suppose an Officer with a Company of Soldiers should under a colour of such a Commission take upon them to keep possession of a House contrary to Law do you not believe but the Sheriff may upon a legal Process issued out thereupon raise the Posse Comitatus and restore the Possession by Force to the Right Owner notwithstanding this Commission and the Reason is plain because though the Officer may have the King 's personal Command for so doing yet it is the Sheriff alone who acts by a Legal Authority and who alone can justifie the using of this Force Now if any man should be killed in this Action no doubt but the Officer and his Soldiers and not the Sheriff and the men that assisted him would be found guilty of murther F. I grant this may be so but is not this the true reason of it because the Sheriff acts by the King 's implyed Authority without which no man can lawfully take up Arms But how can this be justified in case Arms were taken up upon supposition the Government is Dissolved which is all one as to affirm That the King is no longer King I. I allow that great part of what you say is true but not all for in the first place it is plain that there is a Legal Resistance of those Commissions though issued by the King and which is justifiable by Law as appears by this instance which rule holds good as long as the Laws can be permitted to have their due course But what if the King will not permit that they shall but will take part with this wicked Officer and his Soldiers and maintain them in these violent Actions and either not let the Law pass upon them or if it does should constantly Pardon them as soon as they had committed any such violent illegal Acts by his Commands contrary to Law Can any man believe that such Proceedings if commonly practiced would not quickly dissolve the Government and make such a King cease to be so since he refused to Govern and Protect his Subjects according to Law and his own Coronation Oath which virtually contains those Conditions on which he holds his Crown for when there is no Justice to be had in the Kings Courts it then becomes a meer Anarchy wherein there can be nothing but Rapine and Confusion and consequently puts men in a State of War F. I have I know not what to say to this But can you shew me any express Law for the King 's ceasing to be so in case he thus leave off to Protect his People and Govern them according the Laws of the Land I. Yes that I can for I can shew you a good old Law of King Edward the Confessor which is also among those that were confirm'd by K. Will. I. whereby it is expresly declared That the King who is God's Lieutenant is appointed to this end That he defend his Kingdom and People and above all things Reverence his Holy Church and Defend it from Injuries and take away Wicked doers from it which unless he do not so much as the name of King shall remain to him neo nomen Regis in eo constabit as it is in the Latine which is likewise confirmed by Bracton an ancient Lawyer who tells us That it is the King's Crown or Authority to do Justice and Judgment and to maintain Peace without which it follows That this Crown or Authority cannot Consist or be retained So in another place he says That it
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
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
the 28th of King Henry the Eighth by which it is made Treason in any of those on whom he had setled the Crown or should bequeath it by his last Will to Usurp upon the Right of each other which could never have been if the King or Queen for the time being must have been Assisted and Obey'd by all the Subjects of this Realm as if they were Rightfully so and therefore they concluded that this Statute of Henry the Seventh could make no alteration in the ancient Law concerning the Succession but that it stands still as it did before that Statute was made and as it was declared in the Case of Edward the Fourth by which it was affirmed That the Henries the Fourth Fifth and Sixth were Kings only in Deed and not of Right and but pretended Kings and that the Statute which setled the Crown upon Henry the Fourth and his Issue was absolutely void against the Duke of York and his Heirs I. If this be all they had to say I doubt not but to answer it well enough and therefore as to their first Objection which would make this Statute of Henry the VIIth void because made by an Usurper methinks they might have been so civil as to have allowed him to be lawful King in Right of his Wife at least this Statute being made during the time of his marriage with the Princess Elizabeth but indeed nothing more betrays these Gentlemens ignorance in our Laws since if they will but look on any ordinary Statute Book they will find that the Statutes of those Kings they look upon as Usurpers are of as much force at this day as those enacted by Princes in a right line unless it were such as have been since Repeal'd by some subsequent Statutes 2dly Their Objection of its being a Temporary Law only during that King's Life is also as vain since the Statute it self mentions no such thing but speaks of the King for the time being in all succeeding times without any mention of King Henry the VIIth in particular 3dly That the Judges have lookt upon it as a void Law or else Repeal'd it also as false for the Case of the Duke of Northumberland does not prove it to be so for though the Duke did not as we can ever find plead this Statute at his Trial yet I think if he had it would not have helpt him since the King or Queen for the time being within this Statute I only take to be he or she that have been solemnly Crowned and Recognized by a free Parliament or such a one on whom the Crown is entail'd by Statute which it never was on the Lady Iane on whom the Crown was only bestow'd by King Edward the VIth's Letters-Patents and consequently had no Title by Act of Parliament And lastly that this Statute of 11th of Henry VIIth was never Repeal'd by any subsequent Act is likely as certain for I never heard before that any Act of Parliament could ever be Repeal'd by Implication but only by express words But indeed none of those Statutes you mention have done it so much as by Implication for though the Oaths of Allegiance and Supremacy are to be taken to the King or Queen and their Heirs and Lawful Successors yet who those Heirs or Lawful Successors shall be can only be known by some Law or other now who can declare what this Law is or shall be but the King and Parliament the sole Supream Legislators And that this is Law at this day appears by this undeniable Authority that it is by the Statute of the 13th of Elizabeth declared to be Treason during the Life of the Queen for any Person to affirm that the Queen and Parliament had not Power to make Laws to limit and bind and govern the Succession of the Crown in Possession Remainder or Reversion and to shew you that this Statute is still in force every Person so holding or affirming after the said Queen's Decease shall forfeit all their Lands and Goods But as for the Statute of Henry the VIIIth that will help them least of all for it appears by the Statute it self that the Treason thereby Enacted could only arise from thence and extend no farther than the Persons therein mention'd nor is the Succession of the Crown in a right line setled or confirmed by this Statute but the clear contrary since King Henry had Power by this Statute to bequeath the Crown by his last Will and Testament under his Seal and Sign Manual which he afterwards actually took upon him to do so that the Law still continues as it did before that Act of Edward the IVth you now mentioned was made since it is declared by that unprinted Act of Henry the VIIth I have now cited that King Henry the VIth was unjustly deposed and his attainder reversed and consequently his Right to the Crown is thereby declared to be good and valid to all intents and purposes F. I confess you have throughly convinced me in this matter and I think it highly reasonable that it should be so for how can we ordinary Subjects know to whom to pay our Allegiance in cases of any disputes that may arise about the different Titles of Princes to the Crown without appealing to some proper Judges of it and who can these Judges be but the great Council of the Nation in which every person thereof is either personally present or vertually represented and if this were the effect of your late Charge at our Sessions I wonder any persons should be so malicious as to misrepresent you for a Commonwealths-man but pray tell me what I shall say to those Gentlemen if I happen to come again into their Company I. Pray assure them from me that I am no more a Commonwealths-man than themselves and am not only for keeping up and defending the Original Constitution of King Lords and Commons and the Rights and Liberties of the People but am also for an Hereditary Monarchy by Lineal descent by all those lawful means by which our Ancestors have maintained them and that in all cases except where the exigency of our Affairs and the necessity of providing for the Publick Peace and Safety of the Commonwealth have not obliged the Estates of the Kingdom several times to take a different course when it could not be avoided without inevitable Ruin and I suppose the same Estates have still by the very Constitution the same Power and Right of Providing for the Peace and Safety of the Nation and the Preservation of our Religion Liberties and Properties as ever they had in all precedent times So that granting the most that can be said that the Convention have now exercised that ancient Power in placing Their present Majesties on the Throne yet this would be no more an Argument for our making a common course of it upon every Succession to the Crown than it would be for you when you were a Travelling upon the Road to break into any bodies ground you
speak and write French correctly as they do now in the Court of France and wherein all that is dark superfluous and deficient in other Grammars is plain short and methodically supplied Also very useful to Strangers that are desirous to learn the English Tongue for whose sake is added a short but very exact English Grammar The Third Edition with Additions By Peter Berault Truth brought to light or the History of the first 14 Years of King Iames I. In Four Parts c. Travels into divers parts of Europe and Asia undertaken by the French King's order to discover a new way by land into China containing many curious Remarks in Natural Philosophy Geography Hydrography and History Together with a Description of Great Tartary and of the different People who inhabit there Done out of French To which is added a Supplement extracted from Hakluyt and Purchas giving an Account of several Journeys over Land from Russia Persia and the Mogul's Country to China together with the Roads and distances of the Places Saul at Endor or the Ghost of the Marquess de Louvois consulted by the French King concerning the present Affairs Done out of French An Answer to the late King Iames's Declaration dated at St. Germains April the 7th S. N. 1693. Licensed by Mr. Secretary Trenchard Reflections upon two Pamphlets lately published one called A Letter from Monsieur de Cross concerning the Memoirs of Christendom And the other An Answer to that Letter pretended to have been written by the Author of the said Memoirs By a Lover of Truth A true and exact Account of the Retaking a Ship called The Friends Adventure of Topsham from the French after she had been taken six days and they were upon the Coasts of France with it four days where one Englishman and a Boy set upon seven Frenchmen killed two of them took the other five Prisoners and brought the Ship and them safe to England c. A Project of a Descent upon France By a Person of Quality A Compendious History of the Taxes of France and of the Oppressive Methods of Raising of them An Impartial Enquiry into the Advantages and Losses that England hath received since the beginning of this Present War with France The Gentleman's Journal Or the Monthly Miscellany In a Letter to a Gentleman in the Country Consisting of News History Philosophy Poetry Musick Translations c. Sold by R. Baldwin Where are to be had compleat Sets for the two last years or single ones for every Month. Nevil Pain 's Letter and some other Letters that concern the Subject of his Letter With short Notes on them for the clearer Information of the Members of Parliament in order to Nevil Pain 's Trial. A True Relation of the Wonderful Cure of Mary Maillard lame almost ever since she was born on Sunday the 26th of November 1693. With the Affidavits and Certificates of the Girl and several other Credible and Worthy Persons who knew her before and since her being Cured To which is added a Letter from Dr. Welwood to the Right Honourable the Lady Mayoress upon that Subject A Second Five years struggle against Popery and Tyranny Being a Collection of Papers Published by Samuel Iohnson Remarks upon Dr. Sherlock's Book Intituled the Case of Resistance Reflections on the History of Passive Obedience An Argument proving that the Abrogation of King Iames by the People of England from the Regal Throne and the Promotion of the Prince of Orange one of the Royal Family to the Throne of the Kingdom in his stead was according to the Constitution of the English Government and Prescribed by it In Opposition to all the false and treacherous Hypotheses of Usurpation Conquest Desertion and of taking the Powers that Are upon Content An Essay concerning Parliaments at a certainty Notes upon the Phoenix Edition of the Pastoral Lteters par 1. These last Six Books By Mr. Samuel Iohnson * Vid. Mirror of Iustice Cap. 1. Sect. 2. †Vid. Modum Antiq. tenendi Parl. * Vid. the year-book Ter. Pasch. †Vid. 1 o Will. Mar. * Chap. 1. Sect. 2. * Vid. Spel. Concil 1 Vol. p. 29. †Vid. Vitam Alfredi Edit Oxon. * See the Old Form of the Coronation Oath before the Conquest and after in Mr. Attwood's Treatise of the Antiquity of an Oath of Abjuration p. 94. to the end * See the Forms of those Coronations in Stow Holinshed and others * Vid. Mat. West p. A. D. 1301. 435. 436. * See his Coronation-Oath in Mr. Atwood's Treatise of the Oath of Abjuration p. 96. * Vid. Lambert's Saxon Laws Leg. Guil. â—h 6. 7. p. 60. †Lib. 2. Chap. 2. * i. e. Nobiles Minores * Vid. the Act of 2 o. Mariae confirming the Treaty of Marriage with King Philip. * Vid. Par. Rolles 1. H. 7. N. 16. * Chap. 1.