Constitution I think it will not be deny'd me that where-ever there has been a direct contravention to either of those fundamental Supports of our Government it hath caused a subversion of the Government it self I must now apply what I can of this to the late King and see whether One or Both of those Fundamental Supports of our English Government were not sorely shook or subverted by Him. As to the First That all the Laws the People of England are governed with be made in Parliament it is as plain as the Sun at Noon-day that this was subverted by the late King Notwithstanding at his first taking his Chair at the Council-board upon his Brother's Death He declar'd He would Govern by Law and that the Laws of the land had made the King as great as He desir'd to be yet he did certainly change his Mind within less than six Months and set up for an Arbitrary Power over the Laws by dispensing with them Now that dispensing with the Laws of the Land is to all intents and purposes the Making of Laws by his own Authority without Concurrence of Parliament is what your Lordship heard so learnedly and so clearly proved at the Seven Bishops Tryal by your Council and what may be shewn in a very few words I will instance only in the Recusants Who were not only made uncapable by the Laws of the Realm of Civil and Military Commands but of keeping their Conventicles here This was the Recusants Condition by the Laws and they could not be deliver'd out of this Condition but by a Law which should annul the former Laws against them and make them as capable of Places of trust as any of the Members of the Church of England Now did not the late King by his Dispensing Power and his Sole Authority make such a Law for them Did He not annul all the Laws in force against them and qualifie the Recusants and put them into Places of Trust What could any Law made by the true Legislative Authority a King with his Parliament have done more for them than the King himself without a Parliaments Concurrence did I think my Lord this Instance sufficient to shew that the Dispensing Power which King James used was to all intents and purposes a Legislative Power since as I have prov'd it no Law could have done more for any persons aggrieved than this Power and therefore that This was a direct Subversion of our Government the chief Fundamental of which was that the Laws should be made by the King and Parliament And if our Constitution was subverted I cannot see how his Legal Kingly Power was not subverted with it nor that our Oaths to Him were not at an end when the Constitution we swore to was dissolved and He had of himself divested himself of and laid aside that Authority which we only swore to submit to and defend If your Lordship should ask me when this Dissolution of Government happen'd I think I should be able to fix the Time Your Lordship does remember that upon the Duke of Monmouth's Rebellion the late King gave Commission to several Popish Officers this was the Forerunner of it but when upon the sitting down of the Parliament in October afterwards He not only in his Speech told his Parliament that He had done it but that He was resolved to stand by it and thereupon dismist his Parliament for their opposition to it He finisht his Design and our Ruin and from that Moment I look upon the English Constitution to be altered and must lay my finger upon this as the compleat Subversion of our Legal Government I know some will be offended at my urging this Practice of a Dispensing Power so far as to make it a Subversion of our Government and will not endure to hear that a King of England can forfeit or fall from his Authority I am very ready my Lord to beg these Gentlemens Pardon if they would but allow me one satisfactory Argument to prove that a Dispensing Power is not of that fatal consequence to the Legal Power of Legislature that I have suppos'd it to be Non est Rex ubi dominatur voluntas non Lex Bracton but till that is proved to me I think I should deserve very great blame if I did not make the Dispensing Power to be what in reality it is a Subversion of our Constitution And for a forfeiture I would only know why such a thing must be lookt as monstrous intolerable nay impossible in England Suppose the late King besides his letting Papists into all Places of Trust against the plainest and the severest Laws and his subverting all the Laws made in defence of the Church and Government of England by laying them aside for the Dissenters sakes had been pleased to impose what Taxes He pleased upon his Subjects and had levyed them either by his own Army or by Dragoons borrow'd from France and had for the furniture annull'd all the Laws made in Defence of the Church of England or the Rights and Properties of the Subject and had laid every other Law aside by his Royal Edicts which all men should obey without reserve as much as he had done those made for the security of the Church of England by his Declaration I would only know by what name to call such Practices and whether our business in such a case is only with patience to suffer a King wholly to alter the frame of Government and to make Bondslaves of those who were his Freeborn-Subjects born to the Protection and Priviledges of Laws This is my Lord no wild or unreasonable Supposition I am afraid that we should have been able had the late King continued but a year or two longer upon the Throne not to have been put to the trouble of making these Supposals but to have instanced in them as we now do in the Declaration for Liberty of Conscience One would think that such Practices which seem to be the plainest Instances of the Subversion of a Government should be so most especially of his share in it who was guilty of them and he that will not allow any forfeiture or destruction of a King's share in a Government by such a subversion of it will find it hard to maintain That a Government subsists tho' it be destroy'd and that a King hath not destroy'd his own Power tho' he hath quite ruin'd that Government in which and by which He enjoy'd it My Lord I am not willing to aggravate the Faults of any nor to make the Consequences of them look more ghastly than they are of themselves much less would I be guilty of such a thing towards Crowned Heads however I am not able to alter the appearance of this That the Publick Safety and Happiness can never be secured in any Constitution whatever and that the Ends of Governments are quite lost if that Person who subverts any particular Government do not at the very same time destroy or forfeit let Men
it and thereby ceased to be King and if once He ceased to be such no body will deny that the Obligation of all Oaths to Him as King did expire at the same time But since my Lord we have commonly receiv'd a very transcendent Notion of our Monarchy which will not allow the Destructive Practices I have now mentioned nor worse than these to make a forfeiture of the Kingly Power here or to be the Subversion of our Monarchs Rights whatever they be of the Peoples I shall were the insisting further upon this Head. Let it then be supposed for that Opinion's sake that the King does not destroy his own Right or the Exercise of his Royal Authority tho' He does destroy our Constitution by ruling directly against the Law and making Laws by his own Power The next Enquiry is Whether a King can lay down his Government and divest himself of all Authority and whether King James did not voluntarily leave his Government by withdrawing himself out of the Kingdom and making no provision for the Publick No body will dispute with me thtt a King cannot lay down his Government The Case of the Emperour Charles the fifth and which comes nearer our own concern that of the Queen Christiana of Sweden are Instances of it beyond opposition And I think it would be as little disputed that the late King James did by a voluntary withdrawing himself out of the Kingdom recede as fully from his Government if these few things were fairly consider'd First That he was at that time of withdrawing himself actually upon a Treaty with the Prince of Orange and had Three Lords Commissioners with Him who the very night He withdrew that He himself could not but give this Just Character of the Prince's Proposals as to say of them That they were fairer than he could or did expect so that the King had no reason then to be afraid of his Person but might have continued with security in his Palace and taken care of the Government and called such a Parliament as both Himself and the Prince desired which might have quietly and effectually settled this Nation and prevented all ill consequences to his Person or to his Affairs Secondly That it was the Design of the Popish Party to perswade him to withdraw himself their End in it being to put us thereby into Confusion This they did not boggle to speak out the Lord Dover and Mr. Brent made no secret of it but said it more than once that the King would withdraw himself out of the Kingdom above a Fourtnight before He did it Nor were these Two the only Persons in this Secret and of this Opinion In the Letter that was sent down to the King while He was at Salisbury with his Army and can be produced He was told that it was the Unanimous Advice of all the Catholicks here at London that he should come back from thence and withdraw Himself out of the Kingdom and leave us in Confusion assuring Him that within Two Years or less we should be in such Confusions that He might return and have his Ends of us as their phrase was Now if the King was pleas'd to take such desperate Counsellors Advice and thereupon to withdraw Himself out of the Kingdom and command his Army to be let loose upon the People by disbanding them at such a Juncture I can see nothing herein to make his going away involuntary If then his withdrawing Himself out of the Kingdom was done out of design and willingly He did as effectually divest Himself pro tempore of the Government as if He had left a formal Resignation of the Kingdom behind him attested by all his Privy-Counsellors hands and our Allegiance to him did fall with it and our Oaths did no more oblige now than the Oaths taken to Christina Queen of Sweden did when she resign'd and went to Rome since in both Cases the Government of these Two Princes was equally at an end but our condition the worse of the two since Queen Christina left the Government to her Kinsman but our King left us to the Rabble and his disbanded Army There is one Objection my Lord which I have often heard made against this that tho' the late King out of a groundess fear or for any other reason or design whatsoever did voluntarily withdraw himself ou of the Kingdom yet this ought not to be accounted a compleat Cession or Dereliction of the Government unless it could be proved withal that there was not Animus revertendi that he never intended to return to us more But this Objection is of no weight in the Case of a Kingdom For whether the King intended to return back any more or no signifies nothing herein since the withdrawing Himself and making no manner of Provision for the Government and Safety of the Nation did actually put an end to his Government at least for that time and our Constitution can no more than any other Government in the World be left in such a condition or can be said to subsist in such a Case and it is against all the sense and reason of Mankind to think that any Nation either will or ought to continue without a settlement till the Governour who hath left it unawares and in confusion will be pleased to think of returning Does any one believe that if the late King when He withdrew intended not to return these ten Years that we of this Nation should have continued in the Anarchy He left us and have no Government till He would come back Among all our Discontents I hope none can be found so weak to imagine this and the same reason I am sure holds as fully against his leaving us one Month as ten Years So that whether the late King intended to return or no when He went away He ceased to govern us and the very same moment He was pleas'd to leave off governing by withdrawing himself He cancell'd the Obligation of all Oaths and Allegiance to Him as King. But beyond all this I can grant my Lord that the late King from the very time of his withdrawing nay from the very minute of resolving to do it had Animum revertendi did intend to return to us I do believe that those Papists which advised him to withdraw did design that He should return and that He himself did concur in both resolutions But what was He to return for Was it not to have his Ends of us What those Ends are I suppose no Protestant needs be told none of those who make this Objection can doubt of it since his late coming to Ireland Should we have waited then till the late King could return with his borrowed Forces from France to destroy our Protestant establisht Religion and our Civil Constitution because He had Animum revertendi and therefore not have setled and provided for the Nations safety Was the King's Government not at an end tho' He had withdrawn himself from us and left no Provision
call it what they please his own share in it To this Argument from the Dispensing Power it may be answer'd That the Practice of it as to the Instances which I have been able to mention does not amount to a Subversion of our Government if those Laws were unjust and void in themselves which the King dispensed with As for the Laws about Offices Civil and Military from which Papists were excluded They say the Observator has prov'd it often enough that they were null and void since no Laws can preclude a King from making use of his Subjects And for all the Laws against Conventicles the Author of a Paper publish'd very lately and licens'd too call'd The Case of the Protestant Dissenters Represented and Argued p. 2. tells us very roundly that they are void also and that the Dissenters must be excused if they have in their Practice exprest less Reverence for Laws made by no Authority received either from God or Man and complains that They are injuriously reflected on when it is imputed to them that They have ☞ by the use of their Liberty acknowledg'd an Illegal Dispensing Power We have says he done no other thing herein than we did when no Dispensation was given or pretended in Conscience of Duty to Him that gave us breath Nor did therefore practise otherwise because we thought those Laws dispens'd with but because we thought them not Laws So that the result is that the Late King ought not to be accus'd of Subverting the Government by setting aside those Laws which were void of themselves But I need not trouble your Lordship with any answer to such an Objection since I know your Lordship nor any of those for whose sakes I write this do not believe a word of what these two do so dogmatically and yet most unjustly assert I suppose the Observator will not be fond of standing by his Assertions and that the Author of the Dissenters case ought to have shewn some more Manners than to cast such saucy and bold Slanders upon our Parliaments while one is actually sitting It is sufficient for my vindication that the present Parliament believes those Laws which the Late King dispensed with not only to be true but necessary Laws whatever these two Gentlemen with so much confidence have said to the contrary I will pass now to the other Fundamental of our Constitution which is that the Government be administred according to the Laws of the Land. It is equally evident that this Fundamental was subverted by the Late King as well as the former for so far was he from governing according to Law that his whole Government from the time of his claiming his Dispensing Power seems to be a downright opposition to the Laws He was pleas'd to make Privy-Counsellors against Law Judges against Law Sheriffs against Law Lord-Lieutenants and their Deputies against Law and Justices against Law to have Men hang'd up for deserting in time of Peace against Law to have Popish Chappels Jesuit-Schools and the Conventicles open'd against Law In a word his Resolutions as well as his Practice did shew that the Laws were not intended to be made the Rule of his Government This is the True State of King James's Government and This is inconsistent with that Essential of our Constitution of Governing according to Law. Now if my Lord it be the Essence and the Definition of the King in our Government that He is One who governs the People committed to his charge according to Law how can we reckon in this Rank the late king from the time He was resolutely set upon governing against Law In our Constitution He that does not govern by Law does not govern at all and he that does not nor will not govern at all cannot nor will not be King but ceases to be such from the time He makes his Own Will or his Evil Counsellors Advice the Rule of his Government and not the Laws I had almost forgot another Instance of the late King 's Dispensing Power and that was his laying aside those Oaths of Allegiance and Supremacy which yet are the grounds of most Mens scruples How can this be lookt upon otherwise than as a Condemnation of the Oaths as unlawfull and if they were so we have the late King's Judgment also against the Obligation of these two Oaths for if He to whom the Oaths were taken thought them unlawful then are they certainly fallen as to Him. This is as if a Person who had a Bond from another which he lookt upon as unjust should give it him up and consent to the cancelling of it So that My Lord if the breaking One of our Fundamentals by not governing according to Law do not make such a person cease being King yet that breach of the Other the assuming a Legislative Power which quite alters and tears up the whole Frame of our Constitution cannot do less than shake his Right to the Government who was so solicitous to destroy it He that will not govern as King of England See the Laws of K. Edw. the Confessor Sect. 17. Rex autem ad hoc est Constitutus ut Regnum terrenum populum Domini regat ab injuriosis defendat quod nisi fecerit nec nomen Regis in eo constabit will not govern at all and if He continue in this humour as the late King did from the time of assuming his Arbitrary Dispensing Power how can he be longer King and if he ceased to be King by his leaving off to govern the Oaths to him were as much at an end as if he had ceased at the same time to live And as the Oaths could certainly have no further Obligation to him when he had divested himself of his Kingly Power by destroying that very Government whereby and in which he was King so did the Declaration about taking up Arms upon no pretence against the King fall with them That Declaration every one will grant me was made for the preservation of the Government which the late King took such indefatigable care to destroy That Declaration was never intended for the destruction and ruin of our Government and yet it must be the ruin of the Government if it puts it into a King's hands to turn Tyrant without controul and to subvert our Legal Constitution and undo a Nation without gainsaying and therefore that Declaration was intended for the security of and was to be made to a King governing by Law and therefore did not concern the late King from the Hour he set up his own Will against the Laws and his own Power against that of the whole Kingdom in Parliament This my Lord is the first Case whereby a King ceases to govern or to be a King for they are synonymous I think by the Instances I have produc'd and the Arguments I have offered it may reasonably appear that the late King had subverted our Government and destroyed his own share of enjoying his Kingly Authority in