Reign And hence it is that our Kings enjoy their Crowns be it for Life or Intail Now it is certain that this Solemn Oath or Contract which was taken by the first King ought by Law to be renewed at the beginning of every King's Reign and hence it is that our Kings are not only bound by their own express Oaths or Contracts with their Subjects but also by the implied Oaths or Compacts of their Predecessors under whose Title they claim And King Iames I. was so sensible of this double Contract that he expresly mentions it in one of his Speeches to 1609. both Houses of Parliament where he very well distinguishes between both those Contracts telling them That a King in a setled Kingdom binds himself by a double Oath to the Observation of the Fundamental Laws of his Kingdom tacitly as being a King that is claiming under his Ancestors and so bound to protect them as well as the Laws of his Kingdom and expresly by his own Oath at his Coronation So as every Just King in a setled Kingdom is bound to observe that Paction or Covenant made to his People by his Laws in forming his Government agreable thereunto according to that Paction which God made to Noah c. And then goes on to tell them That therefore a King governing in a setled Kingdom leaves to be a King and degenerates into a Tyrant as soon as he leaves off to Rule according to his Laws And then concludes That all Kings who are not Tyrants nor Perjured will be glad to bind themselves within the limits of their Laws and they that perswade them otherwise are the worst Vipers and Pests both against them and the Common-wealth So that you see here by King Iames's own Concession that there are not only Fundamental Laws but an Original Contract which he there calls a Paction or Covenant to observe them from the time of the first King or Monarch to this day and that when he ceases to Govern according to this Compact which he here calls his Laws he then becomes a Tyrant F. But I have heard some say That William the First after he had conquered England distributed almost all the Lands to his Norman and French Followers and that if there were any Original Contract ever entred into by the English Saxon Kings it was quite void upon the Conquerors obtaining the Crown and subduing all the People of this Nation so that whatever Liberties we now enjoy they were but the gracious Concessions of himself and his Successors without any such Original Compact I. I confess it is so alledged by some high flying Gentlemen who if they could would make us all Slaves to the King 's Absolute Will but without any just grounds in my Opinion since every one of their Suppositions are either false or built upon rotten Foundations For in the first place a Conquest in an Unjust War as I have already proved can confer no Right on the Conqueror over a free People and if this War were never so Just yet could not he thereby have acquired any Right over the whole Kingdom since the War was not made against the English Nation but Harold only who had usurped the Crown contrary to Right so that King William could have no Right to it without the People's Consent in their Great Council or Parliament which most of the Historians of those times say he obtained but indeed King William whom you call the Conqueror never claimed by that Title but by the Donation or Testament of King Edward the Confessor and the Consent or Election of the People of England as all his English-Saxon Predecessors had done before him nor did he give all nor yet a third part of the Lands of England to his Norman Followers as you suppose or if he had would it do the business for which it is urged since his Norman and French Followers to whom he gave those Lands were never conquered but were if any thing the Conquerors of others and from them most of our Ancient English Nobility and Gentry are lineally descended or else claim under their Titles by Purchases Mariages c. and so succeed to all their Rights and Priviledges And at the worst supposing King William to have in some Cases governed Arbritrarily and like a Conqueror over the English this was not so till he was provoked to it by their frequent Plots and Conspiracies against him and yet even that was done contrary to his Coronation-Oath which was the same that all the Saxon Kings had taken before only with this Addition That he should govern as well his French as his English Subjects by equal Law or Right so that his wilful Breach of this Oath could not give him or his Successors any just Right by the Sword over the Lives Estates or Liberties of any Englishman who had never fought against him nor offended his Laws And tho I should grant that this King and his Son William Rufus governed his Norman as well as his English Subjects very Arbitrarily and contrary to his own Laws yet did his Brother King Henry 1st make both his English and Norman Subjects large amends by the great Charter of their Ancient Liberties which he granted immediately after his Election to the Crown by the Chief Bishops Lords and Free-men of the Kingdom and upon which the great Charter of England renewed by King Iohn and afterwards confirmed by his Son Henry the 3d were founded being but larger Explanations thereof F. I confess this is more than ever I knew before but what if a King of England as King Iames lately did will cease to govern like a legal or limited King and prove a Tyrant by breaking this original Compact which his Predecessors made with the people does it therefore follow that he may be resisted if he does or can he ever cease to be King or forfeit his Royal Dignity if he acts never so Tyrannically for sure if all resistance of his Power be unlawful as being so declared by several Acts of Parliament in King Charles the Second's Reign he can never cease to be King except he will wilfully turn himself out of the Throne I. I am very well satisfied that those Acts you mention were only made upon this Supposition That the King would never violate the Fundamental Laws of the Kingdom by which he became King or go about to change the Constitution of the Government since that had been to give the King an Irresistible Power to make us all Slaves whenever he pleased so that our Religion Lives and Civil Liberties would lye not only at the King's mercy but at the mercy of those Ministers that govern him and therefore as it can never be supposed to have been the intent of that Parliament to tye up themselves and the whole people of this Nation to the King on such hard terms nay supposing that the Parliament had done it I do not think they had any right so to do since they were intrusted
not as well suppose a like tacite consent in the Princess of Denmark's not making any Opposition or Protestation against this Act whereby the Crown was settled upon his Majesty during his Life but rather agreeing to it for I have heard that several of her Servants in both Houses did declare that the Princess did not design that her future Right should be any hindrance to the present Settlement Pray therefore tell me why may not King William hold the Crown after the Death of the Queen if she should happen first to die without any Usurpation as well as King Henry the Seventh held it after the Death of his Queen notwithstanding his two Sons Prince Arthur and Henry both lived to be Married before their Father Died and Henry the Eighth was then in his nineteenth or twentieth Year of his Age old enough of conscience to govern himself F. I confess these things were altogether unknown to me before as they are I believe to most of my condition and I give your Worship many thanks for your kind Information But pray Sir resolve me one Question more and I have done Do you think a Man may Lawfully take the new Oath of Allegiance to Their present Majesties notwithstanding King Iames is still alive and do you think I could justifie it in Law should I be called to an account for it if he should again by some unexpected means or other obtain the Throne I. Well Neighbour to satisfie you as to the first of your questions I answer thus I doubt not but you may Lawfully take this Oath since the Parliament have done no more in thus setling the Crown than what many former Parliaments have done before in like Cases whose Proceedings have been still looked upon as good and held unquestioned unto this day as appears by the President of Henry the VIIth I now gave you and upon which Declarations of Parliament who are the only proper Judges who have most Right to the Crown in case of any dispute about it the People of this Kingdom have still thought themselves sufficiently obliged to take such Oaths of Fidelity and Allegiance as the Government thought fit to frame and require of them according to Law But I confess the latter of your questions is somewhat harder to be answered because it depends upon a matter that is farther remote since we cannot tell whether if ever at all King Iames should re-obtain the Throne by what means it may happen for if it should be by the Force either of the Irish or French Nations I doubt not but we should be all made mere Slaves and Vassals without any Law or setled Property but his own Will But if it should be by any Agreement or Composition with him upon his Engagement to Govern according to Law the◠le◠me tell you Not only your self but every other Subject that takes this Oath will have a good Plea in Law for taking it by the Statute of the 11th of Henry the VIIth whereby it is expresly Enacted That every Subject by the duty of his Allegiance is bound to Serve and Assist his Prince and Sovereign Lord at all seasons when need shall require and then follows an Act of Indemnity for all those that shall personally serve the King for the time being in his Wars Which were altogether unreasonable if Allegiance had not been due before to such a King as their Sovereign Lord mentioned in the Preamble and if Allegiance were due to him then certainly an Oath may lawfully be taken to observe it since it is no more than what the Law hath ever required from Subjects to such a King not only by this Statute but at Common Law too as appears by my Lord Cookes Comment on the Statute of Edward the IIId where he asserts not only from the Authority of this Statute but also from the old Year-Books that a King de Facto or for the time being is our Lord the King intended in that Statute and that the other who hath a Right and is out of Possession is not within this Act. So that you see according to this Act of Henry the VIIth as also by the Judgment of the best Lawyers of England whatever Person is once solemnly Crowned King of England and hath been so Recognized by Authority of Pariiament as Their Present Majesties have now been are and ever have been esteemed Lawful and Rightful Kings or Queens though they had no Hereditary Right of Succession as next of Blood as I have proved to you from the instance of King Henry the 4th and 7th and could do also by the Examples of Queen Mary or Queen Elizabeth take which you please since they could not both of them succeed as the Legitimate Daughters and Heirs of King Henry the Eighth So that it is plain one or other of these Queens had no better than a Parliamentary Title to the Crown Therefore upon the whole matter whether Their present Majesties are Heirs to the Crown by Lineal Descent is not the Question but whether by the Law of England they are not to all intents and purposes Lawful and Rightful King and Queen so that an Oath of Allegiance may be lawfully taken to them and all men obliged to serve them in all their Wars and other Affairs even against King Iames himself since we cannot serve Two Masters that is owe Allegiance to Two Kings at once F. I cannot deny but what you say seems not only very reasonable but also according to Law but I heard the Squire and the Parson we but now mentioned positively assert That the King and Parliament had no Power to alter the Succession to thē Crown though they would and that therefore this Statute of Henry the Seventh you now mentioned which indemnifies all those that take up Arms in defence of the King for the time being is void First Because made by an Usurper who had no Right to make such a Law in prejudice of the true King or the next Heirs of the Crown but also because as they said it was but a Temporary Act and was to last no longer than during his life and lastly because this Statute hath never been allowed or held for good in any cases of Assisting Usurpers since that time for the Duke of Northumberland was Arraigned and Executed for Treason in the time of Queen Mary because he had Assisted and Taken up Arms on behalf of the Lady Iane Gray who was Proclaimed Queen and Reign'd as such for about a Fortnight and yet tho the Duke Pleaded afterwards that he had Acted nothing but by Order of the Queen and Council for the time being yet this Plea was over-ruled by the Peers who were his Judges and he was Executed notwithstanding Lastly they said That this Statute was implicitly or by consequence Repealed by those Statutes of Queen Elizabeth and King Iemes which appoint the Oaths of Allegiance to be only taken to the King his Heirs and lawful Successors besides a Statute of
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