natural Allegiance Yea it is not questioned by those that most scruple about the present Settlement but now there are positive Laws requiring those Oaths yet before they are taken the respective Duties both of King and People are to be observed by force of the radical nature of our Monarchy and the fundamental Constitution of Government in our Common Law. 2. For a further Answer we must remind what hath been said of our Hereditary Monarchy which if understood in no other sense than these very Persons are eager to maintain methinks supercedes this Objection For if the Government in their own sense be hereditary then in consequence of it when the Throne is vacant of the Predecessor it is in the same instant fill'd by the next Heir as to Right and Title in Analogy with all other Cases of Inheritance and even from the nature of Inheritance We need not here speak over again what we have about the late King's Abdication and leaving the Throne void we may be allow'd here to suppose it and then 't is evident that upon this ground upon that avoidance without any intervention or Act of the People either in a Convention or Parliament the Crown immediately descended to the next Heir of the Royal Family by Right of Blood or Birth-right 3. So far for their Right As to their Entry and Possession of the Government tho in all such extraordinary Revolutions it hath been safest to be admitted with the Consent of the People yet 't is evident from the same Concession that it is their Inheritance that the next Heir may claim and take possession of himself without the Consent or Act of the People that is he hath right to do so and if he be hindred and kept by force from his lawful Entry without just Cause or his own Consent he is apparently injured And this seems to follow irresistibly from the nature of an Inheritance 4. Accordingly the Duke of Lancaster came into the Parliament and claimed and challenged the Crown as descended unto him by the right Line of the Blood of Hen. 3. and his Claim and Challenge without any Dispute was immediately admitted Upon the Resignation of Edw. 2. his Son Edw. 3. as the first-born and Heir of the Kingdom declares that upon his Father's Concession by the Counsel and Advisement no other Act of the great Men he assumed and took upon him the Government 5. But I need instance in no more when we have considered what passed in Parliament 1 Edw. 4. They declare the King was in Right from the Death of the King his Father very just King and that they take and repute the said Edw. 4. according to his said Right and Title declaring his Title was just and lawful as grounded upon the Laws of God and Nature and also upon the ancient Laws and laudable Customs of the said Realm Agreeable hereunto was the Recognition of King James before-mentioned 6. Now if we apply this to our own Case may I demand What was there left for the Convention to do King James had relinquish'd the Government and left the Throne vacant thereby there was an immediate Descent of the Crown by inherent Birthright to his Daughter if willing to accept it I say what had we to do more than to recognize and declare her to be Queen of England Indeed they did join in their said Declaration the Prince her Husband with her but they seem not to pretend to make either him or her King or Queen their words are these The Lords Spiritual and Temporal and the Commens assembled at Westminster do resolve that William and Mary Prince and Princess of Orange be and be declared King and Queen of England c. Object But why do they not then declare the Princess as immediate Heir to be Queen only or at least before the Prince Sol. This I hope hath been fairly accounted for before Consensus tollit-Errorem especially Consent grounded upon invincible Reasons of State in that Juncture or rather Confusion of Affairs And if we look back upon former times we are not without instances in this particular not much unlike it 2. Edward the 2d denied himself of his Right and actually relinquish'd the Government 't is not material here upon what Motives and his Son with the Father's liking and the Advice of the great Men was King of England during his Father's Life tho before he had sworn invito Patre he would never accept of the Crown yet when he doth accept it he declares he takes it not as the Gift of the People nor any other way but as Primogenitus Regis Haeres 3. Somewhat like it we read concerning Richard Duke of York he was permitted by the true Heir to the Crown tho his own Title to it was upon examination sound defective to possess the Throne for the honour of the King and to maintain Peace during his Life and the true Heir did cedere de jure suo with assurance to enjoy the Crown after the Decease of the King de facto 4. It was indeed enacted 15 Edw. 2. that the things which shall be establish'd for the Estate of the King and of the Realm and People may be treated moved and established by the King and by the Assent of the Prelates Earls Baerons and Commonalty of the Kingdom And there is no doubt but this is the proper course in ordinary Cases 5. But that there is a necessity for a Convention that is no Parliament in some extraordinary Cases to meddle in these high Matters none I think can question Namely if we can suppose the Royal Family extinct at least so far as there is no Heir appears to claim and take the Government upon the demise of the King. Is there not a plain necessity now to preserve all from Confusion for the great Men c. to meet and to consider where to place the Government according to Right or Merit 6. Again we may suppose two or more Rivals for the Crown upon the King's Death when there can be no Parliament that if in being before dying with the King should not the Great Men meet and prevent the Ruin of the Kingdom by Civil Wars by acknowledging and assisting the right Heir as they are bound by their natural Allegiance Yea I may add If a Pretender excluded by the Limitations of the Law should by violence invade the Government what Remedy if the People may not meet especially being invited thereunto by the next Heir qualified by the Law to keep out the Pretender and admit the lawful Heir to take the Government 7. That there may be Limitations put to the Descent of the Crown methinks lies not only in the Nature of Government but hath been the declared sense of the Kingdom i. e. of King Parliament upon all occasions and never denied And if those Limitations are necessary for the preservation of the Whole and our very Constitution as they may be or are clearly expressed in an
Act of Parliament if any one would break thrô and invade the Government he must be prevented by a Convention or the Foundation of the Government is subverted 8. Lastly The Throne being left empty of an Administrator lately in our own Case and we put into a state of Anarchy and great Confusion upon the late King's Departure Did not every Man that had any sense of our Danger and that is all that were not concern'd in the late methods of our Ruin Did not they see then a plain necessity to meet together and apply to the Author of our Deliverance desiring that he would take upon him the Administration of the Government till the Convention should meet and to give out his Summons for a Convention And was not that Convention regularly peaceably and freely chosen and assembled And what did they do but consider where the Right of the Crown now lay and with the Consent of all Parties as before is noted declare WILLIAM and MARY our King and Queen 9. True as yet they were no Parliament but as soon as there was a Possessor of the Throne the Lords and Commons so freely chosen by the subsequent Consent of the King of Themselves proceed into a Parliament and being so recognize the King and Queen and cause Proclamations thereof to be made throughout the Kingdom Which being done we have a King and Queen de facto and no room left to dispute their Title according to Reason 10. Give me leave to resume the Matter fair and plain All saw a necessity that the great Men should meet and some perhaps that now scruple and desire the Prince of Orange to take the Administration of the Government and summon a Convention and in that Exigence what could they do more seasonable and wisely and how could the Prince proceed more regularly and nearer to our Constitution having the Exercise of the Government than by summoning a Convention Or how could the People transact the Election to represent them more freely and quietly than they did And what had the Convention of Lords and Commons so elected to do but to consider where the next Title to the Crown lay and to declare and recognize the present King and Queen with consent of all parties concern'd as before was observed by which Act of the People of England they took and now have as evident a Possession of the Throne as ever any King of England had 11. I say now especially because since the Declaration of the Convention the Body of the Kingdom in Parliament have solemnly again recognized the present King and Queen and they have been since acknowledged by the People at large by Universal Proclamations throughout the Kingdom Obj. But the Assembly at Westminster may be thought but a Convention still and no Parliament because not at first summon'd by the King's Writs Answ However they truly represent the whole Body of the People and the Representers of the Commons and University of the People together with the Lords all concur'd to the Proclamations of the King and Queen and that 's enough certainly to render the Possession of the Throne by them undoubted besides the Solemnities of it at their Coronations by the usual Methods and all Formalities of Law. But let us consider this matter a little nearer 2. I do not say a Parliament can make it self but methinks 't is evident enough that the Persons elected by the People on purpose to be their Representatives in Conjunction with the Lords whose Right it is to sit in Parliament with the consent of the King sufficiently express'd should have both the matter and form of a Parliament 't is true we cannot conceive a proper Parliament in England without a King in Being or Possession but the Writs before can reasonably be supposed to have no further Influence into the being of a Parliament than only for the orderly Proceeding of the Election and signifying the King's Pleasure to have a Parliament To be short if we find the Name and Power of a Parliament given by the Law to Conventions not chosen by the People if we find the Definition of a Parliament given by a Statute to agree exactly to the present Parliament and lastly if we have a Precedent in the case why should we doubt whether the present be a Legal Parliament First That the Name and Power of Parliament hath been formerly given by Law to Conventions of the great Men and the Community of the People without any Election of the People at all and consequently not chosen upon Writs from the King this the learned Dr. Brady labours much to prove in favour of the Crown before as he saith Parliaments were settled as now they are He saith Colloquium Parliamentum Conference and Parliament were expressive one of another and in those great Conventions sometimes only the great Men of the Kingdom as at Runnemede are called a Parliament sometimes also with them the Communitas Populi but these he saith did not include the common sort much less imply the issuing out of Writs and thereupon the Peoples electing their Representatives p. 72. Answ to Mr. Petit. Whence I argue If a Convention heretofore without the Election of the People upon Writs from the King had the Name of a Parliament and concurred with the King to make Laws binding upon the People certainly now a Convention freely chosen by Summons from a Person that had the Administration of the Government in his hand and was in the place of the King though the late King had call'd in his Writs and left the Kingdom and that Exigence of Affairs could not possibly admit any other Remedy I say such a Convention when allowed by the King doth much rather deserve the Name and challenge the Authority of a Parliament The Argument receives much strength if we consider that now the Election of our Representatives so essential to our Parliaments is the great fundamental Priviledg of the People and consequently the King's Writs to that purpose that we may have frequent Parliaments is the Peoples Priviledg also besides the present King cannot be supposed to suffer any thing in his Prerogative who though in another Capacity did in effect send out such Writs and since he took the Crown hath allow'd the Election upon his own Summons for a Convention to serve in order to their being a Parliament what can be thought wanting to the making them a Parliament The People have their Priviledg and the King his Prerogative and while we have the Substance 't is vain to complain of the want of a mere Formality impossible to be had to the Unsettlement of a whole Kingdom Secondly The Definition of a Parliament agrees well enough with our present Parliament as we have it in 1 K. James the first A Parliament is where all the whole Body of the Realm and every particular Member thereof either in Person or by Representation upon their own free Elections are by the Laws of this Realm deemed to
be personally present Wherein we have two Propositions 1st That every particular Subject either in Person in the House of Peers or by Representation in the House of Commons are by the Laws of this Realm deemed personally present in Parliament 2dly That where the whole of the Realm are thus either in Person as Peers or by their Representatives upon their own free Elections present there is a Parliament 1. So that the Essence of a Parliament seems to consist in two things with respect to the two Houses The Presence of the Peers in their own Right and of the Representatives of the People by Virtue of their Election and to be entire without the Consideration of any previous Writs from the King. 2. Indeed we cannot well conceive that a Parliament properly so can be so without a King in being not for want of Writs to summon but for want of an occasion and reason of their being if the King be the Person with whom they are to parly caput Principium finis Parliament But seeing the Peers of the Realm and the Representatives of the Commons upon their own free Elections are assembled and the King in being allows approves and ratifies their Assembly to be a Parliament by his subsequent Assent as King to that manner of Summons which he before he was actually King invited them to and advises with them and makes use of them as his Parliament It is plain to me that they have the entire Substance of a lawful Parliament and that the King's Writs in such a case are but a separable Accident and that we should look upon our selves and the whole Body of the People as present there and acting or consenting to all the Laws made by the King and them 3. And lastly we are not without a plain and direct Precedent in the case upon King Charles the second 's happy Restauration as every one observes which is in terminis made the pattern by this King and Parliament in the late Act declaring themselves to be a Parliament though it wanted the previous Writs of Summons which could not be had And though 23 of the Statutes made by that Parliament were afterwards confirm'd 13 Car. 2. c. 7. yet the rest of the Acts made by them have been taken to be of as much force by the Judges though not so confirm'd And this of the 12 Car. 2. 1. is one of them as all other Laws made by our Kings whose Titles have been afterwards question'd with the Peoples Concurrence have been ever held valid Thus we have the Publique Judgment of two Kings and of the Body of the whole Kingdom in two Parliaments that such Writs of Summons before-hand are not necessary in all Cases and in particular in our Case to the Constitution of a true and Legal Parliament And who have most reason to understand and to judg and determine such publick and high Points concerning the Nature of Parliaments the King and Kingdom assembled together or Men of a single and private Capacity How far our Consent and Sense is concern'd in the Determination of those we have chosen and in some sort trusted with our politick Interest and in whom the Law lately mention'd saith We are deemed to be present I urge not but it may be worthy to be considered The Words of the Parliament being about to declare the Right of Richard the 3d. are these and I think them very pertinent The Parliament is of such Authority and the People of this Land of such a Nature and Disposition as Experience teacheth that Manifestation or Declaration of any Truth made by the three Estates of this Realm assembled in Parliament and by Authority of the same maketh before all other things most faithful and certain quieting of Mens Minds and removeth the Occasion of Doubts and seditious Language Which God grant CHAP. VIII Arguing from the Possession of the Crown I Have now finished the greatest part of my Undertaking and how I have vindicated the late Revolution and reconciled our present State to our ancient Constitution as an Hereditary Monarchy and admitting no Interregnum my Reader will be my Judg. As also of what I have said touching Abdication and Vacancy in the Throne of the Convention and their just and regular Proceedings in their Invitation of King William and Queen Mary to take upon them the Government of these Kingdoms and lastly of the Legality of the present Parliament and thereby obviated or answered the Objections made against the present Government From any or all of these as I intended I submit to his serious Consideration and candid Censure 2. But if all that I have hitherto said fail of my end in giving full satisfaction to such as scruple the taking the new Oaths of Allegiance to all the Arguments that have been so well inlarged upon by others I shall only resume that that hath been often insisted on taken from the Possession of the present King and Queen with the easy and just consequence of it If the Body of the Kingdom as represented by the Lords and Commons duly chosen or scattered over the Kingdom by their open uninterrupted and general Recognitions and Proclamations and their Coronations with all the Methods and Formalities of Law can give or can own and approve the Possession of the Throne and declare and manifest William and Mary King and Queen as no body can doubt they are certainly and must be acknowledged to be our King and Queen de facto Now hence it follows 1. Then we owe them Obedience due by Law for then we are their Subjects And we cannot conceive of Soveraignty without Authority nor of Subjection without Obedience This the Statute of Hen. 7. plainly supposeth due to the King in being and consequently that such an one is not a King in Name only but in Dignity and Power And the Subject may obey him fight for him and consequently take the military Oath an Oath to be faithful in that highest Act of his Service and doth assoil him from any Crime in so doing in Reason Law and Conscience 2. Hereupon the learned Lord Coke and Judg Hales affirm without Hesitancy That a King de facto and not de jure is within the great and ancient Statute of Treason 25 Edw. 3. 3. Now if we enquire why Treason may according to Law be committed against a King de facto the Reason is obvious namely because the Law looks upon him as really our King. As Treason they say cannot be committed against a King by Right only and hath not Possession which must be upon the like Reason because the Law doth not regard one out of Possession and cannot protect us or administer Justice to us as King of England 4. Hence it seems to follow first If the Subject may be guilty of Treason against the King in being it implies he owes the Duty that is contrary to Treason to the same King and what is that but Fealty or Fidelity that is a
Principle against Treason a faithful and loyal Mind keeping Treason out of its Seat which we know is not so much in our Actions as in the Mind and Imagination 2dly If Treason cannot be committed against the King that is out of Possession as he is not King according to Law so we cannot be thought to owe him our Allegiance that is Obedience according to Law for he is not King so as to rule or command us and then there is wanting the very Reason of Duty or of Fidelity to that Duty 5. It may not be unworthy our observation That if any one yet can be so weak or blind as to imagine that since the late King's Abdication the Crown is in Abatement and the Right lies somewhere else even in that case they say the Common Law favours the Abator and looks upon his Title to be good until the Right of the Heir be proved and the Matter of the Title be decided by Law and consequently all Duties in the mean time are to be paid by the Tenants to the Abator as if he had Right as well as Possession I need not apply it 6. However there is nothing in the Law of the Land or the Word of God that necessitates the Subject to trouble his Conscience with Scruples about the Titles of Princes or beyond the actual Possession and Administration of the Government 1. For the Word of God that supposeth Christians to be under the present Powers and strictly enjoins them peaceable and unscrupled Submission and Obedience to the Powers that are but this Argument hath been sufficiently enforc'd by others even to Demonstration 2. For the Law of the Land this justifies our Obedience to the present Power yea requires it and punisheth the contrary and will not endure any Scruples about the Right when the Possession of the Crown is once settled and terminates all Doubts of that kind in an Act of Parliament which is the publick Judgment and Sense of the Nation 'T was said by the Parliament of Richard the 3d after they had cleared his Title as grounded upon the ancient Laws and laudable Customs of the Realm according to the Judgment of all such Persons as were learned in those Laws and Customs they proceed and say Yet nevertheless forasmuch as it is considered that the most part of the People is not sufficiently learned in the aforesaid Laws and Customs whereby Truth and Right in this behalf of likelihood may be had and not clearly known to all People and thereupon put in doubt and question and over this how that the Court of Parliament is of such Authority that a Declaration made by the three Estates and by the Authority of the same maketh before all other things most faithful and certain quieting of Mens Minds and removeth the occasion of Doubts and seditious Language therefore they declare that he was the undoubted King. Whence 't is evident that the Reason of this Law supposeth that the Subjects in general are not capable of understanding the Laws and Customs upon which the Titles of our Kings depend and that the best Satisfaction that the Generality of the People can possibly have in those high Matters is the Sense and Judgment and Determination of the Kingdom by Act and Authority of Parliament wherein they should acquiesce for the preventing Sedition so much as in Language But to be short here the Law allows a King de facto the Name and Dignity and Authority and Defence of a King And doth it not require our Duty according to Law Was 't ever known the King being acknowledged to have the actual Government that the Subject was excused from Allegiance or an Oath of Fidelity as occasion required it Yea If Obedience according to Law be acknowledged due to the present Government as it now it seems is generally granted is not the Oath of Allegiance at this time required by Law as well as by the Relation of Subjects and so made a plain part of our Obedience according to Law Yet if the King in Possession be really our King do not our own Laws return upon us requiring Loyalty and Fealty forbidding Sedition and Scandalum Magnatum and all Endeavours to alter the Government that is at least by our peaceable and dutiful Carriage to acquiesce in the Work of Divine Providence in our late Revolution and the Acknowledgment of our Subjection due to William and Mary who as we have heard by the Laws of the Land heretofore made are our undoubted King and Queen because in possession of the Government their Right also is unquestionable by private Subjects being a Point determined according to the ancient Laws and laudable Customs of this Realm and their Right as well as Possession openly declared by the highest Authority of the Kingdom in Acts of the present Parliament Object But some are apt to say This is to prove that the Sun shines who denies that the present King and Queen are such de facto or that we ought to obey them Sol. 1. This is so far well But do we obey them without reserve for the late King Do we acknowledg that the Laws of the Land oblige us to give them our Obedience Or do we mean only that they have the Name of Soveraigns and a Power in their Hands to defend themselves against and to punish Disturbers of their Possession If it be so we do not take right Measures of their Authority or of our own Duty according to Law. 2. For they are really King and Queen by being in Possession and invested by the Laws with Regal Authority as well as Power otherwise they could not be within the purview of the Statute of Treason 3. Consequently all their Actions that are politick and for the matter agreable to Law are as valid and of as good Authority as the Acts of the most rightful Kings They have Authority and do effectually execute and make Laws while they are in Possession as they do protect us so they administer Justice dispose of Offices coin Mony make Peace and War punish all kind of Offences as well against the Subjects as the Government 4. And such Acts of a King de facto only without Right as concern and have Influence upon the Kingdom have ever been allow'd and reputed good and valid though the Title to the Crown hath been question'd and denied in after-Ages as we noted before 5. That very Parliament that condemned the Usurpations of Hen. 4 5 6. and all Acts that had entailed the Crown contrary to the course of Inheritance yet add these remarkable Words Howbeit that all other Acts and Ordinances made in the said Parliament since been good and sufficient against all other Persons I would infer hence that Obedience is due to the present King c. in his Authority by Law acknowledged as well as Power and therefore not only for Wrath but for Conscience sake Conscience I say not of their Title but of their Authority and our own plain Duty
at least for Conscience sake with respect to the publick Good to take the Oath of Allegiance which is part of our Obedience it being required by Law and therefore our Duty Obj. Your arguing seems to perswade us only to Obedience which we do not much scruple in the sense you explicate it The Swearing to bear true Allegiance is that which troubles us not knowing well the intended sense or meaning of it Sol. The Government hath given us reasonable Satisfaction in this Particular though not so clear as may be wish'd the very Title of the Oath even in this new Law is the Oath of Allegiance or Obedience Now if Allegiance in the sense of the Law as explained by the Law-makers be nothing but Obedience and Obedience in England is to be measured by the Laws what can Allegiance import more than Obedience according to Law which you say you are willing to yield and why now should you refuse to add this Sign and Security of such your Obedience by taking your Oath to do so 2. Moreover you find the Government insists not upon the Word Allegiance nor intends any strange or obscure Obligation upon us by it for in the Declaration they require of Quakers who refuse to swear they express Faith and Allegiance by those plainer Words I will be true and faithful to King William and Queen Mary 3. And as one lately hath very well observed the Parliament have avoided all occasion of Offence in wording this Oath that might consist with the Security of the Government for by omittting the assertory part of the former 't is evident they do not require us by this Oath to assert the Title but to secure the Possession and Peace of the Crown in King William and Queen Mary by our Obedience according to Law. Indeed we may perceive in the whole Proceeding of our late wonderful Revolution so much Sweetness Tenderness and Condescension to the Prejudices that the former state of things might leave in us both with respect to our late King and our own Obligations as if the Government had industriously studied to avoid all occasion of Offence as much as the nature of the Change suffer'd to be possible I have I think noted before that the Convention did not depose the late King did not declare the Crown forfeited did not require him to make a Resignation of it and tho they justly charge him with many intolerable Grievances yet they did not call the King to an Account for them Nay they did not so much as declare that the King is accountable so that the Minds of such as boast of excessive Loyalty have ease as to all these things that bear so hard a Contradiction to their Principles and as for our selves we have noted some Kindness and Condescension with respect to the Oath required thereby it it is neither required that we should abjure the Title of the late King nor assert the Title of the present God forbid therefore that there should be left any Prejudice in us from the hard Proceeding of the Government in either kind if it should it is plainly as false in its ground as 't is like to be evil in its Consequence especially if we stiffen our Disloyalty with the Continuance of a scandalous Impeachment of our Rulers and Legislators for Severity intended against the Church and a designed Alteration or Change of the ancient Constitution of this Hereditary Monarchy the one I hope is as true as the other Obj. The Statute of Hen. 7. so much depended on was made by a King that had no Title to the Crown himself Answ What then Doth it follow that the Statute is not of force Upon that ground we must blot out a great part of our Statute-Book which is full of Laws made by such Kings and the best of our Laws have no force if the Observation hath any truth that the worst Kings made the best Laws Object But 't is a Law mischievous to the Right of our Kings Answ It is much this Mischief hath not been discovered by our former Kings or Parliaments that so mischievous a Law should continue through so long a tract of time unrepealed 't is confess'd it may be inconvenient and prejudice the Interest of a King de jure but we ought in reason to set this against it that it is a Law at all times convenient and serving the Ease Quiet and Safety of the Kingdom for whose sake Kings themselves are 't is hereupon that the Lord Bacon tells us that the Spirit of this Law was wonderfully pious and noble upon this ground as one saith well because they who had no hand in the Sin should bear no share in the Punishment And the Lord Bacon adds That this wanted not Prudence and deep Foresight for it did the better take away occasion for the People to busy themselves to pry into the King's Titles for that however it fell their Safety was already provided for And as the late Author that cites my Lord Bacon for these Words adds very well The meanest Capacity will not be wanting for a Rule of that Subjection which every Soul owes to the higher Powers but if the Subject ought first to satisfy himself touching the Right of his Prince especially in such a time of contest as there was many Years betwixt York and Lancaster certainly every Soul could hardly be so well satisfied as to be subject for Conscience sake CHAP. VIII Whether a King can make Laws limiting the Crown Obj. THough it be acknowledged that a King de facto hath Power to make other Laws viz. Laws for Peace and Justice yet it is a Doubt whether a King that hath no right to the Crown can make Laws for limiting the Succession of the Crown as is now to be done Answ It is confess'd that when it was pleaded against the Title and Claim of the Duke of York that there were divers Entails made to the Heirs Males of Hen. 4. It was answered There had been none made by any Parliament heretofore as it is surmised but only in the seventh Year of K. Henry the Fourth But that Act taketh no place against him that is right Inheritor c. Howbeit all other Acts made in the said Parliament since have been and are sufficient against all other Persons Upon this Law the foresaid Distinction seems grounded but I think very weakly for these Reasons 1. Because this very Law mentions Henry the Fourth with the Addition and Title of King without any Diminution as appears in the Words cited 2. The ground upon which that Entail was declared Null was not a want of Power in King and Parliament to make a Law about the Succession but as they declare in the Dukes first Answer That no Oath being the Law of Man ought to be performed when the same is against the Truth and the Law of God implying as afterwards they speak out it was a Law though of Man it faileth not for want of Authority
Allegiance are both the natural and legal Results of the Relation betwixt King and Subject which very Titles do after a sort import so much 7. Nor is the taking this Oath necessary only by the Law of Nature and by the Common Law of the Land and Acts of Parliament but by the Law of God. If we should grant it to be perfectly indifferent without it yet we must grant that if it be determined by the Word of God it thereby becomes necessary Now I should think that to obey the Powers in Being is as clearly commanded by the Law of God in the Holy Scriptures as by any other Law whatsoever And that we cannot or do not obey the Powers in being if we refuse to take the Oath which we say is in it self indifferent when expresly required by the Laws of the Land. 8. I think it is the Sense not only of the Church of England but of all good Christians that the Word of God makes it our Duty to obey the Government in all indifferent things made necessary by our own Laws And that we are bound to such Obedience not only for Wrath but Conscience sake Conscience towards God his Ordinance and Command let us not misjudg it for our Honour or Reputation to change our boasted Loyalty into Disobedience which is scarce to be avoided without obeying the Laws of God and Man and taking the Oath Secondly But were there no other Law requiring us to take this Oath Doth not the necessity of it as it is a Means make it our Duty What if Reputation weigh something with us doth not the Danger of the Publick continued by our Stiffness weigh more Do we talk of Honour when the Commonwealth lies at stake Is it comely for a Souldier to be playing with a Feather in his Cap when Hannibal is at the Gates 1. Pardon me if Zeal hath eaten me up and I cannot contain O Jerusalem for my Brethren and Companions Sakes I will now say Peace be within thee yea because of the House of the Lord our God I will seek to do thee good 2. Who considers how much is owing to niceness and strangeness to the Government for the Hazards and Blood of Ireland and Scotland already Who weighs the further Consequences of it both at home and abroad Where is our Compassion to our Protestant Brethren our Concern for the Reformation our Charity to the Kingdom our Justice to our Protectors our Kindness to our Friend our Gratitude to our Deliverer from Popery and Tyranny These are substantial and weighty Things And what are the Colours of a pretended Reputation in comparison of these 3. What do we mean upon a point of Honour to throw a Glove to the Government Is it reasonable or fit for us to provoke the King to a quarrel who hath so many Enemies already and must stake three Kingdoms to our little Reputation Yea the Interest of the Protestant World too of which he is made the Protector 4. Is it not Satisfaction enough for you that you have plaid the Men and stood it out as long as there was the least hopes of serving the Interest of the late King and so long vindicated your Loyalty to him Is is not now become morally impossible he should ever return but by the Assistance of the French King that is without inslaving us openly to the Antichristian Powers of which he is the Head under a haughty cruel and most barbarous Conqueror 5. Besides how unaccountable are Principles that engage a Man against his own as well as the publick Interest as if a Man were bound to oppose and fight with himself and all about him certainly this is a miserable strait and such as one cannot imagine the wise and good Providence of God should bring us into 6. By disobeying the Law and our Distance with the Government we continue a Breach at which a common Destruction may enter then we know we are lost in the common Calamity If God in Mercy prevent that and preserve us with wonder against our own Averseness as he hath done then there is yet a Breach betwixt the Government and us If we do not destroy the Publick and our selves that way yet we may destroy our selves when we might help it A man may be Felo de se by destroying himself by our Law and Fur de se by depriving and stealing himself from him to whom his Service is due by the Imperial Law and Proditor de se by the Law of Nature if he descend from the Dignity of Humanity and submit to the danger which he might avoid I speak as to wise Men judg ye what I say 7. 'T is a plain thing I am about to speak which if duly pondered must needs put an end to the whole Controversy at least I think so 'T is this None can be ignorant that the late King hath put himself into that condition that the French King is now actually endeavouring to serve himself of him for the Conquest of these Kingdoms he hath put himself absolutely into the Monsieurs Power he truckles under him in the Irish Commissions he hath either sold his Dominions to that King or so delivered up his Interest in them to his Management that 't is a piece of Madness to imagine but that the French will reap the Advantage of any Success God may suffer to be obtained against us Perhaps we may think the poor King James was forced to it but I know you will say you had no hand in that force and you could not help it and is not the thing de facto so Is it any thing to you by what means or upon what Motives this came to pass but it being certainly so you cannot now think but that seeing the State of things is such your Allegiance to King James is ceased unless you owe it also to the King of France which God forbid for while you continue to discountenance the Government you cannot do more to further the Designs and Methods of our Ruin. 8. The Apostle makes Expediency the Rule of our Practice in things indifferent so that some things are to be done or not to be done because expedient or not expedient upon which this Objection is urg'd Now if it be indifferent in it self to take or refuse the Oath I hope what hath been said is enought to satisfy us where the Expediency lies All things are not expedient Why Because all things edify not much more if they ruine and destroy It is something Non promovent publicum Ecclefiae bonum if they do not promote the publick Good of the Church much more si magis destruant if they tend to its Destruction as Authors gloss upon the Text. 9. One would think this Consideration might fully convince us that our Obligation to the present King c. is widely different from that which lay upon the People during Oliver's Usurpation they had reason to refuse or at least to suspend the
us that the Testamentary Heir that is one that comes to the Crown by the last King's Will tho not next in Blood is said to inherit But to apply this distinction methinks it doth two great things it first plainly yields the Cause so far as to the necessary descent of the Crown in Proximity of Blood Secondly It gives a shadow at least of Election if not in the People yet in the King if by his last Will he might pass by the next in Blood and name that is properly to chuse another to succeed him in the Throne Besides if this was anciently done both frequently and lawfully where shall we found hereditary Government in the strict sense of it in the Constitution of the Kingdom or how shall we defend it from being in no wise elective Yea if the King himself upon some considerations might chuse his Successor and set aside the next in Blood without wronging him certainly upon great Considerations the like may be done by both the King and People And we find that Testamentary Heirs of the Crown tho they were indeed named by the King are said to be chosen by the People and yet are also said to inherit and if we observe it narrowly we shall easily note that the words Hereditary and Elective with respect to the Government are some-times confounded in History Successione Haereditariâ eligere was no contradiction The Testament of Ethelwoph Florence of Worcester calls it Epistola Haereditaria by which it is said he set aside his own two Sons as the Doctor notes p. 363. where he tells us moreover what the Law of Succession as well as the Practice then was the Saxon Kings saith he might appoint a Brother's Son or a Bastard to succeed them before their own lawful Issue But to come a little closer I may demand where when or how this Maxim that the Crown of England is necessarily annex'd to Proximity of Blood in the Royal Family came to be of the Foundation or Constitution of our Government That it was never made so by Custom or any other Law or by any other means the learned Doctor yields us by his Refuge in a Testamentary Heir I am assured under the hand of a very learned Lawyer who is a great Friend of the Hereditary Monarchy that this Maxim in contradiction to the former the Crown was alienable and devisable was retained and never contradicted until the Resignation of K. John and since that time how hath it been contradicted or denied either in practice or the declared Judgment of the Kingdom It is evident enough what the sense of the King and Parliament was in Henry 8th's time and since in Queen Elizabeth's and since that in our late Parliaments And nothing to the contrary can I think be fairly inferr'd either from that Act of 7 Hen. 4. that limited the Succession of the Crown to his Sons in order and their Issue or that of Hen. 7. that limited to the Heirs male of his Body and no farther Or the Recognition of K. James the first for by that of Hen. 7. it is plain the Parliament thought they had power to limit the Succession otherwise they would not have meddled with it besides they limited it indeed by extending it only to the Issue male of his own Body And as for the Recognition made to K. James it seems to be the clearest and fullest acknowledgment of an hereditary Succession yet we may observe how it is expressed 't is indeed declared that the Imperial Crown did belong to him and his Royal Progeny and Posterity for ever but 't is not said of necessity notwithstanding any Reason to the contrary it shall actually descend to the next in Blood in order for ever Besides they say in the same Act that this their Recognition could not be perfect or remain to Posterity without the King's Consent that is to make it an Act of Parliament And doth not that imply that hereditary Succession of the Crown was not accounted to be fundamental to our Government before For then it would have been perfect in it self without the King's Consent Besides it seems evidently to follow that the Kingdom at that time judg'd that the Succession of the Crown was limitable by Act of Parliament Yet lest after all this I should be mistaken I make this observable from our own Histories that tho sometimes the next in Blood hath been set aside and for ought I find to the contrary upon Reasons of State may be so again yet it seems the Royal Family have Jus ad Rem and have Right thereunto before any other if any Member of the Royal Family are capable of Government so I think we find it generally carried that is when the next in Blood hath been omitted generally some one either really or in pretence of the Royal Family hath been advanced to the Throne This general Right to the Crown by Blood hath been sometimes pleaded by our Kings and allowed by the People and Parliaments but never denied and tho we cannot say the next in Blood hath an uncontroulable and immediate Right beyond all exception to enjoy the Crown tho we cannot find this Right in the constant usage as Common Law and a Fundamental of our Government yet we may grant that in all Turns and Temptations to the contrary the Right of the Royal Family seems to have countenance if not plain and general Acknowledgment and to pass unquestionable with the silent Testimony of many Ages I am sorry to observe with Daniel that before this last Age seldom or never the third Heir in a right Descent enjoyed the Crown of England It cannot be denied but that our Parliaments have frequently concern'd themselves about the Succession and that our Kings both such as came to the Crown by proximity of Blood as well as those that came to it otherwise have often applied themselves to the Parliament not only for their own Security but to limit and qualify the Succession after them Yea further I think it must be granted as one saith smartly enough That 't is a most dangerous thing to have an Opinion prevail that the King in concurrence with his Parliament should not have power to change the direct Order of Succession though the Preservation of him and his People did depend upon it Yet after all this if Common Vsage be Common Law and continued Practice be our Rule of determining this great Point I think the Royal Family have a radical Right in the Government of England and bids fair for an Interest in the Constitution of the Kingdom for it seems to have governed the Disposition of the Crown all along both before as well as since William the first and that generally with our several Kings and Parliaments ever since we had any I shall leave this easy Observation only take notice of two Concessions which I apprehend considerable The first is that of Dr. Br. he saith the Saxon Kings might appoint a Brother's
being made by a King de facto with his Parliament but the reason why it could not oblige was taken from the matter of it it diverted the Descent and Succession of the Crown according to Right of Inheritance 3. The Argument that a King de facto hath no Power to make Laws to limit the Crown because he is supposed to have no Right to the Crown himself I say this seems not cogent 'T is true 't is supposed he had no Right at first and his Usurpation cannot be thought to create any just Title to the Crown yet when he hath it hath not he Right or rather Authority in Law by his Possession to use it that is to make Laws If not then all the Laws he makes even those for Peace and Justice are void for want of Authority which this very Law against the Entail of Hen. 4. denies I grant all positive Laws made by a rightful King or by an Usurper are equally voidable i. e. repealable But if we speak of such Laws as are void of themselves it seems to me they must be so one of these two ways Either for want of due Authority to make Laws Or with respect to something in the Matter of such Laws as is destructive of them For the first way 't is granted me that a King de facte only hath Authority enough to make Laws generally speaking if his Laws therefore be not of force to limit the Succession 't is for another reason mention'd before taken from that special Matter of the Right of Inheritance which it is thought cannot be infringed by any Law of Man. Hence 't is still a doubt with me whether a King de facto hath not an equal Power with the most rightful King to make any Law even touching the Crown as any thing else Suppose a King de facto after some Contests about the Succession settle the Crown as it ought to go Is not such a Law a good Law Wherein can it fail neither in Matter nor Authority Again the most rightful King in and by his Law limits the Crown as it ought not to be Is that Law a good Law No Power can make a Law that is malam in se to be bonam I confess I see no difference in the Legislative Power of a King regnant whether with or without Right especially seeing the Parliament which is the Body of the Kingdom choose the Matter and give Authority to the Laws as well as the King. But this Nicety need not trouble us under their present Majesties whose Title to the Crown I hope is unquestionable as well as their Possession of it Besides there is no room for this Objection among all our Scruples about the Oath of Allegiance for in our private Capacity we are not to answer for Errors in Government If the Succession can be supposed to be limited in any Point amiss how can we help it What 's that to our Duty how are we concerned The Law doth not require us to assert or swear to the Act of setling the Crown for the future it requires only our Obedience to our present gracious King and Queen and we do our Duty if we look no further CHAP. IX The Honour of the Church of England no just Objection against our taking the new Oath Obj. I Have heard it offer'd by some that tho it be lawful to submit to the present Government and to take the new Oath of Allegiance yet by our doing it the Church of England suffers in her Honour and her distinguishing Character of Loyalty Sol. I have some Reason to hope that with several Persons not perfectly reconciled or satisfied this is the last Objection that remains unanswered I shall therefore briefly with all the Strength I have at present set my self to remove it and so conclude 1. I confess Loyalty hath been reckoned the Character of the Church of England and in a great measure very deservedly but if we mean such Loyalty as doth distinguish her from all other Churches of Christians in the World it may be an Argument of Singularity and Reflection upon all other Protestant Churches as well as Popish Principles and Practices as some lately have made manifest demonstration And how honourable or laudable that is I determine not but it may be considered 2. I perceive the Movers of this Objection do not say that 't is unlawful to take the new Oath and indeed that is granted in the nature of the Objection for if the Oath be refused only because 't is dishonourable to take it 't is supposed to be in it self lawful tho not expedient And indeed the Argument would have force enough if there were not some heavier Thing than Honour to be put into the other Scale 3. And thus the present Argument is not directly Matter of Conscience but of Prudence For the Matter in genere and in its first Consideration is granted to be indifferent and 't is to be determined to be good or evil by the Addition of something to it in our special and secondary Consideration Now here you lay Honour and Reputation in the Scale and this hath its Weight but if we put Necessity against Honour and Reputation the Weight of these is inconsiderable and what is the Consequence Why that which we thought was not to be done because it was dishonourable we see it must be done because 't is necessary This is the Law of Prudence and Expediency changeth sides that which was expedient not to be done for the sake of Reputation 't is now expedient it should be done when the Necessity of it appears with its greater Weight 4. You already perceive how easily this applies it self to the Case in hand admitting something of Dishonour may in general and prima facie attend the Action for the very granting it to be an indifferent thing in it self whether I take this Oath or not plainly determines the Case and puts an end to the Controversy 5. For I boldly and peremptorily pronounce that if it be indifferent it hath such Additions and Circumstances as cannot but make it an indispensible Duty Rebus sic stantibus from the Argument or Ground of Necessity viz. both Precepti Medii 6. First There is a necessity of the Precept or Law that makes it to be our Duty to take this Oath which is but the Security of our Allegiance 't is required by the Nature of our Constitution and immemorial Custom which is our Common Law 't is required from the Paction betwixt Prince and People to secure each other by their respective Oaths 't is required by virtue of the Statute of Hen. 7. whereby we are to acknowledg the King regnant to whom alone we owe Allegiance and must secure it And lastly 'T is expresly required in the Laws of our own making by our Representatives in the present Parliament in and by which Parliament the King and Queen have equally sworn and plighted their Troth to us Whence Protection and
Recognition of a Tyrant whose Government was Arbitrary and was never owned by the People in a Free Parliament who never took upon him the name of King the proper Title of our Soveraign in all our Laws under whose Violence and great Oppression the Kingdom in general groaned for Deliverance in the return of their rightful King and might laudably hazard their Lives and Estates if there was any hopes the Accomplishment whereof by the wonderful Providence in its due time was happily effected in the Restauration of King Charles the second But what is our case now is it not quite contrary We do acknowledg we are now rescued even from Destruction as well as Oppression And what can we look for upon a new Change but a Scene of Blood the Loss of all our Civil and Ecclesiastical Liberties under French and Popish Slavery What can we hope for if the Lion bereft of his Whelps thirsting after Revenge be let loose upon us Will not his Rod that smarted before be turned into a Scorpion and the latter end of his Tyranny be worse than the beginning 10. Blessed be God there is an unclean Spirit ejected and our House is swept and garnished Is his Return to be courted or indeed to be hazarded If he should re-enter will he not pester us with more and worse Devils if possible when in vain and too late perhaps we may wish we had never encouraged or occasioned our renewed and aggravated Misery It highly concerns us to do what we can to prevent it and I see no other way left us to shew our Apprehension of the danger but by comforting the King who under God hath dispossess'd us and who only under Heaven is the visible Instrument of our Preservation from that last Estate to use our Saviour's Words that will be worse than the first which I hope we are yet sensible was bad enough and how we can do this without assuring him of our grateful and cheerful Allegiance and Fidelity by taking the Oath I cannot see at least I doubt not but enough hath been said to demonstrate the Inexpediency of our continuing to refuse it and consequently upon that Argument a Necessity of taking it notwithstanding the Objection of the Reputation of the Church of England for her singular Loyalty 11. To conclude I need not mind you since the three Estates in Parliament with the Generality both of the Gentry and Clergy throughout the Kingdom have left you perhaps three or four in a County take one County with another that yet stand out I say I need not mind these very few in comparison how fitly they took to themselves the Name of the Church of England or how likely a thing it is for them by scrupling the Oath to preserve her Reputation of Loyalty in their own sense Let the time past suffice that they have endeavoured it so long as there was any hopes to do it but now if the case be plainly desperate 't is time for them upon all the Arguments so many worthy Men as have laboured in Print for their Satisfaction to cry Quarter and to yield to the prevailing Power I mean to come in and submit and give the required Security thereof by taking the Oath of Allegiance to King WILLIAM and Queen MARY whom God long preserve and prosper AN APPENDIX The Objection from the Word Allegiance considered AFter I had put an end to my former Discourse I heard of the following Objection Object It is said that Allegiance being the Word in the new as well as in the Old Oath it seems it ought to be understood in the same Latitude and Sense in both Then how can we safely swear Allegiance to the present King and Queen in the same sense in which we have sworn Allegiance to the former King while the former King is alive Answ I hear this is the Scruple of some ingenuous Persons for whose sake I shall accommodate my Answer to their own Principles as neer as I can first by shewing that those two Oaths though both are called Oaths of Allegiance yet they are not of the same Latitude in the matter of them Secondly that though in a great measure they are admitted to have the same sense and though in that sense in which we have sworn Allegiance to the former King we are required to swear Allegiance to the present King and Queen yet we safely and honestly do it 1. For the first It is plain that the former Oath though it be called the Oath of Allegiance yet it hath more in the matter of it than can be imported in the Word Allegiance it hath two manifest parts of a different Nature the first acknowledgeth the King's just Title to the Crown as rightful King and is found in the form of an Assertory Oath The other is as plainly promissory I will bear Faith and true Allegiance c. Now though with respect to this promissory part of the old Oath we should grant that by the new Oath we are to swear in the same words and in the same sense yet 't is more than evident that these Words cannot be intended to assert any thing about the Title of the Crown and in all likelihood the Assertory part of the former Oath was left out on purpose in the new to avoid matter of Scruple or Offence Yet 't is confess'd that Argument suffers but little in its Strength if both these Oaths agree or are the same in any substantial matter while Men doubt that the former Oath doth oblige them to bear Allegiance to King James in the same sense in which we are required to take the new one It behoves me therefore now to prove the second thing proposed viz. That though Allegiance have the same sense and meaning in both and we have before sworn it to King James in that sense yet we may safely and honestly swear to bear Faith and true Allegiance to King William and Queen Mary Object The Objection in short is this If Allegiance sworn to King James be due to him by virtue of our Oath it cannot be due to King William and Queen Mary in the same sense it is due to King James Answ The Answer is as short for if Allegiance be due to King William and Queen Mary in the same sense that we swore to King James then 't is not due to King James tho we so swore For our former Oath cannot oblige us to King James to the injury of King William and Queen Mary it would then be a Bond of Iniquity We see the Objection and Answer stand both upon the same ground namely That Obedience or Allegiance cannot be due to two Kings in the same sense at once Therefore if I prove that Allegiance is due to the present King and Queen it must be yielded that our former Oath to King James cannot oblige us to pay such Allegiance to him My Argument is this Allegiance is due to the Supreme Power in being therefore it cannot be
Populi the Preservation of three Kingdoms is concern'd and in danger and the more by the Colour of our pretended Allegiance I think there is much weight in the words of a late Author I can be sure saith he of nothing if I am out in this Notion That no Oath can bind any longer than the Obligation thereof is consistent and reconcileable with Salus Populi the Welfare the Spiritual and Temporal Welfare of the People which is the sole End of all Government And seeing the Safety and Preservation of the Community depends upon the Promise of Allegiance to the supream Governor for the time being and the Subjects are under a plain necessity either to hazard or ruine the Publick or to transfer their Allegiance they may certainly do it lawfully yea are bound to do it by the Law of Laws Salus Populi suprema Lex Secondly So much briefly for the Law of Nature Now do not the Holy Scriptures warrant the same Do we find any either in the old or new Testament that scrupled or were question'd for their Obedience to the Powers in being I think the present Reverend and Learned Dean of Sarum Dr. Pearse hath a Sermon in print to prove Submission to Governments a Fundamental of the Christian Religion I am sure our Saviour and more largely St. Paul require our Obedience to the Powers that are without any Consideration of their Title merely because of their Authority and Administrations in which the Apostle expresly founds the Duty of Subjection for Conscience sake The Arguments to this purpose lately urged from Romans 13. by several worthy Authors I despair of ever seeing tolerably answered to whom I refer my Reader only let us meditate those notable Counsels of God by the Prophet Seek the Peace of the City Babylon where the People were Captives to their Tyrannical Enemies and pray unto the Lord for it for in the Peace thereof ye shall have Peace Jer. 29. 7. Thirdly Lastly Is there not sufficient in our own Laws to justify our Allegiance to a King regnant without our being satisfied touching his Title Have we not the Authority of former Ages Is not our Statute-Book a clear Testimony of it In what time was it ever denied Who was ever censured or punished for granting it Are not all such Kings who reign'd without Right recorded as Kings of England and their Laws as authentick and obligatory Is it not evident then that Allegiance due to a King regnant with right or with none is agreable to the State and Principles of this Monarchy and founded in the Usage and Common Law of England But that which methinks should put the matter beyond Question is the known and often mentioned Stat. of 11 Hen. 7. 1. grounded as it speaks the sense of the Nation upon Reason Law and good Conscience And though the worthy Author of Considerations and others have with a great deal of strength argued hence to satisfy the Scruples of our Brethren and it cannot be expected that I should add any thing very considerable yet I shall very briefly observe a few things for our purpose from it 1. 'T is thereby acknowledged that a King de facto hath the Name and Stile of a King of England 2. We are to recognize such a one as our Soveraign Lord. 3. That Allegiance is due to such a King from all his Subjects 4. That by reason of the same Allegiance they are bound to serve him even in his Wars 5. That they are never hereafter to be question'd tho the lawful King should recover his Right for so doing their true Duty and Service of Allegiance as the Words are 6. That War made against such a King by his Subjects is Rebellion All these things are plain in the Letter of that Law which hath continued unrepealed or unquestion'd for above two hundred Years and consequently so long hath been the approved sense of the whole Nation That Allegiance and true and faithful Service is due to our soveraign Lord for the time being whatever his Title be Hence it follows that in the sense of the Law a King de jure only is not King. The Statute saith the King for the time being and seeing we can have but one King he that hath only right to be King is no King in being or for the time being Hereupon I suppose the great Lawyers inform us that the King de jure only is not within the Purview of the Statute of Treason is not as they say Seignior le Roy. Consequently if Treason cannot be committed against a King de jure while he is out of Possession Allegiance cannot be due to him which is a Duty we owe to the King as our Soveragin Lord and none in the Eye of the Law is so but the King in Possession thus the formal reason of the Oath of Allegiance to the late King ceasing if he be no King in Law because out of Possession the Obligation of that Oath with respect to him ceaseth also besides much of the matter of our former Oath is gone too for we were sworn to bear true Allegiance to him in revealing and preventing Treasons against him and now he is not an Object capable of Treason But they also tell us Treason may be committed against a King regnant without Right and if so 't is thence evident that Allegiance is due to him against which Treason is directly contrary Treason is an Offence against our natural Allegiance which appears from the form of Endictments the words are Contra debitum Fidei Ligeantiae suae against the Duty of Faith and true Allegiance so near are they to the very Words in the Oath of Allegiance In a word to apply it Are not William and Mary now regnant and in full Possession of the Government To deny this is to impose upon our Senses Are they not our Soveraigns also to whom we owe Allegiance This to question is against all kind of Law May we be guilty of Treason against them Then supposed Allegiance to their Enemy seems to be a degree towards that Treason and to be a treasonable Principle if brought into Act it tends apparently to the Death of the King and Queen and how far the very Opinion is from Imagination and consequently from the Formality of Treason should be soberly considered at least to abate our consure of the Government that with some Severity requires our Allegiance and if it may be to perswade us to timely Conformity therein The Sum is I think we cannot justify our refusing to take the new Oath of Allegiance to King William and Queen Mary without destroying Acts of Parliament changing the Laws of England and razing the Principles and Laws of Nature The Words of II Hen. 7. cap. 1. bearing to our Purpose are these The King our Sovereign Lord calling to his remembrance the Duty of Allegiance of the Subjects of this his Realm and that they by reason of the same are bound to serve their Prince
and we find an evil Surmise and groundless Suspition hereof with respect to our late Revolution already fermenting among us and spreading the sowrness of Dissatisfaction Discontent and I fear Faction over too great a part of the Nation and prevailing so far as to dishearten our Friends to animate our Foes to increase our Fears to continue our Troubles and almost shake the Establishment If matters are thus with us I must have leave to say that a Man can hardly do better Service to the Publique at this season than by endeavouring to remove such Popular Mistakes about the Method of our present Settlement and the nature of the Government as seem to have such malevolent Influences and unhappy Effects Now I conceive this is to be done in a good measure by shewing that the Alterations from our former State made in the present Government are not so great or many as our discontented Men imagine and our Enemies suggest But if it be made evident that in a fair and charitable Construction of things we stand firm upon the same Basis we ever did and that the Constitution of the Kingdom founded in our ancient Maxims and Customs with respect to our Government is not alter'd or touch'd by the late Revolution I say if this can be effected I am apt to think many doubting and scrupulous Persons among us may be satisfied and happily reconciled to a better opinion of the present Government and a more cheerful Submission to it If I knew any better Argument to justify our Rulers to vindicate the Government to establish the Kingdom in Peace and Safety and to defeat the Designs and Forces of our Enemies who live and are mighty than this before us I would certainly use it the best I could but I have no better therefore I crave Acceptance of this my Apology and Leave to adventure upon my Task CHAP. II. The Chief Maxims insisted upon as prejudiced by the late Settlement IT may run in the Minds of some scrupulous Persons that there are old Maxims that lie at the Root or Foundation of the Kingdom of England and that these are destroyed or subverted by the new Model and consequently the Constitution of the Government is quite alter'd Those old Maxims may be thought to be such as these 1. That the Government in England is Hereditary 2. That it admits not of an Interregnum 3. That nothing binds the People of England but an Act of Parliament Now perhaps 't is thought that the Government is now made Elective and therefore is not Hereditary Again that it having been declared that by the late King's Abdication there was a Vacancy in the Throne therefore an Interregnum was admitted Lastly that this new Change was made by a Convention and not by a Legal Parliament and therefore we are not bound to own it Such kind of Suggestions as these I fear have created Shyness and Aversion in many good Men from a due Recognition of the present Government if we can make it appear that in truth they are vain and groundless I hope all good Men will be easily entreated to lay aside that Aversion and be sweetned to a better Compliance both for the Sake of the Publique and their own We proceed to consider every one of them in order and the several Grounds or Reasons they seem built upon and whence they are alledged and objected CHAP. III. The Government whether Elective or Hereditary and how IT may be thought by some that by the late Change the Government is made Elective and therefore is altered and is no longer Hereditary as it was before The Vanity of this Argument appears if we make good these two Propositions 1st Our Government was never so absolutely Hereditary as to exclude Election in all respects 2dly In our late Settlement there was nothing done in Prejudice of our Hereditary Government Prop. 1. The first of these Propositions viz. That our Government was never so absolutely Hereditary as to exclude Elections in all respects appears First Because all along in our Histories we find the Words Election and Elected used as previous to the Crowning of our Ancient Kings Some of them came to the Crown without any Colour of Title Some though not next in Blood by the Nomination of the last King. Some only as being next in Blood without such Nomination And lastly Some both by Proximity of Blood and by the Nomination or Testament of the Predecessor Now if in History all these are said to be elected certainly we have no reason to be offended with the Word or imagine that our Government abhors all kind of Election But this is plainly acknowledged by the industrious Dr. Bradie while he is in pursuit of the Hereditary Succession the Saxon Expression saith he concerning Succession and Successor is always the same Feng to Rice render'd usually successit Electus est he took possession of the Kingdom he succeeded he was chosen c. Hist of Success p. 366. Edgar left his Son Heir of the Kingdom and the great Men chose him elegerunt as his Father commanded Harold Henry 1. and K. Stephen obtained the Crown they say by fraud and Violence yet by several old Monks are said to be elected They said some of our Kings that had undoubted hereditary Titles were elected so K. Henry 2. ab omnibus electus so likewise K. John and Richard 3. are said to be chosen as he observes in his parallel p. 412. But to do the Doctor Right I confess he contends earnestly that however the words were used in such cases indeed there was no such thing as Election or proper Election of any of those Kings and that Election signified only Recognition Applause or Proclamation and sometimes only a forc'd Submission at least they were never chosen by the Community of the People as they are now understood but by the great Men of the Kingdom But that Controversy I leave betwixt the Doctor and his Adversaries observing only for my present purpose that our ancient Kings both Saxons and Normans are in the Chronicles of England frequently said to have been chosen or elected So much for the Word and now with the Peace of the ingenuous and laborious Man lately mention'd I would modestly enquire whether we find not some stroaks in our History of a real Election of our Kings in some Instances at least so far as to interrupt the strict Opinion of hereditary Succession And here I have no need to assert the Election of the People or go off from the Doctor 's own ground or concession either about the ancient Practice or the declared Judgment of the Kingdom 1. In the Saxons time the Doctor saith he hath discovered a sure Rule of Succession but this was double either Right of Blood or the Nomination of the preceding King 't is confess'd then that Right of Blood was not the only Rule hence he lays down his ordinary distinction of Jus Haereditarium and Jus Testamentarium yea he tells
from this because the Vacancy was made by K. James and he could not make it further than he could He could not prejudice his Heirs or leave the Throne empty in all respects for the Statute of K. James the First declares agreeable to all times The Imperial Crown by inherent Birth-right doth immediately descend to the next Heir of the Blood Royal upon the Decease of the Predecessor The Royal Family have Jus ad Rem but the next in Blood if without just Exception hath Jus in Re and wants nothing but Livery and Seisin 3. This carries a plain Analogy with the Interest of others and if it be a Priviledg cannot be denied to our Princes The Estate is in the Heir immediately upon the Death of the Possessor and if the Estate be forfeited 't is immediately in the next Tenant though in neither case they may have yet got Possession And we use to say the Heir to the Crown is King before either the Coronation or Proclamation i. e. The Throne upon Demise is instantly fill'd and there is no Vacancy in that sense 4. If the right Heir before entry be kept out of Possession the Estate is not in Obeyance or in Nubibus but as the Lawyers say in Abatement the Estate is really in the Heir though they say the Law favours the intruder as the lawful Possessor till the Right of the true Heir is proved which I have no reason to apply 5. However 't is plain enough that the Convention supposed the late King by Abdication left the Throne void in some respect and what that was must certainly respect himself and not his Heirs he left the Throne void as to his own Person and as to his Possession and as to his own Right by relinquishing the Government 6. Yea he left it void as to any present Administration or Administrator and therefore it being so void ipso facto the great Men of the Kingdom first desired the Prince of Orange to take upon him the Administration of the Government till the Convention should meet This he did and this Vacancy was the natural Effect or Consequence of his Abdication but we may not strain the Word to the altering the nature of our Government neither may we imagine a Papist's Abdication should bar or prejudice his Protestant Children or change our Constitution 7. I hope I have said nothing in prejudice of any Limitations or Conditions of the Crown either in Law or from the necessary Nature of Government or by Act of Parliament if according to such Conditions the next in Blood be not qualified the Throne may be filled by the Right or the next When the Throne was declared void upon the Deposition of Rich. the 2d his Son was instantly admitted as were before the Sons of Edw. 1. and Ed. 2. upon their removal 8. We are told that before the Stat. 25. Edw. 3. de natis ultra mare it was a received Maxim that the next in Blood born beyond the Sea should not be King and by that of Eliz. 23. c. 1. Persons opposing the Execution of that Act are thereby disabled for ever Yet we still conceive that the next Heirs after them better capacitated and not guilty or defective as they might claim the Crown otherwise all other Persons are under the same Penalty though not at all guilty and the Penalty is not restrained to the Person offending or to the Crime mentioned in the latter or in the Incapacity in the former Instance The Statute of the Queen plainly supposeth that some may claim which cannot consist with an Elective Government and if the next in Blood are disabled by Law to claim it follows the Right is some where else and by Virtue of that Right the Throne is so far fill'd and Possession may be claimed Quest 2. Whether we have reason to think that the Convention did suppose a Vacancy in any other sense Sol. We may receive full Satisfaction in this from what hath been said upon the first Query For what reason can we have in Justice or Charity to imagine the Constitution intended any further Vacancy than was or could be made by the late King's Abdication what reason is left us to think that they intended such a Vacancy as was inconsistent with the nature of our ancient Hereditary Monarchy or the Interest of the Persons that are now advanced to the Throne in their own Right of which we have given account before or why should we impose a groundless and an unreasonable sense upon the Proceedings of our Superiors as may forestal or prejudice our quiet and due Submission to the Government 2. For our further Satisfaction we ought to consider first the Persons whom they admitted to the Crown namely such as upon Avoidance upon their Inherent Birth-right might have claimed the Crown Secondly The Words of the Declaration by which they were admitted The Throne being thereby vacant we do resolve that William and Mary be and be declared King and Queen They do not say they make them so but resolve that they are so and then declare them to be what indeed they were 3. And now I must have leave to admire the Wisdom Foresight and Caution of that great Assembly they do not lay hold of a Forfeiture of K. James they do not pretend to depose him they do not insist upon his Resignation but they suppose and alledg strong Grounds of that Supposition that he had abdicated the Government so far as that with respect to him to all Intents and Purposes the Throne was void and therefore to maintain the Hereditarines of this Monarchy they allow the Right of the next Heirs viz. William and Mary and accordingly upon that their Title they declare them King and Queen Quest 3. Whether the sense of Vacancy thus explained imply an Interregnum This can be a Question no longer if we consider the Premises for such a Vacancy we have upon every Demise of the Crown yet no Interregnum CHAP. VII Of the Convention and how it became a Parliament The Third Maxim considered Obj. WE are arrived to the Consideration of the third great Exception viz. That it is a Maxim that nothing binds the People of England but an Act of Parliament But the present Government was made by a Convention and not by a legal Parliament therefore we are not bound to own it Sol. 1. To this first it may be replied That tho this Maxim be generally allowed yet not without some Exceptions For is not Custom and the Common Law the Rule of Right and Justice betwixt Man and Man yea and betwixt the Prince and the People Were there no Statute or Act of Parliament about Government and Subjection Yea were there no Coronation-Oath or Oath of Allegiance to be taken by the King or the Subject Yet from the nature of our Government and by Common Law the King ought to govern according to the Laws and Customs of the Kingdom and we ought to pay him our