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
therefore used the word Abdicate as that which though it implied both a Renunciation and also a Forfeiture of the Royal Power yet not being commonly so understood made some men only to understand it of the King's Desertion of the Throne by his going away a Notion which because it served a present turn mens heads were then very full of But indeed if this Desertion be closely examined it will not do the business for which it is brought as you have already very well observed F. I confess I never understood the true sence of this word Abdicate before much less the reason why it was made use of therefore commend me to the honest bluntness of the Scotch Convention which as I am informed did not stick to declare That King Iames by subverting the Fundamental Laws of that Kingdom had forfeited the Crown But pray Sir tell me what those Acts or Violations of this Original Contract were which you suppose to cause this tacit Renunciation of the Crown I. As for these I need not go far since they are all plainly expressed in the Convention's late Declaration as striking at the root or very Fundamental Constitution of the Government it self viz. Raising of Money contrary to Law that is without any Act of Parliament as in the late Levying of the Customs Excise and Chimney-Money upon Cottages and Ovens contrary to the several Statutes that conferred them on the Crown 2dly His Assuming a Legislative Power by Dispensing with all Statutes for the Protestant Religion established by Law whereby he at one blow took away above Forty Acts of Parliament and he might at this rate as well have Dispensed with the whole Statute-Book at once by one general Declaration 3dly Raising a Standing Army in time of Peace and putting in Popish Officers contrary to the Statute provided against it for these being but the King 's half Subjects as King Iames the 1st called them in a Speech might be looked upon when in Arms as no better than Enemies to the State so that by thus Arming our Enemies it was in effect a declaring War upon the People since it was abusing the power of the Militia which is intrusted with the King for our Safety and Preservation in our Religion Liberties and Civil Properties and not for the destruction of them all as we found by woful experience must have inevitably befallen us 4thly The Quartering of this standing Army in Private houses contrary to Law and the Petition of Right acknowledged by the late King his Father 5thly His Erecting a new Ecclesiastical Court by Commission contrary to the Statute that took away the High Commission Court 6thly And by the pretended Authority of this Court suspending the Bishop of London from his Ecclesiastical Jurisdiction and turning out almost all the Fellows and Scholars of Magdalen Colledge because they would not chuse a President uncapable of being Elected by that Colledge Statutes 7thly By Imprisoning the Archbishop of Canterbury and the Six other Bishops only for Presenting him with an humble Petition not to impose the reading of his Declaration of Toleration upon the Clergy of the Church of England as being contrary to the known Laws of the Kingdom and then Trying them for this as a High Misdemeanor though it was contrary to the Opinion of Two of the then Judges of that Court of Kings-Bench There are also other things of lesser concernment as Packing of Juries and unjust and partial Proceedings in Tryals with excessive Fines and cruel Whippings which because they were done by the Lord Chief Justice Iefferies and the other Judges contrary to Law I leave them to answer for it whereas the instances I have now given were in such grand Violations as were done by the King 's own personal Orders and Directions or else could never have been done at all So that by his willful acting these things and obstinately refusing to let a Free Parliament sit to Settle and Redress them but rather chusing to leave the Realm than he would give way to it when he might have done it I think upon consideration of the whole matter it will appear that the Convention had good and just Reasons for declaring the Throne Vacant since the King had not only broke his first declaration he made in Council to maintain the Church of England as by Law Established and the Liberties and Properties of his Subjects but his own Coronation-Oath besides if he took the same his Predecessors did and if he did not he ought not to receive any benefit by his own default but is certainly bound by the Oaths which his Grandfather King Iames and his Father King Charles took before him F. I confess these seem to be great breaches of the very Fundamentals of our Religion Liberties and Civil Properties if done by the King 's express Order and Directions and if that he afterwards refused to disclaim them and suffer the Authors to be Punished in Parliament as they deserved makes all those faults indeed fall upon the King himself and consequently seem to amount to a Forfeiture of the Royal Dignity according to that Law of Edward the Confessor you have already cited That if the King fail to Protect the Church and Defend his Subjects from Rapine and Oppression the very Name or Title of King shall no more remain to him But pray Sir shew me in the next place how the Convention could justifie their Voting the Throne Vacant for Granting that King Iames had implicitly Abdicated or Renounced all his Right to the Crown by the Actions you have but now recited Yet if this Kingdom as I have always taken it to be is Hereditary and not Elective I cannot conceive how the Throne can ever be Vacant that is void of a Lawful Heir or Successor as long as one of the Blood-Royal either Male or Female is left alive since I have heard it laid down as a Maxim in our Law That the King never dies I. I grant this to be so upon all ordinary Deaths or Demises of a King or Queen as the Lawyers term it But there are great and evident Reasons why it could not be so upon this Civil though not Natural Death of the King as First the natural Person of the late King being still alive none can claim as Heir to him whilst he lives since it is a Maxim as well in our Common as in the Civil Law That no man can be Heir to a Person alive F. I grant this may be so in ordinary Estates of Inheritance in Fee-simple but I take it to be otherwise in Estates Tail for if a Tenant in Tail had become a Monk whilst Monasteries were in being in England the next Heir in Tail might have entered upon the Estate because the entering into a Religious Order was looked upon as a Civil Death now I take the Crown to be in the nature of such an Estate-Tail where the Heir Claims not only as Heir to the last King but to their first or
those several Kings Reigns since those were raised upon levying of Taxes imposed by the King and Parliament which is the sole Supreme Legislative Power of the Nation where I grant it is Rebellion to resist whereas that Resistance which I only now suppose to be Lawful is against the King's personal Commands or Commissions in opposition to known Laws which is not to resist the Supreme Power of the Nation but only the King's Person when he acts not as King but as a private man F. But pray Sir is not this to separate the King 's Personal from his Politick Capacity to suppose the man may be resisted and not the King or the King 's Personal but not his Legal Commissions or Commands for to do this I have heard has been declared to be Treason I. This is also justifiable by Law in some Cases for if the King should happen to prove mad as divers Kings have pray do not his Servants about him hold or tie the Madman and yet how can they do this without binding the King And pray tell me what difference is there between Madness which is a Natural Disability and Tyranny which is a moral incapacity to govern since both are alike destructive to the Common Good of the Nation And when you suppose we may lawfully disobey the King's personal Commands what do we but then by disobeying the King distinguish between the King 's politick and his personal Capacity that is when he acts legally as King and when he issues out his Commissions or Commands without any Law to warrant him or else when the Persons commissioned are made by Law incapable of the King's Commissions as the Popish Officers lately were since otherwise we were all obliged to yield the same Obedience to the one as well as to the other Nor is it at all harder but much easier to judge when such Commissions or Commands are attended with Force and Violence and when they are not since certainly every plain Country-Fellow can much better tell when a thing contrary to Law is put upon or exacted of him by Force than when it is only barely commanded or required of him by a Commission or Proclamation seeing the latter only reaches the Understanding but the former not only touches the Understanding but the outward Senses of Hearing Seeing and Feeling To conclude I would not have you therefore believe that I allow this general Resistance to the whole Nation but only when by a General Violation of our Fundamental Liberties the whole Constitution of the Government comes to be in danger of an utter Ruine and Subversion by breach of the Original Contract abovementioned and that these Violations and Oppressions do some way or other concern the whole Body of the People of this Nation that is all Orders and Degrees of men and then only and not till then I look upon such a general Resistance of the King and those commissioned by him to be lawful that is when all other Remedies are become absolutely desperate and impracticable thro' the King's wilful Obstinacy to amend such Violations F. I grant this seems very reasonable but pray tell me what those grand Violations are that can thus alter the Fundamental Constitution of the Government and can make a total breach of this Original Contract I. They do I conceive consist but in a few Points and they are these First If the King should take upon him to make Laws either concerning Religion or Civil Matters and to impose then upon the People without their Consent in Parliament Secondly If he take upon him to dispense with all Laws and especially when his hands are tied up by a particular Clause to the contrary that he shall not so dispense with them Thirdly If he take upon him of his own head without the Advice or Opinion of his Judges to raise Money upon the Nation Or Fourthly If he corrupt the Judges to give their Opinions according to his humour either by promising of Rewards or threatning them if they refuse and will put none into those places who will not do whatever he commands them or turns them out as soon as they act otherwise Fifthly If he go about to alter the ancient Constitution of Parliaments and bring the Election of the Members of the House of Commons only into the hands of those of his own Party or Opinion whereby our Liberty of Electing and Voting by our Lawful Representatives would be quite taken away The like I may also say of the House of Peers if he should go by Force either to exclude the Bishops or Temporal Lords who have a Right of sitting there by Prescription and should under pretence of his Prerogative bring such as had no Right to sit there at all Sixthly and lastly If he should go about commonly or generally to take away the Subjects Lives Liberties or Estates by an Arbitrary Power contrary to Law upon pretended Crimes and without such due Trial as the Law requires Now I think you cannot but acknowledge that most if not all of these Heads are easily to be judged of by all the People of England when they are come to that extremity that we can have no reason to doubt of it F. But pray Sir tell me who shall judge of these Violations or what number may be allowed to rise and redress them I. The Judges are I told you before the whole Body of the Nation or People every one in his private Capacity that is not the Clergy alone or the Lords alone or the less Nobility or Gentry and much less you Yeomen or landed men and least of all the meer Rabble or Mob but all men of all Orders and Conditions taken together and as for the number it is any though never so small that are able to make a head till more can come into their Assistance F. But would not a Free Parliament be a much better Judge of these Violalations than this general Body of the People I. I grant it if a Parliament may be had that were free and unbiass'd but what if the King resolves not to call any or if he does will not give them leave to sit till they have redrest our Grievances Or what if he will not call one till he thinks he can make or pack it according to his own mind The Nation may at this rate be enslaved as much nay worse by having the appearance of a Parliament to confirm the King's Arbitrary Power than if he had acted by none at all so that in these Cafes there can be no other Remedy left us but an Appeal to the General Body of the People with whom that Original Contract I mentioned was at first made not but that a Free Parliament or Convention when ever it can meet may be of excellent use to examine what the People who thus take up Arms have acted in defence of their just Rights and Liberties and to judge and declare it to have been well or ill done and upon what