all private Subjects should submit and acquiesce in their final Judgments since they are all virtually Represented in such Assemblies as the Representative Body of the whole People or Nation Therefore if the Convention of the Estates of England have for divers weighty Reasons thought fit to declare their present Majesties Lawful King and Queen and to place them on the Throne as then vacant by King Iames's Abdication I think all the Subjects of this Kingdom are bound to bear true Allegiance to them and to confirm it by the Oath appointed for that end whenever they shall be lawfully required thereunto F. Well Sir but is not this to alter one part of the Original Contract which those that are against the present Settlement suppose to be the Right of Hereditary Succession to the Crown and that in a right Line So that if the supposed Prince of Wales be lawful Heir to King Iames to place any body else therein seems to render the Crown for the future not Successive but Elective for if it may be bestowed now according to the humor of the present Convention it may be done so again the next Succession and so the right Heirs put by from time to time for the same or some like Reason as now I. That does not at all follow for if you will allow that the Throne was vacant by the Abdication of King Iames and that her present Majesty Queen Mary is lawful Heir if the pretended Prince of Wales were away I will prove to you that the late Convention and present Parliament have done all they could or were obliged to do in this juncture in placing Their present Majesties on the Throne and Recognizing their Title without taking any notice of this pretended Prince of whose Birth whether true or false I shall not now say any thing one way or other nor shall trouble my self to inquire into the Validity of those Suspitions that may render his Birth doubtful to the generality of the Nation And therefore in the first place I desire you only to take Notice that this Child was carried away by his Mother when he was scarce yet six Months Old 2dly That the Midwife and all the chief Witnesses who could Swear any thing concerning the Queen's being really with Child and brought to Bed of him were likewise conveyed at the same time into France F. I grant it but what do you infer from hence I. Why only these two Conclusions 1st That neither the Convention nor Parliament are Obliged to take Notice of the Rights of any Person tho' Heir to the Crown that is out of the Dominions of England if he be no necessary part or Member of Parliament if neither himself nor any Body for him will put in his Claim to the Crown upon the Demise of the King either by Death or Abdication as in the Case now before us there being then a Claim made in the late Convention by his Highness the Prince of Orange on the behalf of his Consort the Princess as Heir apparent to the Crown The Convention were not obliged to look any farther after this supposed Prince or to know what was become of him whether he was Drowned or taken at Sea by Pyrates or he being Dead another put in his place or carried by his Mother into France Since any of these might have happen'd for ought they knew no body appearing to put in any Claim for him or to desire that his Cause might first be heard before he was Excluded 2dly That if such Claim had been made by any body for him yet the Convention could by no means be obliged to do more than lay in their Power or to hear or examine the Validity of this Child's Birth unless the Midwife Nurses and others who were privy to all the Transactions concerning it were likewise present and sent back to give their Testimonies in this Case for if the Convention had proceeded to examine this matter without sufficient evidence they could only have heard it ex parie on but one side and so might have sat long enough before they could have come to any true decision in this matter whilst in the mean time the whole Nation for want of a King were in danger of utter Ruin and Confusion F. But pray Sir why could not the Parliament have sent over Summons to those Witnesses which they say are no further off than France to come and give Testimony in this great Cause before they had proceeded to have declared the Prince and Princess of Orange King and Queen I. There may be several good Reasons given for it First Because this Child being carried into the Dominions of a Prince who is a declared Enemy of our Religion and Civil Interest of the English Nation he would never have consented to his being sent over to be viewed by those that the Convention should appoint for that purpose without which Inspection the Nation could never have been morally assured that this was the same Child that was carried away since every one knows that Infants of that Age are not easily distinguisht one from another but by those that have been about them from the very time of their Birth Secondly Because his Reputed Parents counting themselves already injured by the Convention in declaring that the King had abdicated the Government and that the Throne was thereby become vacant would never have obeyed any Summons the Convention should have sent over because they looked upon them not to have any Authority at all as not being summon'd nor sitting by vertue of that King's Writs Thirdly Admitting that the French King would have permitted this supposed Prince to have been sent back and that King Iames and his Queen would have obeyed this Summons yet was it not for the safety of the Nation to stay for or rely upon it since before this Question could have been decided great part of this Year had slipt away and we being left without a King to head us nor any Parliament Sitting able to raise Money which cannot be legally done without the King's Authority in Parliament the French King might whilst we were thus quarrelling amongst our selves about a Successor to the Crown have sent over King Iames with a great Fleet and an Army of old Soldiers and so have placed him again in the Throne more Absolute than ever he was before since besides that Legal Right of Succession which I grant he once had he might also have set up a new Right by Conquest over this Kingdom So that all things being seriously considered since the safety of the People ought to be the Supream Law as ever hath been agreed as an undoubted Principle by all wise Nations I think we have done all that could well be done in this Case nor have broken the Hereditary Succession in declaring King William and Queen Mary to be our Lawful King and Queen since if she were Lawful Queen they might also declare him to be King and make it Treason to
one in respect of themselves as if it were by their Election or that of their lawful Representatives Nor could the first Conqueror mighty Nimrod for example ever conquer the neighbouring Nations by the sole assistance of his own Children and Servants without the conjunction of other Fathers of Families and Freemen who 't is most likely followed him for a share of the Spoil and upon certain Conditions agreed upon between them for the like we find of all other Conquerors in Ancient as well as Modern Histories F. But pray shew me Sir how this can be since most Nations have been conquer'd at some time or other but few of them have given their Consents as I know of either in a whole Assembly of all that Nation or else by their lawful Representatives as we do in England I. 'T is true they have not given their Consents all at once but singly and one by one they have done and constantly do it every day in Towns and Countries that pass from one King to another by Conquest for it is certain that all such Subjects as do not like the Religion or Government of the Conquering Prince or Commonwealth may lawfully retire out of the conquer'd City or Countrey and carry their Estates with them or else sell their Lands and carry away the Money if they can without any crime so that it is apparent it is only from the Acknowledgment or Recognition of each particular Person who stays there that this Conqueror comes to have any Right to the Subjects Allegiance F. Pray how is this Consent or Acknowledgment given since Oaths of Allegiance as I am inform'd are not exacted in all places of the world where Conquests are made I. I grant it but where they are not so imposed nor taken the persons that have not sworn to this new Government can never be oblig'd to an Active Obedience or to fight for or serve the Conquering Prince against perhaps their former lawful Sovereign yet I think thus much I may justly maintain That whatever Prince be he a Conqueror or Usurper who is much the same thing in respect of the Subjects who shall take upon him to administer the Civil Government by protecting the conquer'd people punishing Malefactors and doing equal Justice by himself or his Judges between man and man whosoever of this conquer'd people will continue in that City or Countrey and receive his Protection and enjoy all the other Rights of other Subjects is so far obliged by virtue of that Protection he receives as to yield a Passive Submission to all the Laws that such a Conqueror shall make and not to conspire against or disturb his Government by Plots or Rebellions But indeed this tacit Consent or Acknowledgment of the Conqueror's Authority because not given by the People at once makes many men believe that their Consent is not at all necessary to make a Conqueror's Power obligatory as to them not but that I do acknowledge that Oaths of Allegiance are of great use in any Kingdom or Common-wealth to bind men to a stricter Observance of their Duty and also to an Active Obedience to all their Conqueror's lawful Commands even to venturing their Lives for the Government since it is for the Publick Good of the Community if they are so required F. I am well enough satisfied as to the Original of Government and the Right that all Kings and Commonwealths have to their Subjects Allegiance whether they began at first by the express Consent or Election of the People or else by Conquest and their subsequent Consents but pray satisfy me in the next place concerning the Government of England you said it was a Limited Monarchy and I have never heard that questioned but how did this Limitation begin whether from the very first Institution of the Government or else by the gracious Concessions of our Kings I. Without doubt Neighbour from the very Institution of the Government for our first English Saxon Kings were made so by Election of the People in their great Councils or Parliaments as we now call them and could do nothing considerable either as to Peace or War without its Consent and this Council was to meet of course once a year without any Summons from the King and oftner by his Summons if there was any occasion for it and it is certain that the Freemen of England have always from beyond all times of memory enjoyed the same Fundamental Rights and Privileges I mean in substance that they do at this day F. Pray Sir what are those Fundamental Rights and Privileges that you say we have so long enjoy'd tell me what they are I. I will in as few words as I can First then The Freemen of England were never bound to observe any Laws either in matters Civil or Religious but what were made by the King with the Consent of the Great Council consisting of the Clergy Nobility and Commons assembled in Parliament Secondly That no Taxes could be lawfully imposed upon the Nation or any man's Property taken away without the Consent of this Council 3. That this Great Council had ever a power of hearing and redressing all Grievances and Complaints of the Subjects not only against the Oppressions of any of the King 's great Officers or Ministers who were too great to be called to an account in any other Court but also the particular Wrongs of the King himself the Queen or their Children F. Pray how could this be done since the King may at this day dissolve the Parliament whenever he pleases I. I grant it is so now but certainly it was otherwise when Parliaments met of course at a certain place once a year without any summons from the King yet after that time I find it in the Ancient Treatise called The Manner of holding Parliaments That the Parliament ought not to be dissolved whilst any Petition or Bill dependeth undiscussed or at least whereto no determinate Answer is given and that if he do or permit the contrary perjurus est i. e. he is perjur'd And even at this day the Two Houses may justly refuse the King any supply of Money whilst he refuse to redress their just Grievances F. This is more than I ever heard of before but pray proceed to tell me what are the rest of the Liberties and Priviledges of an Englishman I. In short they are these Not to be banisht the Realm or imprisoned without just cause nor to be kept there only as a punishment but in order to a legal Trial not to be tried condemned or executed without a lawful Jury of his Peers first passed upon him unless in time of War by Martial-Law lastly no man is oblig'd to quarter Soldiers without his own consent and then paying for what they have There are other less Rights and Priviledges exprest in the Petition of Right acknowledged and confirmed in Parliament by King Charles I. all which I omit but these being the chiefest that concern our Lives
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
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
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