Agreement betwixt the present and the former government, or, A discourse of this monarchy, whether elective or hereditary? also of abdication, vacancy, interregnum, present possession of the crown, and the reputation of the Church of England ; with an answer to objections thence arising, against taking the new Oath of Allegiance, for the satisfaction of the scrupulous / by a divine of the Church of England, the author of a little tract entituled, Obedience due to the present King, nothwithstanding our oaths to the former.

CHAP. I. An Introduction grounded in a general Maxim. (Book 1)

The general Maxim, Ʋnnecessary Changes in Government are to be avoided as dangerous.

UPON any great Revolution it seems much the Concern of the New State, so to settle the Go∣vernment, as may offer least matter or occasi∣on of Discontent to the People, and conse∣quently to make as little Alteration in the former Max∣ims and Customs, (that is, in the old Constitution) as is possible, lest the old Leaven should work again to the prejudice of the new Establishment.

We may observe in our own History, that such pub∣lick Grievances as from time to time have been objected by the People to the disquieting, and sometimes hazard∣ing of the Government, have generally been aggravated with the charge of Innovation, as being contrary to our ancient Liberties, Rights and Customs; and for some Ages in Instances infringing Magna Charta, that great Record of the Subjects Priviledges, and Codex of our ancient and common Law, in which much of our old and happy Constitution consists; indeed any Alteration in our Constitution seems to shake the Foundation, and frightens the People like an Earthquake.

This Maxim is commended by three great and well∣known Examples.

1. Our Saviour's.

This Caution was sanctified after a marvellous man∣ner by the Wisdom of God in our great Examplar: Our blessed Saviour, we know, was sent into the World to put the Church into a new frame; now in his so doing, did he reject all that was old, or leave out any thing that might be any way serviceable in the new? Is it not re∣markable, that he did resume and make use of as many of the old Materials as could possibly be accommodated to the Edification of the Gospel-Church? Did he not take both the Sacraments, did he not collect the very Pe∣titions of his Prayer out of the former Usage, and al∣lude much in the new Government to be established to that which he found in the old? Did he not preach and expound upon the Law of Moses, and the ancient Pro∣phets, and appeal for his Defence and Justification to their own Books? Indeed he seems to have left out no∣thing of the old Dispensation but what was inconsistent with the new, namely, that which was typical and expi∣red in the Truth, and that which was purely judicial, and therefore ceased with the temporal Government of the Jews, which our Saviour was not then come to take upon him.

Now, was not all this Accommodation of our Saviour to Moses wisely as well as graciously contrived, that the People, for whose sakes he was first sent, might not be offended, or startle and flie from him upon the Scandal of Innovation?

Yea, so tender was our Saviour of them in this Point, that during his whole Life, both he himself, and his Dis∣ciples

by his Commission, addressed only to the Jewish Nation; that the greatest Scandal by the Call of the Gentiles might be avoided, and they might still appear to be God's peculiar People, while there was any the least hopes of them.

According to their Lord's method and example, we afterwards find his Apostles in a great Council, held and decreed it as a necessary thing for some time to retain and to practise some legal Ceremonies, even after they were all really abolish'd in the Death of Christ, that if possi∣ble they might thus gain, that is, reconcile the stubborn People to the new Establishment, or at least, leave them without excuse.

Afterwards, the fear that possessed the Christian and believing Jews of too great Alteration to be made by the Gospel, occasion'd that sober Advice we reade of in Acts 21. 20, 21, 23, 24. of the Church to St. Paul, Thou seest, Brother, how many thousands of Jews there are which believe, and they are all zealous of the Law: And they are informed of thee, that thou teachest all the Jews which are amongst the Gentiles, to forsake Moses, saying, That they ought not to circumcise their Children, neither to walk after the Customs. Do therefore this that we say unto thee.—that all may know that the Information against thee is no∣thing, i. e. of no moment; but that thou thy self walkest orderly, and keepest the Law.

2. Of the Church of England in the Reformation.

Upon this ground some have thought it a Point of commendable Prudence in the Church of England, that her Reformation at first, proceeded with so much Mode∣ration, and no greater Alteration, either in the Service or Government of this Church; whereby she quieted

the Minds, and drew into her Communion so many of the moderate Papists, both in the Reign of Edw. 6. and in the beginning of Q. Elizabeth's; and whereby, thrô the wonderful Mercy of God, she hath been so long pre∣served, even in the midst of her Enemies on both sides. Moderata durant. And since that you have her candid Apology to this purpose in these words;

Accordingly we find (saith her Preface before the Liturgy) that in the Reigns of several Princes since the Reformation, the Church upon just and weighty considerations hath yeilded to make such Alterations in some particulars, as in their respective times were thought convenient: yet so, as that the main Body and Essentials of it (as well in the chief Materials, as in the Frame and Order thereof) have still continued the same unto this day.

And we may remember, that when some furious Zea∣lots for Popery made a Commotion and Rebellion in the time of King Edward 6. their pretence was, that there were great and intolerable Alterations in Religion; and that in their Wisdom, the King and his Council thought it a proper course to allay their Heats, and to pacify and reduce them to Obedience, to let them know how small and few the Alterations complained of were; and that their Service before in Latin was now made English, that they might understand it.

The Reformation in England was carried on without Affectation of Novelty, though it justly abandon'd the former Superstitions and Idolatry.

3. The Example of William called the Conqueror.

This like Policy is observable in William the first: for though the Success of his Arms, carried the Colours of a Conqueror; yet he seem'd unwilling to trust wholly to

that Title: he shook all indeed, but endeavour'd too, that things might go back as they could, and settle more firmly upon the old Basis. He therefore added to, or* 1.1 rather seconded his Sword with a Pretence of Right to the Crown; Jure Haereditario vel Testimentario; and then, afterwards, they say, he proceeded to accommo∣date the Administration of his Government to the Hu∣mours of the English People, and the ancient Rights and Customs; I mean so, as the time and present State of things would give way: so that whatever his Title was, he accounted the Satisfaction of his People the best Se∣curity to his quiet Government. Certainly something he did to this purpose, since we find it disputed by some learned Men, whether this William the first, was King by Conquest or Compact. Petit. Brady, and others.

If the former Maxim be allowed, I may have leave to apply it to our present Establishment, in two Inferences.

First, Seeing, as we have heard, upon such Revolu∣tion, a departing from the former Constitution (beyond what is necessary in the very reason of the change) is to be avoided as unsafe or dangerous; we hence seem to owe that Charity, yea that Justice and that Honour to those great and wise Instruments in our late Revolution, as to presume they have done it with Prudence agreeable to that great Maxim; that is, that at least they intend∣ed not therein to depart farther from our former State, or to alter any of our allowed Maxims or Customs, that lie at the bottom of our ancient Constitution, as our Common Law; I mean, beyond such Necessity, or be∣yond what hath been declared by the King and Parlia∣ment.

For if any thing contrary or dissonant to our Rule was discours'd in some previous▪ Debates before the Settle∣ment was made, and all such Debates were determined in the Law; I say, if any such things then happen'd, they ought not now to be remembred or mention'd as other than the motion of particular and private Per∣sons; and by no Rule can they be thought to pass into, or any way affect the Publique State, as 'tis now settled by Laws exclusive of them.

Again, If any thing should yet be thought doubtful in the Laws or Method of our present Establishment, methinks by the help of the same Rule, all such Doubts may be speedily resolv'd; I mean by an Interpretation favourable of our former State.

Especially if it be seriously weighed, how far such a sense may contribute to the Quiet of the Minds of a Multitude of Men among us, that perhaps are too fond of old, and averse to new things.

But principally, for the saving of the Wisdom and Honour of our Governors; and the better securing the Government, upon a tried Basis; and the more firmly rivetting it in the Affections and Satisfactions of the Ge∣nerality of the Kingdom.

This is considerable, when Unanimity and Unity by such Satisfaction, cannot but be thought at least expe∣dient for our common Preservation from the subtile De∣signs and threatning Attempts of our Enemies.

Pardon me if I make bold to demand, why the general Sense of Publique Danger by means of the Offence so many take from the disagreeableness of too strict an In∣terpretation of some doubtful Words and Practices, touching our present Settlement from our former; why may not, I say, so general a Sense and Fear in the Peo∣ple, who were represented in the Settlement, be mo∣destly

thought to have some Right to reconcile such Doubts (if such are left and not fully cleared by our Law-Makers) to a Sense more agreeable to our former Constitution, and as near as may be.

At least, where the Law is not express, it cannot in reason be interpreted by private Persons to such a sense as is counter to general Satisfaction, and the Publique Safety, both of the King and Kingdom; and this we have heard is hazarded by forsaking the old beyond ne∣cessity; and laying too much Stress upon a new Foun∣dation. We ought to be wary of wresting words or things that seem doubtful, especially about Govern∣ment, to such ill Consequences, as the cherishing Faction, the Disturbance of Loyalty, the Reproach of our Ru∣lers, the Scandal of the Law, and the unsetling of the new Establishment, wherein all our civil and religious Interests are undoubtedly concern'd.

Secondly, From the Premises I must infer, that an Essay to reconcile our present State with the former, is at least pardonable, if not reasonable and expedient, not to say necessary.

Here I am incouraged to lay the ground of my Apo∣logy, for this bold Adventure, and I hope no peaceable or good Man will be offended, much less any of our Rulers be provoked, with a modest and well-meant Endeavour to prevent much harm, and to do a great deal of good in my opinion. If I am mistaken, huma∣num est; but I am sure I intend well, and pursue a good Intention sincerely according to my own Apprehension: This satisfies my self, and methinks it should offend no body.

But I must speak plain; For if unnecessary Alterations in the Frame of Government be indeed dangerous, 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 con∣tinue 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 Po∣pular Mistakes about the Method of our present Settle∣ment, 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 mea∣sure, 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 Consti∣tution 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 hap∣pily reconciled to a better opinion of the present Go∣vernment, and a more cheerful Submission to it.

If I knew any better Argument to justify our Ru∣lers, to vindicate the Government, to establish the King∣dom 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 'tis 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 Conven∣tion, 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 ground∣less, I hope all good Men will be easily entreated to lay

aside that Aversion, and be sweetned to a better Com∣pliance, 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 up∣on, 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 Here∣ditary 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 Co∣lour 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 Nomina∣tion or Testament of the Predecessor.

Now if in History all these are said to be elected, cer∣tainly 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 pos∣session 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 here∣ditary Titles, were elected, so K. Henry 2. ab omnibus ele∣ctus;* 1.2 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 ear∣nestly, that however the words were used in such cases, indeed there was no such thing as Election or proper E∣lection of any of those Kings; and that Election signi∣fied 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 King∣dom.

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 Opini∣on 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 King∣dom.

1. In the Saxons time, the Doctor saith, he hath dis∣covered a sure Rule of Succession; but this was double, either Right of Blood, or the Nomination of the prece∣ding King; 'tis confess'd then that Right of Blood was not the only Rule: hence he lays down his ordinary di∣stinction of Jus Haereditarium and Jus Testamentarium; yea he tells 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 King∣dom? 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 Considera∣tions,

the like may be done by both the King and Peo∣ple. 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 Epi∣stola 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, be∣fore 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 ne∣cessarily annex'd to Proximity of Blood in the Royal Fa∣mily] 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 Law∣yer, 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 ne∣ver 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 King∣dom? 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 in∣ferr'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 Successi∣on, 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 Recog∣nition 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; 'tis indeed declared, that the Imperial Crown did belong to him and his Royal Progeny and Posterity for ever; but 'tis not said of neces∣sity, 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 Recog∣nition could not be perfect, or remain to Posterity with∣out the King's Consent, that is, to make it an Act of Par∣liament. And doth not that imply, that hereditary Suc∣cession of the Crown was not accounted to be fundamen∣tal to our Government before? For then it would have been perfect in it self, without the King's Consent. Be∣sides, 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 Mem∣ber 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 Go∣vernment, yet we may grant that in all Turns and Temp∣tations to the contrary, the Right of the Royal Family seems to have countenance, if not plain and general Ac∣knowledgment, and to pass unquestionable with the si∣lent Testimony of many Ages.

I am sorry to observe with Daniel, that (before this* 1.3 last Age) seldom or never the third Heir in a right De∣scent, 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 proxi∣mity 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 'tis 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 Ʋsage be Common Law, and* 1.4 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 In∣terest

in the Constitution of the Kingdom; for it seems to have governed the Disposition of the Crown all a∣long, both before, as well as since William the first; and that, generally, with our several Kings and Parliaments, e∣ver 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 Son or a Bastard (he doth not say, any other Person, or any one out of the Royal Family) before their own lawful Issue, to succeed them in the Throne, p. 363. Succession of the Crown.

The other is of Hubert A. C. at the Coronation of K. John, he declares indeed that the King ought to be elect∣ed by the Pople (perhaps a new Doctrine to many that heard it) yet he qualifies that Election, and tells them, that if any one of the Race of the late King was more deserving than others, the People ought (pronius & promptius) more readily consent to his Election.

Now if the Descent of the Crown ought to be kept within the bounds of the Royal Family, Is not this suffi∣cient to constitute an hereditary Monarchy, in a true sense, tho with the former latitude? Was it ever thought essential to an Inheritance, to pass uncontroulably with∣out any exception to the first in Blood? Is it not enough for the nature of an Inheritance to be granted to me and my Heirs? And may not Custom dispose it to the younger as well as the elder? Hath not the Parent liberty to give it to whom he will? Yea, is it consistent with a Fee-sim∣ple to be unalienable? or with Salus Populi, in all possi∣ble Cases, for the Crown to be so? especially in our own Kingdom, where frequent Practice seems to have esta∣blished as the Common Law of the Crown in all Ages, that upon urgent Reasons for the safety of the Kingdom, the

Inheritance is alieuable from the next in Blood. Nay, I must presume, that tho upon some extraordinary Revo∣lution, and some absolutely necessary Reason of State for our common Preservation, a Stranger should be ad∣vanced to the Throne, for one or more turns, while that necessity continues; I presume, I say, if when the Rea∣son of that Violence is removed, if care be taken to have the Crown restored to the Royal Family, or any of its Branches, capable of it, the Hereditarines is not thereby extinct, or the Constitution of the Government altered, things may then run again in the old Channel, and settle upon their old Bottom.

And since we are gone so far, may I not without Of∣fence advance one step farther?

Is there no Priviledg by Primogeniture? Doth not* 1.5 Nature and the general course of Inheritances, where there is no special Reservation or Exception, point out the next Heir for the Possession? Yea, is there not very much to be found in our Chronicles, and Laws, and actu∣al Succession of the Crown, in favour of the next Heir by proximity of Blood? Can we find by our most dili∣gent search of our publick Records, that ever the next in Blood was set aside, without some Reason or pretence of Reason? which very thing seems to allow his Right, whilst it alledges something against his Possession. Whence we may conclude, that tho for sufficient reasons the next in Blood may be set aside, yet without such reasons it seems neither just nor fit that he should.

The Royal Family have a Right in Actu primo; the next Heir seems to have it in Actu secundo; namely, a Jus in re, and as much a Right as can be conceived, short of Possession, if nothing can be justly objected against it from his Ʋnfitness for the Government. Imme∣diately upon the Decease of the Queen (saith the Par∣liament

in their Recognition of King James the first) the Imperial Crown did by inherent Birth-right, descend to you the next Heir of the Blood Royal.

Thus the Royal Birth-right hath the Acknowledg∣ment of the whole Kingdom, or the whole Body of the Realm, and every particular Member thereof, as the Words of the Statute are; and this Birthright hath been often claimed, and often frustrated, but I think never denied, or so much as questioned.

Prop. 2. There was nothing done in Prejudice of our He∣reditary Monarchy, by our late Settlement.

This is the other Proposition I undertook to make good in defence of our present Government; and re∣flecting upon what we have lately discours'd, we are necessitated to take notice of, and to set our selves to answer a very considerable Objection thence arising, as some strongly fansy.

Obj. Hence we are faln upon the great Objection; 'Tis thus, If the Right of the Crown be inherent in the next in Blood by Birth-right, why upon the Demise of the late King, did not the Government devolve on his Daughter the Princess of Orange? By preferring the Prince of Orange before the Princess, whose right it was, seems not agreeable to an Hereditary Monarchy, and so makes the Government Elective.

Answ. I hope there are already sufficient Grounds laid for an Answer hereunto: All that I have to do is to apply them in a few plain Propositions.

1. We have found reason to distinguish thus; The Crown may be thought alienable, either absolutely, or in a qualified sense; that is, such a sense as is consistent with its being Hereditary.

2. One may think that the Crown is not absolutely at the Peoples Disposal; in our (or in any) Case, or alie∣nable upon any Occasion, or to any Person; and yet may conceive that upon plain necessity, created by Salus Populi the Supream Law, and the very end of Govern∣ment, the Crown may be alienated from the next in Blood, to the second; and upon the like reason to the third.

3. 'Tis further evident to me, That a Man of that Per∣swasion may yet judg that the next in Blood that is capa∣ble of the Government, may of Right, and by the Law of Inheritance claim the Crown, which without Injustice cannot be denied him.

4. It hence followeth, That the Supream Power upon the Demise of the late King, did not devolve upon the People, nor imediately upon the Prince of Orange, but upon his Princess. Upon these grounds indeed it must be granted that the Princess should have been Queen as Queen Mary was, that is, in the place of the King; and next to her, the Princess of Denmark, unless some very great Reason of State will justifie the preferring the Prince, who is not next in Blood, before them both.

5. Doubtless those whom we intrusted to manage and methodize our Settlement, saw, as they judged, un∣answerable Reasons to advance the third in order, before the first and second, and methinks that should satisfie us.

6. But moreover we are morally assured that both those noble Princesses were themselves satisfied of the Reason of it; yea, that both of them consented, yea desired the Crown might be settled in the order as it is.

7. And may it not be very reasonably granted, that some great Considerations (though we know not what they were) might move them cedere de jure suo, to wave

their own Right, and these such as might warrant and justify their so doing?

8. Yea, if there be such a thing as Abdication of Go∣vernment, did not both those noble Princesses expresly, and not only by Implication, so far abdicate the Go∣vernment, if they actually and voluntarily so far refus'd it?

Obj. But had not the Prince of Denmark some kind of Right in and by his Lady?

Sol. It seems to me he had; but it is very evident that he consented and waved what Right he might have, as both the Princesses did theirs.

Obj. But the People of England seem to have a right to be governed by the next in Blood of the Royal Family.

Answ. This too may be granted: but the People of England in this sense, are the Lords, and the Representa∣tive Body of the Commons; and have not these both consented to, and transacted the present Establishment for themselves and us?

To conclude this, Upon the late Demise, nothing could bar the Prince of Orange from a just and immediate Ti∣tle to the Crown of England, but the Right of his Princess, the Right of the Princess, and in and by her of the Prince of Denmark, and the Right of the Na∣tion in these; but all these Bars are fairly removed by the Consent and Desire of all Parties concern'd, and none have left them any cause to complain in that respect.

Now I hope here is nothing done destructive of the Hereditary Monarchy, nothing that can infer the Go∣vernment to be Elective purely in the whole Transaction; much less so great an Alteration in the nature of our Government for the future. What Principles some went upon in our late Change, we need not guess, so long as we find nothing evident, either verbal by Declaration of our Governours, or by any thing in the Change it self,

but what is fairly reconcileable to our ancient Constitu∣tion; we may, without troubling our selves with other Mens Principles, cheerfully submit to the present Go∣vernment, if we have no more to object, but that the Nature of the Government is altered by the Revolution. An evil Surmise without ground, ought to be laid aside.

CHAP IV. Of Vacancy, and the supposed Interregnum thereupon, by the late King's Abdication.

WE are thus led to the second great Exception, which is this, It is delared by the Lords and Commons in the Convention, that the late K. James the Second having abdicated the Government, the Throne there∣by was vacant; consequently an Interregnum was ad∣mitted or supposed, contrary to the ancient and known Maxim, That in the Government of this Kingdom there is no Interregnum.

For Answer hereunto, I hold my self obliged to do two things: first, to consider how and in what sense the late King abdicated the Government; this may justify the filling the Throne with the the present King and Queen. 2dly. To shew that there hath been nothing said or done by the Convention, as such, that hath declared a Vacancy in the Throne in that full and absolute sense, as might in∣fer an Interregnum in the true meaning of the Word. And thus the present Government will be vindicated and reconciled with the ancient, and this great Exception I hope fully satisfied: and this methinks I am strictly tied to, by my last Discourse of Hereditary Monarchy, as will presently appear more plainly.

CHAP. V. Of ABDICATION.

FOR the first, That the late King did really abdicate the Go∣vernment, hath been so fully spoken to by others, that I need not much labour in the Proof of it. My chief Intention is to reconcile the Word to the Notion of my Brethren that are so much offended with it.

1. I desire them to consider, it is a Law-term, and but sel∣dom used amongst us; why should we not take the Significa∣tion of it from the Learned in that Faculty?

2. But 'tis of greater Weight, that the Lords and Commons differing about this Word at their Conferences, such a sense was beaten out, after much Debate and Argument, upon the very same grounds upon which many seem now offended with it, that the Wisdom of the Nation in both Houses acquiesced in this word, as the fittest for the purpose. By our Election we intrust them with all we have, and cannot we trust them with a Word?

3. That which seem'd to reconcile the two Houses in the word Abdicate, was not the critical notions of the Civilians, but the Explication of what was then to be meant by it, which I am told was happily effected by one (who is a Wonder in the lear∣ing of the Law) in these or the like Words, in which before they were agreed.

That King James the 2d. by going about to subvert the Constitution, by breaking the Original Coutract between King and People, and by violating the Fundamental Laws, and withdrawing himself out of the Kingdom, has thereby renounced to be a King, according to the Constitution, by avowing to govern by a Despotick Power unknown to the Constitution at his Coronation; such a King to whom the Allegiance of an English Subject is due: and has set up another kind of Domi∣nation, which is to all intents an Abdication, or abandoning his Legal Title as fully, as if he had done it by express Words.

Now if these things were true, as no body I think can deny, and amount to an Abdication in the just, and publickly owned

and explained sense of the Word, how is it possible we should any longer scruple about it.

Obj. The Meaning of it then is, that King James thus ceas'd to be King; but this is doubted.

Sol. But the Body of the Kingdom say he did; and you will not say but 'tis possible: for a King may cease to be so, by a voluntary Resignation in Word or Writing, which is formal Ab∣dication; or, as Grotius seems to expound the Word, by mani∣feste habere pro derelicto.

2. Now if the late King did as much by his Actions as an express Abdication amounts to, did he not virtually and as really relinquish or abdicate the Government, as if he had in so many Words renounced it?

3. And that he did so, is too evident by what is before al∣ledg'd against him, especially if we add his putting down the ancient Defence of the Kingdom, the Militia; and beginning to rule and defend his Arbitrary Government by an illegal standing Army; if when he voluntarily departed from us, he dismissed his Judges, threw away the Broad-Seal, and disbanded and let loose upon us his illegal Forces, and left us in a perfect A∣narchy; as was then apprehended, even by such as now are offended with the Word Abdication.

The Caution of the Convention, to avoid all colour of Offence, seems admirable. If they had said the late King had forfeited the Crown, that would certainly have more offended you; and if they had deposed him, much more: these are both avoided, and 'tis only said he abdicated the Government; they do not only say it was his own Fault, but his own Act.

Obj. But thus we make him Felo de se.

Sol. This seems to be no hard saying. 'Tis plain, though the King in his personal or natural Capacity cannot, as you think, forfeit his Life, yet he may die or kill himself: So in his poli∣tick Capacity, if we grant that the King cannot forfeit his Government by male Administration, yet 'tis possible he may extinguish and destroy it, and that by a real as well as by a for∣mal Abdication, as before explain'd. Government according▪ to Law, is essential to our Government, otherwise our Lawyers are much out, that generally tell us our Government is a Legal, Regal, or as Fortescue, a Political Government, in opposition to Despotical, Absolute, Arbitrary or Tyrannical Govern∣ment.

Now though a King do not intend absolutely to a∣bandon all kind of Government, yet when he leaves the proper Government, and assumes another kind of Govern∣ment abhor'd by our Constitution, he plainly ceaseth to be our Governour in any sense; he refuseth to govern po∣litically; he would bring in another Species of Government that is destructive of our Constitution; and begins in many odious Instances, the Execution of Tyranny, contrary, not only to the Laws that make and limit our Government, but contrary to the ends of all Government; and instead of protecting, destroys his People; what can be plainer than that this is to abdicate the Government as King of England? A King may kill himself, and not intend it.

To this purpose we have several notable Collections made by others. I shall note a few of them.

Among the Laws of K. Edward C. 17. de Regis Officio, the Liberties of the People being mention'd, it is said, that the King is constituted for the Preservation of them, which if he do not, nec nomen Regis in eo constabit, he doth not retain the Name of a King.

Bracton says l. 2. c. 24. Est enim Corona Regis facere Justitiam & Judicium, pacem tenere, sine quibus consistere potest nec tenere; i. e. The Crown of the King is to do Justice and Judgment, and to preserve Peace, without which he cannot subsist.

But above all, the Words of K. James to his Parliament March 21. 1609. are remarkable.

The King is bound by a double Oath to preserve the Laws, tacitly as being King, and expresly by his Coronation-Oath: So as every just King is bound to observe the Paction made with his People by his Laws, framing the Government thereunto; and a King leaves to be King, and degenerates into a Tyrant as soon as he leaves off to govern by Law, in which case the King's Conscience may speak to him, as the poor Woman to Philip of Macedon, Ei∣ther govern according to Law,

or cease to be King.

Answerable hereunto is the Civilians Maxim, Tyranni in Ex∣arcitie decidunt Jure sue Haereditario; i. e. Tyrants by their Ty∣ranny lose their Hereditary Right of Government; for the Ill of Monarchy is Tyranny; K. Charles's Answ. to 19. Prop.

From what hath been said, it seems plain, that a King by relinquishing the Legal, and usurping an Arbitrary or Tyranni∣cal

Government, does as effectually abdicate the Government as King, as a Merchant that turns Pirate, abdicates his Trade; or a Husbandman, that leaves off his Husbandry, and resolves to cast the fortune of his Life upon robbing on the High-way, abdicates his Plough.

Lastly, 'tis so evident in those that give us the sense of the word, that there is a real Abdication, as we have considered it in distinction to a formal, that no body that will take the pains to examine can doubt it: Not only Grotius, de Jure Belli & Pac. lib. 2. c. 4. s. 4. Non tantum verbis sed re potest: but Calvin in his Lexic. Jurisd. tells us, Generum abdicat, qui Sponsam repudi∣at; he that divorces his Wife, doth abdicate his Son. So Ho∣mo liber qui seipsum vendit, abdicat se statu suo, saith Brissonius de verb. sign. that is, he which sells himself, abdicates himself from his former state. And Budaeus Comment. de Origine Juris, Abdicare se Magistratu est idem quod abire penitus Magistratu.

1. For the Application of the Word so explained: And to all that had been said to prove the late King's Abdication com∣pleat and undeniable, it ought to be remembred, that in the* 1.6 very times of Popery here, a submitting to Papal Usurpations and Authority contrary to our Laws, was deem'd a Disinheri∣son of the Crown. What shall we say of the late King's volun∣tary, studied and deliberate invading his own Authority, and sub∣jecting the whole Ecclesiastical State to a forreign Power, to the utter Extirpation of our Reformed Constitution, so firmly set∣tled in the special Laws of the Land to that purpose? Consi∣dering also how this in a little time must inevitably ruin the Ci∣vil State, which is intimately inter woven with the Ecclesiasti∣cal in their just Liberties and true Religion; their very Conscien∣ces and Lives not being safe from the Snares and Inquisitions, and even Massacres of the most cruel, tyrannical and barbarous Religion in the World.

2. This, in conjunction with the late King's Proceedings in civil Matters, needs no Aggravation. The Crown of England is glorious in a threefold Excellency, the Legislative, Executive, and Military Power. Now sor one of our own Kings to do that industriously, and by many designed deliberate Acts, which is rank Treason against the King and Kingdom, which at least hath a tendency to destroy the King, with respect to his Crown and Dignity, what is this but to destroy himself? For a King to

divest himself of the Legislative Power by the use of all Artifi∣ces of Fraud and Force, to destroy the fundamental Priviledges of Election, and consequently the very Being of a legal Parlia∣ment, his executive Power, by refusing to govern by Law, and setting up an arbitrary tyrannical Government. Lastly, his le∣gal standing military Power; laying aside the Militia, and re∣solving to stick to an illegal Army, what is this but to relinquish the Government of England, to throw away all Regal Authori∣ty, to violate, break in pieces, and trample upon the Crown; to declare to all the World, he will be King no longer; and to abandon the Authority which he had to govern by Law, accord∣ing to the Constitution of the Kingdom, his Duty to his Peo∣ple as King, and the special Bond upon his Soul in his solemn Coronation-Oath?

3. But at last, to crown all, when the Noise of the Prince's Coming had brought him a little to himself, and he begins to feel the danger that his late daring Pranks of Tyranny had brought him into, he adviseth with his wise Council what to do: Should he trust his People in Parliament? No: Should he trust his melt∣ing Army? No: Should he trust his dreadful Son in Law? No. What then? as the evil Spirit rent and tore the Body when he was forc'd to leave it, so he did all the mischief he could, (by cal∣ling in his Writs for a Parliament, dismissing his Judges, car∣rying away the Broad Seal, and putting an end to all kind of Government among us, as before) and then leaves us in absolute Anarchy, and a way of Confusion, upon a necessity apprehended (of his own creating) of dispossessing us, he flies to his trusty and wel-beloved the French King; thus at once delivering his Person, and in consequence directly betraying his Kingdom into the Power of the only Friend he has in the World, but his Kingdoms only Enemy.

In a word, to put an end industriously to all Government at home, and as far as in him lay, to deliver himself and his King∣doms into the Power of a foreign Enemy, seems to be an Abdi∣cation with a Witness, at least so far, as to leave the Throne vacant.

CHAP. VI. Of Vacancy and Interregnum.

BUT it may be said, That if the late King did abdicate the Government, and thereby the Throne became void; then we admit an Interregnum, contrary to an ancient Maxim in our Government: But the Convention did declare, that the late King did so abdicate, and the Throne was vacant; therefore they have altered the Constitution of our Government.

Answ. 1. Hereunto I answer, first, That I for my part know no Law against the possibility either of a Vacancy in the Throne, or an Interregnum; I mean, in extraordinary cases, such as ours was; or when the Royal Family may be supposed to be extinct, or all the remaining Branches of it are known to have imbibed Principles directly against the Interest and Religion of the King∣dom, and destructive of what should be preserved. I cannot say but the contrary Opinion seems to consist with some ancient Transactions of our States.

2. For a Vacancy in the Throne, we have an express Precedent in the sense of the Parliament about Richard the 2d; and if so, that will infer so much of an Interregnum too.

3. I confess of later times, the Recognition of the Parlia∣ment made to K. James the first, seems to exclude both a Va∣cancy and an Interregnum, that is, at least when things proceed ordinarily and regularly; the words are, Immediately upon the Decease of the Queen, the Imperial Crown did by inherent Birthright descend to you the next Heir of the Blood Royal.

And this it concerns me to observe, as agreeable to the Here∣ditarines of our Monarchy, as before I have declared it.

A Digression.

But before I proceed, I desire it may be always remembred, and that we still carry this along with us, That tho the Crown be Hereditable, yet Government is an Office and Service, or Mi∣nistry to us for good, Rom. 13. and that by our Law 'tis in the nature of an Office: that it may be lost three ways; either by Insufficiency, or Forfeiture, or Cession, called Non-qualification, Abuser, or Non-user: And how far these, or any of them, are applicable to the Possessor of the Crown in England▪ may be considered in the ensuing Discourse.

At present we shall observe, that he that takes an Office, tho it be by way of Inheritance, takes it with its Conditions and Burthens. Indeed, there are Advantages and Profits annex'd to the Office, and sometimes real Estates in Land, which are inseparable from it, and cannot be lost while the Officer con∣tinues in the Office: And thus it is with our Crown-Lands, wherein the King hath rectum dominion in Right of the Crown; which no Man hath in his Land besides the King. Yet if the Government be an Office, and these Crown-Lands be in the King, as he is King, and hath that Office, and not simply in him as* 1.7 such a Person; he cannot lose them any way during his being King; but he seems to hold in the nature of a Benefit, from and for another; i. e. his Kingdom, he owes Duty for it, tho not Fealty for it: And the Statute 37 Hen. 8. cap. 16. useth the word Fee of Lands invested in the Crown.

But leaving this Digression, we must return; and there seem two Doubts depending here, that I must a little insist upon, Whether the Convention did indeed declare the Throne vacant? and whether we are bound to believe that Vacancy to be so ab∣solute as to infer an Interregnum?

The first Doubt touching Vacancy, viz. First, Whether the Convention did indeed declare the Throne to be vacant?

1. If it be plain they did, they did so as our Representatives, and why should not that satisfy us? at least why should we be troubled at it, seeing their so declaring passeth not into our Al∣legiance, or the succeeding exercise of the Government; be∣sides, we are left at liberty to enjoy our private Thoughts a∣bout it; and tho they declared so, we are neither required to declare it, or to believe it.

2. But in truth (whatever might pass at the Conferences of the Houses about it) their VVords that give us their Act in pub∣lick▪ do not express or formally make any Declaration, that the Throne was vacant.

Their words are these, [K. James the 2d having abdicated the Government, and the Throne being thereby vacant] here is in∣deed a plain Supposition that it is so, but no Declaration. So that if the Throne was not vacant by the King's Abdication, they do nothing to make it so; all the Suppositions in the world cannot make that to be that is not.

Therefore if that King had really abdicated the Govern∣ment, and yet there was no Vacancy, there was neither any In∣terregnum; but the Descent was immediate; and the Succession regular in the present King and Queen.

But if the Throne was really void by that King's abdicating, and the Convention was not mistaken in their Supposition, as we should not easily imagine, then we are concern'd to consi∣der the second Doubt.

The second Doubt. VVhether we are bound to believe that Vacancy to be so absolute, as necessarily to infer in the meaning of the Convention an utter Interregnum?

Sol. In general my answer is, There is no necessity for such a Belief, nor indeed any reason for it in my apprehension.

The Convention, as I observed before, did not declare a Va∣cancy at all, only they suppose it, as the undoubted Consequence and Effect of the Abdication; having abdicated the Govern∣ment, and the Throne being thereby void.

Now that the King's Abdication did or did not leave the Throne vacant, depends upon the Nature of the things; and are not affected by the Declaration; neither can we by our Jea∣lousies or Imagination make things otherwise than they are of themselves, or make the Declaration import another and a stricter sense than it really doth.

For a fuller answer therefore, three things are distinctly to be considered.

1. How far a Total Abdication may effect a Vacancy in the Throne.

2. Whether we have reason to think that the Convention did suppose a Vacancy in any other sense.

3. Consequently whether that sense imply an Interregnum.

Quest. 1. How far a Total Abdication of the Government may (or doth necessarily) effect a Vacancy in the Throne.

Sol. For the clear answer to this, we must take our Measures from the Nature of our Government, which hath been sup∣posed to be Hereditary.

1. Now if the Government be indeed Hereditary, though there be a Vacancy in the Throne, truly wrought by the Abdi∣cation of the Government, as the Convention supposed, it can∣not 〈1 page duplicate〉〈1 page duplicate〉

〈1 page duplicate〉〈1 page duplicate〉

be reasonably imagined to be an absolute and total Vacancy, or such in all respects.

2. The Reason of the Consequence seems plain 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 Sta∣tute 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 Prede∣cessor. The Royal Family have Jus ad Rem, but the next in Blood, if without just Exception, hath Jus in Re, and wants no∣thing 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 Pos∣sessor; and if the Estate be forfeited, 'tis 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 be∣fore 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 Law∣yers* 1.8 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, 'tis plain enough that the Convention supposed the late King by Abdication left the Throne void in some re∣spect; 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 relinquish∣ing 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 ne∣cessary 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* 1.9 the next in Blood born beyond the Sea should not be King: and by that of Eliz. 23. c. 1. Persons op∣posing the Execution of that Act, are thereby dis∣abled 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 for∣mer Instance. The Statute of the Queen plainly supposeth that some may claim, which cannot consist with an Elective Go∣vernment; and if the next in Blood are disabled by Law to claim, it follows, the Right is some where else, and by Vir∣tue 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 Conven∣tion 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 In∣terest 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 va∣cant, we do resolve that William and Mary be, and be declared King and Queen.] They do not say they make them so, but re∣solve that they are so, and then declare them to be what in∣deed they were.

3. And now I must have leave to admire the Wisdom, Fore∣sight* 1.10 and Caution of that great Assembly: they do not lay hold of a Forfeiture of K. James; they do not pretend to de∣pose him; they do not insist upon his Resignation; but they sup∣pose 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 consi∣der the Premises; for such a Vacancy we have upon every De∣mise 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 no∣thing 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 Ma∣xim 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 Sub∣ject? Yet, from the nature of our Government, and by Com∣mon Law, the King ought to govern according to the Laws and Customs of the Kingdom; and we ought to pay him our natu∣ral 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 fun∣damental 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, me∣thinks 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 Inhe∣ritance, 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 'tis evident that, upon this ground, upon that avoidance, without any intervention or Act of the People, either in a Convention, or Parliament, the Crown imme∣diately 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 Peo∣ple; yet 'tis 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 Parlia∣ment, 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* 1.11 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 Go∣vernment.

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 up∣on the ancient Laws, and laudable Customs of the said Realm. Agreeable hereunto was the Recognition of King James be∣fore-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; there∣by 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 De∣claration 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 Com∣mens 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 im∣mediate Heir, to be Queen only, or at least before the Prince?

Sol. This I hope hath been fairly accounted for before, Con∣sensus tollit-Errorem; especially Consent grounded upon invinci∣ble 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, ('tis 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 Pri∣mogenitus 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 pos∣sess 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 Par∣liament, 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 de∣mise of the King. Is there not a plain necessity now to preserve all from Confusion, for the great Men, &c. to meet, and to con∣sider where to place the Government, according to Right or Merit?

6. Again, we may suppose two or more Rivals for the Crown,* 1.12 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 Govern∣ment?

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 ex∣pressed in an Act of Parliament; if any one would break thrô, and invade the Government, he must be prevented by a Con∣vention, or the Foundation of the Government is subverted.

8. Lastly, The Throne being left empty of an Administra∣tor 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 Conven∣tion should meet, and to give out his Summons for a Conventi∣on? And was not that Convention regularly, peaceably and freely chosen and assembled? And what did they do, but consi∣der where the Right of the Crown now lay, and with the Con∣sent 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 Them∣selves 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 ac∣cording 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 Con∣vention of Lords and Commons (so elected) to do, but to con∣sider 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 Pos∣session 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 sum∣mon'd by the King's Writs.

Answ. However, they truly represent the whole Body of the People, and the Representers of the Commons, and Universi∣ty of the People, together with the Lords, all concur'd to the Proclamations of the King and Queen, and that's enough cer∣tainly to render the Possession of the Throne by them undoubt∣ed; 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 'tis 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: 'tis true we cannot conceive a pro∣per 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 Parlia∣ment given by the Law to Conventions, not chosen by the Peo∣ple; if we find the Definition of a Parliament given by a Sta∣tute, to agree exactly to the present Parliament; and lastly,

if we have a Precedent in the case, why should we doubt whe∣ther 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 Peo∣ple at all, and consequently not chosen upon Writs from the King; this the learned Dr. Brady labours much to prove in fa∣vour of the Crown before (as he saith) Parliaments were set∣tled 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 Admi∣nistration 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 Peo∣ple have their Priviledg, and the King his Prerogative: and while we have the Substance, 'tis 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 eve∣ry particular Member thereof, either in Person, or by Representation (upon their own free Elections) are, by the Laws of this Realm, deem∣ed 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 pro∣perly 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 Com∣mons, 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 man∣ner of Summons, which he, before he was actually King, in∣vited 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 pre∣sent 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 Con∣currence) 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, concern∣ing the Nature of Parliaments, the King and Kingdom assem∣bled 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 poli∣tick 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 per∣tinent; The Parliament is of such Authority, and the People of this Land of such a Nature and Disposition, as Experience teach∣eth; that Manifestation or Declaration of any Truth, made by the three Estates of this Realm assembled in Parliament, and by Autho∣rity 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 reconci∣led our present State to our ancient Constitution, as an Here∣ditary Monarchy, and admitting no Interregnum, my Reader will be my Judg. As also of what I have said touching Abdi∣cation 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 intend∣ed, 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 Proclama∣tions, and their Coronations, with all the Methods and Formali∣ties 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 with∣out 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 on∣ly, 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 Pos∣session, 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 com∣mitted 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 Consci∣ence 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, e∣ven 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 Judg∣ment and Sense of the Nation.

'Twas said by the Parliament of Richard the 3d, after they had cleared his Title, as grounded upon the ancient Laws and* 1.13 laudable Customs of the Realm, according to the Judgment of all such Persons as were learned in those Laws and Customs; they pro∣ceed 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 questi∣on; 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 'tis 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 de∣pend: 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 actu∣al Government, that the Subject was excused from Allegiance, or an Oath of Fidelity, as occasion required it? Yea, If Obe∣dience 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, forbid∣ding 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 Pro∣vidence, 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 un∣doubted King and Queen, because in possession of the Govern∣ment; 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 King∣dom, 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 re∣serve 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 pu∣nish Disturbers of their Possession? If it be so, we do not take right Measures of their Authority, or of our own Duty accord∣ing to Law.

2. For they are really King and Queen, by being in Posses∣sion, 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* 1.14 Hen. 4, 5, 6. and all Acts that had entailed the Crown, con∣trary to the course of Inheritance, yet add these remarka∣ble 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 Au∣thority, 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 Obedi∣ence; and Obedience in England, is to be measured by the Laws; what can Allegiance import more than Obedience accord∣ing 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 Obliga∣tion upon us by it; for in the Declaration, they require of Quakers, who refuse to swear, they express [Faith and Alle∣giance] 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, 'tis evident they do not require us by this Oath to assert the Title, but to se∣cure 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 industri∣ously 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 de∣pose 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 Princi∣ples; 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 'tis 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 'tis 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: 'tis 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: 'tis 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 Peo∣ple to busy themselves to pry into the King's Titles; for that how∣ever 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 sur∣mised, 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, 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. 'Tis true, 'tis supposed he had no Right at first, and his Usur∣pation 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 Ju∣stice, 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, 'tis granted me, that a King de facte on∣ly, hath Authority enough to make Laws generally speaking: if his Laws therefore be not of force to limit the Succession, 'tis for another reason mention'd before, taken from that special Matter of the Right of Inheritance, which, it is thought, can∣not be infringed by any Law of Man.

Hence 'tis 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* 1.15 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, see∣ing 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 Ma∣jesties, 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 Allegi∣ance; 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 re∣quire

us to assert or swear to the Act of setling the Crown for the future, it requires only our Obedience to our present graci∣ous King and Queen; and we do our Duty, if we look no further.

CHAP. IX. The Honour of the Church of England, no just Objecti∣on 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 suf∣fers 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 deserved∣ly: 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 Prote∣stant Churches, (as well as Popish) Principles and Practices, as some lately have made manifest demonstration. And how ho∣nourable or laudable that is, I determine not, but it may be con∣sidered.

2. I perceive the Movers of this Objection do not say, that 'tis unlawful to take the new Oath: and indeed, that is grant∣ed in the nature of the Objection; for if the Oath be refused only, because 'tis dishonourable to take it, 'tis supposed to be in it self lawful, tho not expedient: And indeed, the Argu∣ment 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 'tis

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 Reputati∣on, 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, be∣cause 'tis necessary: This is the Law of Prudence; and Expedi∣ency changeth sides: that which was expedient not to be done, for the sake of Reputation; 'tis 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 ge∣neral, and prima facie, attend the Action; for the very grant∣ing 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* 1.16 makes it to be our Duty to take this Oath, which is but the Se∣curity of our Allegiance; 'tis required by the Nature of our Constitution, and immemorial Custom, which is our Common Law; 'tis required from the Paction betwixt Prince and Peo∣ple, to secure each other by their respective Oaths; 'tis requi∣red by virtue of the Statute of Hen. 7. whereby we are to ac∣knowledg the King regnant, to whom alone we owe Allegi∣ance, and must secure it. And lastly, 'Tis 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 Allegiance are both the natural and le∣gal 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 ne∣cessary. Now I should think, that to obey the Powers in Be∣ing, is as clearly commanded by the Law of God in the Holy Scriptures, as by any other Law whatsoever: And that we can∣not, 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 Eng∣land, 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: Con∣science 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* 1.17 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 strange∣ness 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 Kind∣ness to our Friend, our Gratitude to our Deliverer from Pope∣ry and Tyranny? These are substantial and weighty Things; And what are the Colours of a pretended Reputation in com∣parison 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 pro∣voke

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 vindi∣cated your Loyalty to him? Is is not now become morally im∣possible he should ever return but by the Assistance of the French King? that is, without inslaving us openly to the Anti∣christian 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 can∣not imagine the wise and good Providence of God should bring us into.

6. By disobeying the Law, and our Distance with the Go∣vernment, we continue a Breach, at which a common De∣struction 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* 1.18 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. 'Tis 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; 'Tis this;

None can be ignorant that the late King hath put himself into that condition, that the French King is now actually en∣deavouring 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 'tis a piece of Mad∣ness to imagine but that the French will reap the Advantage of any Success God may suffer to be obtained against us. Per∣haps 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 promo∣vent publicum Ecclefiae bonum, if they do not promote the pub∣lick 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 diffe∣rent from that which lay upon the People during Oliver's Usur∣pation;* 1.19 they had reason to refuse, or at least to suspend the 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 Ti∣tle of our Soveraign in all our Laws; under whose Violence and great Oppression the Kingdom in general groaned for De∣liverance in the return of their rightful King; and might lauda∣bly 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 Ecclesiasti∣cal 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 Ty∣ranny 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 encou∣raged 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 dan∣ger, but by comforting the King who, under God, hath dispos∣sess'd us; and who only, under Heaven, is the visible Instru∣ment of our Preservation from that last Estate (to use our Sa∣viour'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 Ob∣jection 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, 'tis 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 Alle∣giance to King WILLIAM and Queen MARY, whom God long preserve and prosper.

Notes

• * 1.1

  Vid. Cron. Ecl. Licti. Seld. 171. Fortise. de Leg.
• * 1.2

  Brad. Gloss. p. 38.
• * 1.3

  In Vit. Hen. 1.
• * 1.4

  Rig•••••••••••• Royal Fa∣mily.
• * 1.5

  Next Heir.
• * 1.6

  25 Ed. 3. Stat. 6. Praemuni∣re Provi∣sors. Ed. 1. Letter to the Pope.
• * 1.7

  Vid. Blounts Law dict. F••••.
• * 1.8

  All Land in Abeyance, or in Fie of some Man. Rule in Law.
• * 1.9

  Edgar was set aside, be∣ing neither in Body or Mind fit to govern. In∣gulph. With full consent in Parliament the Queen of Scots was desired to be disabled. Burl. Letter. And of late the Duke of York▪
• * 1.10

  Noted be∣fore.
• * 1.11

  Walsing∣ham Hist.
• * 1.12

  As they did in Rich. 3. that famous Case.
• * 1.13

  Dr. Brad. p. 390.
• * 1.14

  Vid. Dr. Brady, p. 386.
• * 1.15

  As Hen. 8. did.
• * 1.16

  Necessitas Pracepti.
• * 1.17

  Necessitas Medii.
• * 1.18

  Dr. Donne.
• * 1.19

  Oliver's Ʋsarpation answers not our Case.