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though evidently calculated to prevent the
and they may give a popish successor trouble, should he attempt a change in religion. . In all times there have been a great many worthy men, who, in all difficulties, will stick to the crown; and, in process of time, there will be discontents among them who oppose
the and those that are not pleased, will join with them that are loyal, and there will be trouble in changing the succession. It has been hinted, over the way, as a remedy to preserve religion, To leave the duke as a general without an army. Now you have an opportunity, you may make several laws to suppress popery, and of leaving the duke alone; which being so, he cannot subvert the protestant religion. You have now opportunity, and you know a popish successor, and may bind James, duke of York, by name; and there is one power yet above between him and the succession. The duke may die before the king; and the king may marry again, and have a successor. Besides, the crown has but a narrow revenue; and the parliament must supply it from time to time for the ordinary exigencies of the crown, and the parliament will then provide for their own safety better than by taking this way proposed Sir L. Jenkins argued on the same side of the question; and, among many other things, observed, " that the consequence of this bill is altering the government from successive to elective. The successor is to be disinherited, because of a supposed demerit: and where we can punish demerit, we may reward merit; and, consequently, the crown may be removed from the royal line to any other. But I confess myself at a loss to know, by
Grey's Debates, vol. VII. p. 402.
greatest mischief. Such was the influence
what law or authority we can do this, or by what rules we are to try and judge of the qualification of our princes. I do not here consider the duke's personal merits; because I should speak as much for any one next in blood, though without merit at all. I might say, first, as to his religion, if it is popish, yet that he is no bigot; because his children are all bred protestants, and so are his servants, especially those that have, the largest share in his esteem; and that he has never been wanting in respect and favour to any one of that profession. That he is not only the presumptive beir of the crown, brother of his present majesty; but the son of a king, for whom so many
your ancestors have laid down their lives and liberties, and most men their fortunes. That he hath fought our battles with bravery; that he is exactly just between man and man; a strict observer of his word: and never yet entrenched on any man's property: these things malice itself cannot deny; but, with me, they are the least considerable in this case, for it is his apparent, indisputable right of succession, which I most contend for. The law says, If a man is disseised of an estate tail, his child, though not born at the time of his disseisure, shall have a writ. of formedon, and shall recover; because his father was disseised contra formam donationis. And if in private estates descents do regulate possessions and properties; why should it be otherwise in the case of kingdoms? or what casuist can give me a sufficient reason, why the birthright of princes should not have the same rules of natural justice, as those of private men? Or how can any one think, that wrongs and injuries done to princes, must not, one time or other, be as severely accounted for, as those done to other men ? Could
of this monarch in that august assembly!
the late king have disinherited his present majesty? No: because he was to succeed by the law. No more, therefore, can his present majesty consent to disinherit him that is next in blood. And, I dare say, this is the first instance of any such attempt against a prince whose proximity of blood is indisputable.” Burnet tells us, “all Jenkins's speeches and arguments against the exclusion, were heard with indignation." We see, indeed, they were wretchedly contemptible, and even unworthy of serious argument among men capable of discernment.-- But though the majority in the house of commons were thus zealous against the duke, they were far from being determined amongst themselves who was fittest to succeed to the crown. Some, it seems, were for the prince of Orange; others, for the duke of Monmouth ; whilst a third party were only upon negatives, as Mr. Sidney speaks. “But,” adds he,“ when I have said what I can upon this business, I must confess, I do not know three men of a mind; and that a spirit of giddiness reigns amongst us, far beyond any I have ever observed in my life.” To go on.
-The bill was argued for in the house of lords, by the earls of Shaftesbury and Essex; and the lord Halifax was the champion on the other side, who is said to have gained great honour in the debate, and to have a visible superiority to Shaftesbury in the opinion of the whole house. Let us, however, hear the account of this debate, as preserved by Mr. Johnson, from lord Essex himself. “That learned nobleman, the great earl of Essex,” says he, “was pleased
* Jenkins's Life, prefixed to his Letters, vol. I. p. 101. fol. Lond. 1724
Burnet, vol. I. p. 482. Sidney's Letters to Saville, p. 53.
A popish successor, probably, in his eye
to tell me what arguments he insisted upon in that debate. The first was, that the regality of England was an office, concerning which the seventeenth chapter of king Edward the Confessor's laws is wholly spent; and it is so declared to be in many acts of parliament as low as queen Mary's time: and that a woman, as well as a man, might be invested with the regal office. Hereupon he said, that a person unqualified, as all the world knew the duke of York was, could not be admitted to that office. Upon discourse about this, I remember his lordship was pleased to take down Lambert's Saxon Laws, and shew me several particulars in that seventeenth chapter which I had forgot. His second argument was to prove, that if the duke of York had unqualified himself for that high office, as he plainly had for the meanest office in England, then the parliament had, undoubtedly, power to foreclose him and set aside his remainder in the crown; because they had power to do more. This, he said, was the known law of England, and agreed upon by lord chancellor More; and Richard Rich, then sollicitor general, and afterwards lord Rich; as a first-established principle, Upon which they argued about the supremacy. It stands thus in the record, as we have it, p. 421, of lord Herbert's History. The sollicitor demanded, If it were enacted, by parliament, that Richard Rich should be king, and that it should be treason for any man to deny it; what offence it were to contravene this act? Sir Thomas More answered, That he should offend if he said no, because he was bound by the act; but this was cusus levis : whereupon sir Thomas said, he would propose a higher case; suppose by parliament it were enacted quod Deus non sit Deus, and that it were
could be no curse to his people ; and he
treason to contravene; whether it were an offence to say according to the said act. Richard Rich replied, yea: but said withal, I will propose a middle case, because yours is too high. The king, you know, is constituted supream head of the church on earth : why should not you, Master More, accept him so, as you would me if I were made king by the supposition aforesaid ? Sir Thomas More answered, The case was not the same; because, said he, a parliament can make a king, and depose him: and that every parliament-man may give bis consent thereunto; but that a subject cannot be bound so in the of supremacy, Quia consensum ab eo ad parlamentum præbere non potest, et quanquam rex sic acceptus sit in Anglia, plurimæ tamen partes exteræ idem non affirmant. Because the parliament-man cannot carry the subjects consent to parliament in this case (that is to say, nobody but Christ could make his own vicar, and the head in heaven make the head on earth); and although the king be held to be head of the church here in England, yet the greatest part of the world abroad are of another mind. Here Sir Thomas More stuck; for, I believe, stick he did, because he laid down his life for it: but, you see, that the undoubted unquestioned law of the land was this, that a parliament can make and depose a king, for it is the foundation of their arguing: and it cannot be thought that a learned lord chancellor and sollicitor general should be both ignorant in the first principles of the law. Neither would Richard Rich have been made a lord, and the head of a noble family of earls, if it had not been current law in those days : for such a principle upon record would have been as bad, and hurt his preferment as much, as if he had