Hath not this author justified the validity of this will much to his own satisfaction,and,I believe,to that of his readers?Was this will lawfully revoked?Was this statute expressly repealed?I ask farther,whether hereditary right,and the obligations of subjects to it,could be made immutable and eternal,as this author asserts that they were by the Act of Recognition,without a manifest contradiction to the Act of Queen Elizabeth,which declares the power of Parliament to limit and bind the succession to the crown?Was this Act expressly repealed?That King James the First succeeded lawfully against law,our author is fond to maintain;and the proposition is not unlike that of some popish casuists,who assert that his holiness jure potest contra jus decernere,'can decree rightfully against right'.But if these questions are fairly answered,it will result from such answers,and from the arguments I have quoted,that this novel law,this modern constitution,is a mere illusion;that it never bound any member of the society;and that the parliament had as much right to make the settlement in 1688,notwithstanding the Act of Recognition,as the parliament had to make this Act in 1603,notwithstanding the two Acts I have mentioned,and the will of Henry the Eighth,made by virtue of the first of them.
This wayward and forlorn hereditary right must therefore fall to the ground,or be supported by the supposed preion of nine centuries,and claim of five and a half,which no intelligent man who reads this book,will be persuaded that the author hath proved a jot better,than the uninterrupted succession of popes,from St Peter down to his present holiness,is proved by the learned antiquaries of Italy.If this Act of Recognition be urged,as it sometimes is,to show the declared sense of the three estates of the kingdom,which declaration was obtained,it seems,in an hurry,since the Act was read three times in one House the same day;the declared sense of the three estates,not pronounced in an hurry,but after the most solemn debates and conferences,may be urged with much greater weight,in favour of our present settlement.If this Act of Recognition,notwithstanding what hath been objected,be urged as a law which had the assent of a king,in opposition to the proceedings of the Convention,by which King William and Queen Mary were raised to the throne,the answer is obvious and conclusive.The circumstances of the two cases are very different,but when they come to be weighed in a fair balance,those which attended the settlement of the crown on the Revolution,will be found at least as conformable to reason,to law,and to practice,as those which attended the establishment of the Stuart family.Queen Elizabeth designed King James the First to be her successor;the nation concurred to make him so;neither she nor they paid any regard to the law which stood in his way.
Their reasons for acting in this manner are easy to be discovered in the history of that time,and on the same authority we may certainly conclude,that they would not have acted in this manner,if King James had been,like his mother,a professed papist.Thus he got into the throne,and when he was there,he got,like other Kings,such a title as he chose to stand upon,agnized,or recognized by his Parliament.The settlement at the Revolution was made by a convention of the lords spiritual and temporal,and a full and free representative of the whole body of the people.When King William and Queen Mary were once settled in the throne,this settlement was continued and confirmed by an assemblage of all the legislative powers.He who will dispute the validity of these proceedings,must show therefore first of all,what hath never yet been shown,no,not by the author I have so often quoted,the invalidity of the proceedings of those Parliaments,which raised Edward the Third and Henry the Fourth to the throne,which were called as irregularly,though by writs in the names of Edward the Second and Richard the Second,as it can be pretended that the Convention was.He must show the invalidity of the proceedings even of that assembly,by which Charles the Second was called home,till their proceedings became valid by a subsequent confirmation.He must show farther,how any of the laws of the princes of the house of Lancaster came to be constantly received and executed,a little better than the author of Hereditary Right Asserted hath done,by assuring us on his word that it was by the 'sufferance of Edward the Fourth and his successors,and the approbation of the people'.He must account for the continuance in force of the laws of Richard the Third,and of Henry the Seventh,a little better than the same author does,by the deficiency of Henry the Seventh's title,which upon another occasion he magnifies,though upon this he affirms it to have been no better than that of Richard the Third,and by the great respect of Henry the Eighth for his father.
When this hath been once shown,it will be time to think of a reply.In the meanwhile we will observe,that besides the passion and party spirit which possess almost all those who write on this subject,there is a distinction which should be constantly made in cases of this nature,and which they never make,or never make exactly enough.They compare the proceedings without comparing the situation.Necessity and self preservation are the great laws of nature,and may well dispense with the strict observation of the common forms of any particular constitution.Either the Convention must have fallen into the absurdities I have already mentioned,or have called back King James,which would have been still a greater absurdity,or have left their country in absolute anarchy,or have done what they did.
What they did,was done as near as possible to the spirit of our constitution,the forms of our laws,and the examples of former times.They had the merit,their posterity hath the benefit,nay,he who would say that they had the guilt,not the merit,must still allow that their posterity hath the benefit,without sharing the gui
<and,upon the whole matter,I will venture to assert,that he who scruples,or pretends to scruple,at this time,the validity of our present constitution,is no wiser,or else no honester,than he would be,who should scruple,or pretend to scruple,the validity of Magna Carta.
