Part 9

And whereas the said late King James II. having abdicated the government, and the throne being thereby vacant, his Highness the Prince of Orange (whom it hath pleased Almighty God to make the glorious instrument of delivering this kingdom from popery and arbitrary power) did (by the advice of the Lords Spiritual and Temporal, and diverse principal persons of the Commons) cause letters to be written to the Lords Spiritual and Temporal, being Protestants, and other letters to the several counties, cities, universities, boroughs, and cinque ports, for the choosing of such persons as represent them, as were of right to be sent to Parliament, to meet and sit at Westminster upon the two-and-twentieth day of January, in this year one thousand six hundred eighty and eight, in order to such an establishment, as that their religion, laws and liberties might not again be in danger of being subverted; upon which letters, elections have been accordingly made.

And thereupon the said Lords Spiritual and Temporal, and Commons, pursuant to their respective letters and elections, being now assembled in a full and free representation of this nation, taking into their most serious consideration the best means for attaining the ends aforesaid, do in the first place (as their ancestors in like case have usually done), for the vindicating and asserting their ancient rights and liberties, declare:--

1. That the pretended power of suspending of laws, or the execution of laws, by regal authority, without consent of parliament, is illegal.

2. That the pretended power of dispensing with laws, or the execution of laws by regal authority, as it hath been assumed and exercised of late, is illegal.

3. That the commission for erecting the late Court of Commissioners for Ecclesiastical causes, and all other commissions and courts of like nature, are illegal and pernicious.

4. That levying money for or to the use of the Crown, by pretence of prerogative, without grant of parliament, for longer time or in other manner than the same is or shall be granted, is illegal.

5. That it is the right of the subjects to petition the king, and all commitments and prosecutions for such petitioning are illegal.

6. That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of parliament, is against law.

7. That the subjects which are Protestants may have arms for their defence suitable to their conditions, and as allowed by law.

8. That election of members of parliament ought to be free.

9. That the freedom of speech, and debates or proceedings in parliament, ought not to be impeached or questioned in any court or place out of parliament.

10. That excessive bail ought not to be required, nor excessive fines imposed; nor cruel and unusual punishment inflicted.

11. That jurors ought to be duly impanelled and returned, and jurors which pass upon men in trials for high treason ought to be freeholders.

12. That all grants and promises of fines and forfeitures of particular persons before conviction, are illegal and void.

13. And that for redress of all grievances, and for the amending, strengthening, and preserving of the laws, parliaments ought to be held frequently.

And they do claim, demand, and insist upon all and singular the premises, as their undoubted rights and liberties; and that no declarations, judgments, doings or proceedings, to the prejudice of the people in any of the said premises, ought in any wise to be drawn hereafter into consequence or example.

To which demand of their rights they are particularly encouraged by the declaration of his Highness the Prince of Orange, as being the only means for obtaining a full redress and remedy therein.

Having therefore an entire confidence that his said Highness the Prince of Orange will perfect the deliverance so far advanced by him, and will still preserve them from the violation of their rights, which they have here asserted, and from all other attempts upon their religion, rights, and liberties:

II. The said Lords Spiritual and Temporal, and Commons, assembled at Westminster, do resolve, that William and Mary, Prince and Princess of Orange, be, and be declared, King and Queen of England, France, and Ireland, and the dominions thereunto belonging, to hold the Crown and royal dignity of the said kingdom and dominions to them the said Prince and Princess during their lives, and the life of the survivor of them; and that the sole and full exercise of the regal power be only in, and executed by, the said Prince of Orange, in the names of the said Prince and Princess, during their joint lives; and after their deceases, the said Crown and royal dignity of the said kingdoms and dominions to be to the heirs of the body of the said Princess; and for default of such issue to the Princess Anne of Denmark, and the heirs of her body and for default of such issue to the heirs of the body of the said Prince of Orange. And the Lords Spiritual and Temporal, and Commons, do pray the said Prince and Princess to accept the same accordingly.

III. And that the oaths hereafter mentioned be taken by all persons of whom the oaths of allegiance and supremacy might be required by law, instead of them; and that the said oaths of allegiance and supremacy be abrogated.

I, A. B., do sincerely promise and swear, That I will be faithful and bear true allegiance to their Majesties King William and Queen Mary: So help me God.

I, A. B., do swear, That I do from my heart, abhor, detest, and abjure as impious and heretical, that damnable doctrine and position, that Princes excommunicated or deprived by the Pope, or any authority of the See of Rome, may be deposed or murdered by their subjects, or any other whatsoever. And I do declare, that no foreign prince, person, prelate, state, or potentate hath, or ought to have, any jurisdiction, power, superiority, pre-eminence, or authority ecclesiastical or spiritual, within this realm: So help me God.

IV. Upon which their said Majesties did accept the Crown and royal dignity of the kingdoms of England, France, and Ireland, and the dominions thereunto belonging, according to the resolution and desire of the said Lords and Commons contained in the said declaration.

V. And thereupon their Majesties were pleased, that the said Lords Spiritual and Temporal, and Commons, being the two Houses of Parliament, should continue to sit, and with their Majesties' royal concurrence make effectual provision for the settlement of the religion, laws, and liberties of this kingdom, so that the same for the future might not be in danger again of being subverted; to which the said Lords Spiritual and Temporal, and Commons, did agree and proceed to act accordingly.

VI. Now in pursuance of the premises, the said Lords Spiritual and Temporal, and Commons, in parliament assembled, for the ratifying, confirming, and establishing the said declaration, and the articles, clauses, matters, and things therein contained, by the force of a law made in due form by authority of parliament, do pray that it may be declared and enacted, That all and singular the rights and liberties asserted and claimed in the said declaration, are the true, ancient, and indubitable rights and liberties of the people of this kingdom, and so shall be esteemed, allowed, adjudged, deemed, and taken to be, and that all and every the particulars aforesaid shall be firmly and strictly holden and observed, as they are expressed in the said declaration; and all officers and ministers whatsoever shall serve their Majesties and their successors according to the same in all times to come.

VII. And the said Lords Spiritual and Temporal, and Commons ... declare, that King James II. having abdicated the government, and their Majesties having accepted the Crown and royal dignity aforesaid, their said Majesties did become, were, are, and of right ought to be, by the laws of this realm, our sovereign liege Lord and Lady, King and Queen of England, France, and Ireland, and the dominions thereunto belonging....

VIII. And for preventing all questions and divisions in this realm, by reason of any pretended titles to the Crown, and for preserving a certainty in the succession thereof, in and upon which the unity, peace, tranquillity, and safety of this nation doth, under God, wholly consist and depend, the said Lords Spiritual and Temporal, and Commons, do beseech their Majesties that it may be enacted, established, and declared, that the Crown and regal government of the said kingdoms and dominions, with all and singular the premises thereunto belonging and appertaining, shall be and continue to their said Majesties, and the survivor of them, during their lives, and the life of the survivor of them. And that the entire, perfect, and full exercise of the regal power and government be only in, and executed by, his Majesty, in the names of both their Majesties during their joint lives; and after their deceases the said Crown and premises shall be and remain to the heirs of the body of her Majesty: and for default of such issue, to her Royal Highness the Princess Anne of Denmark, and the heirs of her body; and for default of such issue, to the heirs of the body of his said Majesty....

IX. And whereas it hath been found by experience, that it is inconsistent with the safety and welfare of this Protestant kingdom, to be governed by a Popish prince, or by any king or queen marrying a Papist, the said Lords Spiritual and Temporal, and Commons, do further pray that it may be enacted, That all and every person and persons that is, are, or shall be reconciled to, or shall hold communion with, the See or Church of Rome, or shall profess the Popish religion, or shall marry a Papist, shall be excluded, and be for ever incapable to inherit, possess, or enjoy the Crown and government of this realm, and Ireland, and the dominions thereunto belonging, or any part of the same, or to have, use, or exercise any regal power, authority, or jurisdiction within the same; and in all and every such case or cases the people of these realms shall be and are hereby absolved of their allegiance; and the said Crown and Government shall from time to time descend to, and be enjoyed by, such persons or persons, being protestants, as should have inherited and enjoyed the same in case the said person or persons so reconciled, holding communion, or professing, or marrying as aforesaid, were naturally dead....

XII. And be it further declared and enacted by the authority aforesaid, That from and after this present session of parliament, no dispensation by _non obstante_ of or to any statute, or any part thereof, shall be allowed, but that the same shall be held void and of no effect, except a dispensation be allowed of in such statute, and except in such cases as shall be specially provided for by one or more bill or bills to be passed during this present session of parliament....

CORRESPONDENCE RELATING TO THE NON-JURORS (1691).

+Source.+--_Letters between Ambrose Bonwicke and Richard Blechynden (Cambridge in the Days of Queen Anne_, by J. E. B. Mayor, pp. 217-221).

_Aug. 11. Bonwicke to Blechynden_.

I suppose ... that king _James_ had a right to my allegiance, and that secured by an oath; and unless he has given away this right or forfeited it, it is still in him. Now to me it does not appear that he has done either, therefore I dare not give it to another, which ... is the design of the new oaths.... I ought not to have entered into the obligation if I had not designed to have kept it.

_Aug. 15. Blechynden to Bonwicke._

He that has no longer a right to the government has no longer a right to my allegiance.... King _James_ has shewn, that he neither has the qualifications for government, nor for this of the _English_.... A full possession of the power, especially when recognised by the grandees and main body of the people, gives him that has it a title to the obedience and fidelity (or, if you will, allegiance) of all within his territories; at least they are guilty of no sin that promise fidelity to him.

_Aug. 20. Bonwicke to Blechynden._

I should be glad to find my friends and relations (whom I have so great a concern for) are in the right, and that it is prejudice in me has blinded me so long. Though I suppose it would be perjury in me to quit that oath that I still think obligatory, yet I have a very charitable opinion of those that have taken the new one, and suppose that conscience has been as much their guide in taking it, as it has been mine in refusing it.... I suppose a man may be dispossessed of a legal right no otherwise than by law.... I am to consider how I am to behave myself under a king, that has possession and not right. The execution of those laws that protect me are (_sic_) in his hands; I will give him all the obedience that is necessary for that purpose.... But to take an oath of allegiance to the king _de facto_, certainly cancels my oath of allegiance to the former.... If it were barely submitting to him in power, I suppose we should have no great dispute.

_Aug. 25. Blechynden to Bonwicke._

Municipal laws are not the sole measure of right and wrong. There is a superior law of right reason, which respects the common good of mankind, which gave beginning to all civil societies.... You say treason against the king _de facto_ is not treason _de jure_; hereby you must mean according to equity and right reason; for treason against a king _de facto_ is the only treason by the law of the land, if _Coke_ and _Hales_[27] may be credited.... You call for a legal forfeiture; nothing else, say you, will forfeit a legal right to a crown. But if you please to consult the gentlemen that write politics, who surely are the best guides in this affair, you will find them assign a great many others.... The assemblies of the grandees and parliaments have near forty times either deposed their prince or waived the next of kin for the good of the community.

_Aug. 31. Bonwicke to Blechynden._

Reason must be our best guide, and she has directed you to take the oaths, as she does me to refuse them. I consider on one side there is only a little temporal concern, and on the other the danger of perjury.... For what you urge, that therefore I ought to have no protection from king _William_, I must be contented; but I think it is the law that protects us both. At present it only deprives us of our livings, and that we must submit to. When the laws become more severe, we must shift as well as we can, and if we cannot live in this country, fly to another.... A whole nation can as ill dispense with their oaths as a single person.

_Sept. 5. Bonwicke to Blechyenden._

I do really take those laws which have been made since king _William's_ coming to the crown to be good laws.... King _James_ has lost thus much by losing possession: he has lost the assistance of his people, for it would be treason and illegal to fight against king _William_, who has now the law on his side.

_Sept. 8. Blechynden to Bonwicke._

The defence of the society being the sole ground (and measure too) of our obedience and fidelity to our chief governor, it is plain that it is due to him, and to him only, that can and does defend society.... If you will rightly weigh the matter, it is not only a little temporal concern that pleads for your taking oaths. For (pardon my plain dealing) you are chargeable with disobedience to the powers that be, with depriving your country (for which we are all in a great measure made) of the good you may do in your present station, or in the ministry; and with the making or strengthening a party against the public establishment, to the great prejudice of church and state; besides the injury to yourself and family, which an honest man ought not to prejudice but upon very good grounds. All this, I say, you are chargeable with, if the taking the oaths be not manifestly sinful. For the danger or fear of its being so is not sufficient to justify the neglect of any duty, and an opposition to a public establishment and the benefits of it. Reason will prefer the good of the community before that of a single man, especially of one already very false to his trust.... It is not plain that I am sworn to king _James_; the oath in an equitable interpretation not reaching the present case; nor has king _James_ any reason to insist on it as the present circumstances are; nor ought you to oblige me by my oath to hurt my neighbours, or my country, how rigorous soever I might be otherwise to myself. There is a great deal of difference between a private oath relating to my own concerns of which I am master; and a public, which was made for the good of the public, and therefore ought in no wise to be strained to the prejudice of the same.... The affection that men are bred up with towards the memory of king _Charles_ the first, and the abhorrence of the parliament of 1641, does extremely prejudice men for kings and against parliament; but both extremes are to be carefully shunned.

[27] Coke and Hales were amongst the most eminent of Stuart lawyers.

PACIFICATION OF THE HIGHLANDS (1692).

+Source.+--_Calendar of State Papers, Domestic Series, 1691-92_:

[Pp. 101, 102.]

_Jan. 16, 1692._--Instructions, signed by the King, for Sir Thomas Levingston:--

We allow you to receive the submissions of Glengarry, or those with him, upon their taking the oath of allegiance and delivering up the house of Invergarry; to be safe, as to their lives, but as to their estates they must depend upon our mercy.

In case you find the house of Invergarry cannot probably be taken in this season of the year, with the artillery and other provisions that you can bring there, we leave it to your discretion to give Glengarry the assurance of an entire indemnity for life and fortune, upon the delivery of his house and arms, and taking the oath of allegiance. In this you are allowed to act as you find the circumstances of the affair requires. But it were much better that these who have not taken the benefit of our indemnity, in the terms and with the "dyet" prefixed by our proclamation, should be obliged to "render" upon mercy; and the taking of the oath of allegiance is indispensable, others having already taken it. "If McKean of Glencoe and that tribe can be well separated from the rest, it will be a proper vindication of the public justice to extirpate that set of thieves." The "double of these instructions are only communicated to Col. Hill."

[Pp. 153, 154.]

_Feb. 28, 1692. Colonel Hill to the Earl of Portland._

My last gave you an account of the houses of Invergarry and Island Donan being in my possession for the King, and of the ruin of Glencoe, the latter named of which houses, I presume, were better destroyed than kept, for it is situated in such a place that it is hard to relieve it in winter, or at any time well, but by sea; it cannot contain a force to awe those countries in case they should again prove rebellious, and whilst my Lord Seaforth is come in, there is no doubt but his people may be kept quiet, and young Sir Donald McDonald is "a peaceable inclined man," and his relations in Skye mostly protestants, so there is no fear from thence, and that house will be but a charge to little other purpose, as is fit to be blown up.

Those men of Glencoe that (by help of the storm) escaped, would submit to mercy if their lives may be granted them, upon giving security to live peaceably under the government, and not to rob, steal, or receive stolen goods hereafter, and I humbly conceive (since there are enough killed for an example and to vindicate public justice) it were advisable so to receive them, since it will be troublesome to take them, the Highlanders being generally allied one to another, and they may join with other broken men, and be hurtful to the country. Nevertheless, in the meantime, it were necessary that the proclamation against them ... were issued out. At the present they (the men of Glencoe) lie dormant in caves and remote places.

The people now all seem resolved on settlement, and cry out for a jurisdiction among them (and the country will never be right till it be so) they flock in daily to submit to the King's mercy. Appin is a much changed man for the better, professes to everyone he meets his sincerity in keeping the oath of allegiance, and all those people of Appin have good inclinations to quiet, being many of them intelligent men, of whom I doubt not to make very good subjects. The Laird is a "pretty young man" of about 21 years, and had taken the oath before the day, but that he was tied to his bed by sickness at that time, and was carried in a boat to me, to do it, sooner than he was well able.

It were meet that some things were left to the discretion of whoever commands in so remote a place as this, otherwise sometimes advantages are lost before orders can be obtained, and then (for want of true intelligence of matters) the orders may happen to be wrongly conceived, and when I was here before, the whole was left to me, and it succeeded well. The more authority any(one) has here, the more the people observe to obey.

* * * * *

The captain of Clanronald, "who is one of the prettiest handsome youths I have seen," came in and brought all the chief of his friends, and made his submission and took the oath with the greatest frankness imaginable, as did also all his friends; he has gone to his uncle, the Laird of McLeod, to settle his affairs and to get up some money; he then resolves to wait on the King and Queen, and if he overtake the King at London, he will beg his favour that he may attend him into Flanders. If the King be gone, ere he reach London, he resolves to follow him, and to be wholly governed by the King's pleasure; only he prays he may be so disposed of as to better his education. It will be an act of great charity to "breed" him. I have sent to McNeil of Bara (a remote island) who I doubt not will come in as the rest; so all the work is now done but the settlement of a civil jurisdiction.

THE TREASONS ACT (1696).

+Source.+--_Statutes of the Realm._ Vol. vii., pp. 6, 7.

Whereas nothing is more just and reasonable than that persons prosecuted for High Treason, and Misprision of Treason, whereby the Liberties, Lives, Honour, Estates, Blood, and Posterity of the Subject may be lost and destroyed, should be justly and equally tried and that persons accused as offenders therein should not be debarred of all just and equal means for defence of their innocencies in such cases; in order thereunto and for the better regulation of trials of persons prosecuted for High Treason and Misprision of such Treason, Be it enacted That ... all and every person or persons whatsoever that shall be accused and indicted for High Treason ... shall have a true copy of the whole indictment, but not the names of the witnesses, delivered unto them or any of them five days at the least before he or they shall be tried for the same, whereby to enable them, or any of them, respectively to advise with Counsel thereupon to plead and make their defence.... And that every person so accused and indicted, arraigned, or tried for Treason ... shall be ... admitted to make his and their full defence by Counsel learned in the Law and to make any proof that he or they can produce by lawful witness or witnesses who shall then be upon oath for his or their just defence in that behalf; and in case any person or persons so accused or indicted shall desire Counsel, the Court before whom such person or persons shall be tried, or some judge of that Court ... is hereby authorized and required immediately upon his or their request to assign to such person or persons such and so many Counsel, not exceeding two ... and such Counsel shall have free access at all seasonable hours.