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"herit him for his religion, is not only to act according to the Popish principles, but to give cause for a war with all the Catholic princes "in Europe; and that must occasion a standing army, from whom "there will be more danger of Popery and arbitrary government, "than from a Popish successor, or a Popish king."

The Bill was agreed to be brought in, and was read a first time on November 4th. On this day, Sir Leoline Jenkins objected to the Bill, on the grounds that it was unjust to condemn a man unheard; that it was contrary to the principles of our religion to dispossess any one of his right, because he differed in point of faith; that the Kings of England have their right from God alone, and that no power on earth could deprive them of it; that this Bill would alter the law of the land, and make the Crown elective; and that Parliament, as well as all the King's subjects, were bound by the oath of allegiance, and could not disinherit the heir of the Crown. These arguments of the Secretary of State were fully answered by Mr. Hampden, and by Mr. Booth, afterwards Lord Delamere. Mr. Hampden said, "Sir,

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I do not understand how it can be construed, because we are "about to disinherit the Duke, that therefore it must be for his religion. For my part, I do do approve of the Bill; but it is because "the opinions and principles of the Papists tend to the alteration of "the government and religion of this nation, and the introducing, "instead thereof, of superstition and idolatry, and a foreign arbitrary power. If it were not for that, I am apt to think the Duke's being a Papist would not be thought a sufficient cause for the "House to spend time about this Bill.” *

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Mr. Booth said, "If the Duke be excluded, you are told how unjust "it is to take away his right from him; that the crown is his inheritance, if he survive the King; and besides, you provoke him, and all

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* This was the best ground upon which the Bill of Exclusion could be placed; and every reader of the history of these times, who may be disposed to accuse the Whigs of intolerance towards the Papists, ought to recollect that their principles tended to the alteration of the government and religion of the nation. In our days, however, there is no more danger of the re-establishment of the Roman Catholic faith, than of another invasion from the Romans.

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"the Papists in England, to rise and cut our throats. On the other "hand, it is plain, that when we shall have a Popish King, our religion "and laws are not secure one moment, but are in continual danger. "So that the case, in short, is this: whether we shall sit still, and put it "to the venture of having a Popish successor; and in that case we "must either submit our heads to the block, or fight and be rebels; or "else to have a law that will justify us in defending our religion and “laws: in plain English, whether we would fight for or against the "law. I think I have put it right; and now let every man make his "choice that loves either his God or his country. As to the Duke's right to the crown, I wish it were clearly known what sort of right "it is he claims, and whence he derives it; he is not heir apparent, "neither do I think that our law knows any such thing as an heir to "the crown, but only as a successor : and therefore neither the Duke, 66 nor any other whatsoever, can pretend the same title to the crown as "the son of a subject can to his father's estate after his decease: "for, with subjects, they do not succeed but inherit. It is not so as "to the crown; for there they succeed: and it is from a not rightly considering the word heir, as it is a synonimous term with that of successor, that has made so many to be deceived in the Duke's "title to the crown: for this word heir to the crown was not "heard of till arbitrary power began to put forth. Before William "the Conqueror's time, it would have been a senseless word, when "the people set up and pulled down as they saw cause: and till "Queen Elizabeth it was not much in fashion, when the crown was "so frequently settled by act of parliament, and the next of blood so often set aside; when the son seldom followed his father into "the throne, but either by election in the lifetime of his father, or "else by act of parliament. So that, to make the Duke either heir "apparent or presumptive to the crown, it must be proved either by "the constitution of the government, or by some law or act of par"liament. If, therefore, he has a title to the crown, it is necessary "to know what it is, and whence he has it; but if he has none, it " is not unjust to pass the Bill, or any other where he shall be par

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ticularly named; but I will say no more of this, lest I may seem to be against kingly government, which I am not."

On the 8th November, the Bill passed through a committee, was agreed to, and reported to the House. Proceedings so speedy, and a consent so general, alarmed the Court; and a message from the Throne was sent down in these terms:

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"His Majesty desires this House, as well for the satisfaction of his

people, as of himself, to expedite such matters as are depending "before them relating to Popery and the plot; and would have "them rest assured that all remedies they can tender to His Majesty conducing to these ends, shall be very acceptable to him, provided they be such as may consist with preserving the succession of the crown in its legal course of descent."

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It is obvious that this message was only a manner of informing the House that the King would never agree to the Bill of Exclusion. But the Commons chose to attend only to the first part of the message. Many took occasion to observe, that it was strange that the King, who had prorogued Parliament for more than a year, should now find fault with them for the delay of a fortnight; and a committee was appointed, of which Sir William Jones (introduced the same day) was chairman, to draw up an answer to that effect. They at the same time resolved on the prosecution of Lord Stafford, and informed the King that they should soon be ready for the trial. Thus the irregular interference of the King was to little purpose. Indeed, many of his friends thought that it would have been a wiser part in him to have been silent, and have left the odium of rejecting the Bill entirely to the Lords. But it was thought necessary, by some ostensible act, to counteract the misrepresentations of Shaftesbury; and the anxiety of a King in behalf of the succession of his brother, was likely to produce a favourable effect on the minds of his people. On the debate in Council on this message, Lord Halifax first manifested his zeal against the Bill, and entirely separated himself from Sunderland, Essex, and Godolphin, who were its secret friends, and wished not to throw it out of the House of Lords at the first reading.

The third reading of the Bill occasioned a long debate. Sir Leoline Jenkins again spoke against it; and Mr. L. Hyde, on the same side, said, that if the law was passed, there was a loyal party which would never obey it, but would think themselves bound by their oath of allegiance and duty, to pay obedience to the Duke! He remarked that the proviso, ordered to be added for the security of the Duke's children, did not include the words " presumptive heir to the Crown.” He was answered by Sir William Jones, a profound lawyer, and a man of great eminence, who maintained, as Mr. Booth had done, that the words "presumptive heir to the Crown" were totally unknown to our law-books; and that the succession of the Duke's children was secure without them.

Nov. 15. 1680.

currence.

The Bill now passed the Commons, and Lord Russell was ordered to carry it up to the House of Lords for their conHe did so four days afterwards. We are told, in the Life of James, that many members wished the Bill to be kept back for a short time longer, not thinking the Lords sufficiently prepared; but that Lord Russell, carried on by his exceeding ardour on this occasion, and having the Bill in his hand, ran away with it in spite of all opposition. Finding they could not withhold him, many members accompanied him, and, when it was delivered, gave a mighty shout.

In the debate on the first reading, Lord Essex and Lord Shaftesbury were the chief speakers for it, and Lord Halifax against it. The King was present all the time, and the whole House of Commons, having adjourned their proceedings expressly for this purpose, attended the debate. On a division the Bill was lost, 63 being against it, and only 30 for it. The Lord Sunderland, to the great surprise and displeasure of the King, appeared in the minority. The great majority on this occasion is not difficult to account for. Besides the bishops, whose principles and interest were both against the Bill, there were a number of Lords, either attracted by the distinctions and swayed by the pleasures of the Court, or unable to withstand the personal canvass of the King. In the debate, the party against the exclusion derived great advantage from the ready wit and ingenious eloquence of Lord Hali

fax. For, unhappily, this very able man, though pursuing the same objects as Lord Essex and Lord Shaftesbury, had so great a respect for his own wisdom, that he preferred leaving our religion and liberty without any security, to accepting that which was devised by the judgment of his political friends. *

Lord Halifax proposed, as an expedient to secure the country from the dangers apprehended, that the Duke should be banished for life. The Whigs were totally averse to this proposal, and James himself dreaded it still more than the Exclusion Bill. †

I shall conclude this chapter with the excellent observations of Mr. Fox, on the comparative merits of the Bill of Exclusion and the plan of limitations.

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"To those who acted with good faith, and meant that the restric"tions should really take place and be effectual, surely it ought to "have occurred, (and to those who most prized the prerogatives of "the Crown, it ought most forcibly to have occurred,) that in consenting to curtail the powers of the Crown, rather than to alter the succession, they were adopting the greater, in order to avoid the "lesser evil. The question of what are to be the powers of the "Crown, is surely of superior importance to that of who shall wear "it? Those, at least, who consider the royal prerogative as vested " in the King, not for his sake, but for that of his subjects, must con"sider the one of these questions as much above the other in dignity, as the rights of the public are more valuable than those of an in"dividual. In this view, the prerogatives of the Crown are in sub"stance and effect the rights of the people; and these rights of the

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people were not to be sacrificed to the purpose of preserving the "succession to the most favoured prince, much less to one who, on

*It is more conformable to the character of Lord Halifax to suppose him swayed by the motive I have assigned to him, than by personal animosity against Shaftesbury. Yet he no doubt viewed with apprehension the prospect of Monmouth succeeding to the throne. It would appear, both from Burnet and Temple, that his quarrel with Shaftesbury was rather an effect of his opposition to the Exclusion Bill, than the cause of it. + Life, Vol. I. p. 635.

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