writing a book that would naturally attract the attention of the government. The dif ficulty had been, after the flight of James, to determine what could consistently be done, for it was a maxim of the English law that the crown was never vacant; that upon the death of the sovereign it passed, in ac cordance with this maxim, at once to his rightful successor, and that if the sovereign became incompetent, the only course was to appoint a regent. This William would not accept, nor would Mary agree that the crown should be settled upon her alone. The provision for a king instead of a regent passed the House of Lords only by a ma jority of two; that body also refused to agree with the Commons that there was an original contract between the king and the people, which James had broken by attempt ing to subvert the Constitution, and that as he had abandoned the kingdom,.the throne was vacant. They concurred finally in the act of settlement, but only by a small ma jority, and some who voted for it did so as an act of necessity, because nothing else could be done. Many who disapproved of the acts of James, and did not desire his re turn, maintained notwithstanding that he was the lawful king, who could not, unless with his own consent, be divested of his in herited right to the crown. The Tory party, which was numerous and powerful, were in open opposition from the beginning of Wil liam's administration, and had in its ranks those .thereafter known as Jacobites; who were divided into two sections, those w.ho were for the restoration of James, with a general amnesty and guarantees for the se curity of the civil and ecclesiastical consti tution of the realm, and those for his restora tion without any conditions, " that he might be free either to spare or to punish traitors, and to dispense with any of the laws that he thought proper, being, if he acted wrong fully, answerable only to heaven and not to . the people." 1 The question therefore, not1 Macaulay's History of England, p. 348.
withstanding the act of settlement, continued to be agitated, whether William was the law ful king, and Atwood, the year after its pas sage, 1690, published a folio entitled "The Fundamental Constitution of the English Government, proving King William and Queen Mary our lawful King and Queen." Such a publication, at such a time, if it dis played any ability at all in showing by his torical research and legal reasoning that William and Mary were the lawful, as well as the acting sovereigns of the nation, could not but be regarded with favor by William and his ministers, and Atwood was not the kind of man to allow the government to re main ignorant of the nature and extent of his labors in support of the Protestant as cendancy. He followed this up in 1694 by a treatise on the antiquity and justice of the oath of abjuration,1 and in 1698 published a small work on the history and reasons of the dependency of Ireland upon the impe rial crown of England. It was, I apprehend, in recognition of these services in support of the government, and not from any emi nence he had attained at the bar, that he se cured thereafter the appointment of Chief Justice of New York. Broughton, the Attorney-General, was a barrister of the Middle Temple, of long standing, a well-read lawyer and a man of integrity, moderation and good sense. It is somewhat remarkable that a London barris ter in good standing, as Broughton appears to have been, should have been willing to take an office in the Colony, the salary of which was only ^100 a year, with fees in the Court of Admiralty that probably amounted to ^100 more. But he may have been a man of some means, who was influenced by the attraction of a high judicial office, or 1 A subject to which further attention had been drawn by a bill introduced and defeated in the House of Com mons, providing that all persons holding any office, civil or ecclesiastical, should take an oath before a justice of the peace, abjuring King James, and if they refused, that they should be committed to prison, and remain there until they complied.
