and Henry the 2d which was ratified by the Parliament at Winchester Nay so was the Dispute between H. 6. and the Duke of York who challeng'd the Crown in Parliament but how clear soever the Duke's Title was the Lords would not allow that the King should be divested of his Royal Dignity but that he should keep it for his life And after this Distinction was started they found it of such mischievous Consequence to the Subject whenever the Right to the Crown was disputed by the Sword that in the Reign of H. 7. there was express provision made against it by Act of Parliament declaring the Allegiance of the Subject to be due to the King for the time being that is to the King who was possessed of the Throne by the publick Judgment and Act of the State and that no Subject should suffer for serving such a King in his Wars according to their Duty of Allegiance neither at Home or Abroad This gives a plain Answer to the Book entituled The Case of Allegiance to a King in Possession That Author thinks it a Demonstration against my Lord Chief Justice Cooke That the Statute of Treason cannot mean a King in Possession without a Legal Title because it is unreasonable to think that the Law should mean any King but one who is King by Law which is most certainly true but then it is not merely a Legal Title but a Legal Investiture and Recognition that makes a Legal King or a King in Law as it makes a Legal Magistrate And then all Kings de facto who are placed in the Throne by a Legal Authority and with all Legal and accustomed Ceremonies are not only Legal Kings but the only Kings that the Law allows to be Kings His other Argument is against the Authority of the Laws supposing they did allow any such thing for he says it would be a wicked and unjust Law to establish a Prince in the Throne who has no Right to it and to justify Subjects in fighting for such a King tho it should happen to be against their Right and Lawful Sovereign Which is a very absurd Argument if Princes have no Natural but only a Legal Right to their Thrones for all Legal Rights must be subject to a Legal Judgment and a Legal Possession is a Right in Law against all Force For the Civil Sword is always on the side of him that is in Possession under a Legal Determination whatever his Title be And certainly there is as much reason the Sword should defend the Legal Possessor of the Throne as the Legal Possessor of Lands and Houses And I would ask this Author supposing he were Sheriff of a County whether he would make any scruple of Conscience to desend him who was possess'd of an Estate under a Legal Recovery or Process against a violent Intruder tho he knew or did verily believe him to be the right Heir Or whether Inferior Magistrates who are to execute the Sentence of Superior Courts are bound in Conscience to execute no Sentence but what they themselves believe to be just If this be admitted Civil Authority is at an end and all the Courts in Westminster Hall are of little use And yet if it be lawful nay if it be absolutely necessary in Civil Societies in such cases as these to defend a Legal Possession against a presumed Right then the Law may very justly require us to defend a King as well as Subjects in his Legal Possession against all other Rights and Claims and if the Laws are the measures of Civil Obedience Subjects may very justly and with a very good Conscience do it Which justifies what some have asserted That such Legal Rights as these are not concern'd in the dispute of Allegiance against a Legal Possessor of the Throne for a Legal Possession and Investiture is the only Legal Thorough Settlement of the Government and this shows how much this Author is mistaken when with reference to this Controversy he disputes so warmly that God himself cannot make it lawful for us to oppose Right no more than he can make Right to be wrong which is true with respect to pure Natural or Moral Rights but does not hold in meer Legal Rights which are as to any effects of Law esteemed of no value against a Possession till they are judicially declared And 't is not the proper business of any private Subject to judge concerning them But the truth is this Author looks upon the Rights of Kings not to be mere Legal Rights which are Rights no longer and in no other manner than the Law allows them to be Rights but such Natural Unchangeable Rights as Parents have to the Government of their Children nay as God himself has to the Government of the World For he thinks men may as well worship gods de facto such as the Pagan Deities were when they had got Possession of the Temples and Altars as pay their Allegiance to a King de facto when he is possess'd of the Throne which is not more Prophane than Weak unless he thinks that the Law can make a God as it can make a King or that Kings are as much by Nature Kings as God is God This by the way is a short but full Confutation of those two large Pamphlets The Case of Allegiance to a King in Possession and The Defence of the Case For all that the Author says to any purpose is resolved into one of these two Principles That the Law owns no King but him who has the Legal Title and That Kings have a Right to their Crowns superior to Laws and which obliges Subjects against a Legal Judgment and a Legal Possession if these Principles fail him all the rest must fall to the Ground And whether these be true or false I appeal to what has been already said 4thly As a necessary Consequence and Justification of this I observe That a Legal Title to the Crown and a Legal Authority to administer the Government may be separated That he who has the Title may not have the Legal Authority nor be the Legal King and he may be the Legal King and have the Legal Authority who has not an Antecedent Title This is past all Controversy if what I have already said be true That a Legal Investiture and Possession is a good Right in Law against all other Titles and Claims It may possibly appear a Mystery to some men how there should be two such contrary Legal Rights A Legal Right and Title to the Crown without a Right to exercise the Authority belonging to the Crown And a Legal Right to wear the Crown and exercise the Authority belonging to it without an Antecedent Legal Right to the Crown it self but whoever considers that allowed distinction between jus ad rem and jus in re with the reason of it will easily understand this matter It is an approved Distinction in Law That one man may have a Right to a thing and another a Right in it
can prove that there ought to be no Government in a Nation while the Rightful Prince cannot Govern I will grant that Subjects ought to own no other Authority but if no Laws no Legal Rights can be more sacred than the very being of human Societies and Civil Government the Rights of Princes must give place to the necessities of Government for it is more absolutely necessary that human Societies should be maintained and governed than that any Prince how uncontested soever his Right be should Govern for I think Legal Rights which owe their very beings to human Societies were never intended to put an end to them This I hope is enough to elear this Point That a King may lose his Legal Right to the Crown by Conquest which gives the Conqueror in a Just War a new Right and sets Subjects at Liberty to transfer their Allegiance to the Conqueror And I shall observe by the way that though we are not a Conquered People yet most of those reasons which will justify Subjects in transferring their Allegiance to a Conqueror will much more justify our Submission and Allegiance to Their present Majesties whatever opinion we have about Right For it is certain the Authority of the Nation is now in their Hands and placed there by a legal Judgment and if National Laws which are the Laws of the Government cannot oblige the Conscience without a National Authority to give an Obligation to them much less against a National Authority then there can be no Law in England which at this time obliges the Consciences of English Subjects to pay their Allegiance to the late King James There is no such Law to be found in Westminster-Hall or Parliamentary Judgments or Determinations and then I know not where to find it There is no King in Westminster-Hall or on the Parliament Rolls but King William and Queen Mary no Treason but what is committed against them and therefore no Allegiance due by Law but only to them For Treason is a violation of our Allegiance and where no Treason can be committed no Allegiance can be due Tho' the Nation is not Conquered yet it is certain that private Subjects are under as great Restraint by the legal Change of the Government as if they were in the Power of a Conqueror for to resist would be equally fatal to them in both Cases and there is no Authority that can defend them And if Human Laws cannot oblige the Conscience against Force if every Man has a natural Right to preserve himself by yielding and submitting to Power when there is no Authority to defend him against it why may he not as well submit to the irresistible Power of a National Authority how unjust soever he thinks it is as to the Military Power of the Sword Why may not Men as well submit when they are conquered in the highest Judicature as in the Field It seems to me that there is little difference between them when Men must forfeit their Lives Estates or Honours either way And when the Authority of the late King whatever they suppose it to be can no more defend them from the Laws than from the Sword what shall hinder his Authority's being at an end to them and their being at liberty to take care of themselves The Subjects of England have a legal Right to their Lives and Liberties and Properties as well as the King and I know no Law that commands Subjects to forfeit their Lives and Liberties and Propeties meerly because they cannot defend the King in his nor the King them in theirs In Cases of such Extremity Kings will take care of themselves and Subjects have as much Right to take care of themselves If any Necessity will justifie Kings in leaving their Thrones and the Government and the Defence of their Subjects the same Necessity will justifie Subjects in submitting to a new Power No meer human Laws nor human Authority can oblige in Cases of extream Necessity The Authority of God indeed can because God can reward and punish beyond the Grave But though the Laws of Men are bound on us by the Authority of God yet God requires us to obey Men and their Laws no farther than their Authority reaches and therefore not in Cases of extreme Necessity which in most Instances will dispence with the positive part of Moral Laws themselves Secondly Let us now consider the Case of Abdication and Desertion which was plainly the Case of the late King James For he seeing himself deserted by his Subjects and by part of his Army who would not sight for him against their Religion and Liberties durst not venture the Fortune of a Battel and being as appears by his Actions resolv'd not to submit the Redress of all Grievances to a Free Parliament had no other way left but to withdraw his Person and fling up the Government The Qustion then is Whether this was such a Leaving of his Crown as put it into the Hands of the Estates to dispose of it to the next Heir We must not expect to find any Precedent of this Nature nor any Provision made for it in Law for there never was an Example of this kind before and probably never will be again But all such unusual Cases must be determined by living Judges according to the reason and nature of Things We know how it has been determined and what Disputes those Words Abdication and Desertion have caused but I shall not dispute about Words but consider the Thing I need not be at any pains to prove that Government is absolutely necessary and that all people have as natural a Right to supply the Vacancies of Government according to the Laws and Constitutions of the Kingdom as they had at first to form themselves into human Societies That Kings are made for Government and therefore have no longer any Right to Kingship than they will administer the Government And I think it is as plain that for a King deliberately to quit his Kingdoms without making any manner of Provision or leaving any Authority behind him to govern in his Name is actually to quit the Government For to leave off governing as he does who withdraws his Person and Authority is to quit the Government And when the King leaves his Crown and Government it must either of Right belong to the next Heir or the Body of the Nation and the Estates of the Kingdom will be restored to their Liberty of providing for themselves for the Nation must be governed It is evident indeed that Princes many times leave their Thrones without any intention to give up their Right to Government But the Question is not what they intend but what they do If to leave their Thrones empty which must be filled by some-body be in the nature of the thing or by necessary and unavoidable Consequence to give up the Possession of them to some-body else it is in vain to talk of parting with the Possession without parting with the Right as far as
For a legal Right as the Right to the Crown is may be lost by Conquest or parted with by Resignation or by Abdication and Desertion and that the late King has so deserted his Throne as to make it not only lawful but even necessary for his Subjects to fill it again I have already proved So that it is not enough for those who insist on King James's Right to say That he was Rightful Heir to the Crown and that he was once Rightful King which is all that they pretend to For though he was once a Rightful King he may now neither be a King nor have any Right to be King II. Another Question is Whether King William and Queen Mary be the Rightful King and Queen of England Now had King James died before the pretended Birth of the Prince of Wales this had been no Question for then Queen Mary had been the undoubted Heir to the Crown and in her Right and by Consent of the Princess Anne allowed and confirmed by the Authority of the Estates King William had been the Rightful and Legal King Now if King James parted with his Right and Crown together by forsaking his Government and leaving his Throne vacant and the Estates had a Right if they pleased to fill it there can be no more Pretence of Right upon the late King's Account than if he had been dead And as for the pretended Prince of Wales at best his Birth was so very doubtful that there was no reason for the Estates to reject the next undoubted Heir for him especially when the King refused to submit that Dispute to Parliament as the then Prince of Orange had done And had his Birth been never so unquestionable he could not be had without taking the late King again which was Reason enough for the Estates not to concern themselves with that Dispute but to place the next Heir upon the Throne that could be had The King withdrew himself and sent away him whom he called the Prince of Wales before him that we should not have him to make him King had we had never so much mind to it and had all the Royal Family deserted in the like manner or had they been conveyed away from us I see no reason why the Estates might not as well have chosen a new King as if all the Royal Family had been extinct And if this be the true State of the Case as certainly it is there can be no Dispute whether their Present Majesties be Rightful King and Queen III. A Third Question is How far those who are not satisfied in their own private Judgments whether the late King James have lost his Right and their Present Majesties are Rightfully advanced to the Throne may own and pay their Allegiance to their Present Majesties Now if we do but allow that this is matter of Dispute all Disputes about legal Rights must be determined by a legal Authority and private Subjects must acquiesce in such Determinations unless we will dissolve Civil Societies for the sake of some disputed legal Rights Since then the Estates of the Realm who are the Highest Atuhority when there is no King on the Throne have determined this Matter private Subjects have nothing now to do with it In Matters which concern Civil Government they must follow the publick Judgment which is the Rule and Measure of Civil Obedience in contradiction to their own private Opinions where the Dispute is only about Civil and Legal not about Natural and Moral Rights Private Subjects must own him for their King who is invested with the Royal Authority by the Estates of the Realm to whom alone it belongs to judge Authoritatively about such matters IV. But the last and great difficulty of all still remains viz. Supposing King James should land in England with a Military Force to demand the Crown what the Subjects of England are bound in Conscience to do Which Side they ought to take Whether they must fight for the late King James against their Present Majesties or for their Present Majesties against the late King James Now if King James has lost his Crown and his Right to it and King William and Queen Mary are Rightfully possessed of the Throne which I take to be the truth of the Case this will admit of no Dispute for it is certain we ought to fight for our Rightful King and Queen against One who has been King but is no King now nor has any Right ever to be King again But there is no absolute necessity of insisting upon Right it is sufficient to determine the Case only to say that the Laws of the Land require us to fight for our King against him who is no King and he is King whom the Laws of the Land own to be King that is He who is placed on the Throne and invested with the Royal Authority with all usual and accustomed Solemnities by the Estates of the Realm A legal Investiture makes a legal King and the Law requires our Allegiance to such a King that is all legal Obedience and Defence and the Law is the measure of legal Rights Whatever Right then any Prince may pretend to the Throne if the Law does not allow private Subjects to take Cognizance of such Rights against a legal Possessor if it does not extinguish yet at least it limits suspends and sets aside such Rights in such Cases that they are to Subjects as if they were not And as the Law can make and create legal Rights so it can limit and set Bounds to them and determine in what Cases and to what Effect and Purposes they shall be Rights and they are legal Rights no farther But besides this it is worth observing That the Law does not allow Civil and Legal Rights to be disputed and determined by the Sword for that is a dissolution of Civil Authority and Civil Government and therefore no Subjects can be bound at any time by the Laws of the Land to fight for a supposed or pretended Right against a Legal Possessor We are bound to fight for our King to defend his Person Crown and Dignity but it is for a King whom the Laws own to be King that is who is invested with the Royal Authority by the Estates of the Realm and is actually on the Throne According to the Fundamental Constitution of all Civil Societies the Disputes about the Legal Rights must be determined by the Judgment and Sentence of a Competent Authority not by the Sword which can decide no Question but which side is strongest An Appeal to the Sword against the Sentence of the last Authority puts an end to the Authority of Laws and consequently is no part of Legal Obedience and Defence and then I cannot guess how any Subjects should be bound in Conscience to fight for the meer Right of a Prince whatever Opinion he may have of his Right against a Legal Possessor of the Throne nay it seems to me that Subjects are bound in Conscience not to do it as much as they are bound not to fight against Civil Authority and Government Nor is this to fight for Wrong or to fight against Right where ever we suppose the Right to be for we neither fight for or against either which the Laws and the very Nature of Civil Constitutions will not allow but we sight for our King against all his Enemies at home or abroad as the Laws of the Land require us to do And what Right soever any Prince has when he comes to dispute it with the Sword Subjects may and ought to defend the Possessor against him and to leave the dispute of Right of the Judgment and Determination of a proper Tribunal Thus the Prince of Orange his present Majesty did though he came with the Sword in his Hand it was not to try his Cause by the Sword but to referr his Cause to a free Parliament and to procure such a Parliament by the Sword which nothing but the Sword could obtain In short when a Prince challenges his Right by the Sword it is seldom seen that his own contents him if he wins his Crown he makes himself Master also of his Subjects Rights and may carve out what kind of Power or Government he pleases with a Conquering Sword And therefore whatever Obligation Subjects should be supposed to lie under to the Rightful Heir they are not bound to make him a Conqueror which is to make themselves Slaves if he pleases They cannot fight for his Right without fighting against their own and against the Rights and Liberties of their Country which is proof enough that no Civil Constitution can allow of fighting for the Crown Such things have been and such things will be but the Question is what Subjects are bound in Conscience in such Cases to do And unless they are bound to enslave themselves and their Country they can never be bound to suffer much less to assist any Prince whatever his Pretences be to seize the Crown by Conquest This is a good Argument against any Prince who will force his way to the Throne which is already filled by the Estates of the Realm but it is an unanswerable Argument in our present Case We know the late King James too well to trust him with a Conquest if we can help it and we know the French King too well to receive his Troops among us if we can keep them out and those whose Consciences command them to assist the late King to Conquer their Country need some other Cure than Arguments to convince them But this has been so fully stated in the two Letters to a Friend concerning the French Invasion that I shall referr my Readers for farther Satisfaction to those Letters FINIS