were Held and Practised so in all Ancient time this would lead us and doth lead the Disputants of all Parties into another kind of Historical Search than this which he speaks of into our Laws and Chronicles And yet for all such a Question about the Reception of them in times past would draw on such an Historical Search the Author very well knows That all these Duties are bound by God on all Men's Consciences And now by all that has been said on this point I think it may sufficiently appear That if God doth not fix it in a Person by special Revelation Civil Authority must go by human Right Right is inseparable from it in the Nature of Things in the Gift of God in the Supposal and Intention of the Commandments that carry it and call for Obedience to it So that he who has no good Right to it has no Authority but he who has the Right to it has the Authority which the Commands of God require us to bear Allegiance and keep subject to And all this is agreeable to that Scripture and Common Reason which tells us That no man can put himself into Authotity No man takes this Honour to himself but must be called to it says St. Paul Heb. 5. 4 5. speaking of the Pastoral or Priestly Authority which is God's Authority as the Civil is And Civil Magistrates when Obedience is called for to them are likewise styled God's Ministers Rom 13. 4. all the Authority they have over others being as his Deputies and Vicegerents Authority then no man can have but by being rightfully Deputed and Called to it or having it duly committed to him By what Authority dest thou these things and who gave thee this Authority is a Question most natural to be put to every such Person and must be answered by shewing some good Call and Commission Now this calling a Man to Authority and Deputation of God must be by some Title of Right or rightful Way not by thrusting himself into it which is setting up uncall'd and if a man puts himself upon it without being call'd thereto and assumes it without any Title of Right he only puts himself in Commission which is no Commission And as his Commission is from himself his Authority is so too So such a Man will only be a King of his own making but there is no Authority of God derived to him nor Call of his to carry it or authorize him And therefore what he doth require must be in regard to himself and not to God who having never Commissioned or rightfully called him calls not the People to obey him The like I might also add of our own Laws which make the Regal Authority to go with the Legal Right and vest it in the Person that has the Right and that when another has dispossessed him and got the Possession from him Thus Q. Mary having the Right the Statute declares the Regal Authority to have been vested in her Person during all the Possession of Q. Iane. And in Richard II. during the Possession of Henry IV. And in the right Heir by Henry VIII Settlement during the Possession of the Usurper Under all which he that had the Right in the Eye of Law had the Authority And such Acts against Authority as the Law calls Treason were declared to be Treason against them As it was also in K. Charles I. who keeping his Legal Right kept his Authority when he stood dispossessed of all besides before the High Court of Iustice As K. Charles II. also did afterwards all the time he was driven out and lived an Exile as I formerly observed Chap. 2. But the Author thinks p. 14 15. 65. He that is in Possession of the Crown tho' without Legal Right is King in the Eye of Law and he that is turned out of Possession though he has Legal Right is not King in the Eye of Law He ought as he words it by the Laws of the Land to be King but is not As for the Possessor without Right I will tell him what kind of King in my Opinion the Law counts him If he were a Subject before it looks upon him in the height of his usurped Possession to be still a Subject to him that has the Right and is dispossessed of it and as a Subject to owe Faith and Allegiance to him To break that Faith in acting against him to be tryable by Law and attaintable as a Traitor and punishable for the same All which is plain from the Instances of Henry IV. of the usurping Heirs of Henry VIII and of Queen Iane. And in the several Mutual Attainders during the Contests betwixt the two Houses in which though every King served himself of Law on pretence of having Right in his own Reign yet when on any Turn the Law came to look upon him as wanting Right and only as an Usurper or King in Fact it still treated and tryed and attainted him as a Subject Here then if such an one be a King in the Eye of Law is he a Subject Traiterous Tryable Punishable King And whether this in the Eye of Law is the true Sovereign or the supream and unaccountable King I leave him to judge And as for him that has Right who as he fancies in the Eye of Law is no King he is such a No-King as in the Eye of Law has the Regal Authority as I have shown still vested in him as has Allegiance by Law due to him and Treason by Law committable against him As is plain from Q Mary K. Charles the First and Second and all the forecited Instances and will be further from what I shall note from Law of the Dueness of Allegiance to a dispossessed Prince And how such an one whom the Law vests with the Authority of a King and to whom it gives the Allegiance due to a King and against whom it makes Treason as against a King should yet for all this in the Eye of Law be no King I cannot imagine Though therefore I cannot say That Allegiance is due only to Right as the Author words it p. 1. which I think not so well expressed yet is it only due to him that has the Right Allegiance is due to Authority and in absence of Revelation by the Laws both of God and Men Authority must go by human Right So that he only that has human Right to the Authority is to have the Authority and by vertue of that the Allegiance too And therefore the Question of Legal Right must come into this Dispute of transferring Allegiance I conceive since it must not be paid from him that has or paid against him to another that has not Right and there is no way left to justifie such Translation of Allegiance without it And if what I have offered hereupon has proved this point I think it strikes home at the main Design of this Learned Person 's Book And this will show him why when a rightful Prince is
King Charles II. was dispossessed hâ— was faithfully adhered to and served by several of his Subjects who for this were punished by the long Parliament aâ— Delinquents And this Adherence and Service the Statute 13 14 Car. II. c. 25. declares was according to their Duty and Allegiance The Rule given about Allegiance by the Judges in the Case of Union in Sir Francis Moor's Reports p. 798. is That if a King is expulsed by Force and another usurp nevertheless the Allegiance is not taken away though the Law be taken away This seems also the plain meaning of Allegiance following the King 's Natural Person as is declared both in the Case of Union and in Calvin's Case which would be tyed to the Politick and go with Possession if it inseparably depended on actual Administration All which to mention no more is the plain Signification of all the forementioned Attaindors passed upon Men either in Statutes or in Courts of Justice for acting against a dispossessed rightful King For Treason is the highest Breach of Allegiance and if the Law judges Men guilty of Treason against such a King it certainly judges them to owe Allegiance to him And this is still the Sense and Understanding of Publick Acts so many of the Acts passed since this Revolution having declar'd the Irish then under K. James's Possession and actual Government or Administration for all that to owe their Obedience to and for Breach thereof to be Rebels against King William And all this shows That by our Laws as well as by the Laws of God and Reason Obedience or Allegiance is due to the Rightful Authority of a King out of Possession and so is far from being tyed by our Law more than it is by the Scripture and the Nature of things to actual Administration But against this p. â—3 he objects the Opinion of some great Lawyers for Allegiance being due by Law to a King de Facto The Lawyers mentioned by him are the Lord Chief Justice Coke who is followed in this point by the Lord Chief Justice Hale and the Lord Chief Justice Bridgeman and the Allegations of Law which my Lord Coke builds his Opinion on are some Sayings in Baggot's Case not the fullest to his Purpose But what I chiefly observe is not of the Judges but only Allegations of the Council as they who please may see in the Case it self An. 9 Ed. 4. Term. Pas. Fol. 1. 2. 5. and the Statute of 11 H. 7. c. 1. which declares Subjects bound by their Allegiance to serve their Sovereign for the time being in his Wars against every Might and Power reared against him and indemnifies them for the same But how is this a Proof of Allegiance to a King de Facto Doth the Statute say they are bound to do this to the King de Facto No it only says to the King for the time being Do the Words for the time being then signifie the same as De Facto in their ordinary and legal Signification No they are ordinarily used both in Law and common Speech to seâ— off those that have Right as the Statutes when there is no Dispute of the Right of the King or of those that act under him every where mention the Lord Chancellor Lord Treasurer Lord High Admiral or other great Officers for the time being And the Statute 1 Ed. 6. c. 12. speaking of King Edward and his Heirs and Successors Kings of this Realm unquestionably rightful Kings calls them several times Kings for the time being If the Signification of the Phrase will not do it doth not the thing there said of this Service to the King for the time being viz. that it is against all Laws Reason and good Conscience to lose or forfeit any thing for the same determine it to the King in Fact No but on the contrary if they are true they will determine that King in being I conceive to be the Rightful King For suppose another to have the Right and it must needs be very unrighteous to hinder him of it and then he acts unrighteously that serves the King in Fact against the King in Right And what is unrighteous is against Reason and good Conscience and 't is neither against Reason nor good Conscience That Men should suffer for unreasonable and unrighteous actings For if Reason and good Conscience would have them suffer for any thing it must be for these Yea and 't is as much against Laws as against either Reason or Conscience there having been Laws enough as I have noted in several Instances for punishing and attainting Subjects that acted against their Rightful though dispossessed Sovereigns and of these Laws several in King Henry's own Remembrance some made against him by another who thought he had the Right and some made against them by himself when he came to assert his own Right And the Allegiance this Statute speaks of is the Allegiance as it had stood in his Remembrance as the Preface of it notes and as the Author himself also p. 62. 63. observes from it In all which time and before neither Law Reason nor good Conscience indemnified paying this to wrong but only to rightful Kings But mutual Attainders of each others Adherents he says p. 59. is no Proof what the Law of the Land is What not if the Law attaints Must not Laws shew what the Law is And if as oft as the Law looks upon a Man to have had only Possession it attaints those that served him it is plain That Law did not look upon mere Possession without Right to justifie that Service If Possession in Law would have justified them in serving him for such Service the Law would not have condemned them And as for that Favour of Parliaments towards the Possessor which is all as he says ibid. that such Parliamentary Attainders shew that Favour to the Possessor is favouring his Right for opposing whereof the other side may be attainted But it would not go to attaint innocent Men for following Possession if it owned Allegiance were due to mere Possession For that were to do a Contradiction But whatever had been done in this kind before Henry VII he says p. 63. was now convinced it was ill done and provides by this Statute it shall be so no more But the Statute doth not speak of this as of a new Provision but as of the Allegiance which the King called to his Remembrance and which had all this Guard of Law Reason and good Conscience aforetime Declaring therein as the Author remarks upon it p. 63. what was so before and not made so now merely by their Declaration and so I think was not thus to guard those that served against the Right For as there was Reason and Conscience so likewise Law enough if Statutes and judged Cases are Laws both in time foregoing and time following to punish them I add to this if this Service as beiâ—g a Service of the Wrong against the Right is thus against
Due of a Person not due to the Country or to the Order of Government but to the King And accordingly in Cobledikâ—'s Case the Judges rejected a Plea as my Lord Coke notes p. 9. in Calvin's Case for saying only the Ligeance of England but admitted it when they added and the Faith of the King And therefore the King himself is not capable to commit Treason because it is only a Breach of that Faith which is due to his own Person so that the Treason lyes where the Faith and Allegiance doth that is against the rightful King's Person As to what he says p. 52 53. about Cognizance which is the right King not lying before a private Subject I grant it would not if once a Court competent had judged of it But where is that Court that is of Authority competent to sentence and give away a lawful King 's Right It seems plain in the Eye of the Law That among us a Parliament called by a Possessor without Right cannot do it because after they have done what they can the Law says he has Right and will punish the private Subject as has been shewed notwithstanding the Warranty of their Judgment for acting against his Right So there is no way that I see but for every Subject to take the best Advice and Care he can to know which is the Right that he may not act against him for though he would have no Cognizance were it a Thing that lay before authorized Courts or that the Competitors had brought into Court and there decided as H. 6. and the Duke of York did in Parliament and though where there is no Court competent to judge he has no Cognizance to judge for others yet he has to judge the beâ—t he can and at his own Peril for himself as every Man muâ—â— do I think in this Case Allegiance hâ— must pay to him that has 〈◊〉 as I have proved and so must satisfy â—imself who has it to answer the Law of Goâ— And as for the Law of the Land to seeâ— Protection from the Judgment of Courtâ— which are not legal Couâ—ts but only Cour 〈…〉 de Facto or from legal Courts if they meddle with that which is not under th 〈…〉 Cognizance will fail those that trust to shelter themselves thereby as my Lordâ— Chief Justice Bridgman told Cookâ— when he pleaded that the High Court of Justice was a Court de Facto in defence of his Acting under it But as to all this Dispute about Law for Allegiance to the King in Fact against the King in Right p. 54. 65 he observes That the Non-swearers would noâ— abide by the Decision of the Laws Which may be true as to this particular of following a mere King in Fact against the legal Right because the Laws of God as well as of the Land are their hindran 〈…〉 in this Case But then says he Why do they insist upon-Lam They insist on it because they think it one good Argument and so they have reason to think it still for any Thing that I have yet seen offered from Law to the contrary But they do not abide by it or give up the Cause to stand or fall with it because it is not the only good Argument and other Hinderances from God's Laws they think are no less than that And this learned Person knows very well That any one Conscionable Hinderance is enough to keep a Man from doing a Thing and the Lawfulness in some respect whilst 't is Unlawful in others is not enough to warranâ— him in doing it Bonum says the Râ—le oritur ex integra Causa malum ex quoli 〈…〉 Dâ—fectu Though I think as to th 〈…〉 painful Search that has been made into the Point of Law for Allegiance to a King de Facto the Non-swearers did not begin it but were driven to it The Pleaders for the New Oath pretending the Law in this Case to be for a King in Faâ—t which upon Examination they find to be a Mistake and think the Plea from Law is on the other side And thus upon all Accounts both of Scripture and the Nature of Things and of our own Laws I think it may seem sufficiently manifest that as he that has the Right has the Authority so he that has the Authority by the Laws both of God and Man must have the Allegiance though he cannot actually Govern but is Forceibly kept out of his Throne And if the Dispossessed rightful King still keeps the Authority and the Obedience of the Fifth Commandment is still due to him because of that Authority the leaving any ejected Prince to have the Right and the Regnant or Providential King to be only King in Fact without Right would leave all that take a New Oath for transferring Allegiance under as evident a Breach of that Commandment as of the rest So upon the whole I conclude this Plea of mere Possession without Right leaves all the Non-swearers Difficulties against the Oaths untouched For suppose any Man to be still ones rightful King and then what will hinder but to bind our selves by a contrary Allegiance to oppose his Right must be Unrighteous towards him or to bind our selves thereby to act against his Authority must be Undutifulness and Rebellion and binding our selves to all this against what we had promised and assured by former Oaths must be to forswear our selves So that when at the last Day all that take such Oaths come to be tryed by these Laws how they have kept Just to the Rights and Obedient to the Authority and True to the Oaths they had made to a Dispossessed King If they have no Exception to his Right nor any Ground but this of de Facto to plead to me it seems there is great Danger lest all those Laws should condemn them And however they they think this Plea of Possession without Right may bear them out before God in paying this Allegiance I think 't is visible no Possessed King trusts thereto in demanding it either before God or before the World for we never yet had a Regnant King that set up upon that Title And in the present Revolution 't is well known to all what Declarations the publick Acts have made of King William's and Queen Mary's legal Right and Title to their Father's Throne CHAP. V. Of the Author's Right by providential Possession without other Title It destroys the Obligations by Right and Wrong I Come now in the Third place to that which is more particularly the Plea of this learned Man which is the Plea of Providencâ— to give or grant Right And this though it be not a legal Right but leaves that still to go as Law directs it yet he says is a better Right than that and such as in the fight both of God and Men ought to set the legal Right aside And this he makes to be the Right of every Regnant King or Possessor of a Throne Providence that gives Success and speeds him
these Rules of Justice which are to limit all Pursuits thereof The great Prelate he disputes against on this point p 38. c is for binding all Subjects even those that adhere to the ejected Prince to seek the Benefit of Society And in order thereto to pay much Regard and to submit to the Usurper in the great Points thereof As to be obedient to him in Defence of the Country against Foreigners in his Administration of Justice and Preservation of Trade and Commerce and Observance of Laws Limiting them only herein by their Obligations to the Rightful King that they do not obey the Usurper in any thing against him or in violation of that Faith which they owe to him And to this he thinks they are bound in prudent Care of themselves in grateful return for Protection in conscionable Care of the Publick Benefit though they are not bound by the Authority of the Person as the Learned Grotius also taught in this Case de Iur. B. l. 1. c. 4. Art 15. Now what is there destroyed in Society yea or lost of the Benefits thereof which can Righteously be kept in this supposed Defective Unnatural and Forced State of Society His main Objection to it is p. 39. that there is a want of Authority And Authority and Obedience is Essential to Civil Government and Civil Society And want of a Perfect and Natural Course there is of both these as there is like to be in such an Unnatural State but no absolute want thereof There is no absolute want either of Authority or of Allegiance For the rightful King has Authority and the Subjects owe him Allegiance and betwixt these as the Head and Body is the Being of the Society But what is to be said then to Administration of Government should there not be Authority also in that Yes and always is when Government goes on in a Natural Course and would be in the Case supposed if he that has the Authority could be allowed to exercise his Authority and to govern by it But he supposes he is not allowed to that And the other who is possessed of External Strength but without Authority will administer the Government and usurp the exercise of all Acts thereof though he has no Authority for it So there will be Authority in this Society though he that has it is not allowed to exercise and govern by it And there will be Administration and Exercise of all Acts of Government though he that usurps this Administration has no Authority for it The want is neither of Authority nor of Administration in the Society but of an Union of these two so as that he who administers might do it with Authority This I grant is maimed and unnatural But the supposed State is maimed and unnatural And in an unnatural and lame State when the authorized King and People are kept apart like as when the Head and Members are in other Societies there must be an unnatural and lame Course of Government Now when one that has not the Authority which goes not by Strength but Right yet having got external Power in his hands will Administer the Government if the Subjects will all submit to him therein the Society will competently enjoy the Benefits of Administration The natural and best ground of Subjects Obedience is Authority indeed but that cannot do here in an unnatural State and in a Case that supposes he will Administer who has Possession against Right and so wants Authority for it But this Obedience the Bishop fetches from other Grounds and those of Conscience too as well as of Prudence and carries it as far as it righteously can be carried that is in all things that are not prejudicial to the true Owners Rights or to their Fidelity and Obligations to him And farther than this none must go in seeking any Benefits of Society they being always under the Restraint of this Limitation as I observed and never to be sought unrighteously The Bishop Sect. 21. fetches a Liberty for the Subjects to obey the Usurper in the forsaid Instances from the Rightful King 's presumed Consent And great Reason there is to presume he will consent to what is done to keep up Government and not to keep himself out For a People he would have kept together and some Order kept up among them and 't is to an United People that he claims a Right and hopes to be restored again And this presumed Consent some as the learned Author whom he mentions carry farther to derive Authority in these Acts to the Usurper and those that act under him from the Lawful King And whether this presumed Consent can give him or them Authority to do them or no 't is certainly very equitable that his Acts for keeping up common Order and Justice no ways prejudicial to the lawful King should stand good when they are done and be made authoritative when they can And so accordingly they use to be made by the Rightful King's Ratification at his Return As they were by Edward IV. by Q. Mary and K. Charles II. on their several Restorations to the Throne But this presumed Consent he thinks is not enough to derive Authority to the Usurper And not to dispute that Point whether it be or no doth he know of any better way If not all I can say is That no body is bound in my Opinion to find two Regal Authorities more than two Kings which he thinks an Absurdity for one Society p. 14. Nor to find Authority in him that has no Right to it since Authority can go by nothing else but Right And if a Man has it not of his own nor can borrow it I see no Remedy but he must want it However having external Strength he will administer all the same Acts of Government as he would do if he had Authority to do them And if all People submit in regard to private Interests and publick Peace where there is no Authority to have Regard to his Administration will not want good Effect of keeping up Order and Peace and Common Justice among them Indeed they that act in place of Authority under such as they suppose to have no legal Right are concerned to look more to the Authority they act by But as for others they will have Benefit by the Administration whether it be with Authority or no. One Objection he makes p. 40. viz. of the usurping Possessor that has Power enough in his hand to do it either destroying imprisoning or transplanting all that stand out And would not an obstinate Allegiance destroy Society in this Case He supposes all Subjects to do their Duty and stand out Which though all are equally bound to do in Right yet they are never like to do so in Fact the Course of this World giving little appearance of a whole Nation being unanimous in quitting all Temporal Interests for a good Conscience But suppose they should and the Usurper being too strong for them requires them all
contradiction The Assyrian for instance all the time he was spoyling Kings of their Crowns and People of their Possessions under the Shelter of this Plea of Providence was most horribly Unrighteous His gettings as I observed before are term'd Violence and Ravine All his Violences which if we look at the Hand of God upon the Oppressed Kings and Kingdoms were God's just Scourge and Vengeance upon the Sufferers as they concerned himself Were a filling up the Measure of his own Sins and making him Ripe for like fearful Vengeance When the Lord hath performed his Work by him he will punish the Assyrian Is. 10. 12. When all the rest of the Nations had drunk of the Cup of Fury the King of Sheshach shall drink after them Jer. 25. 15. 26. And all the Vengeance that came upon Usurping and Oppresive Babylon afterwards was a requital of Vengeance for their former Violences The Vengeance of the Lord and of his Temple Jer. 51. 11. His Vengeance in recompensing her in the way of her own Violence and doing to her according as she had done to others Jer. 25. 14. c. 50. 15. Even because she had spoyled many Nations all the Remnant of the People should spoyl her and the Woe should come upon her because of Mens Blood and for the Violence of the Land of the City and of all that dwell therein Habak 2. 8. And the Case is alike with all other either Princes or private Persons when they are made use of by Providence in any Unrighteous Acts which are plainly against the Rules of Justice and God's Laws as in all the preceding instances of Providence serving it self by Men in their doing the worst Things Now since Providence is concerned here in Acts that God Blames and Condemns and for which he takes Vengeance 't is plain the part of Providence is not to give Right to the Actors which would render them Unpunishable Righteous and Blameless but it has other Ends which may be served by the Actors having no Right to what they do but being therein most Unrighteous For Providence justly serves it self of Wicked and Unrighteous Men and Actions not by commanding any Unrighteousnes or inclining Men to be Unrighteous which would make Providence a sharer in the Unrighteousness but when in the way of free Creatures They are bent upon Unrighteousness themselves as God declares the Assyrian was in so ordering Occasions and Opportunities and over-ruling Issues as shall make them serve his own just Purposes thereby against a Prince or People of his Wrath which the unjust Actors and Executioners as he says of the Assyrian never dream'd of And this serving his own righteous Ends by Mens unrighteousness leaves Right and Wrong to be still the same they were among them So that look only to the Actor and there is no Right for what is done or possessed by him but look up to God whose Providence ordered their unjust Actions to fall upon those that offended him and which he will over-rule to accomplish his just Ends and the Sufferers themselves must needs say there is Justice in his Ordering And upon this I shall note What the concern of Providence is in the unrighteous Acts and Successes of Kings or others he makes use of which is expressed by his Sending or Charging or Ruleing or Setting up or Pulling down or Giving or Taking by them c. All which speak God's Providence not giving Right or authorizing the Actors or their Actions but effectually accomplishing and serving his own Purposes thereby They speak not God's giving Right or authorizing the Actors or their Actions as is plain because it is in Actions that he accounts and calls Unrighteous and will take Vengeance for as has been shewn of the Assyrian and as is plain of all the forecited horribly wicked and unrighteous Actions concerning which notwithstanding the Scripture uses these Expressions And no Man that will retain any Reverence for God or Regard of Good and Evil can think otherwise But they speak Providence effectually accomplishing and serving its own wise Purposes by them This is not by God's Counselling or any ways Inciting the unrighteous Actors to their wicked and unjust Attempts The desire and disposition of Mind proceeds only from Satan and themselves And when they ingage in them it is only as set on by their own Ambition or Avarice or other Corrupt Passions and all they seek to serve therein is not God or his Purposes which perhaps they never think of but only their own wicked and unjust Appetites As God declares of the Assyrian who meant nothing by all his Invasions as God did but only pursued an insatiable Thirst of Empire and thought to destroy and cut off Nations not a few Is. 10. 7. no more than the wicked Jews thought of serving those Ends by the Crucifixion of Christ for which God had preordained it or the Actors in any other Wickedness think of ministering to those good Purposes whereto an over-ruling Providence makes them serve by bringing Light out of Darkness But when Men are fully disposed and prepared of themselves either unjustly to inlarge Empire or to act any other Unrighteousness the part of Providence in effectually accomplishing what God designs thereby I shall particularly note in these two Things 1. In directing them to Objects This Providence doth by suiting Accidents and Circumstances and making all things conspire that the People or Persons of his Wrath shall fall in the way of those that are bent to spoil them when they have no Discouragements or Impediments either to dishearten or divert them Or by over-ruling those things from which they take their Measures and Determinations so as to fix their Resolutions and Motions against whom he pleases And this Act of Providence the Scripture notes in the Assyrian whose general hunger to devour all was by God thus sixt upon Ierusalem Cast a Mount against Ierusalem saith God by the Prophet this is the City to be visited Jer. 6. 6. And when he was in Doubt within himself at the division of the Ways leading to each whether to march against the Jews or Ammonites God over-rules his Lots and Divinations to make them pass by the Ammonites at that time and fall upon Ierusalem as Ezekiel declares Ezek. 21. 19 20 21 22 24. 2. In determining and over-ruling Issues making the Actors Violence and Unrighteousness to serve his own Righteous Ends which they never dreamed of As he did the Assyrians Violence to avenge his Quarrel on the People of his Wrath And the Wickedness and Unrighteousnes of all others either Princes or private Persons Providentially limiting all that they shall neither fall out sooner nor procede farther nor rest longer upon the Persons allotted for them than he sees fit And that they shall serve either for Tryal of Patience or Punishment of Wickedness or prove Steps to Good or Ill in the end as he pleases Now this Determination to Objects and Issues effectually accomplishes the Events which
interfere like as if Two Wills do the later will be sure to be Stronger and the other of Henry the Seventh was only a Law but this later of King James is both the Bond of a Law and such as makes a Man bind himself further and both promise and swear too So that instead of doing what that Law says he shall do having as good a Saying of Law here nay a better beâ—â—â—se a lâ—ter 〈◊〉 will rather think himself bound to do not only what this Law says he shall but also what he has both promised and most solemnly sworn he will do And whether all these Laws and judgeâ— Cases are not enough to carry the Point of Law in this Question of Allegiance to rightful Princes against the Opinioâ— of the foresaid Lawyers standing on such Foundations I leave any rational Man to judge He takes notice of the Judgment on the D. of Nâ—rthumberland for acting under a Queen de Facto viz. Q. Iane which the Statute of H. 7. would have justified haâ— that been meant of a King in Fact and argues p. 64. it could not declare thâ— Statute of H. 7. null and void as the Author of the Case of Allegiance to a King in Possession against whom he there disputes thought in effect it did Which if this Judgment doth not of it self yet the contrary Obligations laid since by other Statutes which that Author adds as he observes likewise will seem to do it For if the Act of H. 8. about Succession and the Oath of Allegiance make the contrary to the Statute of H. 7. or Serving of the Rightful King to take effect that will not differ much from declaring his Statute null in effect because it will leave it no effect But though this Judgment should not be enough in Law to repâ—â—l that Statute yet I fancy in a Question of the Sensâ— thereof especially in Words so lyable to be expounded to that sensâ— which the Court declared in his Case it must needs be allowed to be an Authentiâ—k Interpretation of it For I think in expounding a Law he will allow a Court of Justice and especially the High Court of Parliament to have more Authority than those Lawyers though of so deservedly great name whom he mentions And now laying all these Authorities of Law before us if we must presume what the Law is in this point I think we have much more Reason to presume that is Law which we hear from so many Statutes and judged Cases than what we hear on the contrary from some particular Judges and great Lawyers So as far as I see the Law in this point should be presumed to lye on the rightful King's side But Treason he observes p. 58. lyes by Law against the King that without Right is in Possession and then Allegiance must be due to him This may be true in such a King as Henry VI. of whom alone Baggot's Council affiâ—m it who for near Forty Years was King without any opposite Claim and then was so still by express Consent of concern'd Parties who had Authority to give to him and agreed That as he had been hitherto so he should still be King for his Life But as to other mere Regnant Kings against a right King that makes his Claim I do not understand how in Law it can be Treason to act for the right King against them when so many Laws and Statutes of Attaindor and judged Cases have made it Treason to act for them For Treason as well as Allegiance the Author will own can lye but one way since we can have but one King And as for the Statute of Treason it speaks of that King whose Succession the Law is careful to secure making it Treason as the Author of the aforesaid Case observed p. 8 to kill the King 's eldest Son to violate the Queen the Prince's Wife or the King 's eldest Daughter All which shew a care of the Lineal Successor and so must be meant of the Lawful King since the Law cannot be careful to secure the Succession to any other It is pretended no otherwise to favour the Successor than on account of Possession for the necessity of actual Government under him which is only for his own time And as for Law looking on the Crown as Hereditary still in his Children as he fancies p. 56. sure that is not the Hereditariness of Blood or next akin which is the Hereditariness of our Crown And the Law cannot look upon the Crown as what ought to go by Hereditariness of Blood or lineal Succession if it makes it due to another's Children who perhaps are not at all of the Blood or however not the next in Blood as the Three Henrys he mentions were not whose Reigns were a real Interruption of the due Hereditariness of Succession and who were none of them the true hereditary King I grant Treason may be committed under them As to conspire against the present Possessor to set up another Usurper or to give away the Crown to a Foreigner or other things which the Law makes Treason But that which makes these things Treason then is not as I conceive being committed against them nay Treasonable Acts may be Treason as has been shewn when committed not only for them but by them but being committed against the Authority of the rightful King For his Authority is still in his Realm though his Person be driven out and the Faith of the Subjects is still due to him and may be broken as it is most highly in all Treason which is the ground of all Attainders and makes the necessity of Oâ—livions and Acts of Grace as I formerly observed So all the time he is away the Subjects being bound in their former Faith and Allegiance to him they may break that Faith and Allegiance in the several ways of Treason only he is not here to try and punish them And the Possessor having got all his external Power must do that if it is done at all for 't is external Power that punishes But as he punishes by another's external Power so for what was acted against another's Authority not against his own And I see no authoritative way of doing it without a way can be found which some have attempted and I here discuss not to derive Authority from the rightful King But the only Reason why any Things are made Treason by Law says he p. 58. is their being against the Order of Government and Destructive to it Which the same Things equally are under any King whether in Fact or in Right But whatever be the End why they are made so yet Being a Breach of the Faith of the King must come in to make them so For the Nature of all Treason is to be a Breach of Faith and Allegiance and accordingly the Form of Indictment is that such a Thing was done Contra Debitum Fideâ— Ligeantiae suae against the Actors due Faith and Allegiance And this Faith and Allegiance is the