and rendring him incapable to Exercise any Government at all Nay If the share and interest which the Body of the People have in the Preservation of the Laws and Constitution and their concern in the welfare of the whole will make it come up but to a doubtful Case If upon this to rescue us from those Confusions to preserve what remained of the Ancient Government and to restore what had been impaired the Representatives of the People did fill the deserted Throne by proclaiming the Authors of our Deliverance King and Queen and the Body of the People for the number of Male-contents is so inconsiderable that there is no need of softning the word upon their account have owned their Title to the Crown submitted and sworn Allegiance to them as their Governors And if it be visible to the whole World that their Government has produced all the good Effects that were proposed or aimed at and they are in as full and quiet Possession of the Throne as ever any Princes were who sat upon it with a repeated Recognition of their Title I cannot but think that every one who will give himself leave calmly to consider must agree That our Case comes up to that which our Author puts It does not cannot appear that any other Person has a better Right to the Crown and the consequence of our Author 's drawing from that will be That every English-man ought to bear Faith and pay Allegiance to Their Majesties who thanks be to God are in so full a Possession of the Throne But not to enter farther into the general Question which I think ought not to be too freely searcht into lest it give Advantage and Encouragement to a sort of People who will be forward out of Wantonness to put things in practice which nothing but the utmost necessity can justifie I conceive I shall effectually answer all that can be materially objected from the Case of Allegiance c. and the Defence of it against our present Settlement if I can maintain this Proposition That where a King is in the full and quiet possession of the Throne and Exercise of the Government has been solemnly proclaimed and freely and voluntarily recognized and submitted unto by the States of the Kingdom as their King has visibly the Power and Strength of the Nation in his hands the Laws have their due course in his Name and all publick justice is administred by those deputed and commissionated by him altho he had no precedent legal Right and that there is another person living who according to the ordinary course of Hereditary Succession has a just claim to the Crown yet the Laws of England do require every private subject to pay their Allegiance to such a King in possession and protect them in their so doing And this I hope will be fully made out by plain Law and all the seeming Objections offered against it from the Laws of the Land answered To save my self and the Reader some trouble hereafter it will be convenient before I enter into the particular consideration of our Author's Arguments and Objections to observe That the Government of England is to be considered in two respects 1st With regard to the Power of Legislature viz. The King and Body of the States who have power over all positive Laws to make new ones according as they in their Judgments shall think expedient and to alter amend and supply the defects of the old ones as they in prudence shall judg the present circumstances of Affairs require 2ly The Executive Power of which the King is supreme and Courts of Justice and other Officers subordinate under him To them it belongs not to deliberate or determine what in their opinions it were fit or reasonable the Law should be and thereupon declare that to be Law but to declare what the Law is as it at present stands in every case coming judicially before them and to put that Law in Execution This is so very obvious that it must without hesitation be agreed to me and so must the consequence that I draw from it That I need not make it any part of the present Question Whether the Acts of one who is called an Usurper in Title that tend immediately to the destruction of the right of the dispossessed Prince be just in themselves so that they ought to continue in force and not be repealed and annulled by a Power competent for that purpose upon the injured Prince's happening to be restored to his Right But whether such Acts being done according to the known legal Forms and Ceremonies by such a Possessor of the Throne as I have before described every private subject may not in good Conscience submit unto and obey them without taking upon him to judge of his Governour 's Title Nay further whether the Laws of the Land do not protect him in so doing and not only so but require it from him I think the Affirmative is agreeable to the Laws And I now come to consider what our Author says to the contrary The first Point he endeavours to make out is That notwithstanding the Opinions of the Eminent Lawyers whom he mentions which I must observe were delivered in the times of Kings whose Titles to the Crown were undoubted so that there was no necessity for their straining the sense of the Law to make it favour their Master's interest and which for ought that ever yet has appeared were never contradicted hitherto by any one of that profession A King de facto is not Seignior le Roy within the Statute of 25 E. 3. I shall through this Discourse take those words to mean one who is in the full and peaceable possession of the Throne and Exercise of the Government with the free submission of the People by their Representatives assembled in a Parliamentary way but wants a Title by proximity of Blood and Hereditary Succession and undertake for the defence of the duty of Allegiance to such an one only and not to any possession without a true Right short of that If any of the proofs which I shall make use of hereafter shall carry it further they will more strongly prove this But I will not answer for more I observe in general upon this Statute 1. That the punishment prescribed by it for the offences now under debate is the utmost to which a temporal Law can reach Death and Disgrace This will make it highly reasonable that the offence should be plain and certain And in the second place That this Statute was made in favour of the Subject that he might be at a certainty what hazards he runs and not be swallowed up in the Gulf before he apprehended himself to be beyond his Banks It made no new offence but was restrictive of the liberty that Judges had taken before of expounding every thing that an angry or jealous Prince did resent as a wound of his Majesty into High Treason This is so well known to all that have
granted that that Provision would keep the Right and Possession together to require the Obedience of every particular Subject to the Possessor from time to time without allowing the Rabble a liberty of examining into the Title So that it is very far from being an unreasonable Exposition of the Law tho it should happen to be a Protection to the Wife and Son of an Usurper in Title to say the Title of the Possessor of the Crown shall not be canvassed by every Subject but the Dignity of the Office shall set him above any particular persons passing Sentence on and exercising Authority over him In short The Common-Law which made such extraordinary Provision for the security of the Persons of the King and his Relations could not do it for any Sanctity of their Persons any otherwise than as they were invested with the Kingly Office and in relation to that It secured them for their own sakes but more for the sake of the Government and to preserve the Peace and Order of that It supposed indeed that no Person would obtain it but he who had a Right because no other ought to do so and all the Subjects are obliged under the greatest ties to prevent it But 't was as far from the Intention of the Law as it is from Sense and Reason to leave it at the liberty nay make it the duty of every particular person to raise Disturbances and throw an whole Kingdom into Confusion because he against the Recognition and Sense of the Body of the People thinks another's Title to the Crown better than his who wears it So to carry this on as against the People who have no Right at all to the Crown for the preserving and continuing the Hereditary Monarchy it provided for and secured the Son of the King in Possession as the Person who according to our Constitution has presumptively a Right to succeed his Father in the Throne till there be some Authoritative Declaration against his Father's Title I confess Heir Apparent to a King de facto who has no Title to the Crown but his own Possession as the Author has tacked the Def. f. 9. words together does seem odd but the difficulty is in the words only not in the thing The name King is never clogged with these words de Facto till he is out of Possession The private Subject must look upon him as his King and consequently on his Son as the Heir of his King and so not attempt any thing against them which is what the Laws against Treason provide for The de Facto which is all that imports any inconsistency or Contradiction does not then belong to him But we are told That the constant Practice and Custom Case f. 9. Def. f. 13. of the Realm is so far from warranting my Lord Coke 's Gloss that it proves the contrary For that the Parliaments upon every Revolution used to Attaint the Adherents to those who opposed them tho acting under a King in Possession nay dealt with the Possessor himself as a Traytor scarce allowed him the Name of a King or lookt upon his Acts of Government as Valid and Authoritative in themselves I lay all these together because the same Answer will in a great measure serve for all of them tho each may have its particular consideration None of those Proceedings amount to so much as a colourable Proof That to act against one who in Justice and according to our Constitution ought to be King but is out of Possession in Obedience unto and Defence of the King who is publickly submitted unto by the Body of the Kingdom and in Possession of the Government is by any Law at present a Law of the Land Criminal All those Attainders were by Parliaments whose Power is not to be contradicted or the Reasons of their Proceedings disputed It was without doubt by all moderate men at that time lookt upon as very hard and contrary to Equity to punish men by positive Laws ex post facto for what was no breach of any of the publick Laws or Acts of State then in being These Laws were undoubtedly iniquae unequitable but I believe no one would have put the Author to the trouble of proving them to be Laws Def. f. 15. The People either of themselves to make Court to the Power then uppermost or being over-awed by the Interest and Recommendation of those about the King did generally elect and return the Friends and Adherents of the prevailing Party whose Wounds being fresh and their Losses quick and piercing they kept themselves within no bounds of Justice or Moderation They were resolved to gratify their private Resentments and revenge themselves for Injuries done them or their Friends upon any terms so that they took not either the Laws of the Land or the common Rules of Justice for their guide but made both truckle to their Passions The King was glad to lessen the number of his Enemies the cutting off many of whom and frightning the rest into Submission by such Examples of his Severity he lookt upon as the only means to secure himself against another turn That this was the Case is certain and I wish we could find instances in our Ancient Histories only in the times of our Edward's and Henry's to prove that where there are two contesting Parties in a Kingdom neither of them will make use of the advantages they happen to obtain over the other with such a temper as right Reason and Prudence would direct But the violence of such Proceedings must not be offered as any proof or measure of Right nay they are unfit to be mentioned or made use of in any cool debate unless it be to create in the minds of Men an abhorrence of such Actings and by setting forth the calamitous Consequences that were produced by the punishing the poor Subject upon the various Successes on cach side to recommend that wise and equal Law which not only declared That the Subject 11 H. 7. ought to be indemnified in his paying his Service to the King for the time being for that it was his Duty to do so but provided That all Statutes made afterwards to the contrary should be void This latter part was all of the Statute which was new the residue was always Law and is there only authoritatively declared to be so And that part of it that was new can't have its full effect to restrain subsequent Parliaments to which no positive Laws can give bounds But yet their aiming at such a Restraint is a sufficient Caution to future Parliaments to consider very well before they make any Law contrary to it which is thereby adjudged a thing utterly unfit to be done and that in the most solemn manner by as wise a Prince as ever filled the Throne and a People whose Sufferings under the mischiefs of a contrary Practice had convinced them not only of the reasonableness but the absolute necessity of the thing I think I
Nature obliges a Man to make Restitution for Injuries done I agree but that must be out of what is his own without Injury to another else having robbed one and having nothing of my own wherewith to make him Reparation I might rob another to do it So in the present Case If I have been accessary to the unjust dispossessing the rightful Prince nature obliges me to make him what recompence I justly may But if it fall out that nature does not at all intermeddle with determining what particucular Persons have a Right to the Government Or make one Man King the rest his Subjects but that the Case f. 40. Relation between the Persons governing and to be governed and the measures of Protection and Obedience thence flowing are of positive Institution and the Effect of the particular Laws of the Land And if the Laws of the Land have so fixt the Duty of my Allegiance to the King in Possession that acting in the condition of a private Subject I can't withdraw it from him without a breach of those Laws without taking from him what the Law has given him a Right unto The Law of Nature can't oblige me to that nor has the dispossessed Prince any Right by the Law of Nature to claim or exact that satisfaction from me so that the Statute 11 H. 7. does not at all thwart or contradict the Law of Nature or any Duty in dispensibly incumbent on the Subject by it This Consideration will indeed aggravate the Injustice of my contributing towards such an Usurpation and make People that have any sense of Religion very cautious how they venture upon doing a thing of that kind where the very Act of doing the thing puts it out of their Power to wipe out any part of their former Sin by an endeavour to make Reparation without their contracting a new Guilt Our Author compares the case of Obedience due Case f 23. to the King with the Case of the Subject as to the Protection which the King is obliged to give him These I agree are very fitly considered together as mutually explaining and proving one the other Let us see whether the reason of that Case will not fully come up to the proof of what I am endeavouring to make out The King is obliged to maintain his Subjects in their Rights and Properties not only while they are in possession but also when another has disseized them by fraud or violence True he is to do the latter which carries a resemblance to the case in question as well as the former But it must be according to the measures and pursuing the methods the Law prescribes Where a subject is disseized Law is to precede force There must be a decision by a proper Judge in his favour before there be a restoring him to his possession Till that be done he is to quiet and defend the Possessour in the Possession tho' gotten by fraud and injustice The King himself to whose Wisdom and Authority the Constitution has entrusted so much cannot by virtue of all that Power doe the greatest or least of his Subjects that Right which he in his private Capacity undoubtedly knows belongs and that the Law ought to adjudge to him and shall we then say that in the Kings case a private Man to whom the Law has given no manner of Authority to judge of any ones Title shall take upon him by force to attempt the unsetling a King who is quietly Possessed of the Government because he thinks another man has a better right Is it not more agreeable to the Comparison our Author has made and to the Reason of Mankind That where there is a National Submission in a Parliamentary way to the Possessour of the Throne Every pretender to impeach that Settlement ought to wait for a Declaration of his Right by the States of the Kingdom till which is done Particular Subjects ought with regard to common Safety and Peace to acquiesce under the Power from which they receive Protection and to which by their Representatives they have Submitted I own there may fall out very hard cases sometimes upon these grounds and such Objections as will not receive an easie Answer But I am sure it will be very easie to maintain That the mischiefs will be less in themselves and likely to fall out seldomer than by allowing every Subject a Liberty to embroil the State upon a pretence that the Government is not in the hands it ought to be In matters of this kind in a mixt Monarchy there will be some difficulties in the Theory that are unanswerable The notion of a mixt monarchy it self will not bear a strict disquisition For granting that of necessity there must in all Governments be some last resort for the final determination of all differences which will seem a very reasonable proposition any Man may immediately run it up to a Tyranny or Popular Government If the last resort and final determination of Right or Wrong between the King and People should be agreed to be in the King notwithstanding all the Laws now enacted he may when he pleases in Theory make his Will the sole Law For whenever he is minded to attempt it after the matter 's running through other hands it comes at last to him to give the Rule which is the gaining of his point So on the other side if the People are the ultimate Resort and sole Judges of the Rights of their Prince of necessity their determinations must be obeyed tho' they determine against his true Right And that will in consequence prove the Government no Monarchy tho' he be in Possession and carry the name of King there being a Power superiour to him and to which he is accountable for his Actions If both Prince and People are to join in it and they differ in their Sentiments there is no determination and consequently uncertainty and confusion This is the natural consequence of driving up these notions to their heighth But this is not therefore every day the case There is a good old saying that will interpose to save us Ipsae res nolunt malè administrari This will notwithstanding all those fine notions keep both the Parties from attempting successfully any thing extravagant and utterly inconsistent with that mixture of Power by which we are ruled so much to our ease and advantage tho' that mixture of Power can't be maintained in strict reasoning I say all this to this purpose I find it is strongly objected to what I have advanced viz. That a private Subject after a solemn submission of the Kingdom to an Usurper in Title ought not to attempt the restoring the King de jure till there be some solemn decision in his favour the Power of which I have placed in the States of the Kingdom That this way of applying to the Parliament for Justice and making their Claim there may be prevented by the Usurper's not admitting the States of the Kingdom to meet or receive
REFLECTIONS Upon Two BOOKS The One Entituled The Case of Allegiance TO A KING in POSSESSION The Other AN ANSWER TO Dr. SHERLOCK'S Case of Allegiance to Sovereign Powers IN Defence of the CASE of ALLEGIANCE to a King in Possession On those Parts especially wherein the Author endeavours to shew his Opinion to be agreeable to the Laws of this LAND In a Letter to a Friend London Printed for W. Kogers at the Sun over-against St. Dunstan's Church in Fleetstreet MDCXCI REFLECTIONS ON The CASE of ALLEGIANCE to a King in Possession and The Defence of it SIR IF I could be uneasy under any of your Commands this you may be assured would be the time of my shewing it It is an hard task you have laid upon me The Books of which you require my thoughts are long and speak the Author whoever he is to be a Man of great Learning and Reason one who can argue to the best advantage his Subject will bear And the Collections he has made plainly shew that he has taken great pains and bent all his thoughts for some time to the maintenance of that Cause to which some Prejudice has unhappily determined him I Sir to your knowledg never saw the Books till within these very few days and I fear you will have too much reason from what I write to believe me when I tell you That the reading the Books once over and that with frequent Interruptions too wasted almost half the time I have been able to allow my thoughts upon the Subject This has prevented my consulting any Books written in favour of Submission to a King in Possession nay of reading Dr. Sherlock's Book which the Defence pretends to Answer You must not therefore be suprized if you happen to meet here with what others have said on the same Subject without any acknowledgment that I received it from them or which I more fear if you should find Opinions differing from those of very great Men who have undertaken this Controversy They were my Thoughts Sir which you required and I have taken a course to give them to you free neither biassed nor over-ruled by the Opinions or Authority of others The Question as 't is stated by the Author of the Case is put very cautiously and strongly in favour of the Cause he proposes to himself to maintain he has fenced it in with such Restrictions in the stating and the Exposition of the Terms that it would be a very unnecessary thing to undertake an Answer to him if his Book did not offer at the proof of more than the first Question under his Limitations does require from him No one I suppose who has submitted to Their Majesties Government who thinks it too the Duty of all English Men to do the same and to pay Faith and Allegiance to them will therefore believe himself at all concerned to maintain that If a Person who has no manner of Right by force exclude or depose a King whose Right to the Crown is clear and undoubted and thereby gets the Exercise of the Government into his hands the Regal Authority and undoubted Right remaining still in the excluded Prince the People ought to pay a full and entire Submission and Obedience to this King in Possession so as never to attempt any thing against him but stand by and defend him against the dispossessed Prince with his Life and Fortune This is a Case of our Author 's own making and bears no Resemblance to the present State of this Nation Nay on the contrary if I may take the liberty to reduce the general Question to our particular Case I think the two things agreed by him as Preliminaries will sufficiently justify any English Man in his swearing Allegiance and paying the Duty Case f. 2. of a Subject to Their present Majesties For the first of them agrees That a bare Possession tho purely by Vsurpation will carry a Right to the Subjects Allegiance in an Hereditary Monarchy where the whole Royal Line is extinct to prevent the Bloodshed and Confusion which might follow upon the Peoples attempting to set up another Person or Government This prudential Reason and a Submission upon it he lays down to be a sufficient Title to the Usurper and that it makes him from thenceforth King de Jure one to whom all Faith and Allegiance becomes due 'T is so obvious of it self that I might spare the observing That he frames his Case upon a Supposition of the whole Royal Lines being extinct for no other purpose than to restrain it so as to extend only to Cases where there is no other Person in being who has a just Title to the Crown and whose Right is invaded by that Possession The second agrees That where there are divers pretenders and it is not clear who has the true Right or Title the Subjects Allegiance is to follow the Possession If therefore the late King by the assuming to himself an Authority to suspend and by general and unlimited Dispensations to repeal Laws without Parliament by the entrusting almost the whole Power Military and Civil in the hands of such Persons only as would undertake with their endeavours to support him in those Excesses By the putting those few Laws which he found it his interest to observe in Execution by such generally as were by Law made incapable of all Trust and Rule By the constant aim and tendency that every one of his Actions had to enslave us at home not to omit the Bonds prepared for us by his immoveable Adherence to the Interests of the French King from which as a chargeable Experience teaches us the utmost effort we can make and that assisted with very great and powerful Alliances will scarce rescue us If his unwearied endeavours to destroy the Reformed Religion with a thousand other Male-Administrations that struck at the very Being and Foundation of the Constitution it self and the Laws and Liberties of the People of England did declare that he would not govern by our Laws or Act by an Authority limited by them If upon the Parliaments humble and modest Representation to him according to their Duty of the unwarrantableness of such Proceedings and the Alarm that the People took at his great Violations of their Rights and Breaches upon the Government he broke them up in Anger and thereby shewed an obstinate and setled Resolution to assert that unlimited Power to himself and govern according to it If having by these Arbitrary Proceedings drawn great Difficulties upon himself instead of taking proper Courses to secure his People against such Excesses for the future he held to the same Counsels still and by their Advice quitted the Kingdom then in the utmost Confusion without making any Provision for the Administration of the Government and voluntarily put himself into the hands of its avowed perpetual Enemy If all these things put together will amount either to a renouncing and disclaiming his Title to a Government limited by Laws or a disabling
lookt into the Law that it were idle to quote Authorities for it I will add in the third place as a thing not improper to be observed That it would be a very hard thing before E. 3's time to prove a certain Hereditary Succession The best Historian will find but few Instances of that kind from the Conquest till the time of the making of this Statute So that the defect of Hereditary Title could not be a thing forgotten or slipt over as out of the minds of King or People Yet I can't perceive any thing in this Statute to lead to such a distinction as is now made tho it was made as a Rule for the Subject from which he might learn how he might demean himself in those great matters with safety There is not so much as an Hint that the trying who has the just Right and Title to the Crown whether He who is owned by the States of the Kingdom and has the full Government and administration of all Affairs or another who a thoughtful busie man that can't content himself in the private station wherein God Almighty has placed him but must make himself a Judge of the highest matters will be fancying ought to be there I say That the trying that Point should be left to a Jury of 12 men as it must be should a private person be proceeded against for an attempt upon the Possessor in order to the restoring the dispossessed Prince If it be true that it is not Treason by that Law for a private Subject to attempt any thing against the King in possession in behalf of him that of Right by Hereditary Succession ought to be King This would be an hard Interpretation of a Statute made in the time of a King who obtained possession of the Kingdom by a War levied against his Father and a forced Resignation after the Arms of those who took part with him were successful In which taking up Arms against the King in possession notwithstanding all that might justifie it in Reason of State and Prudence he was sensible that the Laws of the Land would not bear his friends out and therefore thought fit in the first year of his Reign to have an Act of Parliament passed to indemnifie them against ordinary legal proceedings for what they had done This he lookt upon as necessary tho at the same time he thought the Cause in which those who fell in the War died so just in it self that he made a new Law on purpose to save them from suffering in their Estates For we find in the same year there was a Statute made to entitle the Executors of those who were Slain in his Quarrel in the pursuit against his Father to Actions to recover their Testators Goods Lawyers account Co-temporaneam Expositionem the best interpreter of the Sense of Statute-laws I would fain have the Author or any one else who would confine the words Seignior le Roy in that Statute to Lawful and Rightful King by Hereditary Succession only to shew any thing leading to that Interpretation in the History of that time or any of the Kings Reigns before that Where it was ever heard of before that Act that Allegiance was due to the uncrowned unsubmitted-unto Right Heir Nay I will go farther Where in any publick Record before that Statute there does appear a damning of the Title of such a King after a Submission of the People to him in favour of him that was nearer in Blood Whether the several Predecessors of E. 3. who had not a legal Title by Hereditary Succession are not called Kings in the Statutes of almost every year of his Reign and all their Acts unquestioned If there were nothing extant to direct the Subjects to the contrary and the King himself so often told them that those whom I must call Kings de Facto only were Kings without any addition the very letter of this Statute it would instead of being an Ease and Relief to the People have proved according to the present Interpretation the greatest Snare that was possible 'T was easy for them to see and know who exercised the Kingly Office under whose Administration they had the benefit of the Laws and by whose Authority all Judicial Proceedings took their Course They might too without any great difficulty learn who were the visible Attendants on the Throne the King 's near Relations his Wife Son and Daughter The Throne is but one and they saw who possessed that The name King is a name of Office which consists in Exercise that too was as plain to them The words of the Statute seem as plain 'T is Treason to compass or imagine the Death c. of the King Would it not now be a very great hardship to put it upon a private Person to seek an hidden Sense in plain Words and at the peril of his Life and Family to make himself judge of all the Difficulties which may arise upon our Constitution which what it is in all points never was or will be agreed upon Whether this Person that is so expresly within the words of the Statute may not hereafter appear to have been wrongfully possessed And upon that apprehension to put the poor Man under an Obligation of laying himself for the sake of a Nation open to the Vengeance of one who has the plain words of the Law on his side and Power to back it To put him under a necessity of being a Sacrifice to his own private Opinion against the publick acknowledgement of the Body of the People in a case wherein common Sense and the Wisdom of all Governments forbid the admitting a private Person to be a Judge nay won't endure its being made the Subject of a nice and curious Inquiry But I perceive by Defence f. 6 7. That it is one main ground of our Author's Opinion and whereon he principally relies That the Law does not look upon the King de Facto to be King but accounts him that is dispossessed and de Jure ought to be so to be so and he calls upon Dr. Sherlock for Authorities to prove the contrary This explains the two first Lines of his Book where he makes it the description of a King de Jure That he is the Person that has the Regal Authority The Doctor had asserted That the King de Facto was King as a self-evident Proposition and I should think my self very safe in my Proposition still were I in the Doctor 's case without any other proof But I will for once comply with the Author's Request and refer him to a very ingenious Book called The Case of Allegiance to a King in Possession where he may find a great many unanswerable Authorities to that purpose e'en as many as ever there were Revocations or Repeals of the Acts of such Kings There they declare That the Vsurper was in fact King but not in right and after they have done so unless there can be two Kings they have left no other
One till I saw the contrary in Print who did not think it so reasonable in it self and so much the common concern of Mankind to maintain it that 't was their Sense words ought to be strained if there were need of it to support not to destroy the Proposition I am endeavouring to maintain The Author allows some of those particular Treasons recited in the Act As the Clipping the Vsurper's Coin Caese f. 4. Counterfeiting his Seal nay Levying War against him upon any account but in behalf of the dispossessed Prince may by the Law that is by this Law for there is none other for it be punished as Treason He is very cautious indeed in his wording of it These may be Treason under an Vsurper and punished as Treason under an Usurper And will not confess in express words That these are Treasons against him but that they are rather against the course of the Government and the Authority of the Lawful King through him The notion is fine but 't is of very late date the Indictments upon which those Persons are to be punished speak nothing of it they say 'T is against the Duty of their Allegiance to him and against his Crown and Dignity And it will be hard to make the word King in one part of the Statute signify only a certain Person who ought of Right to be King but is not so and perhaps never may when the same word without any Explanation stands in the next line for another Person possessed of the Throne by wrong and in prejudice of the Man 's right that was described by the self-same word just before When the Author convincingly proves That the next of the Royal Line in course of descent has as inherent and inseperable a Right to the Allegiance of the Kingdom as God Almighty has to the Worship and Service of his Creatures and that an Idol in Possession as he words it by virtue of its being set up in a Temple is possessed of God's Power and God Almighty devested of all Rule not to run the Parallel farther for fear of Blasphemy then I will grant he has offered a good Argument to prove that the word King in this Statute Caese f. 7. Defen f. 4. can only signify the Right Heir by the same Reason that the word God in the third Commandment can mean none but the True God The Being of God is in its Nature unchangeable his Name and Right to govern us incommunicable The Office of a King and the Right of particular Persons to that Office are of politick Institution and may be separated It may often vary and cease either for a time or absolutely according to the Laws of the Constitution So if the Author will make the Priesthood such an Office as that a Man's exercising the Functions of it will make him really and in truth a Priest without entring in at the door which my Profession does not lead me to the Interpretation of but I suppose the Author must think signifies some setting apart by those with whom Christ has left such a Power then his Text may bear some Resemblance to an Intruder into an Office of which all sides agree Possession Defen f. 4. may be taken by force and that that Possession does make him in fact tho not in Right and Justice a King I could have wished that our Author had considered a little better before he had made these and some Def. f. 69. other Comparisons Our Author will make me weary of putting him in mind what the end of the Statute 25 E. 3. was if he had weighed that well he would have found That notwithstanding what is offered by him from the word Heir against the Interpretation my Case f. 7. Def. f. 8. Lord Coke was not so much in the wrong when he said That our Lord the King meant him that is King I have already said That that Statute does not offer any thing towards the Determination of the Title to the Crown who ought to be King whether he that is in Possession or another who pretends he has a just Claim to it is not its business There is notwithstanding what our Author says to the contrary another proper place for the deciding such a Controversy But the Law declared by this Statute secures the Throne against the Attempts of private Subjects and binds them to a quiet Submission to the Office and Power which is sacred in whose hands soever it is And therefore taking our Monarchy to be an Hereditary one as it undoubtedly is I can see nothing unreasonable much less contradictious in the affirming That the Eldest Son of a King de Facto that is one owned and submitted unto by the People as their King is Heir apparent to the Crown and ought to be looked upon as such by every private Subject until the Rightful Owner regain the Possession or obtain the Sentence of those to whom the Right of determining it belongs in his favour Possession without any precedent Title is a good Title against all the World but him that has the true Right so that as between the Usurper and any private Person the Usurper has a Right to the Throne which is by the Constitution an Hereditary one The Author himself will grant this unless such private person act in behalf of him whom he supposes to have the very Right but of that Right I cannot by any means allow the private Subject a Judge I will readily agree That this Statute did not intend any kindness to the Usurper or the establishment of his Title nay that the principal aim and design of the Law of which that Statute was declaratory was to preserve the Government by securing the Person of the King a Possession and Right then going together and taking care of the Succession And it has taken a much more effectual way to do it then our Author's Interpretation if that were admitted would do Let us turn our Author's Exposition into express words and the Law will run thus It shall be High Treason to compass c. the Death of the Lawful and Rightful King c. But if there be one in Possession of the Throne who is not Lawful and Rightful King then it shall be no fault for any particular Subject to compass c. his Death in order to the instating him that has Right in the Throne Would ever any King be his Title never so undoubted think himself advantaged or secured by such a Provision where by express words of a Law liberty would be given to every particular Subject to examine and pass Sentence on his Right Is it not a more reasonable and prudent Provision and more likely even to prevent an Usurpation in after times to guard by express Law his Person who was at the time of the making the Law rightful Possessor and that of him who of Right ought to succeed him and so downwards for ever under the highest Penalties And taking it for
them could find any other or better means that it might be shewed whereupon after sad and ripe Communication in this matter had it was concluded and agreed by all the said Lords that sith is was so that the Title of the said Duke of York cannot be defeated and in eschewing the great inconvenience that might ensue to take the means above rehearsed viz. That the King should keep the Crowns and his Estate and Dignity Royal during his life and the said Duke and his Heirs to succeed him in the same The Lords open this Expedient to the King and both the Parties solemnly submit and agree to it From this proceeding 't is very plain in the first place which I toucht upon before That if the Judges who made the Excuse and Lords who admitted it know any thing of our Constitution they are to judge according to the known and written positive Laws of the Land which prescribe the Offices and Duties of particular persons and to speak what their sense is but have nothing to do with enquiring into or giving their Judgment upon the King's Title They are to put the Laws in Execution under the King But they can't find any Law to condemn or meddle with the Title of the King in possession no nor to defend it being called in question in a proper place The Laws with which they were intrusted meddle not with it the one way or the other And they declared themselves incompetent to give any Advice or Determination in it tho our Author will make every particular man a competent Judge of it And 't is as plain in the next place That all the Parties agree the Parliament to be proper Determiners of such a difference which may inform our Author who after erecting a Court in every private man's breast to do it can't find in our Constitution any Court for that purpose Nay Case f. 66. the Judges tell you The King and the Duke are before them as party and party That is Two persons contesting in a proper Court for a Judicial Determination The Lords think so too They oblige the King's Counsel to appear before them and defend their Majesties Right as a part of the Service that they owe the King for their Fees and Wages The Duke often presses them for their Judgment and at last they give it In the third place I observe that this Expedient is of the Lords own finding out and they decree it 'T is true in the Chancellors repeating the Opinion of the Lords there are the words If he would upon which great stress is often laid not only by our Author but others and more then the thing will justly bear The Chancellor says That it was thought by all the Lords that the Title of the said Duke cannot be defeated That is That none of those things objected to it had destroyed the Right of the Duke and his Line for ever And in eschewing the great Inconvenience that may ensue a mean was found to save the King's Honour and Estate and to appease the said Duke if he would c which imports no more then that the mean they agreed upon would be to his satisfaction if he would be contented with reasonable terms This I say is only the repetition of the Chancellor of the result of the Lords Debate But when they come to the Judgment that is general That the said mean shall be taken and this given before any Declaration of the Consent either of the Duke or King to it tho afterwards upon its being opened to them it was with great solemnity agreed unto by them and passed by the King into an Act of Parliament The very Statute of 1 E. 4. allows this Judgment to be good and that by virtue of it and the Agreement upon it H. 6. should have held the Crown for his life tho the very Right were with the D. of York But it being part of the Agreement that the Lords should support it and keep observe and strengthen inasmuch as appertaineth to them all the said things and resist to their power all them that will presume the contrary according to their Estates and Degrees E. 4. gets a solemn Declaration by that Statute that H. 6. had attempted the breaking the Agreement and therefore his dispossessing him was just c. He thought it advisable that the breach of the particular Agreement about the Crown as well as the Title it self should be declared and setled by Parliament And indeed the very nature of all Acts of Recognition and the constant usage of them in almost every Reign shew the Expediency of some publick Declaration to the People that they may know to whom their Obedience is due and imply as much as the Preamble of the Stat. 1 R. 3. speaks in express words which Preamble our Author quotes because it affirms the Title of an Usurper He was an Usurper but one who made as good and wise Laws as any lawful King his Predecessor That the most part of the People can't be sufficiently learned in the Laws and Customs which make out a Right and Title to the Crown And that the Court of Parliament is of such Authority and the People of the Land of such a Nature and Disposition that Manifestation or Declaration of any Truth made by the three Estates of the Realm assembled in Parliament and by Authority of the same makes before all things most faithful and certain quieting of men's minds and removes the occasions of Doubts and seditious Language This is Truth and Reason out of whose mouth soever it comes or for whatever End it was pronounced and in all Justice ought to protect every private Person in his submission to a Power acknowledged in that manner against all the Disturbers of the quiet of our present Settlement I come now to consider the Observations he makes upon the Authorities quoted by my Lord Coke to justifie the gloss made upon the words Seigneour le Roy in the 25 E. 3. The first is Baggot's Case To state this matter fairly as it appears on the Book the Case in short is this Baggot brings an Assize of his Office c. Ivie the Tenant pleads Baggot was an Alien c. and so could not hold the Office c. not being the King's Liege Subject Baggot replies his 9 E. 4. 7. b. 9 E. 4. 9. Letters of Naturalization Ivie sets forth the Act 1 E. 4. which recites at large the Pedigree and Title of E. 4. and the Usurpation of the three Henries and averrs that the Patent was granted by H. 6. one of the Usurpers and so leaves it to the Court to judge whether the Patent was valid in Law Baggot demurrs upon this Rejoynder and Ivie joyns in demurrer Brian of Counsel for Ivie insisted 9 E 4. 11. b. That King E. 4. being restored in his Remitter as Cousin and Heir of King R. 2. the Patent made by K. Henry who was but an Usurper and Intruder was void
such Claim c. If I should grant that they have no Power of meeting to that purpose without the consent of the Usurper which I do not and so that this is a defect in our Laws and one of the cases against which a certain Remedy is unavoidably wanting in a mixt Monarchy yet I may venture to say That if the right of the dispossessed Prince be apparent all the Attempts of the Usurper to suppress it will at long run prove unsuccessful We see the Parliament of H. 6. and Convention of 1660. did find Opportunities of doing right to the injured Prince and without them the People whether they ought or no is one case but I think I may venture to say they will not long bear it If Usurpations do put us under these great Difficulties the natural Influence that the Consideration of that will have is that the Nation will submit unto and suffer but very few of them and 't is a very unlikely thing that the Rightful Prince should be turned out without great Misadministrations But after all I think no one need be ashamed of owning it to be his Opinion That if it should unhappily fall out to be the Case that one of that Family to whom the Crown was at first limited should be injuriously dispossessed of that Crown and the restoring him to it could be compassed by no means but such as would lay a Foundation for daily Disturbances and Civil Wars in future Reigns that that Person 's Right which was given him by the Laws ought not to be set in Competition with the Laws themselves and the Peace and Quiet of the whole Body of the People The Consequences which our Author draws from his Supposition that Cromwell had been made King which I confess would have been very mischievous and intolerable move me not at all In the first place notwithstanding what he affirms That it was almost come to a Conclusion that he should take that Title upon him I can't grant that there was any likelihood of his being a King in Possession entitled to the Protection and benefit of this Law Perhaps he might have made an Interest in some of the Army though most People believe the fear of their falling off from him kept him from it to have proclaimed him and in the House of Commons or Parliament as they called themselves to have submitted to him But I have before said a bare proclaiming one King won't do the business for then we may have as many Kings de facto as there are Rabbles of People in the Nation But to make one who had no visible Right before such a King de facto as may claim a Temporary Allegiance from the People he must have not only the Power of the Nation in his Hands and the Administration of Justice in his Name but what Cromwell as he had been forced to manage matters for the getting himself into that monstrous lawless Power he enjoyed could never have obtained the Submission of the remaining parts of the Constitution the Lords and Commons to him as their King and Governour Till that is done I know no Obligation any private man is under of paying Allegiance to such a King never having by himself or his Representatives submitted to him As on the other side when that is done and I receive the benefit of Protection from him till his Possession which protects me is lost or the Submission which was made for me revoked and undone by an equal Power I know nothing that can justifie my thinking my self wiser and more knowing than my own and the whole Peoples Representatives and from such an overweening Opinion of my self endeavouring the Disturbance or Subversion of a Government well and fully setled But why in the second place should such Suppositions of what may be be used as Arguments May we not from the Observation That no instance like that did ever yet happen to set Conscience so upon the Rack reasonably attribute some share in the Guidance of those Affairs to the Providence of a good God who hitherto has and as we have reason from that Experience to hope unless by our Unthankfulness we draw the contrary on our selves will still continue to deliver us from such Difficulties and Snares If all those Advantages which our Author reckons up would have follow'd his obtaining the Crown and if it was in his Power to have taken it when he had pleas'd Does not the neglecting those Advantages seem to proceed from an Infatuation as if Providence had determined against him And ought not that rather to strike an Awe and Reverence on the Minds of all People towards their present Majesties Persons and Government every step of whose Undertaking and Progress till their Advancement to the Throne seems to be a Series of Providences and the Effects of whose Government are such as a Man need not stand in fear of being taxed with Impiety if he attribute the Cause of them immediately to God's own Hand Before our Author comes to Answer Objections which I 'll not meddle with but leave them to shift for themselves he produces Two Arguments to prove his Assertion and it would be unjust not to take notice Case f. 48. of them The first I have granted already and it makes nothing against me The second I will but just mention and leave the Reader to make his own Observations upon it 'T is the difficulty of knowing Case f. 53. who is a King in Possession It were a great hardship to put the determining that upon the Judgment of ordinary Subjects Persons of mean Understanding and therefore for that Reason their Allegiance shall not be due there but 't is nothing to require it of the same Persons that they be perfect Masters of our Fundamental Constitution and the Pedigree of the Royal Family that they know Who it is Case f. 56 in whom the Crown is vested deemed and judged hy the Law These are things more obvious to them than what they see and feel every day This Sir I think sufficient to be said to what is urged from the Laws of the Land in the Case or Defence as far as they concern the Position I undertook to maintain Perhaps the Reader may think I have copied the Author's Pattern in offering things which seem to prove more than the Question according to the strictness with which I have stated it required I am not sensible that I have omitted the taking notice of any one Argument that is materially offered from the Laws in conttradiction to my point I am sure if I have it was past over for want of taking notice of not by design as what I thought could not receive an Answer But Sir when I have said this I must bespeak all the favourable Allowances your good Nature can give to what I have written to the ill handling a good Cause that would have born a much better Defence in the substantial Parts of it and more to the Faults that I have been guilty of in the manner of it An ordinary Reader would hardly pardon the latter because he will think a little care might have avoided them and I am sensible how guilty I am of the worst of that kind abundance of Repetitions which must be tedious and uneasie All the excuse that I can offer for my self is that the manner of writing in the way of Reflexion which obliges me often to take notice of the same Arguments used to different purposes and not as an entire Discourse has made that unavoidable And Sir you know I have not had time enough allowed me to make it short Whose Fault that is You can best tell And therefore whatever others do you in Justice must excuse SIR Your Humble Servant Books lately Printed for William Rogers A Sermon Preached at VVhitehall before the Queen on the Monthly Fast Day September 16. 1691. 4 to A Persuasive to Frequent Communion in the Holy Sacrament of the Lord's Supper Eighth Edition 12 mo Both by his Grace John Lord Archbishop of Canterbury A Sermon Preach'd on the 28th of June at St. Andrews Holbourn by John Moor D. D. Bishop of Norwich Elect when he took his leave of that Parish 40. A Sermon Preached at St. Mary le Bow on Sunday the 5th of July 1691. at the Consecration of the Most Reverend Father in God John Lord Archbishop of York and the Right Reverend Fathers in God John Lord Bishop of Norwich Richard Lord Bishop of Peterborough Edward Lord Bishop of Gloucester by Joshua Clarke Chaplain to the Right Reverend Father in God the Lord Bishop of Norwich 40. The Necessity of Serious Consideration and Speedy Repentance as the only way to be safe both living and dying By Clement Elis Rector of Kirkby in Nottinghamshire 80. Sir VV. Petty's Political Anatomy of Ireland 80. The Case of the Allegiance due to Soveraign Powers Stated and resolved according to Scripture and Reason and the Principles of the Church of England with a more particular Respect to the Oath lately Enjoined of Allegiance to their Present Majesties King William and Queen Mary The 6th Edition 4 to A Vindication of the Case of Allegiance due to Soveraign Powers in Reply to an Answer to a late Phamphlet Intituled Obedience and Submission to the Present Government demonstrated from Bishop Overal's Convocation book with a Postscript in Answer to Dr. Sherlock's Case of Allegiance c. 4 to A Sermon Preached at VVhite-Hall before the Queen on the 17th of June 1691. being the Fast day 4 to A Practical Discourse concerning Death the fifth Edition 80. A Practical discourse concerning a Future Judgment 80. will be Published in a few days These five by the Reverend Dr. Sherlock Dean of St. Pauls Master of the Temple and Chaplain in Ordinary to their Majesties LICENS'D October 10. 1691. J. Fraser ERRATA Page 11. Line 16. for Nation read Notion p. 30. l. 1. read so that p. 30. l. 14. for trying r. seying p. 31. l. 23. for Majesties r Matters
sure will be agreed unto me If there be any such Judicature it can be none but they And allowing them to be so common sense will say They being made Judges must thereby impliedly have a Right to act in it free from all precedent Obligations of Duty to either Party They act as freely in that point till the Determination is made as their Ancestors did when they may be supposed to be met together to agree upon a Form of Government Only that they are to keep to the Rule which they find setled and agreed on both sides viz. That our Government is an Hereditary Monarchy And the Question to be determined by them is Which of the Pretenders has the best Title upon that Foundation Is it not then an Affront put upon the judgment of a Reader to say That because it is maintained that the positive Laws of the Land for the Quiet and Preservation of the Monarchy forbid every private Subject in his capacity of a Subject to take upon him to censure the Title of a King possessed of the Throne it will thence follow That the States or Body of the Nation when there is such a stop in the proceedings by some doubt upon the very Constitution it self that the whole is likely to fall unless a decision be made of it shall not have an equal Power to rescue themselves from that Confusion as their Ancestors had to form themselves into Order They do this upon the Reason of the Constitution it self and by a Power and Fundamental Right which of necessity must be supposed to be reserved when they embodied themselves into a Politick frame they act in it upon their old Natural Liberty which could never be submitted to the Prince in this instance because the Question arises only upon the doubt who is the Prince And therefore the Duke of Tork in his Answer to the Objection that was made against his Claim to the Crown from the Oaths they had taken to Hen. 6. tells the Lords He lawfully may claim and pursue his right and demand Justice in such form as he doth And that all other persons and namely the Peers and Lords of this Realm may and by Law of God and Man ought to help and assist him in Truth and Justice notwithstanding those Oaths c. Our Author calls for a proof of the Authority of the Parliament Def. f. 34. or States of the Kingdom to determine the Rights of contesting Princes As if there were a printed Instrument of the Fundamental Constitution extant by which the Priviledges and Powers of each part of it are limited 'T is said before that necessity of Government warrants this and the same necessity warrants their convening in order to it without the formality of a Summons That Form and Method of proceeding supposes a King and Government setled and is one of the Rules which direct the King how he shall administer that Government and what are the Duties and Offices of particular persons under it This is above all those Forms a necessary Means to settle the Rule it self However I am pretty confident that those conversant in our ancient Histories and Parliamentary Records will find reason to carry the Power of the States of the Kingdom farther rather than to deny their Authority in this point The Claim of the D. of York 39 H. 6. is not the only instance of the thing but it being a very solemn and notorious one and a full proof of this point I will lay it down a little more fully and in a piece then it was for our Authors turn to do Richard Duke of York 39 H. 6. comes to the Parliament and by his Counsel puts in his Claim in Writing to the Crown deriving his Pedigree very plainly so as to entitle himself as next Heir by a Lineal Succession The Pedigree could not be unknown to any one of the Lords before whom the claim was laid yet King H. 6. having long enjoyed the Crown the Lords say The matter was so high and of such weight that it was not to any of the Subjects to enter into Communication thereof without his high Commandment Agreement and Consent had thereunto They thereupon go to the King opening the Claim He could not be put into a better condition then he was and therefore had he lookt upon this cautiousness of the Lords to be more than Complement he would never have consented to their hearing it but he does not offer to forbid their proceeding tho 't is certain he was sensible of the defects of his Title and therefore earnestly prays the Lords to examine strictly and raise all the Objections they could against the Duke's Title Then they read the Claim and order the Judges to say what they could in maintenance of the King 's Right They excuse themselves say It hath not been accustomed to call the Justices to Counsel in such matters the matter was too high and toucht the King's High Estate and Regalie which is above the Law and passed their Learning wherefore they durst not enter into any Communication thereof for it pertained to the Lords of the King's Blood and the apparage of this Land to have Communication and meddle in such matters But this was not the only reason the Judges gave for their silence They say They were the King's Justices and have to determine such matters as come before them in the Law between party and party they may not be of Counsel And this matter was between the King and the said Duke of York as two parties The Judges Excuse was allowed as proper for Counsel was not their Duty 't was not a matter to be adjudged by the express Laws of the Land of which they had the Exposition and Execution but by something above the positive Laws And they were not a part of the Parliament that Power of determining they had none But the King's Attorney and other Counsel being required to do what had been required of the Judges the like Excuse would not be admitted from them for they were the King 's particular Counsellers and therefore they had their Fees and Wages They return They were the King's Counsellers in the Law in such things as were under his Authority or by Commission but this matter was above his authority wherein they might not meddle Yet they are over-ruled for 't was their Duty to offer what they could in a Court of Judicature in defence of their Master's Title Then It was agreed by all the Lords that every Lord should have his freedom to say what he could say without any reporting or magre to be had for his trying And after the saying of all the Lords every after other Objections are framed against the Duke's claim The Duke puts in Answers to them and often prays that the matter might be determined The Lords solemnly declare that the Duke's Title could not be defeated but agree upon the Expedient which the Chancellor proposes desiring the Lords that if any of
appropriated to the natural Capacity and 't is not due to the politick Capacity only that is to the Crown and Kingdom distinct from his natural Capacity And by the Act of Uniformity which declares it a Trayterous Position to take Arms by the King's Authority against his Person This shews that the ill of the distinction condemned there lies in the separating the Capacities when they are really joyned that is when the natural Person is in possession of the Kingly Office to set him up to fight against himself his own Authority against his Person this is contrary to Law which as it appears before consolidates the natural Person with the politick Capacity I am so far from denying this that it is the ground whereupon I take Obedience to be due to a King de facto But the mischievous part does not at all reach our Case where we suppose him who has a Right to be King to be utterly dispossessed and devested of the Office and the Right of the Possessor solemnly recognized by the Body of the People There 't is not a nice distinction that separates between the Capacities but evident Fact and Truth common Sense and the Laws of the Land and to the Person as a Person devested of the Office Allegiance is not due That it was a very great wrong unjustly to devest the Person of the Office and put another into it can't be doubted and 't is a part of that wrong that he is thereby devested of that which makes the Relation between him and the People that of right ought to be his Subjects and pay him Allegiance but till he reunite the Office to his Person the wrong remains and the Relation during that time fails It may be very well maintained that the Statute 11 H. 7. shall have all the Effect and Operation the plain Words of it will reasonably bear and yet none of those dismal Breaches upon the Constitution and Calamitous Consequences set forth Case f. 38. attend it That the Fundamental Constitution of England is a Monarchy and that settled antecedently to any Statute Law will be very readily agreed to him by me But he goes a little too fast when he infers thence That therefore there must of necessity be some certain person in every Age in whom the Constitution vests a Right by vertue of which he is lawful and rightful King of this Realm For 't is not of absolute necessity that the particular Race and Family should be part of that Fundamental Constitution May it not be rationally supposed that the Framers of our Government proceeded by degrees first debated what the form of the Government in general should be and fixt upon a Monarchy What kind of Monarchy would make another step and I will suppose that to prevent the ill effects of Ambition and canvasing for it they agreed it should be an Hereditary one such as should be governed by the course of descent not elective This in common sence it must be presumed they did before they came to fix upon certain Persons or Families into whose hands they should put the Government Nay 't is impossible to maintain our Government to be a limited or mixt Monarchy in its nature without such a supposition so that I can't by any means look upon the particular Family to be any part of the Original and Fundamental Constitution but at most only a secondary one a putting the Constitution that they had agreed upon into Act and Execution And therefore it may very well be for any thing that I can find in reason to the contrary That the Government may fall into the hands of persons that have no relation to the Line of the Princes first submitted unto who shall yet have a Right by vertue of the Fundamental Constitution Our Author has almost yielded me this in his first Case f. 2. Preliminary But to vary that instance a little Suppose during the Life of him that should happen to be the last of the Race of our Princes He and his Parliament should agree that after his death another Person and his Race should succeed to the Throne according to the directions and Measures prescribed by the present Laws would any body question his right to succeed The Fundamental Government would be still the same A mixt Monarchy according to the present Constitution And I cannot perswade my self that in the Constitution it self the interest of the particular Family was so highly regarded as that the one must necessarily fall with the other Our Author indeed I find thinks that because Hereditary is joyned to Monarchy Defence f. 12. when once it falls to another Family the Monarchy is gone An Estate in Fee-simple has this Quality that it is an Estate of Inheritance That is an Hereditary Estate If therefore the possessor transfer it to a Stranger must the Estate be gone suppose Hereditary should be expounded in the one case as well as the other to signifie such an Estate as will of its own nature descend to Heirs and vest in them a Title if the Discent be not interrupted by such methods as the Law allows of And be lookt upon to be set in opposition to Elective in the one case and an Estate determinable upon the death of the Party in the other I confess I should think it an exceeding of their Power for a King and Parliament to turn this Government into a Common-wealth for they act under the present Frame and Constitution Whenever that is dissolved they have no longer a right to act as Representatives of the People so that they cannot for them submit to a new form of Government To the doing any thing of that kind there must be first a dissolution of the present Frame and then either all must joyn in the erecting a new one or they must after they are reinstated in the Liberty which they had by nature agree upon some method of being represented and delegate their Right and Power to such Representatives This shews that this opinion does not offer at the warranting a subjection to any Usurper but such an one as is in possession under the form the present Constitution allows All others not agreeable to this Frame of Government are in above or beside the Law and consequently have not Right to Legal Allegiance which is the result of the present Constitution and of Laws made for the preservation of that Such a Power may hold me in subjection as a conquered Man or a Slave and for the obtaining my Life or Freedom I may anew stipulate with them and from that time they may justly claim my Allegiance by vertue of that stipulation I may stipulate anew I say if my former allegiance obstruct it not But that may very well fall out to be the case for till there is an entire dissolution of the Government whether that must be done by the agreement of all who have an interest in it or that a majority will determine the rest I own that
Allegiance is due from every private Man some where And I am sure I may without contradicting any thing I have hitherto said fix the right to it in the Person of the King de jure where the Kingly Office is not exercised by any other But where another is possessed of the very Kingly Office which is wrought into the Constitution it self and he puts in execution all the same Laws by which rightful Kings ought to govern to that Office and the Person possessed of it my Allegiance is by those Laws due and no Law makes me a Judge of the King's Title And it was upon this Ground undoubtedly that my Lord Chief Justice Hales who plainly held the Law in the Case of the Statute 11 H. 7. to be as I now maintain it would never try any Treason or other Offences against the State as our Author says while he was Case f. 4. Judge under Cromwell But to return What if I should suppose as some wise Men have affirmed that when our Ancestors heretofore submitted to a certain Family to take away occasion of Factions and making Parties they confined the Crown to that Family but did not so strictly oblige themselves to him who should be next in Course of descent but that the States of the Kingdom who represent and include the body of the whole People if they found him absolutely unqualified and unfit for the Government might skip over him still keeping to some of that Line And since what the Original Frame of our Constitution was is not derived to us with any certainty by History or Authentick Records that may well be supposed to be our Constitution if constant Practice and Usage till very lately be a probable proof of Right in things where the positive Rule is lost If this were the case what would then become of the Supposition of a certain Person always lawful and rightful King by Vertue Case f. 8. 38. of the Original Constitution c. But not to rely upon this I must take leave to believe what I touch'd upon before That it was the Form of the Government it self of which our Ancestors who framed it were so fond and not of the particular Person or Family tho they were by that Form to have the greatest Trust and best Share comparing them with particulars not the whole Body in it And therefore I am fully satisfied as I said before that the very Fundamental Constitution may remain tho the Family should be changed by a Competent Power and that no Injury or Injustice is done them thereby since their Right was given them only by positive Laws and may therefore be taken away again by the same means And if so after all our Author 's ☜ Labour the Statute 11 H. 7. does no ways break in upon our Constitution If our Author would but explain the words King de jure as I have all through this Paper press'd him to do we should easily rid the Stat. 11 H. 7. of the Contradiction which he supposes Case f. 39 it implies A King de jure has a Right to something as he says that something is the possession of the Throne which will consequently draw the Royalties and Revenues of that with the Allegiance of the Subject But till he attains that Possession in vertue of which the Right to those Royalties Allegiance c. belongs to him he must content himself without them And the same Answer serves to his other Objection That this Statute is against the Law of Nature which Case f. 40. our Author from that Huddle of Inconsistencies Calvin's Case says makes Faith Obedience and Ligeance due to the lawful King c. and some parts of 'em indispensable and not to be transferred It is not worth the while to argue any thing from Calvin's Case the Authority of which can never be of advantage to either side because there is scarce any one Proposition unless it be the very point adjudged advanced through that whole Case as 't is reported by my Lord Coke but what may be answered that is contradicted by something else of the same Author in the same Case but to consider according to reason as much of it as our Author makes use of I will not dispute at present but that Obedience to Governours is due by the Law of Nature that is That the Law of Nature does extend it self to Civil Societies when they are framed and in general obliges such as are in the Condition of Subjects to pay their Governours all that Duty which according to the Frame of their Government and Laws is necessary to the Maintenance and Welfare of that Society Other natural Allegiance there is none nor does the Law of Nature tho our Author affirm the contrary without offering any Proof or Reason for it lay before the Subject any certain Duties which they are to put in practice whether the particular Laws of the Realm enjoyn them or not and such as no human Authority can dispence with as long as they stand in the Relation of Prince and Subject This is a very wild Notion and can have no Foundation in Reason Take away the Relative Terms of Prince and Subject and suppose that a Nation submits to a particular Person after this manner He shall have Rule over them and govern according to such particular Rules as then are or with their consent afterwards shall be agreed upon and none other Is not all the Freedom which they had by Nature but their being obliged to submit to the putting those Rules in execution left with them and unsubmitted May not any positive Law afterwards alter enlarge or abridge those measures of Obedience and Submission which were the Creatures of positive Law at first It may be said it will be inconsistent with the name of King to have no Allegiance due to him I would ask the Objector Which is more reasonable that a Notion the Pedantry of affirming positively what the natural Sense of a Term is should have Power over and render insignificant or repeal the plain Words of an express Law or that the Law should for once frame a new tho it may be an improper Sense for the Terms and over-rule the Grammarian If the Law should in express words say That he that has a just Title to the Crown shall be stiled King de jure while he is out of Possession tho that is not so nor is that name ever allowed him till he is restored And he that is in Possession King de facto that during the time of his Possession a temporary Allegiance shall be paid by the People to him and not to the King de jure I think common Sense will say that there is no inconsistency in this unless the words King de jure are so very Sacred that they can't lower their Signification to a positive Law but must eternally carry with them one and the same extent of Power and Exercise of Authority That the Law of