can prove that there ought to be no Government in a Nation while the Rightful Prince cannot Govern I will grant that Subjects ought to own no other Authority but if no Laws no Legal Rights can be more sacred than the very being of human Societies and Civil Government the Rights of Princes must give place to the necessities of Government for it is more absolutely necessary that human Societies should be maintained and governed than that any Prince how uncontested soever his Right be should Govern for I think Legal Rights which owe their very beings to human Societies were never intended to put an end to them This I hope is enough to elear this Point That a King may lose his Legal Right to the Crown by Conquest which gives the Conqueror in a Just War a new Right and sets Subjects at Liberty to transfer their Allegiance to the Conqueror And I shall observe by the way that though we are not a Conquered People yet most of those reasons which will justify Subjects in transferring their Allegiance to a Conqueror will much more justify our Submission and Allegiance to Their present Majesties whatever opinion we have about Right For it is certain the Authority of the Nation is now in their Hands and placed there by a legal Judgment and if National Laws which are the Laws of the Government cannot oblige the Conscience without a National Authority to give an Obligation to them much less against a National Authority then there can be no Law in England which at this time obliges the Consciences of English Subjects to pay their Allegiance to the late King James There is no such Law to be found in Westminster-Hall or Parliamentary Judgments or Determinations and then I know not where to find it There is no King in Westminster-Hall or on the Parliament Rolls but King William and Queen Mary no Treason but what is committed against them and therefore no Allegiance due by Law but only to them For Treason is a violation of our Allegiance and where no Treason can be committed no Allegiance can be due Tho' the Nation is not Conquered yet it is certain that private Subjects are under as great Restraint by the legal Change of the Government as if they were in the Power of a Conqueror for to resist would be equally fatal to them in both Cases and there is no Authority that can defend them And if Human Laws cannot oblige the Conscience against Force if every Man has a natural Right to preserve himself by yielding and submitting to Power when there is no Authority to defend him against it why may he not as well submit to the irresistible Power of a National Authority how unjust soever he thinks it is as to the Military Power of the Sword Why may not Men as well submit when they are conquered in the highest Judicature as in the Field It seems to me that there is little difference between them when Men must forfeit their Lives Estates or Honours either way And when the Authority of the late King whatever they suppose it to be can no more defend them from the Laws than from the Sword what shall hinder his Authority's being at an end to them and their being at liberty to take care of themselves The Subjects of England have a legal Right to their Lives and Liberties and Properties as well as the King and I know no Law that commands Subjects to forfeit their Lives and Liberties and Propeties meerly because they cannot defend the King in his nor the King them in theirs In Cases of such Extremity Kings will take care of themselves and Subjects have as much Right to take care of themselves If any Necessity will justifie Kings in leaving their Thrones and the Government and the Defence of their Subjects the same Necessity will justifie Subjects in submitting to a new Power No meer human Laws nor human Authority can oblige in Cases of extream Necessity The Authority of God indeed can because God can reward and punish beyond the Grave But though the Laws of Men are bound on us by the Authority of God yet God requires us to obey Men and their Laws no farther than their Authority reaches and therefore not in Cases of extreme Necessity which in most Instances will dispence with the positive part of Moral Laws themselves Secondly Let us now consider the Case of Abdication and Desertion which was plainly the Case of the late King James For he seeing himself deserted by his Subjects and by part of his Army who would not sight for him against their Religion and Liberties durst not venture the Fortune of a Battel and being as appears by his Actions resolv'd not to submit the Redress of all Grievances to a Free Parliament had no other way left but to withdraw his Person and fling up the Government The Qustion then is Whether this was such a Leaving of his Crown as put it into the Hands of the Estates to dispose of it to the next Heir We must not expect to find any Precedent of this Nature nor any Provision made for it in Law for there never was an Example of this kind before and probably never will be again But all such unusual Cases must be determined by living Judges according to the reason and nature of Things We know how it has been determined and what Disputes those Words Abdication and Desertion have caused but I shall not dispute about Words but consider the Thing I need not be at any pains to prove that Government is absolutely necessary and that all people have as natural a Right to supply the Vacancies of Government according to the Laws and Constitutions of the Kingdom as they had at first to form themselves into human Societies That Kings are made for Government and therefore have no longer any Right to Kingship than they will administer the Government And I think it is as plain that for a King deliberately to quit his Kingdoms without making any manner of Provision or leaving any Authority behind him to govern in his Name is actually to quit the Government For to leave off governing as he does who withdraws his Person and Authority is to quit the Government And when the King leaves his Crown and Government it must either of Right belong to the next Heir or the Body of the Nation and the Estates of the Kingdom will be restored to their Liberty of providing for themselves for the Nation must be governed It is evident indeed that Princes many times leave their Thrones without any intention to give up their Right to Government But the Question is not what they intend but what they do If to leave their Thrones empty which must be filled by some-body be in the nature of the thing or by necessary and unavoidable Consequence to give up the Possession of them to some-body else it is in vain to talk of parting with the Possession without parting with the Right as far as
his Throne his Abdication is as perfectly his own Act as his Misgovernment was and then Subjects might very innocently take the Advantage which without their Fault he had put into their Hands to deliver themselves from Fear and Slavery The Prince of Orange now our Gracious Sovereign had very just Reasons for what he did His Princess was the next Presumptive Heir to the Crown of England and in Her Right he was immediately concerned in the Protection and Defenc of these Protestant Kingdoms at least so far as to secure the Succession The late King made great haste to subvert the Fundamental Constitution of the English Government to change our Laws and Liberties and Religion and both to effect and secure such Usurpations took care as fast as he could to put the whole Civil and Military Power into the Hands of Papists What an evil Aspect this had on Protestant Heirs and Successors besides the present Oppression of the Subject every one saw especially when it was pretended that the Queen had brought forth a Prince of Wales to inherit the Crown and to perfect that blessed Work of Slavery and Popery If this will not justifie the Prince of Orange's early Care for a Legal Redress of Abuses which would infallibly have altered the Succession and defeated his Right if they had proceeded any farther I think the Heir to the Crown is in an ill condition for it may be with the latest to put in his Claim when another is step'd into the Throne before Him It is no new thing for the Parliament of England to settle the Succession to the Crown while the King is living and to make all legal Provisions to secure the Succession and if this may be done during the Life of the King the Prince had great Reason to make his Appeal to a Free Parliament and to take Arms to obtain such a Free Parliament which the humble Addresses and Supplications of Subjects could not obtain and this was all the Prince did to put him into this Fright and if he had not done it he had in some degree deserted his Right as King James has now deserted his Throne As for the Subjects of England the great Body of the Nation stood still and neither assisted nor opposed King James though generally they wished well to the Prince And what was the Fault of this The most Passive Men have always declared That they are not bound actually to serve and defend the King in his illegal Oppressions or in his Usurpations upon the Laws and Liberties and Religion of their Country for no Man can be bound by Law to fight for the King against the Laws For the Right of the King which is only a Right by Law can never be more Sacred than all the Laws and it seems very hard to fight for one Law against all other Laws to fight for a King to make our selves and all his other Subjects Slaves The Prince of Orange came with an Army into England to demand a Free Parliament to redress the Miscarriages of Government to secure the Succession our Liberties and Religion which were beyond denial in danger What now should the Subjects of England do Should they fight for King James against the Prince What had that been but to fight against a Free Parliament our Laws and our Religion Those Protestants who are now the most zealous Assertors of the late King 's Right did at that time for these Reasons excuse themselves from the Obligation of fighting for him And yet Engish Subjects cannot be charged with denying to assist their King against the Prince of Orange for they were never required to do it There were no new Commissions granted them without which some are of Opinion according to strictness of Law it had been Criminal in them to take Arms though it had been to defend their King And it seems very hard if such a difficult Juncture as that was when there were two Armies in the Bowels of the Kingdom will not justifie those Gentlemen who took Arms and stood upon their own defence and that they declared to stand by the Prince of Orange till all Miscarriages should be redress'd by a Free Parliament seems to me little more than what those Bishops themselves did who now refuse the Oaths for when they were required to do it they would not sign an Abhorrence of the Prince's Undertaking and at Guild-hall they figned the Lords Address to the Prince wherein they promised him their Assistance to procure a Free Parliament And if neither the Prince nor the Subjects of England were to be blamed for what they did it is easie to guess where the whole Blame must lie And if he wilfully brought this Necessity upon himself of quitting his Kingdoms and rather chose to leave his Throne than satisfie the just Demands of the Prince and of his own Subjects he left his Throne for such Reasons as made it just and necessary for his Subjects to fill it If these Principles be true they furnish us with plain and easie Answers to all the Difficulties relating to our present Settlement which I shall briefly observe as the Sum of this whole Discourse 1. As first Whether the late King James be still of Right the King of England or of Right ought to be so The only Argument to prove King James's remaining Right is That he was the Rightful Heir to the Crown and was legally and rightfully possessed of it and therefore is Rightful King still or at least of Right ought to be King Now from what I have already said and I hope proved the Answer to this is plain 1. That as to his Right of Succession the Subjects of England owned it and actually gave him the Crown with all the accustomed Rites and Ceremonies of Coronation and therefore there is no dispute about that But the Question is Whether a King who loses or gives away or deserts his Crown and falls from the Regal Power have a new Right of Succession when the Throne is again filled that is Whether if he part with his Crown he can be Heir and Successor to himself and by the Right of Inheritance challenge his Abdicated Throne again 2. That he was once a Rightful King does not prove that he is King still For legal Right to a Relation and the legal Relation may be separated he may be no King who had once a legal Right and a legal Possession of the Throne and he may be the legal King or One whom the Law owns to be King who had no immediate antecedent Right to the Throne For though in Relations which are founded in Nature the Right and the Relation cannot be separated yet in legal Relations they may And if he who had or has a legal Right to the Crown may be no King Subjects can owe him no Allegiance for Allegiance is due only to the King 3. That he was once a Rightful King does not prove that he has any Right to be King now
has Authority enough to right those who suffer against natural Right But this Liberty is restrained for the advantage of Human Societies and the administration of Justice is put into the hands of the Prince and his Ministers But Princes themselves are under none of these Restraints and therefore may not only administer Justice to their own Subjects but may repress the Violences and Injuries of other Princes not only against their Neighbour Princes but against those who are subject to them and cannot help themselves They have certainly as much Authority to relieve oppressed Subjects as an oppressed Prince and no man thinks it ill for one Prince to assist another against a Powerful Oppressor And I do not know it was ever thought a fault yet to relieve Subjects against an oppressing Prince where the Oppression was notorious and not made a mere pretence for Usurpation I would desire any man to give me a tolerable Reason why it was not as lawful for the Prince of Orange had there been no other reason for it to rescue and defend the Subjects of England against the illegal Power and Oppressions of their King as it is for the French King some mens Pattern of Honour and Bravery to endeavour by force of Arms to restore the Late King James to his Throne again And if Religion be concern'd in the Quarrel it is never the worse for that but the more reasonable and just For why should not Princes be concern'd for the Glory of God from whom they receive their Authority and vindicate his Worshippers from the Persecutions of Cruel Tyrants Subjects indeed must not rebel Christianity must not be forced upon Men by Fire and Sword but must it not be defended neither by Christian Princes When God has put the Sword into their hands must they stand by and see the Worshippers of Christ persecuted and not help them when they can I am sure God delivered the Christian Church from the most bloody Persecution that ever was by the Arms of Constantine and made the Cross his Banner And this was none of the least Causes of his War with Licinius That he persecuted the Christians When Constantius the Arian Emperor persecuted Athanasius and the Orthodox Bishops and Christians Constantine advised him of it and threatned War against him if he persisted in it and it does not appear that the Christians of those days who fled to Constantine for refuge thought he would have done ill in it and yet their Dominions and Authority were as distinct and absolute as France and the Grand Signior though the most Christian King follows other measures Now I know not how to think that men are serious when they will not allow an oppressed people delivered by such a Generous and Charitable Prince to own their Deliverer and pay Duty and Allegiance to him I think slaves have so much liberty as to own the Conqueror and if he deliver them and set them at liberty and make Subjects of them instead of slaves to be his Liege-men for ever But some mens Notions make them greater Slaves to Princes than ever the world knew before 2dly But this brings me to a more difficult Enquiry viz. How Subjects even in case of Conquest can be delivered from their Rightful Prince while he lives and be at liberty with a safe Conscience to transfer their Allegiance to the Conqueror for tho Foreign Princes are not obliged by the Laws of the Land yet Subjects are and therefore are still bound to pay their Allegiance to that Prince whom the Laws of the Land make their Prince How difficult soever it may be to assign the Reasons of this it is certain it must be so if a Prince may lose his Crown by a just Conquest for if a Prince justly lose his Crown he must lose the Allegiance of his Subjects which must follow the Crown and it is impossible one Prince should lose his Crown and another win it were it unlawful for Subjects to transfer their Allegiance to the Conqueror which is reason enough to conclude That the Laws of the Land do not oblige Subjects in such cases and if we carefully consider the true nature and obligation of National Laws we shall be easily satisfied That they do not For it is certain National Laws have their whole dependance on the National Authority it is that only makes them Laws and they can continue Laws no longer than that Authority lasts which gives Being and Obligation to them and therefore National Laws must of necessity partake in all the Changes and Alterations of Government Our Obedience is not due to Laws but by virtue of the Authority that commands them and when the Authority is at an end the Obligation of Laws must cease as far as they respected that Authority Laws are made for a settled Government and they oblige Subjects while the Government is and can be administred by these Laws but when the Authority and Government is changed and they cease to be Laws in Westminster-Hall they are no Laws in Conscience neither For how can Laws oblige without Authority Or what Authority can mere humane National Laws have against all the present Authority and Government of a Nation As for example The Legal Right to the Crown concerns a Regular and Legal Succession but not the beginnings of a Regal Power The Law of Inheritance continues the Regal Power in the family possessed of it whose Inheritance originally it was not for the first King of the Family could not be Heir to the Crown by whatsoever other means he came by it and therefore it can oblige Subjects only against their own voluntary Interruption of the Royal Line but not against violent Revolutions for this is to make a Law that no Prince shall conquer the Legal King and possess himself of his Throne that is to make a Law that the Sea should never break its banks and in case of such a Revolution to make a Law That no Subjects should own or submit to the prevaling Prince is like making a Law That no Cottages or Villages should be drown'd or carried away when such a Deluge happens Laws were never made for such cases as these and therefore in such cases cannot be said so properly to lose their Obligation as not to be Laws We may as reasonably say That the Subjects of England are bound to observe the Laws of England when they are in France as that they are bound in conscience to observe the Old English Laws if the French King should by Force ascend the English Throne No Laws can be made against violent Revolutions because such Revolutions over power Laws and it is as absurd to suppose that any Laws should oblige the Conscience to oppose the Ruling and Governing Power when setled by a Legal Investiture Which is to suppose That Laws which are only Rules of Government and owe their Being to a National Authority should oppose all the Authority of the Nation Thus I observe farther That mere human Laws
therefore consider the Case of the late K. J. with relation to Pleas of this kind All that ever I could hear said against his Abdication and Desertion is that he was driven out of his Kingdom by just and reasonable fears and therefore left his Throne very unwillingly and did not intend to devest himself of Royal Authority but only to reserve himself for better times till he could return to his Throne by force and power All this I verily believe is true that he went away unwillingly and hoped to return again with power and had no mind no intention to part with his Kingdom for ever but what would they prove by all this would they prove that the late King did not leave his Throne or that when he had left it the Throne was not empty which is to prove that he did not leave his Throne or that though he left it it was not empty because he left it and left it empty in a fright Or would they prove that his going away in a fright was not a voluntary Resignation of his Throne I care not much if I grant this too if they will but grant that it was a leaving it for to leave a Throne gives Subjects a Right to fill it as well as a voluntary Resignation does because the Throne must be full or Government ceases and a King that leaves his Throne though he knows it must be filled if he leaves it does that by leaving his Throne which he who resigns it does by a formal Instrument of Resignation that is he signifies to his Subjects that he won't govern them but they must shift for themselves for it is not at the will of a Prince whether a Kingdom shall be governed or not and when the King has left them it seems more Regular and Legal to place the next Heir on the Throne than to set up any other Person or Government The Reasons then why Subjects should not have filled the Throne when the late King had left it empty ought to be resolved into the Reasons of his going away What they were is sufficiently known and I believe no English Protestant who loves the Religion and Liberties of his Country will say that they are such Reasons as would excuse or justifie his leaving them or make it the Duty of Subjects to recal him The only visible Reason of his leaving us was this That if he staied he must be under a necessity to call a Parliament and he was resolved Not to venture his Cause with them Not to suffer them to censure and redress the Miscarriages of his Government Not to part with his Dispensing Power Not to give such Security as a Parliament would have demanded for the Preservation of their Laws Liberties and Religion That is he was resolved to be no King or to be Absolute and Arbitrary and let any Man judge whether this were not a good Reason for Subjects to take the Advantage which he had given them and to fill the Throne which he had made empty To renounce a Legal Government is to renounce the Crown of England and he who leaves the Throne to avoid the Necessity of Governing by Law may get it again when he can but Subjects are not bound to give it him They know for what Reason he parted with it and to restore it to him would be a plain consent that he should have it upon his own Terms I know it is pretended That he had reason to fear that his Person was not safe in England and that was the true Reason why he withdrew into France But this was so unreasonable a Fear had he resolved to have complied with the Parliament that it seems rather to be a plausible Pretence than the true Cause of his withdrawing The Prince indeed was landed with a considerable Force and the King was deserted by some of his Subjects who declared for the Prince and by part of his Army that went over to him which I grant was Reason enough for him to suspect that it was not safe for him to dispute this Matter by the Sword and defeat his Hopes of attaining his irregular Desires by a Victory but it was no Reason to think that his Person was not safe would he have called a Parliament and referred the Redress of all Grievances to them those who would not fight for him against the Prince and against their Religion and Liberties would have secured his Person from all violent Attempts He had Reason to believe this since the Prince desired no more and the Associators declared for no more and all their Words and Actions spoke it than that they would adhere to the Prince till our Religion Laws and Liberties History of Desertion page 75. are so far secured to us in a free Parliament that we shall no more be in danger of falling under Popery and Slavery The denial of this was the Reason why the Prince of Denmark Duke of Grafton Lord Churchill and others of the Nobility left him as appears from the Letters of the Prince and my Lord Churchill And when his Voyage for France was stopped and he returned to London the general Acclamations wherewith he was received as he passed through London-Streets might have satisfied him how little danger his Person was in and it is said that he observed it himself That though they hated his Religion they loved his Person If then the late King had no reasonable Cause to fear the safety of his Person would he have staid to redress all Grievances by a free Parliament if Subjects had no sufficient Reason to think that he withdrew his Person and Authority for any other Cause but to avoid the necessity of giving Satisfaction to his People in Parliament if there be no Evidence that he would have staied to redress all Grievances had he been assured of the safety of his Person it seems to me that the Estates had great Reason and Necessity to do as they did to declare the empty and forsaken Throne vacant and to fill it with the next Heir It is certain this is such a Case as belongs to the Supreme Judgment of the Estates for when a Throne is empty by what means soever it become so it belongs to them to consider whether and how it is to be filled And in such Cases it is the publick Judgment and not some Mens private Reason which is our Rule But let us suppose his Fears had been never so just and reasonable we must consider who brought him into this state of Fear and Danger for if the Guilt of this were wholly his own his Fears are no better excuse than those violent and illegal Proceedings which first frightned the whole Nation and then brought these Fears upon himself What he had already done justified both the Prince of Orange and the Subjects of England in what they did and if no Body were in Fault but himself if his own Misgovernment made him Fear and his Fear made him quit
AN ENQUIRY INTO THE NATURE and OBLIGATION OF Legal Rights With Respect to the Popular Pleas OF THE Late K. JAMES's Remaining Right TO THE CROWN LICENS'D LONDON Printed by Thomas Hodgkin 1693. AN ENQUIRY INTO THE NATURE and OBLIGATION OF Legal Rights c. IT seems to me a needless Task to prove to Protestants That it is more for their Spiritual and Temporal Interest to have a Protestant than a Popish King and Queen and therefore I cannot apprehend any great Danger to Their Majesties Government from those Scandalous Libels which are writ with some Art and dispersed with greater Diligence to raise and foment New Discontents Those are very sanguine men who hope to persuade us That our Liberties and Properties will be more secure and that the Church of England will flourish better under the Government of the late King if he return than under the Government of King William and Queen Mary We remember how it lately was and we feel how it is at present and if we can trust our Memory and our Senses all the Wit of man cannot impose upon us in so plain a matter and therefore I shall take it for granted That the Argument from Interest ties the Subjects of England in the fastest Bonds of Duty and Allegiance to Their present Majesties But the Laws of Justice and Righteousness ought to have a greater Authority over Mankind than all other Temporal Considerations and at one time or other they will And therefore while men are persuaded That how advantagious soever the late Revolution may prove it is founded in Injustice no other Argument but Force will for any long time be able to keep the late King out or to establish Their present Majesties in the Throne Which shews That other Arguments are lost labour till the Dispute of Right and Wrong is better cleared And tho there have been many Wise things said about it it has not yet been stated to a General Satisfaction The Government of the late King gave great reason to his Subjects to be willing to part with him whenever he would set them at liberty and therefore if King James hath suffered no Injustice but what he has done himself if he hath delivered his Subjects from their Allegiance and if King William and Queen Mary are Legally Invested with the Royal Power and are the Legal King and Queen of England it will be no hard matter to make all men who love the Peace and Prosperity their Religion and the Liberties of their Countrey to be easy and satisfied and thankful for such a Change And to state this matter plainly to silence this Pretence of Right and Justice on the late King's side it will be necessary to enquire What Right Princes have to their Thrones This may at first be thought a Dangerous Enquiry but it will appear to have no hurt in it and the loud Clamours about Right which disquiet so many mens minds and disturb the Peace and Settlement of these Kingdoms and daily threaten us with new Convulsions or Revolutions make it absolutely necessary at this time to say some few plain Truths which carry their own Evidence and Conviction with them which will do no Wrong to Princes and will do great Right to Subjects The whole Resolution of this matter depends upon one single Question if so plain a Case may be called a Question viz. Whether Princes have a Natural or only a Legal Right to their Thrones I think I might reasonably enough take it for granted without disputing That no Prince has any other Right to his Throne but what the Laws of the Land or the Laws of Nations give him For tho some men have disputed warmly for the Natural and Patriarchal Right of Kings yet they have so few Followers and the Hypothesis it self is so new and built upon such uncertain Conjectures and so contrary to plain Matter of Fact and the universal practice of all Nations that it is not worth any man's contending about whoever has a mind to know the mystery of this may read the Second Dialogue of the Bibliotheca Politica and try if he can make any thing of it For who knows what the Paternal and Patriarchal Authority was Whether it were a Civil and Political or only an Oeconomical Authority such as Parents still have over their Children or not much more Who knows how this Authority descended and what difference there was between the Authority of the Supreme Father and of the immediate Fathers over their own Children Whether this by Natural Right does not make the whole World one Monarchy under the Government of the Lineal Heir of the Eldest Family And how came the World then contrary to Natural Right to be canton'd into so many Absolute and Independent Monarchies Does not this damn all Republicks and Commonwealths as Usurpations upon the Natural Rights of Monarchy For if the Natural Right of Government be in the Natural Heir all other Forms of Government besides Monarchy are contrary to Nature and an Usurpation upon Natural Right But be all this as it will Where is the Monarch this day in the world that derives his Pedigree and Lineal Descent from some Ancient Pataiarch who had this Natural Right of Government Do we not know what the Original of many Monarchies hath been and what Changes they have suffered How Pirates and Robbers have advanced themselves to Royal Dignity and founded New Kingdoms and begun a Race of New Kings And were all these the Lineal Heirs of those Kingdoms they subdued And yet how can they have the Natural Patriarchal Right of Government without it For Natural Rights can never be sparated from those Natural Relations which create them These are very great absurdities and yet I must do these men this right that unless you can find a Paternal Patriarchal Right there can be no Natural Right to Civil Government for there is no other Natural Right of Government but only the Natural Authority of Fathers For we are now speaking of the Right to Government not of the Nature and quality of it And therefore though we should grant that Kings succeed to the Paternal Authority that they have now the same Authority over their Subjects that Fathers anciently had over their Children which I doubt if truly stated would satisfy but few Kings yet it does not hence follow that they have the same Natural Right to their Thrones which Fathers have to their Authority There may be several different Rights to the same kind of Authority but he who is not in the Paternal Line nor by Primogeniture inherits the Fathers right cannot have a Natural Paternal Right For as for Natural descent in an Hereditary Monarchy where the next lineal Heir succeeds to the Crown whom we commonly style a Natural Prince and a Prince born who is the Natural Heir to the Crown which is his Birth-right it is plain this is not a Natural Right but the Effect of Laws For if this were the Right of Nature