need not say any thing farther as to the Instances out of History during the Wars between York and Lancaster If there were need the Author has done it to my hand Case f. 11. and elsewhere at least as to any Argument of Right or Justice that can be drawn from the Vengeance they dealt to each other upon any Advantages E. 4. attainted H. 6. and all his Adherents being an Usurper upon his Rights and gave very hard words to him as well as to his Grand-father H. 4. the first Invader of the Right of the House of York and H. 6. his being actually a King in Possession was not a Protection against it Will it thence follow that by the standing Law of England a King in Possession not being rightful Heir to the Crown and all those that act under him are Traytors and Rebels to the dispossessed Prince Will not H. 6th returning his Complement to the full when he was restored to the Crown as effectually prove the Law to be with him being in Possession tho E. 4. had the better Title In truth none of these Instances prove any thing but that de Facto and de Jure were much alike esteemed when they got the Power into their hands they made their Parliaments say and do what they pleased when either of them had sufficient Power to put the Acts made against his Rival and those who adhered to him in Execution I can't forbear observing That in all these violent times there is not so much as one Instance of any Person adjudged a Traytor for his serving the King in Possession upon an Indictment in the ordinary course of proceedings according to the establisht Laws All those Determinations proceeded from the Parliament ex plenitudine potestatis And 't is plain that they did not so much as pretend to square their Actions to the Laws then in being by the Instance he gives where H. 6. is attainted of High Treason for Case f. 10. the death of Richard D. of York at the Battel of Wakefield when 't is apparent not only that the D. of York had by his own Agreement and Oath put himself into the condition of a Subject to H. 6. during his Life but that the poor King was at the time of the fighting that Battel in the Power of the D. of York himself left by him in the Custody of the D. of Norfolk and E. of Warwick Not to mention that the Author agrees the D. of York Case f. 11. was not King but only declared Heir to the Crown after H. 6th's death And all agree That the death of the Heir 3 Inst 9. Collateral to the Crown is not High Treason within 25 E. 3. As to his particular instances of hard Names given by Case f. 13. Ed. 4. to the pretended Parliament 49 H. 6. besides what has been observed in general before I will add only that the Right and Justice of his Cause depended upon the Nullity of their Proceedings and yet he durst not insist upon the Original Nullity of them which it may be supposed he knew 't was not the part of private Men or the Judges to determine And therefore it was done by a Law and that Law is an Act of Repeal only Reversing revoking and making not declaring the former proceedings void Nor is there any thing in what we find Case f. 14. that can amount to a Proof of his Position In the end of that Page he grants that Acts of Parliament passed under an Usurper are valid without any Confirmation If he had not we have a better Authority for it That of the self-same Parliament that gave the Determination in favour of the D. of Tork's Title to the Crown That the Laws took no place against that And they that were so bold to do that would not have been afraid to have carried it on further if Law or Reason would have suffered them Yet they and the D. of York himself solemnly declare That all the other Acts and Ordinances made in the Vsurper's Parliament be good and sufficient Now if it be essential to every Act of Parliament that the King's Approbation give it life surely the Law must look upon those Persons to have been Seigniors les Roys whose Laws are unquestionably allowed to be good Nay it appears most plainly that the Statute of 1 E. 4. c. 1. for confirmation of Judicial proceedings which our Author insists on was Case f. 14. Def. f. 37. Cautionary only and that from the Act it self for the Preamble says 't was made In eschewing of Ambiguities Doubts and Diversities of Opinions which may arise ensue and be taken c. when he was setled in the Throne and the Parliament and Judges as 't will be easily believed were ready to complement his Right to the highest pitch they could not strain it higher than to make it a doubtful case whether the Acts of the preceding Kings in Deed not in Right were not valid And the words used in the Statute are Declare Establish and Enact c. the first of which we know was never lookt upon as a proper word for introducing a new Law or made use of upon such an occasion But his third Argument deserves something a more particular Case f 11. Def. f. 32. consideration It is this If Treason lay only against the King in Possession whether King de jure or no then the Subjects may not under pain of High Treason admit any Claim of the King de jure against him for that were to be adherent to the Enemy of the King in possession I confess I wonder that a Man of our Author's Learning and Reason should set down such a Consequence But this was brought in 't is probable to make way for the main Assertion of his Book and the most material thing in the whole Controversie That the Parliament cannot Case f. 65. be and that there is no Judicature provided to determine the Title to the Crown where there is a Competition about it Both these will receive one Answer I should think if there were no Precedent or Express Authority in the point that it would be allowed a sufficient proof of the contrary That Right Reason and the very Nature of Government do make some such power of determining absolutely necessary For the Foundation of all Governments is supposed to be the good and benefit of those who form themselves into it and in all cases whatsoever unless there be an express provision to the contrary what is agreeable to the Sense and Reason of Mankind and necessary to the support and well-being of that Government must be supposed to be the very first general ground agreed upon so that in such cases where there is not any thing positive against it Is and ought to be seem in reason to be covertible terms And 2dly There cannot as the frame of our Constitution is any other be imagined than the States of the Kingdom This I am
come to the House till a Law were passed for the Reversal of their Attainders nor ought to be in the House at the time of the Reversal But they went further and unanimously Resolved That there was no manner of Necessity to do any thing for the Reversal of the King's Attainder who was attainted too For that Eo facto that he took upon himself the Royal Dignity to be King he was discharged of all Incapacities and needed not any Act for the Reversal of his Attainder My Lord Bacon's Remark upon this Resolution is That it was A grave and safe Opinion and Advice mixed with Law and Convenience Now in this Resolution the Judges must either take H. 7. to have a Right to the Crown or that he had not but was an Usurper That they took the former for granted is I think very plain Or at least they must know that the Lady Elizabeth whose Cause he undertook and with whom by Pact precedent with the party who brought him in he was to Marry had so If they did so then they plainly determined that a Conviction of a Man under an Usurper for High Treason where the very Act of the Treason was Adherence unto and Attempts to recover the Rights of the dispossessed injured Prince still remains even after the Rightful Prince has regained possession of the Throne since all Incapacities continued upon those Loyal Men till their Convictions were Reversed by Parliament That is till a new Law was made to help them Till that was done those who had the Execution of the present Laws only could not say other than that the Offence whereof they were convicted which was an Attempt against the Prince then in possession was High Treason and they were still obnoxious to the Punishments the Laws inflict on Traytors although what they attempted was done to serve and support the Interests of the Rightful Princes If the Judges took Hen. 7. to be an Usurper yet we gain this point by their second Resolution They agree him to be invested with the Royal Authority by his Assuming the Crown and the Submission of the People By that his Natural Person is changed and so consolidated with the Politick Capacity Plow Com. 238. b. that every Imperfection was purged and all the Objections that lay either against his Person by Rich. 3. Attainder or against his Title which was for ever condemned by Act Temp. H. 6. of Parliament removed And this Opinion of the Judges in Henry the Seventh's case was not the first Instance of this kind as appears by the Case of Hen. 6. mentioned by Townsend who after his Resumption of the Crown held a Parliament though 1 H. 7. 5. b. Br. Parliament 105. he were before attainted and disabled For says the Book all that was void when he took the Crown upon himself Neither was the Notion of the Person being changed by the Assuming the Crown new or framed for that particular Case For we find that when Rich. 3. assumed the Royal Estate upon himself and he was undoubtedly an Usurper it was found necessary to make a Statute in the first Year of his Reign That where he was enfeoffed joyntly with others to an Vse the other Cofeoffees should stand seized to the Vse where he was sole seized the whole Estate should be vested in the Cestuique use and this because by the taking the Politick Capacity on himself his Natural Person was gone and Seignior le Roy can't stand seized to an Use If the Treason of Sir William Stanley in the time of Bac. H. 7. f 134 Case f. 3. Hen. 7. were what my Lord Bacon and our Author relate it to be viz. his saying That if he were sure that Perkin were King Edward 's Son he would never bear Arms against him It goes a very great way in the shewing what the Opinion of that time was and that the Lawyers don't agree that the Statute of 11 Hen. 7. has enlarged the sense of Seignior le Roy but that they thought 't was always the Duty of the private Subject to pay his Obedience to the possession This Case I say proves not only that it is Treason for a private person to over-rule the Title of the King that is in possession which my Lord Bacon deduces from the words but it makes it Treason to refuse his Active Obedience for the Support of that King in possession even against him who he is satisfied has a better Right This I am sure must be the Opinion of those who condemned him and the Historian in that place takes Notice that the Judges of that time were great and learned Men and the three Chief of them of the Privy Council And to shew how far the Law-givers of that time lookt upon private Subjects to be bound up by such Acts of Government made in the time of an Usurper as our Author would have called Inauthoritative null and void until an equal Power have adnulled or declared them to be so I will refer my Author to the Year-Book 1 Hen. 7. f. 5. b. There he will find a special Memorandum of the Reversal of an Act of Parliament which Act was so false and scandalous that upon Advice of the Justices it was not thought fit to recite the Matter or Effect of it in the Act of Reversal lest it should remain in remembrance And this Act was made directly against the Right of the Children of Edw. 4. to Bastardize them yet a special Note is made of it That having been done by a Parliament there was a necessity for another Act of Parliament to take this Scandalous Bill off from the Roll. They it seems did not look upon the private Judgment of the Clerk of the Parliament to be sufficient to adjudge of our Author's Nullities in themselves though that private Judgment determined in favour of what they lookt upon to be the Right joyned with the Possession I come now to consider the Statute 11 Hen. 7. c. 1. the Preamble of which declares That the Subjects by reason of their Duty of Allegiance are bound to serve their Prince and Soveraign Lord for the time being in his Wars for the Defence of him and the Land against every Rebellion Power and Might reared against him and with him to enter into Service if the Case so require And that whatever the Success fall out to be 't is not reasonable but against all Laws Reason and good Conscience that they so going with him in his Wars attending his Person or being elsewhere by his Command should lose or forfeit any thing for doing their true Duty and Service of Allegiance Thereupon 't is Enacted and Established by that Parliament That no person from thenceforth that attend upon the King and Soveraign Lord of this Land for the time being in his person or do him true and faithful Service of Allegiance shall for that be vexed or troubled either by Act of Parliament or otherwise Our Author by what has been
he proposed to himself to secure his Title by that Act against the House of York And that Design shall make this Statute void though Perkin prove the Son of a Beggerly Jew and the Queen who had long before been Crowned and Reigned with him had undoubtedly the true Right to the Crown Neither can I yet work my self up to think That the Enacting a new Law in a particular Case contrary to the purview of a precedent general one is a total Repeal of that Law As for instance Suppose in the Case of my Lord Strafford Because he was attainted by Act of Parliament without Proof by two Witnesses and for Facts none of which considered singly and by themselves amounted to High Treason but made a great accumulative Crime therefore if it had not been for the Caution used That the like should never be drawn into Precedent or Example from that time forward a load of lesser Crimes must have grown up into one High Treason and the Statutes of 25 Edw. 3. c. had stood entirely Repealed in those points They for so much having in effect been declared to be null and Case f 31. invalid by a Lawful King and Parliament But besides this as to his Instance of the Duke of Northumberland's Attainder not to mention a great many other things which hinder its amounting to any manner of Proof of what he brings it for I must tell him that the Act confirming that Attainder did not in the least contradict the Statute 11 Hen. 7. for that he was attainted upon the Statute 25 Edw. 3. without being within any help from this Statute And therefore his Attainder was Legal though it had never been declared so by Act of Parliament though the Queen thought fit to make matters sure and put that in for Company with the Attainders of several others who were attainted upon other accounts The Lady Jane was never such a Queen in possession as is within this Law or to be accounted so She was 't is true Proclaimed by some few of her Friends and so was the late Duke of Monmouth in the West But did ever any one say or imagine that such a Possession entituled one to the Allegiance of the whole Kingdom That is as Extravagant on the one side as our Author's Opinion on the other Temper them and make it necessary to the obtaining such a Possession without a Just Title as shall claim the Duty of Subjection That there be a quiet and peaceable Submission to the Person who fills the Throne by the Body of the Nation a Recognition of him by the States the Treasure Power and Strength of the Kingdom in his hands Publick Justice administred only by those that are commissionated by him c. and you 'll find the Golden Mean The Observation made by the Author That Queen Mary was no more than Proclaimed when the Duke was Tried and Executed by her Authority makes nothing against this She had de jure a Title and a notorious one too for that the Succession was limited unto her by Name in Henry the Eighth's Acts for the Succession besides her being his Eldest Daughter And I will grant to him that he is much in the right when he affirms That at this day the next Heir of the Blood is actually Case f 48. Def. f. 7. King and in possession from the very moment of his Predecessor's Death and has a Right to the Allegiance of his Subjects from that time I have told him all along though less may amount to a disturbing or disquieting him that there must be more than a bare Proclaiming of another to dispossess him The affirming of which is not in any sort inconsistent with their Principles who maintain that Submission is due to a King who has obtained a full possession of the Throne So that the Author might have spared the mannerly Question he puts to Dr. Sherlock upon this Occasion Defence f. 55. His Argument is the same Case f. 34. King Henry the Eight having indulged himself very greatly in the taking and dismissing of Wives did from time to time according to the run of his Affections make several Laws for the Settlement of the Succession and laid great Penalties on the Infringers of those Laws and particularly on such Persons as should Usurp upon others to whom by the plain and express words of the respective Acts the Crown was limited and entailed These Laws were very necessary at that time because from the unusual Liberty he had taken in that particular of necessity great ambiguities and doubts must arise concerning the several Titles which might be pretended to the Crown and thence would probably ensue great effusion of Blood c. as the Statutes 25 H. 8. c. 22. c. speak To prevent this he very prudently takes care to tell his Subjects by Act of Parliament where their Obedience shall be paid names the Persons in course as they should succeed And forbids under the greatest Penalties any One to Usurp upon or Claim a Title otherwise than according to those Limitations These Acts supposing that Acts of Parliament can alter the Hereditary Course of Descent which perhaps my Author and some few others will not agree but I can't bring my self to make any doubt of amount to no more than this That any who should offer to break through that Limitation should be Usurpers and those that should aid and assist them therein be Traytors I have not yet pretended that those who aid and abett one that has no Title and put him into the possession of the Throne are innocent or that the Act of Exalting an Usurper to the Throne is justifiable All that I contend for is Obedience to them after they are in quiet possession So that these Acts make nothing for what my Author intends to prove or against what I propose to my self to defend They laid not any Obligation on Conscience contrary to the Statute 11 Hen. 7. But provided only to secure the Possession to those mentioned in that Settlement by making it Death for any to attempt or assist in the breaking of it But I will for once suppose those Acts had in express words Enacted That if Persons contrary to those Limitations did get into the Throne and obtain a full Possession of it all those who had been Assistant unto them in their so doing Or who should afterwards submit to them should be punished as Traytors Yet this would amount to no more than that the general precedent Law and the Obligation of it was Suspended and Repealed as to this particular Instance As if it had in express terms said In these particulars when the Right of Succession is so plainly determined to the Subject by a competent Power that there is no possibility of his being mistaken in it unless he be so wilfully Whoever attempts any thing contrary to them shall not have benefit of Indemnity from any former Laws but the Person set up and all his
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
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
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
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
c. I will not repeat what Baggot's Councel offer because the greatest part of it is mentioned by our Author as well as my Lord Case f. 16. 9 E. 4. 12. Coke After hearing what was urged on both sides the Justices say They had conferred with the Judges of the Common-Pleas upon all the Points objected And they all agreed That none of the Objections had any thing in them to arrest the Judgment and therefore Baggot recovered The only Reflections I will at present make upon this Case is That altho what is referred unto by my Lord Coke might be Originally the Argument of Baggot's Counsel only yet surely in a Point of such Consequence as this the Judges would not have let these matters pass without some Check or Censure if they had not approved them They would not have given Judgment on the side of those who argued in that manner without distinguishing what they did agree unto and what was not to be allowed of if any part of what they had laid down had not been agreeable to the Law and their Opinions As Affairs then stood there was much greater danger that the Judges who owed their Offices to the Power in possession would lessen and vilifie the Acts of the cast-off dispossessed Prince and that the Counsel would be afraid of speaking up to the full what their Cause would bear Then that extravagant things should be asserted at the Bar and not only pass unreproved from the Bench but have the countenance of a Resolution of the Court on their side and that a very solemn one upon Advice with the other Judges which must be singly upon that point and not any of the others they not being worth the least debate or haesitation I think this were sufficient but I will add this further Observation That there never has been in any Times since the Times of most undoubtedly rightful Kings any contradiction to this Opinion or so much as a Quaere put upon it Brook in the Abridging of it recommends it with a Nota as a thing worth observing Coke Hales and Bridgman in Print declare this to be Law Our Author is the first hardy Man that has undertaken to set himself against so generally a received Opinion He has taken pains in it I confess but that he has not so throughly weighed it as he ought appears by the Answer he gives to that part quoted to prove That a Pardon granted by a King out of Possession is Case f 24. void If he had read the words over carefully he would have found they amount to thus much in English If 9 E 4. 2. he that is now King in the time of Henry VI. had made a Charter of Pardon it would be void even Now for every one who grants a Pardon must be King in Fact These words won't admit of the Evasion of its being void in Effect only and in its Operation not from a want of Authority to grant it but of Strength to enforce and support it The only Judge that speaks publickly for they were ticklish Times and they thought fit to act very cautiously for fear of giving Offence was Billing What he says plainly proves what our Author elsewhere will not admit That the Office of King and the Royalty it self is in the King de facto while he is in Possession This Billing's words as quoted by our Author prove There he gives a Reason Case f. 16. why the Legitimation by H. 6. should be good viz. That 't is an Act of Grace and it belongs to every King by reason of his Office of which Office he took H. 6. to be possessed to do Acts of Justice and Grace His other case of Exemptions put in the same place proves as 9 E. 4. 2. Br. Exemp 4. much For if he were not possessed of the Royalty it self he could not make any Grant to the Subject either of Interest to bind his Successor or of Ease to discharge the Subject in the time of a succeeding Prince from what the Law subjects or obliges him unto But our Author has found an Instance wherein it was Def. f. 41. held that Grants of a King de facto to the Prejudice of a King de jure are not valid If I should tell him that after the rightful Heir at least he that pretended to be so and to avoid his Grant upon that ground had agreed to submit to him as his King for his Life he was not an Usurper upon him then his Case will prove too much But the thing it self is not to be wondred at that a succeeding King should find or make a Reason for the resumption of Crown Lands There are People abroad in the World that would have helpt Henry II. to another viz. That the Revenues of the Crown are so far a Trust in themselves being given for the Support of the Government and Defence of the Kingdom that they are not of Right alienable But to return to Baggot's Case I agree that the Council do not argue or the Judges determine as our Author Case f. 17. observes from any Statute of this Realm There was not any such nor any need of one Common Law and common Reason justified their Resolution And if the Reason of the Thing and Necessity of Government determined that case to them where there was not any thing else to Govern it Had not that Man need have a great deal of Wit and Subtilty who undertakes to prove That as plain words in an Act of Parliament as can be devised having the same Reason and Necessity to enforce their being taken in their common and ordinary sense ought to be expounded away by the Judges into quite another thing only to avoid their falling in with that reasonable and convenient sense But this is not the only Book-case before the Statute of H. 7. which Rules our Point in effect When Hen. 7. had obtained an entire Victory killed King Richard in the Field and was Proclaimed King he resolved soon to call a Parliament One of the ends of his doing it speedily as Lord Bacon says was To have the Attainders of Bac. Hist H. 7. f. 11. all his Party which were in no small number reversed and all Acts of Hostility by them done in his Quarrel remitted and discharged And accordingly Acts were passed to that purpose But before it was done a Question in Law was moved Divers of the most considerable favourers of the King's Party during the Reign of Richard the Third were attainted by Outlawries and otherwise for that cause Or as my Lord Bacon expresses it His Partakers were attainted for Offences incident to his Service and Succour Many of these were Returned Knights and Burgesses for the Parliament the Judges are advised with upon it who forthwith assemble in the Exchequer-Chamber and all agree That the Lord Bacon ubi sup 1 H. 7. 4. Br. Parliament 37. Knights and Burgesses who were attainted ought not to
already said will find the mistake that he is under when he says the Lawyers agree That it is this Statute only which has extended Def. f. 5. the words Seignior le Roy in 25 Edw. 3. to comprehend an Vsurper in possession as King for the time being whereas before 25 Edw. 3. meant Lawful and Rightful Kings only What is already said to that purpose will I believe satisfie every one that the Judges who are Expositors of Statutes and were to put that Act in Execution did never look upon themselves as competent for the determining the Title of the Crown but lookt upon him to be Seignior le Roy within that Act who executed the Office of King in administring Justice and protecting and defending the People The end of that Statute 11 H. 7. as I have said before was not so much to make a solemn Declaration of the Law which all through it is taken for granted as an indisputable Opinion of that time at least as it was to condemn the way that had too often been lately taken to destroy the good Effects of the Law in that particular by making so many revengeful Acts of Attainder upon every change They endeavoured as far as the Nature of the thing would admit of it to tie up even the Hands of future Parliaments from acting contrary to that easie and reasonable Rule And having done that little thought they had left a Liberty to private Men to vent their Opinions and Fancies raise Scruples in the minds of People and write Books to prove that a King is no King nor to be obeyed And that a bare Right to be a King which supposes and imports in the very terms themselves his being dispossessed of the Throne and Office makes him the Only Person meant by the words Seignior le Roy whereas he that is in full possession of the Office and Government is quite out of them But to shew our Author that the Notion was not quite new and first introduced by this Statute to serve a particular turn nor the Opinion of Lawyers only I would refer him to a Treatise Entituled An Historical Account of some things relating to the Nature of the English Government there f. 40. He will find the words of a great many Historians quoted which I will not Transcribe all censuring the Act of those Nobles who upon dislike to William Rufus that was possessed of the Government did endeavour to dethrone him and advance his Elder Brother Robert to the Throne as an Execrable Fact calling them Traiterous Perfidious and Perjured Persons And declaring that they who sided with William were Faithful to their Earthly Lord Though as appears in the same page those very Historians agreed that Robert had manifest Right to the Kingdom by course of Hereditary Succession Nay for want of other Authorities I would venture to make Use once more of our Author's Act 1 Edw. 4. which not only very fully asserts That the Vsurpers were by their Vsurpation possessed of the Regal Power Estate Dignity Preheminence Possession and Lordship of England to which purpose it was quoted before but goes on By Edward the Fourth's removing Henry the Sixth from the Occupation Vsurpation Intrusion Reign and Governance of the same Realm of England and Lordship to the Vniversal Comfort and Consolation of all his Subjects and Liege Men plenteously joyed to be amoved and departed from the Obeysance and Government of the Vnrighteous Vsurper c. Our Author may with little pains learn what the import of the Term Obeysance was at that time lookt upon to be I confess the Act of 11 Hen. 7. to me seems to make the most Solemn Declaration of this as a Rule not to be varied from That Allegiance is due to the King for the time being And 't is the Subjects Duty to pay it to him And I would desire no more from any Man but that he would read it over attentively to make him a Judge between my Author and me whether fuller words could reasonably be thought of to silence all Opinions to the contrary Let us see how our Author quits himself from them I believe he will not rely much upon the first Objection he seems to make That only the enacting part of Case f. 2â— a Statute is Law He brings it in with an If and never takes it up again so that at present without detaining my Reader in the Proof that it is day when the Sun shines I will take it for granted That what an Act of Parliament recites or declares to be Law is so And then instead of what our Author has set down as all that Case f. 27. this Statute proves It proves thus much at least That it is the Duty of every private Subject to attend and pay his Allegiance to the King in Possession And contrary to the Laws as they stand at present and to all Reason and good Conscience even for a Parliament whose Power can't be withstood to make his so doing Penal to him I will agree to him that Hen. 7. himself had not practised Def. f. 42. according to this Rule but made use of the same Liberty former Kings and Parliaments had taken of reaking his Vengeance on those that opposed him He was too fond of the Crown He would not else have set up for it without any Right at first And it is not to be imagined that he who made no scruple of obtaining it against Right and put off so long the making his Possession just when he had such an Opportunity of doing it by marrying her who had the undoubted Right would make any difficulty of securing himself in that possession by any means whatsoever This criminates him in his Morals proves him to be a Man whom Interest did Rule to the doing things which he was convinced were against Reason and Conscience and proves no more Nay I must offer in his Excuse that he afterwards made what amends he could by condemning his own former ill and using his utmost endeavours that the poor Subject should never be harrassed and punished at that barbarous rate more Can a Man be real in Objecting to a Law agreed unto Case f. 29. and passed by those Persons whom the whole Body of the Kingdom thought fittest to represent them and to whose Integrity and Understanding they entrusted their dearest Concerns That it was made by an Usurper in Title and 't is not he determines it for the good Case f. 18. of the Community Yet such Laws as are for the Publick Good he agrees are valid though passed by an Usurper Nay our Author goes further and enquires by helps dehors as the Lawyers call it Foreign to the words of the Act it self what the End and Design of the King under-hand was in procuring the Statute and that he discovers to be nothing less than to secure himself in his Unjust Usurpation because Perkin Warbeck happened to be up in Arms about that time so that
Adherents and those that support him in his Usurpation shall be punished as Traytors This would have been so far from a total Repeal that it would rather have been a Confirmation of the precedent Laws in all other cases but those particular Instances The same is to be said to the Oaths enjoyned by those Laws of H. 8. for the establishing the Succession Supposing them to have laid an Obligation upon Conscience contrary to the general Purvieu of the 11 H. 7. for the time to which they extended yet the matter of them is long since ceas'd And I can't find any Reason or Authority to prove that a contrary provision only for a fixed and determinate time does for ever repeal a general positive Law The late Oaths of Obedience in Queen Eliz. and King James's times have left the Title to the Crown as general and unsettled as it was in the time of H. 7. So that the Subjects are now obliged by Vertue of those Oaths to the true Successors in the Kingly Power and I think what is already said makes it plain that a private Subject must look upon those who are in full and quiet possession of the Throne to be truly and lawfully so till they are either devested of the Power or their Right condemned by those that have Authority to do it The word Heirs I own is joyned to Successors in these Oaths but if either as the Lawyers say Haeres dicitur ab Haereditate or the words of themselves being joynt extend only to such an Heir as is a Successor as I must think till I hear better Arguments to the contrary then I ever yet have met with these Oaths will make for not against me However I can't find any contradiction between these Oaths and the Statute 11 H. 7. They do not speak Ad idem 'T is too gross to be put upon any Man at this time of day to say These Oaths oblige us to any certain Person under the name Heirs and Successors during the life of the Possessor so that the end of these Oaths was to put an Obligation on Conscience to prevent the Act of Usurpation and preserve the Government Hereditary The Act of H. 7. supposes that settled and declares what a Subject is to do when it is so Besides I think the Lawyers generally agree it for a Rule That it must be a very plain Contrariety and absolute Inconsistency that shall effect a Repeal of a former by a subsequent Statute without express words of Repeal And that a Law being once established with the universal consent of the whole Kingdom it must not be look'd upon to be abrogated by any strained Construction of general and ambiguous Words And if this be true I am sure the Stat. 11 H. 7. stands yet unrepealed by any of the Laws our Author has produc'd against it I can't but wonder to hear a private person determining That a Statute That is a Law of the Land Case f. 36. Defence f. 47. must be lookt upon as null and invalid in respect of the matter of it because in his Opinion It establishes Iniquity and is made as he says Case f. 32. To the disherison of a lawful King That is a King of the Laws making In plain English this amounts to thus much The Title which the King has to the Crown tho it belongs not to him either by the Law of God or Nature but by a positive Law of the Land can neither be wholly defeated or abridged in part nor the Power or Rights of it moderated for a certain time by as positive a Law This is a very Paradox and needs a man of our Author's Learning and industry to make it look colourable This and a great deal more of our Author 's arguing Case f. 37 38 39 40 41. will fall to the ground if he will till he proves the contrary admit 1. That the word King does not necessarily import in it self in all places any certain and determinate Rights and Priviledges but that the positive Laws of the Land are Bounds unto and may prescribe the Order and Form of legal Ligeance and may enlarge or abridge those Rights which the name King according to the natural extent and sense of the Word would have entitled the Person unto And 2dly if I could prevail upon him not to lay so much stress upon that Word when 't is joyned to de jure not suppose him still in possession of the Office but fairly English it a Person who has Right to the Office and Government but is wrongfully put out of it The fallacy grounded upon the latter of these runs through so many parts of the Book that more than half his arguing part might have been saved if he he would have stated it truly If he would but agree to me that the word King is rather a name of publick Office than personal Right there would be an end of a great part of the Dispute Let us turn it into Governour and see how the Question will then stand VVhether in this Government the Subjects are to pay their Service and Duty to him that is in Fact their Governour tho he obtained the Government by unjust means or to him who ought to be their Governour but plainly is not nor has a Power to exercise any Acts of Government either over or in defence of them I am apt to think it would be an hard thing for a man of very great parts so much as to amuse any man if he would state the case so or to perswade him that the Duty of the person governed has any relation to the Right of the person distinct from the Office In short That private man goes beyond his Line who looks upon him that is out of Possession to be his King or acts accordingly when the Throne is filled with a Possessor qualified as I have before set down And if so the Statute 11 H. 7. implies nothing of that Contradiction which the Case f. 53. fixes upon it I would not be mistaken in this so as to have it objected to me That I am coming within the reach of that mischievous Position of separating the Person and Office It was always my Opinion that the doing it as it has been formerly made use of would be in consequence very pernicious and is contrary to the Rules of Law The mischief of that Position is the distinguishing between the Kings Acts and Capacities while he is a King and in Possession to say some of his Acts are those of his natural person separated from his politick Capacity and upon that supposition to take a liberty of acting against his natural Person as supposing that distinct from his politick Capacity This appears to be the Mischief by what is quoted out of Calvin's Case where 't is said That Ligeance Defence f. 25. is due to the natural Person of the King which is ever accompanied by the politick Capacity and the politick Capacity as it were
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