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
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
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
them could find any other or better means that it might be shewed whereupon after sad and ripe Communication in this matter had it was concluded and agreed by all the said Lords that sith is was so that the Title of the said Duke of York cannot be defeated and in eschewing the great inconvenience that might ensue to take the means above rehearsed viz. That the King should keep the Crowns and his Estate and Dignity Royal during his life and the said Duke and his Heirs to succeed him in the same The Lords open this Expedient to the King and both the Parties solemnly submit and agree to it From this proceeding 't is very plain in the first place which I toucht upon before That if the Judges who made the Excuse and Lords who admitted it know any thing of our Constitution they are to judge according to the known and written positive Laws of the Land which prescribe the Offices and Duties of particular persons and to speak what their sense is but have nothing to do with enquiring into or giving their Judgment upon the King's Title They are to put the Laws in Execution under the King But they can't find any Law to condemn or meddle with the Title of the King in possession no nor to defend it being called in question in a proper place The Laws with which they were intrusted meddle not with it the one way or the other And they declared themselves incompetent to give any Advice or Determination in it tho our Author will make every particular man a competent Judge of it And 't is as plain in the next place That all the Parties agree the Parliament to be proper Determiners of such a difference which may inform our Author who after erecting a Court in every private man's breast to do it can't find in our Constitution any Court for that purpose Nay Case f. 66. the Judges tell you The King and the Duke are before them as party and party That is Two persons contesting in a proper Court for a Judicial Determination The Lords think so too They oblige the King's Counsel to appear before them and defend their Majesties Right as a part of the Service that they owe the King for their Fees and Wages The Duke often presses them for their Judgment and at last they give it In the third place I observe that this Expedient is of the Lords own finding out and they decree it 'T is true in the Chancellors repeating the Opinion of the Lords there are the words If he would upon which great stress is often laid not only by our Author but others and more then the thing will justly bear The Chancellor says That it was thought by all the Lords that the Title of the said Duke cannot be defeated That is That none of those things objected to it had destroyed the Right of the Duke and his Line for ever And in eschewing the great Inconvenience that may ensue a mean was found to save the King's Honour and Estate and to appease the said Duke if he would c which imports no more then that the mean they agreed upon would be to his satisfaction if he would be contented with reasonable terms This I say is only the repetition of the Chancellor of the result of the Lords Debate But when they come to the Judgment that is general That the said mean shall be taken and this given before any Declaration of the Consent either of the Duke or King to it tho afterwards upon its being opened to them it was with great solemnity agreed unto by them and passed by the King into an Act of Parliament The very Statute of 1 E. 4. allows this Judgment to be good and that by virtue of it and the Agreement upon it H. 6. should have held the Crown for his life tho the very Right were with the D. of York But it being part of the Agreement that the Lords should support it and keep observe and strengthen inasmuch as appertaineth to them all the said things and resist to their power all them that will presume the contrary according to their Estates and Degrees E. 4. gets a solemn Declaration by that Statute that H. 6. had attempted the breaking the Agreement and therefore his dispossessing him was just c. He thought it advisable that the breach of the particular Agreement about the Crown as well as the Title it self should be declared and setled by Parliament And indeed the very nature of all Acts of Recognition and the constant usage of them in almost every Reign shew the Expediency of some publick Declaration to the People that they may know to whom their Obedience is due and imply as much as the Preamble of the Stat. 1 R. 3. speaks in express words which Preamble our Author quotes because it affirms the Title of an Usurper He was an Usurper but one who made as good and wise Laws as any lawful King his Predecessor That the most part of the People can't be sufficiently learned in the Laws and Customs which make out a Right and Title to the Crown And that the Court of Parliament is of such Authority and the People of the Land of such a Nature and Disposition that Manifestation or Declaration of any Truth made by the three Estates of the Realm assembled in Parliament and by Authority of the same makes before all things most faithful and certain quieting of men's minds and removes the occasions of Doubts and seditious Language This is Truth and Reason out of whose mouth soever it comes or for whatever End it was pronounced and in all Justice ought to protect every private Person in his submission to a Power acknowledged in that manner against all the Disturbers of the quiet of our present Settlement I come now to consider the Observations he makes upon the Authorities quoted by my Lord Coke to justifie the gloss made upon the words Seigneour le Roy in the 25 E. 3. The first is Baggot's Case To state this matter fairly as it appears on the Book the Case in short is this Baggot brings an Assize of his Office c. Ivie the Tenant pleads Baggot was an Alien c. and so could not hold the Office c. not being the King's Liege Subject Baggot replies his 9 E. 4. 7. b. 9 E. 4. 9. Letters of Naturalization Ivie sets forth the Act 1 E. 4. which recites at large the Pedigree and Title of E. 4. and the Usurpation of the three Henries and averrs that the Patent was granted by H. 6. one of the Usurpers and so leaves it to the Court to judge whether the Patent was valid in Law Baggot demurrs upon this Rejoynder and Ivie joyns in demurrer Brian of Counsel for Ivie insisted 9 E 4. 11. b. That King E. 4. being restored in his Remitter as Cousin and Heir of King R. 2. the Patent made by K. Henry who was but an Usurper and Intruder was void
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-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
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