the one is a Right of a Legal Claim the other of a Legal Possession And that this may and must be in all Civil Governments and mere Legal Rights appears from the different Laws and Customs on which such different Rights are founded This I have hinted at before but must now explain it more particularly In all Civil Societies there must be particular Laws to determine mens personal and particular Rights and whatever is due to any man by such Laws is his Legal Right But yet we know these Laws can determine no Controversy without a living Judge for if every man were to judge for himself every man will make the Law to be on his side and then we had as good have no Laws at all and therefore the Fundamental Law of all Societies which is superior to all particular Laws is this That the last and final Judgment of Authority shall be esteemed the Law and that shall be every man's Right as to all the effects of Law which is thus adjudged him Whoever calmly considers things will find that it is impossible it should be otherwise without overturning all Civil Governments Suppose then that the true Heir to an Estate should be dispossessed of it by an Erroneous or Corrupt Judgment at Law and another by the same Judgment should by all Legal Methods used in such Cases be possess'd of it though he be not the true Heir here now is jus ad rem and jus in re The true Heir by the Laws of Inheritance has the Legal Right to the Estate but by the Supreme Law of all Societies which refers the decision of all personal Rights to a Legal Authority he who by a Legal Judgment is possessed of it has the Legal Right in the Estate against all Claims and Legal Authority must defend him in it and all who will submit to Laws and Legal Authority must acquiesce in it And thus it must be with respect to the Rights of Princes as well as of Subjects The Right to the Crown is often disputed as we all know and to say that when such Disputes happen there is no Authority in the Nation to decide them is to say that Princes have no Rights to their Crowns by the Laws of that Nation for there can be no Civil Laws of which there are and can be no Civil Judges for no man no not a Prince can be Judge in his own Cause and if Princes have no Legal Rights they can lose no Legal Rights when they lose their Crowns and I doubt their Natural Rights will affect the Consciences of very few Subjects A Supreme Independent Society must from the Nature of such Societies and the Reason of their Institution have Authority within it self to decide all Controversies which may arise about the Rights of every part or Member of the Society and to preserve it self from falling into a State of War which is a Dissolution of Civil Government and if there be such an Authority in every Nation when the Supreme Authority has determined such Disputes it must determine Subjects and no Right or pretence of Right can affect the Conscience after such a final Judgment unless Civil Rights can oblige Subjects to dissolve Civil Governments and to dispute Legal Rights not by the Law but by the Sword which is to overthrow all Civil Rights and to put an end to the Authority of Laws This shows how much those men are mistaken who think there can be no King in an Hereditary Monarchy but the next Lineal Heir and that no Allegiance being due or to be paid to him who is no King none can therefore be due to any Prince however possessed of the Throne if he be not the next Heir That no Obedience is due to him who is no King I readily grant though it may in some cases be paid to him who is no King but he may be a Legal King who is not the next Rightful Heir as almost half of the Kings of England since the Conquest were not and yet have been always own'd and obey'd as Legal Kings But the ground of the mistake is that they do not distinguish between Natural and Legal Relations but think a King to be a King by as certain and unchangeable a Right as a Father is a Father as if Laws were of the same force and power with Nature as if to be Heir to a King which in Hereditary Monarchies gives a Legal Title to Succession did as necessarily and unavoidably make a King as Natural Generation makes a Father These men do not consider that in Natural Relations the Right makes the Relation and enters its definition and therefore the Right and the Relation can never be separated The Right to be a Father is to beget and the definition of a Father is he who begets and therefore no man can be a Natural Father but he who begets and every one who begets is a Father But now in Legal Relations an Antecedent Right does not make the Relation nor is any part of its definition The Right to be a King is one thing and to be a King is another the Rights may be very different but the Notion of a King is the same The Rights may be Hereditary Patrimonial Testamentary by Election or by Conquest but the Notion of a King is one who Administers the Civil Government with a Sovereign Authority whoever does so is a King whatever his Title may be as he that begets is a Father though it be by Unlawful Embraces The answer to that question Who is King is not He who has the Right to the Crown but be who is invested with the Regal and Sovereign Authority But if we enquire how he came to ascend the Throne Whether he be an Hereditary or Elective King a King de facto or an Usurper These questions must be answered by the Claim or Title by which he holds That he was the Right Lineal Heir of the last King or that he was Elected by the people or that there being some dispute about the Crown it was adjudged to him by the Estates of the Realm or that he won it by his Sword and either keeps it still by Power or now wears it by the Consent and Submission of the people An Antecedent Right cannot belong to the definition of the King for then there could be no Kings but Hereditary or Testamentary Monarchs and as for any other Right he has it who is invested in the Regal Authority by those who are the Supreme Power of the Kingdom and represent the body of the people when there is no Monarch nor provision for administration of Government Whoever is invested with the true Regal Authority is a True and Right King for he to whom the true definition of a King belongs is a true King An Usurper who Governs by mere Power and by the forced Submission of the people has the Power but not the Authority of a King But he who is setl'd in the Throne by the
free decision and declaration of the Supreme Authority of the Kingdom has the Authority as well as the Power of a King and therefore is a True King whether any private Subject think he had any Antecedent Right or not So that it is a groundless pretence That in an Hereditary Monarchy he is no King how Solemnly soever invested with the Royal Authority by the Estates of the Realm who does not Ascend the Throne by a Lineal Succession for he is a King who has the Authority of a King and he has the Authority of a King who is invested with the Regal Authority by the Estates of the Realm for there is no other human way of conveying the Regal Authority and then the Reason and Nature of things is so far from forbidding that it requires us to pay our Allegiance to him who is Legally invested with the Regal Authority and Power But yet this is not the question Whether in an Hereditary Monarchy the next Heir ought to be owned and Recognized for King But Whether Subjects may not with a good Conscience obey him as the Legal Rightful King to whom when the Right to the Crown is disputed the Estates of the Realm adjudge the Crown For all mere Legal Rights when any controversies happen about them must be declared by the judgment of a Legal and Competent Authority and Subjects have no Legal cognizance of any Legal Rights but by a Legal sentence and judgment Their private Opinions and Judgments in such cases as do not concern Natural but Legal Rights are not the Rule of Conscience for that would overthrow all Civil Authority but the publick judgment and therefore he must be owned and obeyed as King whom the Highest Authority of the Nation places on the Throne whatever our private Opinion may be about the Right of Succession Whoever will not allow of this could not in Conscience have paid their Allegiance to almost half the Kings that have been in England since William the Conqueror W. Rufus and H. 1. were not Lineal Heirs for their Elder Brother Robert was still living King Stephen and King John were Kings without an Hereditary Title Edward the 3d. was Crowned upon the Deposition and forc'd Resignation of his Father the three Henries 4 5 6. were of the Lancaster Line which was the Younger House and excluded the Rightful Heirs of the House of York and H. 7. had no Personal Right of Succession to the Crown but yet he had the Crown before he married the Heiress of York and took the Administration of the Regal Power to himself though the Authority was hers and kept the Crown after her death though the Right was in his Son which were as manifest Violations of the Right of Succession as the Three Henries had been guilty of So that there have been Eight Kings since the Conquest out of the Line of Succession and generally known to be so besides the Conqueror himself who could pretend no Lineal Succession to the Crown and these Kings Reigns put together amount unto near Two hundred years And what should the Subjects of England have done all this while if the Lineal Succession had been so Sacred that they were bound in Conscience to own no King but the Lineal Heir How should the Norman Line ever have begun who were not the Lineal Heirs and how came the Lineal Succession in the Norman Line to be so sacred which it self began without it and had no Lineal Succession for the first four Reigns But I must not dismiss this Argument without examining a late Author The Duty of Allegiance setled on its true grounds who Disputes very vehemently That Authority must go by Rightful Titles He says a great deal about it but a short answer will serve when once the case is plainly stated He defines Civil Authority to be a Right or Liberty in one to order or do a thing in Civil matters laying an obligation on others to follow or submit to him Though this be a lame and equivocal definition yet I shall not dispute with him about it if he will add the word Legal that Civil Authority is a Legal Right or Liberty c. I agree with him that Authority is very different from external Force and I have reason to grant to him for he ruins his own cause by it that God makes no Kings but those who are made Kings by some human Acts and have a Human and Legal Right to Kingship But now how does he prove from hence that in England suppose none can have a Legal Right to Govern but those who have this rightful Title of a Lineal Succession For if the Title is not the Authority but a Legal Investiture gives a Legal Authority it is possible that a Legal Title and a Legal Authority may be separated and the Authority continue Legal still Legal Authority must be conveyed in such manner and by such forms as the Law has prescribed or appoints to that purpose for there is no other way of conveying it and then that Authority which is given in form of Law and that only is a Legal Authority If then the Estates of the Realm who are the only Judges of such disputes adjudge and give the Crown to one whom we suppose not to have an antecedent Legal Title to it yet he becomes Legally possessed not only of the external Force and Power but of the Legal Authority of Government And therefore he may challenge as his due all Legal Obedience which must be the true Notion of Allegiance for nothing more then Legal Obedience can be due to a mere Legal Authority because he is invested with the Legal Authority the Regal state is his Legal Property against all other claims and his Subjects must defend him in it as the Legal Properties of private persons are determined by judgments of inferior Courts of Law and if God makes Kings by human Acts I hope it is no injustice in God to make him a King whom the Law makes a King and to enjoyn our Obedience to a Legal King and therefore whatever he can make of the Fifth Commandment the Legal King is our Politick Father and therefore entituled to that honour which is there commanded if that concerns Princes which I need not now dispute Legal Authority may be said to be annexed to the Legal Title while there is no Legal Judgment against it which was the case of Queen Mary and C. 1. and 2. But when one is solemnly declared King and placed in the Throne by the Estates of the Realm he is the legal King and has the legal Authority as the Royal Estate and Dignity was owned to be in H. 6. when the Duke of York disputed the Right to the Crown and thus it must be in all legal Rights as I have already proved and this strikes at the foundation of all this Author's arguments and therefore I need follow him no farther 5thly There is another difference between Legal and Natural Rights not
only that Legal Titles and Legal Authority may be parted from each other but that Legal Titles and Legal Authority may be rightfully separated from the Persons to whom they were once due which Natural Rights can never be A King may cease to be a King though a Father can never cease to be a Father for Laws have not the same force and power that Nature has All men confess this may be done by a voluntary Resignation which divests such a Prince of all Right and Authority to Govern and if it may be done any way his Right and Authority is not inseparable from his Person Our Adversaries indeed will not allow that a King can lose his Right unless he voluntarily part with it himself and therefore that no man can be King while a former King is living and that God himself cannot advance a King to the Throne while any one is living who ever had a Right to that Throne and never resigned his Right because it is contrary to Justice to give away the Throne from a Prince who has the Right to it as if God had not an Original Right to all the Kingdoms of the World but was confin'd to Human Rights and Claims in making or unmaking Kings But if a King can part with his Kingship it is possible he may lose it too for there are usually more ways than one of parting with that which may be parted with And besides what is granted viz. A Voluntary Resignation I shall consider two other Conquest and Abdication 1. Conquest Which I do not mention as if I thought this to be our Case that we are a Conquer'd People and that King William ascends the Throne by Conquest For whatever may be said of the Conquest of King James who was either forc'd out of his Kingdoms or left them voluntarily if the first he was Conquer'd if the second he Abdicated in the most proper Sense and I know no medium between them Yet the People of England are not Conquer'd nor did the King ever pretend any such Right to the Throne But let this be as it will all I intend at present is to convince these Men That the Crown may be lost by Conquest which may extinguish old Rights and begin a new one and deliver Subjects from their Allegiance to a Conquer'd Prince That de facto Kings do lose their Crowns by Conquest that many great Revolutions of States and Kingdoms are owing to this Cause and that no Nation ever made a scruple of Conscience about submitting to a Conqueror is plain beyond denial but the question is quo jure How a Conqueror can gain a Right to a Throne which another Prince has a Legal Right to And how Subjects tho Conquered can transfer their Allegiance from the Rightful Prince to the Conqueror who has no other Right but his Sword And I shall distinctly consider this with respect to Princes and with respect to Subjects Now the general Answer to both is this That Legal Rights can reach no farther than the Laws of the Land nor oblige any persons whom they do not oblige nor oblige any longer than the Laws oblige These are self-evident Propositions and need no proof for Rights which are founded only on Laws can reach no farther nor last any longer than the Laws do 1. In the first place then with reference to Princes no Legal Right that any Prince has to his Throne can debar another Foreign Independent Prince in case of a just Quarrel to subdue and conquer and take his Crown The reason is because the Laws of the Land which give a Prince his Crown do not oblige Foreign Princes but only Subjects The Laws of particular Countries are Laws only to themselves but there is no Law between Sovereign Princes but the Laws of Natural Justice and the Law of Nations The Rights of Princes with respect to each other are only Possession which is the only Right men can have to any thing in a state of Nature before the forming of Civil Societies and with them Legal Properties and for the same reasons that any man in a state of Nature might justly be turned out of his Possession a Prince may still with equal Justice be turned out of his Kingdom by another Prince and the Prince who conquers in a just War may seize the Throne of the conquered Prince and if he be placed there by the Consent and Submission of the people is no Usurper upon either Prince or People but a Rightful Prince who begins a new Legal Title How indefeasible soever a Prince's Right be by the Laws of the Land that is no rule to Foreign Princes so they do not violate the Laws of Nations nor the natural Rules of Justice in seizing his Throne and whenever the Crown may be justly taken it is justly lost and there needs neither the Death nor the Resignation of the Legal King to give a just Title to the Conqueror Possibly there have seldom been any such just Wars or just Conquests but it is enough to my purpose if such there may be and I think no man doubts but that there may be just Causes of War and a just War will make the Conquest just If any Prince or State be injurious to their Neighbours the injur'd Prince may demand Satisfaction and if it be denied may take it himself as every private man may do in a state of Nature when there is no superion to judge between them which brings such a Dispute to the Decision of the Sword which is the only redress of Injuries when there is no Civil Authority to judge between them and yet it were to no purpose to fight if it were unlawful to conquer and not only to do himself right but prevent suture wrongs from the injurious Prince For a Prince to invade the Dominions of another Prince or to assist such an aspiring Monarch to enslave his Neighbours is a just Cause for the injured Princes and their Confederates to oppose Force to Force to fight and conquer if they can and take the Crowns of such injurious Princes Nay it has been always accounted not barely a just Cause of War but an Heroical Act to subdue Tyrants and rescue their oppressed Subjects who either cannot or must not defend themselves To vindicate the injured and oppressed is what all mankind not only allow but applaud private men may do this against private Oppressors by a course of Law where they are under Laws or by private Force where they are not Princes who have the Power of the Sword may repress Violence and Injustice where-ever they see it for though they have no superior Authority over each others persons nor Jurisdiction in each others Kingdoms yet being under no Authority neither nor any Laws which forbid their redressing Injuries and relieving the oppressed it is so far from being a fault that it is great and generous to do it Every man in a state of Nature where there are no Civil Laws nor Government
therefore consider the Case of the late K. J. with relation to Pleas of this kind All that ever I could hear said against his Abdication and Desertion is that he was driven out of his Kingdom by just and reasonable fears and therefore left his Throne very unwillingly and did not intend to devest himself of Royal Authority but only to reserve himself for better times till he could return to his Throne by force and power All this I verily believe is true that he went away unwillingly and hoped to return again with power and had no mind no intention to part with his Kingdom for ever but what would they prove by all this would they prove that the late King did not leave his Throne or that when he had left it the Throne was not empty which is to prove that he did not leave his Throne or that though he left it it was not empty because he left it and left it empty in a fright Or would they prove that his going away in a fright was not a voluntary Resignation of his Throne I care not much if I grant this too if they will but grant that it was a leaving it for to leave a Throne gives Subjects a Right to fill it as well as a voluntary Resignation does because the Throne must be full or Government ceases and a King that leaves his Throne though he knows it must be filled if he leaves it does that by leaving his Throne which he who resigns it does by a formal Instrument of Resignation that is he signifies to his Subjects that he won't govern them but they must shift for themselves for it is not at the will of a Prince whether a Kingdom shall be governed or not and when the King has left them it seems more Regular and Legal to place the next Heir on the Throne than to set up any other Person or Government The Reasons then why Subjects should not have filled the Throne when the late King had left it empty ought to be resolved into the Reasons of his going away What they were is sufficiently known and I believe no English Protestant who loves the Religion and Liberties of his Country will say that they are such Reasons as would excuse or justifie his leaving them or make it the Duty of Subjects to recal him The only visible Reason of his leaving us was this That if he staied he must be under a necessity to call a Parliament and he was resolved Not to venture his Cause with them Not to suffer them to censure and redress the Miscarriages of his Government Not to part with his Dispensing Power Not to give such Security as a Parliament would have demanded for the Preservation of their Laws Liberties and Religion That is he was resolved to be no King or to be Absolute and Arbitrary and let any Man judge whether this were not a good Reason for Subjects to take the Advantage which he had given them and to fill the Throne which he had made empty To renounce a Legal Government is to renounce the Crown of England and he who leaves the Throne to avoid the Necessity of Governing by Law may get it again when he can but Subjects are not bound to give it him They know for what Reason he parted with it and to restore it to him would be a plain consent that he should have it upon his own Terms I know it is pretended That he had reason to fear that his Person was not safe in England and that was the true Reason why he withdrew into France But this was so unreasonable a Fear had he resolved to have complied with the Parliament that it seems rather to be a plausible Pretence than the true Cause of his withdrawing The Prince indeed was landed with a considerable Force and the King was deserted by some of his Subjects who declared for the Prince and by part of his Army that went over to him which I grant was Reason enough for him to suspect that it was not safe for him to dispute this Matter by the Sword and defeat his Hopes of attaining his irregular Desires by a Victory but it was no Reason to think that his Person was not safe would he have called a Parliament and referred the Redress of all Grievances to them those who would not fight for him against the Prince and against their Religion and Liberties would have secured his Person from all violent Attempts He had Reason to believe this since the Prince desired no more and the Associators declared for no more and all their Words and Actions spoke it than that they would adhere to the Prince till our Religion Laws and Liberties History of Desertion page 75. are so far secured to us in a free Parliament that we shall no more be in danger of falling under Popery and Slavery The denial of this was the Reason why the Prince of Denmark Duke of Grafton Lord Churchill and others of the Nobility left him as appears from the Letters of the Prince and my Lord Churchill And when his Voyage for France was stopped and he returned to London the general Acclamations wherewith he was received as he passed through London-Streets might have satisfied him how little danger his Person was in and it is said that he observed it himself That though they hated his Religion they loved his Person If then the late King had no reasonable Cause to fear the safety of his Person would he have staid to redress all Grievances by a free Parliament if Subjects had no sufficient Reason to think that he withdrew his Person and Authority for any other Cause but to avoid the necessity of giving Satisfaction to his People in Parliament if there be no Evidence that he would have staied to redress all Grievances had he been assured of the safety of his Person it seems to me that the Estates had great Reason and Necessity to do as they did to declare the empty and forsaken Throne vacant and to fill it with the next Heir It is certain this is such a Case as belongs to the Supreme Judgment of the Estates for when a Throne is empty by what means soever it become so it belongs to them to consider whether and how it is to be filled And in such Cases it is the publick Judgment and not some Mens private Reason which is our Rule But let us suppose his Fears had been never so just and reasonable we must consider who brought him into this state of Fear and Danger for if the Guilt of this were wholly his own his Fears are no better excuse than those violent and illegal Proceedings which first frightned the whole Nation and then brought these Fears upon himself What he had already done justified both the Prince of Orange and the Subjects of England in what they did and if no Body were in Fault but himself if his own Misgovernment made him Fear and his Fear made him quit