Selected quad for the lemma: death_n
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A45908
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An Enquiry into the nature and obligation of legal rights with respect to the popular pleas of the late K. James's remaining right to the crown.
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1693
(1693)
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Wing I218; ESTC R16910
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35,402
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66
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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