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A58389
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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.
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1691
(1691)
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Wing R734; ESTC R200522
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45,353
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73
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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
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