Selected quad for the lemma: duty_n
Text snippets containing the quad
|
ID |
Title |
Author |
Corrected Date of Publication (TCP Date of Publication) |
STC |
Words |
Pages |
|
A45908
|
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.
|
|
1693
(1693)
|
Wing I218; ESTC R16910
|
35,402
|
66
|
and Henry the 2d which was ratified by the Parliament at Winchester Nay so was the Dispute between H. 6. and the Duke of York who challeng'd the Crown in Parliament but how clear soever the Duke's Title was the Lords would not allow that the King should be divested of his Royal Dignity but that he should keep it for his life And after this Distinction was started they found it of such mischievous Consequence to the Subject whenever the Right to the Crown was disputed by the Sword that in the Reign of H. 7. there was express provision made against it by Act of Parliament declaring the Allegiance of the Subject to be due to the King for the time being that is to the King who was possessed of the Throne by the publick Judgment and Act of the State and that no Subject should suffer for serving such a King in his Wars according to their Duty of Allegiance neither at Home or Abroad This gives a plain Answer to the Book entituled The Case of Allegiance to a King in Possession That Author thinks it a Demonstration against my Lord Chief Justice Cooke That the Statute of Treason cannot mean a King in Possession without a Legal Title because it is unreasonable to think that the Law should mean any King but one who is King by Law which is most certainly true but then it is not merely a Legal Title but a Legal Investiture and Recognition that makes a Legal King or a King in Law as it makes a Legal Magistrate And then all Kings de facto who are placed in the Throne by a Legal Authority and with all Legal and accustomed Ceremonies are not only Legal Kings but the only Kings that the Law allows to be Kings His other Argument is against the Authority of the Laws supposing they did allow any such thing for he says it would be a wicked and unjust Law to establish a Prince in the Throne who has no Right to it and to justify Subjects in fighting for such a King tho it should happen to be against their Right and Lawful Sovereign Which is a very absurd Argument if Princes have no Natural but only a Legal Right to their Thrones for all Legal Rights must be subject to a Legal Judgment and a Legal Possession is a Right in Law against all Force For the Civil Sword is always on the side of him that is in Possession under a Legal Determination whatever his Title be And certainly there is as much reason the Sword should defend the Legal Possessor of the Throne as the Legal Possessor of Lands and Houses And I would ask this Author supposing he were Sheriff of a County whether he would make any scruple of Conscience to desend him who was possess'd of an Estate under a Legal Recovery or Process against a violent Intruder tho he knew or did verily believe him to be the right Heir Or whether Inferior Magistrates who are to execute the Sentence of Superior Courts are bound in Conscience to execute no Sentence but what they themselves believe to be just If this be admitted Civil Authority is at an end and all the Courts in Westminster Hall are of little use And yet if it be lawful nay if it be absolutely necessary in Civil Societies in such cases as these to defend a Legal Possession against a presumed Right then the Law may very justly require us to defend a King as well as Subjects in his Legal Possession against all other Rights and Claims and if the Laws are the measures of Civil Obedience Subjects may very justly and with a very good Conscience do it Which justifies what some have asserted That such Legal Rights as these are not concern'd in the dispute of Allegiance against a Legal Possessor of the Throne for a Legal Possession and Investiture is the only Legal Thorough Settlement of the Government and this shows how much this Author is mistaken when with reference to this Controversy he disputes so warmly that God himself cannot make it lawful for us to oppose Right no more than he can make Right to be wrong which is true with respect to pure Natural or Moral Rights but does not hold in meer Legal Rights which are as to any effects of Law esteemed of no value against a Possession till they are judicially declared And 't is not the proper business of any private Subject to judge concerning them But the truth is this Author looks upon the Rights of Kings not to be mere Legal Rights which are Rights no longer and in no other manner than the Law allows them to be Rights but such Natural Unchangeable Rights as Parents have to the Government of their Children nay as God himself has to the Government of the World For he thinks men may as well worship gods de facto such as the Pagan Deities were when they had got Possession of the Temples and Altars as pay their Allegiance to a King de facto when he is possess'd of the Throne which is not more Prophane than Weak unless he thinks that the Law can make a God as it can make a King or that Kings are as much by Nature Kings as God is God This by the way is a short but full Confutation of those two large Pamphlets The Case of Allegiance to a King in Possession and The Defence of the Case For all that the Author says to any purpose is resolved into one of these two Principles That the Law owns no King but him who has the Legal Title and That Kings have a Right to their Crowns superior to Laws and which obliges Subjects against a Legal Judgment and a Legal Possession if these Principles fail him all the rest must fall to the Ground And whether these be true or false I appeal to what has been already said 4thly As a necessary Consequence and Justification of this I observe That a Legal Title to the Crown and a Legal Authority to administer the Government may be separated That he who has the Title may not have the Legal Authority nor be the Legal King and he may be the Legal King and have the Legal Authority who has not an Antecedent Title This is past all Controversy if what I have already said be true That a Legal Investiture and Possession is a good Right in Law against all other Titles and Claims It may possibly appear a Mystery to some men how there should be two such contrary Legal Rights A Legal Right and Title to the Crown without a Right to exercise the Authority belonging to the Crown And a Legal Right to wear the Crown and exercise the Authority belonging to it without an Antecedent Legal Right to the Crown it self but whoever considers that allowed distinction between jus ad rem and jus in re with the reason of it will easily understand this matter It is an approved Distinction in Law That one man may have a Right to a thing and another a Right in it
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 LICENS'D LONDON Printed by Thomas Hodgkin 1693. AN ENQUIRY INTO THE NATURE and OBLIGATION OF Legal Rights c. IT seems to me a needless Task to prove to Protestants That it is more for their Spiritual and Temporal Interest to have a Protestant than a Popish King and Queen and therefore I cannot apprehend any great Danger to Their Majesties Government from those Scandalous Libels which are writ with some Art and dispersed with greater Diligence to raise and foment New Discontents Those are very sanguine men who hope to persuade us That our Liberties and Properties will be more secure and that the Church of England will flourish better under the Government of the late King if he return than under the Government of King William and Queen Mary We remember how it lately was and we feel how it is at present and if we can trust our Memory and our Senses all the Wit of man cannot impose upon us in so plain a matter and therefore I shall take it for granted That the Argument from Interest ties the Subjects of England in the fastest Bonds of Duty and Allegiance to Their present Majesties But the Laws of Justice and Righteousness ought to have a greater Authority over Mankind than all other Temporal Considerations and at one time or other they will And therefore while men are persuaded That how advantagious soever the late Revolution may prove it is founded in Injustice no other Argument but Force will for any long time be able to keep the late King out or to establish Their present Majesties in the Throne Which shews That other Arguments are lost labour till the Dispute of Right and Wrong is better cleared And tho there have been many Wise things said about it it has not yet been stated to a General Satisfaction The Government of the late King gave great reason to his Subjects to be willing to part with him whenever he would set them at liberty and therefore if King James hath suffered no Injustice but what he has done himself if he hath delivered his Subjects from their Allegiance and if King William and Queen Mary are Legally Invested with the Royal Power and are the Legal King and Queen of England it will be no hard matter to make all men who love the Peace and Prosperity their Religion and the Liberties of their Countrey to be easy and satisfied and thankful for such a Change And to state this matter plainly to silence this Pretence of Right and Justice on the late King's side it will be necessary to enquire What Right Princes have to their Thrones This may at first be thought a Dangerous Enquiry but it will appear to have no hurt in it and the loud Clamours about Right which disquiet so many mens minds and disturb the Peace and Settlement of these Kingdoms and daily threaten us with new Convulsions or Revolutions make it absolutely necessary at this time to say some few plain Truths which carry their own Evidence and Conviction with them which will do no Wrong to Princes and will do great Right to Subjects The whole Resolution of this matter depends upon one single Question if so plain a Case may be called a Question viz. Whether Princes have a Natural or only a Legal Right to their Thrones I think I might reasonably enough take it for granted without disputing That no Prince has any other Right to his Throne but what the Laws of the Land or the Laws of Nations give him For tho some men have disputed warmly for the Natural and Patriarchal Right of Kings yet they have so few Followers and the Hypothesis it self is so new and built upon such uncertain Conjectures and so contrary to plain Matter of Fact and the universal practice of all Nations that it is not worth any man's contending about whoever has a mind to know the mystery of this may read the Second Dialogue of the Bibliotheca Politica and try if he can make any thing of it For who knows what the Paternal and Patriarchal Authority was Whether it were a Civil and Political or only an Oeconomical Authority such as Parents still have over their Children or not much more Who knows how this Authority descended and what difference there was between the Authority of the Supreme Father and of the immediate Fathers over their own Children Whether this by Natural Right does not make the whole World one Monarchy under the Government of the Lineal Heir of the Eldest Family And how came the World then contrary to Natural Right to be canton'd into so many Absolute and Independent Monarchies Does not this damn all Republicks and Commonwealths as Usurpations upon the Natural Rights of Monarchy For if the Natural Right of Government be in the Natural Heir all other Forms of Government besides Monarchy are contrary to Nature and an Usurpation upon Natural Right But be all this as it will Where is the Monarch this day in the world that derives his Pedigree and Lineal Descent from some Ancient Pataiarch who had this Natural Right of Government Do we not know what the Original of many Monarchies hath been and what Changes they have suffered How Pirates and Robbers have advanced themselves to Royal Dignity and founded New Kingdoms and begun a Race of New Kings And were all these the Lineal Heirs of those Kingdoms they subdued And yet how can they have the Natural Patriarchal Right of Government without it For Natural Rights can never be sparated from those Natural Relations which create them These are very great absurdities and yet I must do these men this right that unless you can find a Paternal Patriarchal Right there can be no Natural Right to Civil Government for there is no other Natural Right of Government but only the Natural Authority of Fathers For we are now speaking of the Right to Government not of the Nature and quality of it And therefore though we should grant that Kings succeed to the Paternal Authority that they have now the same Authority over their Subjects that Fathers anciently had over their Children which I doubt if truly stated would satisfy but few Kings yet it does not hence follow that they have the same Natural Right to their Thrones which Fathers have to their Authority There may be several different Rights to the same kind of Authority but he who is not in the Paternal Line nor by Primogeniture inherits the Fathers right cannot have a Natural Paternal Right For as for Natural descent in an Hereditary Monarchy where the next lineal Heir succeeds to the Crown whom we commonly style a Natural Prince and a Prince born who is the Natural Heir to the Crown which is his Birth-right it is plain this is not a Natural Right but the Effect of Laws For if this were the Right of Nature