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
cannot oblige the Conscience against Force for when Authority cannot protect it cannot command Civil Societies are instituted for mutual defence but when I am out of the Protection of Civil Authority my Natural Liberty of Self-defence returns If a man fall among Thieves he may make the best terms with them for his life that he can and no Laws can deny him this liberty for Self-preservation is a Natural Right and Nature is superior to human Laws and of greater Force it does not hence follow that the mere Oppression of Government restores this Natural Liberty because we have granted away this Right of Self-defence by entring into Societies and God has taken it away by forbidding us to resist Authority and it is a very different thing to defend our selves when Authority cannot defend us and to defend our selves against Authority the first we have not granted away the second is against the Fundamental Reasons of humane Government and the Nature of Societies supposeth that while the Constitution of the Government is secured we must sacrifice our private Rights and Interests to Publick Peace and Order but it was never the intention of Human Government to deny men the Right of Self-defence when Authority could not protect them This is the case of Slaves and Captives of besieged Cities and Garisons who have a Natural Right to submit to the Conqueror when their own Prince cannot relieve them And this wholly waves the Dispute about Authority for whatever Authority may be supposed to remain in the Prince his Authority is at an end as to those persons whom he cannot protect as Civil Societies themselves must dissolve and all their Authority end when they cannot defend themselves and when any Subjects are delivered from the Authority of the Prince who cannot protect them in paying their Allegiance to him they are at liberty to make the best Composition they can with that Prince in whose power they are and to become his Subjects and when they have bound themselves to him by Oath their former Allegiance is utterly extinct when we are at liberty from one Prince we may make our selves Subjects to another and when we have done so we can owe Allegiance to none but him To confirm all this I observe farther That the Laws of particular Countries are subordinate to the Laws of Nations and must give place to them By the Laws of Nations I mean such Laws as from the reason and nature of things and by common practice and implicit consent are made the rules and measures of Justice between Sovereign Princes and Independent States Now as I have already shown by the Laws of Nations Princes by a Just Conquest may acquire a Just Title to the Conquered Prince's Throne and if Princes may acquire such a new Right and Title it is certain Subjects by the Law of Nations may own such a New-acquired Right For the universal reason of Mankind must over-rule private and National Constitutions for every man is a Member of the Universe and a Citizen of the world as well as a Subject of a parricular Kingdom and the more universal Obligation always take place of particular Obligations for they are prior Obligations and supposed in that which is particular which therefore cannot derogate from them And it would be very strange if a Prince by the Law of Nations may acquire a new Right and yet it should be unlawful for Subjects to own his Right Nay The universal consent and practice of all Nations both of Princes and People have made this the standing Law of all Revolutions to submit to the prevailing Power even when there is no pretence of Right but only Force No people ever scrupled this till of late upon Principles of Conscience though the Laws and Liberties of a Nation have made some struggle to the last to shake off the yoke of an Usurper The Primitive Christians complied with all the Revolutions of the Empire and never disputed the Rights and Titles of their New Emperors and those who can find out Legal Rights for all their Emperors are well qualified if they so please to be Advocates-general for all the Usurpers that ever were in the World But the Christians of those days never concerned themselves either with making or unmaking Emperors but took them as they found them and believed them all to be set up by God as is evident from Tertullian's Apology The Christian Bishops of those days submitted even to Maximus himself and though Sulpicius Severus tells us they were censured for their forward and flattering Courtship to that Tyrant yet no man blamed them for their bare Submission and Obedience to him as Emperor which St. Martyn himself did though he treated him at first with a Monkish Liberty and Rudeness The irruptions of Goths and Vandals furnish us with as many Examples of this as they obtained Conquests for there were no Christians found so hardy in those days as to dispute their Titles and reserve their Allegiance for their Emperor And to this day it is as constantly practised without any scruple as there are Cities and Garisons besieged surrendred or taken and that before any Composition made by the Prince whose Subjects they were The Duty of Alleg. as a late Author insinuates contrary to the known and visible daily practice of all people This is what all Princes expect from the Subjects of other Princes when they fall into their power by the successes of War and therefore what in reason they must allow their own and such a general consent of Princes and People makes a standing Law for Revolutions And no man's Loyalty or Fidelity to Princes ought to suffer even in opinion upon this account Nay farther The Laws of our Country which are the rules and measures of our Civil Government can never oblige Subjects to the overthrow of all Government Yet should these Jacobite Principles take place that we must upon no pretence own any King but the Rightful Lineal Heir while he is living many cases may so happen wherein Subjects must be bound in Conscience to own no Government thus it must necessarily be whenever the Rightful King can't Govern and yet no body else must When he is Conquer'd and driven out of his Kingdoms and Subjects must not own the Conqueror though they can have no other Prince to Govern them I would only desire these men to tell me Whether any Laws can oblige men to live under no Government To dissolve Civil Socities into a state of Anarchy If there were such a Law made it would be a void nay an impious Law as being against the Laws of Nature and the Laws of God who has Created man a Sociable Creature and instituted Civil Societies for the Government of Mankind and is it not as unreasonable then to expound any Laws to such a sense as shall oblige Subjects to dissolve the Government of the Nation as far as in them lies and not to own any Authority but Force Whenever they
has Authority enough to right those who suffer against natural Right But this Liberty is restrained for the advantage of Human Societies and the administration of Justice is put into the hands of the Prince and his Ministers But Princes themselves are under none of these Restraints and therefore may not only administer Justice to their own Subjects but may repress the Violences and Injuries of other Princes not only against their Neighbour Princes but against those who are subject to them and cannot help themselves They have certainly as much Authority to relieve oppressed Subjects as an oppressed Prince and no man thinks it ill for one Prince to assist another against a Powerful Oppressor And I do not know it was ever thought a fault yet to relieve Subjects against an oppressing Prince where the Oppression was notorious and not made a mere pretence for Usurpation I would desire any man to give me a tolerable Reason why it was not as lawful for the Prince of Orange had there been no other reason for it to rescue and defend the Subjects of England against the illegal Power and Oppressions of their King as it is for the French King some mens Pattern of Honour and Bravery to endeavour by force of Arms to restore the Late King James to his Throne again And if Religion be concern'd in the Quarrel it is never the worse for that but the more reasonable and just For why should not Princes be concern'd for the Glory of God from whom they receive their Authority and vindicate his Worshippers from the Persecutions of Cruel Tyrants Subjects indeed must not rebel Christianity must not be forced upon Men by Fire and Sword but must it not be defended neither by Christian Princes When God has put the Sword into their hands must they stand by and see the Worshippers of Christ persecuted and not help them when they can I am sure God delivered the Christian Church from the most bloody Persecution that ever was by the Arms of Constantine and made the Cross his Banner And this was none of the least Causes of his War with Licinius That he persecuted the Christians When Constantius the Arian Emperor persecuted Athanasius and the Orthodox Bishops and Christians Constantine advised him of it and threatned War against him if he persisted in it and it does not appear that the Christians of those days who fled to Constantine for refuge thought he would have done ill in it and yet their Dominions and Authority were as distinct and absolute as France and the Grand Signior though the most Christian King follows other measures Now I know not how to think that men are serious when they will not allow an oppressed people delivered by such a Generous and Charitable Prince to own their Deliverer and pay Duty and Allegiance to him I think slaves have so much liberty as to own the Conqueror and if he deliver them and set them at liberty and make Subjects of them instead of slaves to be his Liege-men for ever But some mens Notions make them greater Slaves to Princes than ever the world knew before 2dly But this brings me to a more difficult Enquiry viz. How Subjects even in case of Conquest can be delivered from their Rightful Prince while he lives and be at liberty with a safe Conscience to transfer their Allegiance to the Conqueror for tho Foreign Princes are not obliged by the Laws of the Land yet Subjects are and therefore are still bound to pay their Allegiance to that Prince whom the Laws of the Land make their Prince How difficult soever it may be to assign the Reasons of this it is certain it must be so if a Prince may lose his Crown by a just Conquest for if a Prince justly lose his Crown he must lose the Allegiance of his Subjects which must follow the Crown and it is impossible one Prince should lose his Crown and another win it were it unlawful for Subjects to transfer their Allegiance to the Conqueror which is reason enough to conclude That the Laws of the Land do not oblige Subjects in such cases and if we carefully consider the true nature and obligation of National Laws we shall be easily satisfied That they do not For it is certain National Laws have their whole dependance on the National Authority it is that only makes them Laws and they can continue Laws no longer than that Authority lasts which gives Being and Obligation to them and therefore National Laws must of necessity partake in all the Changes and Alterations of Government Our Obedience is not due to Laws but by virtue of the Authority that commands them and when the Authority is at an end the Obligation of Laws must cease as far as they respected that Authority Laws are made for a settled Government and they oblige Subjects while the Government is and can be administred by these Laws but when the Authority and Government is changed and they cease to be Laws in Westminster-Hall they are no Laws in Conscience neither For how can Laws oblige without Authority Or what Authority can mere humane National Laws have against all the present Authority and Government of a Nation As for example The Legal Right to the Crown concerns a Regular and Legal Succession but not the beginnings of a Regal Power The Law of Inheritance continues the Regal Power in the family possessed of it whose Inheritance originally it was not for the first King of the Family could not be Heir to the Crown by whatsoever other means he came by it and therefore it can oblige Subjects only against their own voluntary Interruption of the Royal Line but not against violent Revolutions for this is to make a Law that no Prince shall conquer the Legal King and possess himself of his Throne that is to make a Law that the Sea should never break its banks and in case of such a Revolution to make a Law That no Subjects should own or submit to the prevaling Prince is like making a Law That no Cottages or Villages should be drown'd or carried away when such a Deluge happens Laws were never made for such cases as these and therefore in such cases cannot be said so properly to lose their Obligation as not to be Laws We may as reasonably say That the Subjects of England are bound to observe the Laws of England when they are in France as that they are bound in conscience to observe the Old English Laws if the French King should by Force ascend the English Throne No Laws can be made against violent Revolutions because such Revolutions over power Laws and it is as absurd to suppose that any Laws should oblige the Conscience to oppose the Ruling and Governing Power when setled by a Legal Investiture Which is to suppose That Laws which are only Rules of Government and owe their Being to a National Authority should oppose all the Authority of the Nation Thus I observe farther That mere human Laws
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