sure will be agreed unto me If there be any such Judicature it can be none but they And allowing them to be so common sense will say They being made Judges must thereby impliedly have a Right to act in it free from all precedent Obligations of Duty to either Party They act as freely in that point till the Determination is made as their Ancestors did when they may be supposed to be met together to agree upon a Form of Government Only that they are to keep to the Rule which they find setled and agreed on both sides viz. That our Government is an Hereditary Monarchy And the Question to be determined by them is Which of the Pretenders has the best Title upon that Foundation Is it not then an Affront put upon the judgment of a Reader to say That because it is maintained that the positive Laws of the Land for the Quiet and Preservation of the Monarchy forbid every private Subject in his capacity of a Subject to take upon him to censure the Title of a King possessed of the Throne it will thence follow That the States or Body of the Nation when there is such a stop in the proceedings by some doubt upon the very Constitution it self that the whole is likely to fall unless a decision be made of it shall not have an equal Power to rescue themselves from that Confusion as their Ancestors had to form themselves into Order They do this upon the Reason of the Constitution it self and by a Power and Fundamental Right which of necessity must be supposed to be reserved when they embodied themselves into a Politick frame they act in it upon their old Natural Liberty which could never be submitted to the Prince in this instance because the Question arises only upon the doubt who is the Prince And therefore the Duke of Tork in his Answer to the Objection that was made against his Claim to the Crown from the Oaths they had taken to Hen. 6. tells the Lords He lawfully may claim and pursue his right and demand Justice in such form as he doth And that all other persons and namely the Peers and Lords of this Realm may and by Law of God and Man ought to help and assist him in Truth and Justice notwithstanding those Oaths c. Our Author calls for a proof of the Authority of the Parliament Def. f. 34. or States of the Kingdom to determine the Rights of contesting Princes As if there were a printed Instrument of the Fundamental Constitution extant by which the Priviledges and Powers of each part of it are limited 'T is said before that necessity of Government warrants this and the same necessity warrants their convening in order to it without the formality of a Summons That Form and Method of proceeding supposes a King and Government setled and is one of the Rules which direct the King how he shall administer that Government and what are the Duties and Offices of particular persons under it This is above all those Forms a necessary Means to settle the Rule it self However I am pretty confident that those conversant in our ancient Histories and Parliamentary Records will find reason to carry the Power of the States of the Kingdom farther rather than to deny their Authority in this point The Claim of the D. of York 39 H. 6. is not the only instance of the thing but it being a very solemn and notorious one and a full proof of this point I will lay it down a little more fully and in a piece then it was for our Authors turn to do Richard Duke of York 39 H. 6. comes to the Parliament and by his Counsel puts in his Claim in Writing to the Crown deriving his Pedigree very plainly so as to entitle himself as next Heir by a Lineal Succession The Pedigree could not be unknown to any one of the Lords before whom the claim was laid yet King H. 6. having long enjoyed the Crown the Lords say The matter was so high and of such weight that it was not to any of the Subjects to enter into Communication thereof without his high Commandment Agreement and Consent had thereunto They thereupon go to the King opening the Claim He could not be put into a better condition then he was and therefore had he lookt upon this cautiousness of the Lords to be more than Complement he would never have consented to their hearing it but he does not offer to forbid their proceeding tho 't is certain he was sensible of the defects of his Title and therefore earnestly prays the Lords to examine strictly and raise all the Objections they could against the Duke's Title Then they read the Claim and order the Judges to say what they could in maintenance of the King 's Right They excuse themselves say It hath not been accustomed to call the Justices to Counsel in such matters the matter was too high and toucht the King's High Estate and Regalie which is above the Law and passed their Learning wherefore they durst not enter into any Communication thereof for it pertained to the Lords of the King's Blood and the apparage of this Land to have Communication and meddle in such matters But this was not the only reason the Judges gave for their silence They say They were the King's Justices and have to determine such matters as come before them in the Law between party and party they may not be of Counsel And this matter was between the King and the said Duke of York as two parties The Judges Excuse was allowed as proper for Counsel was not their Duty 't was not a matter to be adjudged by the express Laws of the Land of which they had the Exposition and Execution but by something above the positive Laws And they were not a part of the Parliament that Power of determining they had none But the King's Attorney and other Counsel being required to do what had been required of the Judges the like Excuse would not be admitted from them for they were the King 's particular Counsellers and therefore they had their Fees and Wages They return They were the King's Counsellers in the Law in such things as were under his Authority or by Commission but this matter was above his authority wherein they might not meddle Yet they are over-ruled for 't was their Duty to offer what they could in a Court of Judicature in defence of their Master's Title Then It was agreed by all the Lords that every Lord should have his freedom to say what he could say without any reporting or magre to be had for his trying And after the saying of all the Lords every after other Objections are framed against the Duke's claim The Duke puts in Answers to them and often prays that the matter might be determined The Lords solemnly declare that the Duke's Title could not be defeated but agree upon the Expedient which the Chancellor proposes desiring the Lords that if any of
One till I saw the contrary in Print who did not think it so reasonable in it self and so much the common concern of Mankind to maintain it that 't was their Sense words ought to be strained if there were need of it to support not to destroy the Proposition I am endeavouring to maintain The Author allows some of those particular Treasons recited in the Act As the Clipping the Vsurper's Coin Caese f. 4. Counterfeiting his Seal nay Levying War against him upon any account but in behalf of the dispossessed Prince may by the Law that is by this Law for there is none other for it be punished as Treason He is very cautious indeed in his wording of it These may be Treason under an Vsurper and punished as Treason under an Usurper And will not confess in express words That these are Treasons against him but that they are rather against the course of the Government and the Authority of the Lawful King through him The notion is fine but 't is of very late date the Indictments upon which those Persons are to be punished speak nothing of it they say 'T is against the Duty of their Allegiance to him and against his Crown and Dignity And it will be hard to make the word King in one part of the Statute signify only a certain Person who ought of Right to be King but is not so and perhaps never may when the same word without any Explanation stands in the next line for another Person possessed of the Throne by wrong and in prejudice of the Man 's right that was described by the self-same word just before When the Author convincingly proves That the next of the Royal Line in course of descent has as inherent and inseperable a Right to the Allegiance of the Kingdom as God Almighty has to the Worship and Service of his Creatures and that an Idol in Possession as he words it by virtue of its being set up in a Temple is possessed of God's Power and God Almighty devested of all Rule not to run the Parallel farther for fear of Blasphemy then I will grant he has offered a good Argument to prove that the word King in this Statute Caese f. 7. Defen f. 4. can only signify the Right Heir by the same Reason that the word God in the third Commandment can mean none but the True God The Being of God is in its Nature unchangeable his Name and Right to govern us incommunicable The Office of a King and the Right of particular Persons to that Office are of politick Institution and may be separated It may often vary and cease either for a time or absolutely according to the Laws of the Constitution So if the Author will make the Priesthood such an Office as that a Man's exercising the Functions of it will make him really and in truth a Priest without entring in at the door which my Profession does not lead me to the Interpretation of but I suppose the Author must think signifies some setting apart by those with whom Christ has left such a Power then his Text may bear some Resemblance to an Intruder into an Office of which all sides agree Possession Defen f. 4. may be taken by force and that that Possession does make him in fact tho not in Right and Justice a King I could have wished that our Author had considered a little better before he had made these and some Def. f. 69. other Comparisons Our Author will make me weary of putting him in mind what the end of the Statute 25 E. 3. was if he had weighed that well he would have found That notwithstanding what is offered by him from the word Heir against the Interpretation my Case f. 7. Def. f. 8. Lord Coke was not so much in the wrong when he said That our Lord the King meant him that is King I have already said That that Statute does not offer any thing towards the Determination of the Title to the Crown who ought to be King whether he that is in Possession or another who pretends he has a just Claim to it is not its business There is notwithstanding what our Author says to the contrary another proper place for the deciding such a Controversy But the Law declared by this Statute secures the Throne against the Attempts of private Subjects and binds them to a quiet Submission to the Office and Power which is sacred in whose hands soever it is And therefore taking our Monarchy to be an Hereditary one as it undoubtedly is I can see nothing unreasonable much less contradictious in the affirming That the Eldest Son of a King de Facto that is one owned and submitted unto by the People as their King is Heir apparent to the Crown and ought to be looked upon as such by every private Subject until the Rightful Owner regain the Possession or obtain the Sentence of those to whom the Right of determining it belongs in his favour Possession without any precedent Title is a good Title against all the World but him that has the true Right so that as between the Usurper and any private Person the Usurper has a Right to the Throne which is by the Constitution an Hereditary one The Author himself will grant this unless such private person act in behalf of him whom he supposes to have the very Right but of that Right I cannot by any means allow the private Subject a Judge I will readily agree That this Statute did not intend any kindness to the Usurper or the establishment of his Title nay that the principal aim and design of the Law of which that Statute was declaratory was to preserve the Government by securing the Person of the King a Possession and Right then going together and taking care of the Succession And it has taken a much more effectual way to do it then our Author's Interpretation if that were admitted would do Let us turn our Author's Exposition into express words and the Law will run thus It shall be High Treason to compass c. the Death of the Lawful and Rightful King c. But if there be one in Possession of the Throne who is not Lawful and Rightful King then it shall be no fault for any particular Subject to compass c. his Death in order to the instating him that has Right in the Throne Would ever any King be his Title never so undoubted think himself advantaged or secured by such a Provision where by express words of a Law liberty would be given to every particular Subject to examine and pass Sentence on his Right Is it not a more reasonable and prudent Provision and more likely even to prevent an Usurpation in after times to guard by express Law his Person who was at the time of the making the Law rightful Possessor and that of him who of Right ought to succeed him and so downwards for ever under the highest Penalties And taking it for
them could find any other or better means that it might be shewed whereupon after sad and ripe Communication in this matter had it was concluded and agreed by all the said Lords that sith is was so that the Title of the said Duke of York cannot be defeated and in eschewing the great inconvenience that might ensue to take the means above rehearsed viz. That the King should keep the Crowns and his Estate and Dignity Royal during his life and the said Duke and his Heirs to succeed him in the same The Lords open this Expedient to the King and both the Parties solemnly submit and agree to it From this proceeding 't is very plain in the first place which I toucht upon before That if the Judges who made the Excuse and Lords who admitted it know any thing of our Constitution they are to judge according to the known and written positive Laws of the Land which prescribe the Offices and Duties of particular persons and to speak what their sense is but have nothing to do with enquiring into or giving their Judgment upon the King's Title They are to put the Laws in Execution under the King But they can't find any Law to condemn or meddle with the Title of the King in possession no nor to defend it being called in question in a proper place The Laws with which they were intrusted meddle not with it the one way or the other And they declared themselves incompetent to give any Advice or Determination in it tho our Author will make every particular man a competent Judge of it And 't is as plain in the next place That all the Parties agree the Parliament to be proper Determiners of such a difference which may inform our Author who after erecting a Court in every private man's breast to do it can't find in our Constitution any Court for that purpose Nay Case f. 66. the Judges tell you The King and the Duke are before them as party and party That is Two persons contesting in a proper Court for a Judicial Determination The Lords think so too They oblige the King's Counsel to appear before them and defend their Majesties Right as a part of the Service that they owe the King for their Fees and Wages The Duke often presses them for their Judgment and at last they give it In the third place I observe that this Expedient is of the Lords own finding out and they decree it 'T is true in the Chancellors repeating the Opinion of the Lords there are the words If he would upon which great stress is often laid not only by our Author but others and more then the thing will justly bear The Chancellor says That it was thought by all the Lords that the Title of the said Duke cannot be defeated That is That none of those things objected to it had destroyed the Right of the Duke and his Line for ever And in eschewing the great Inconvenience that may ensue a mean was found to save the King's Honour and Estate and to appease the said Duke if he would c which imports no more then that the mean they agreed upon would be to his satisfaction if he would be contented with reasonable terms This I say is only the repetition of the Chancellor of the result of the Lords Debate But when they come to the Judgment that is general That the said mean shall be taken and this given before any Declaration of the Consent either of the Duke or King to it tho afterwards upon its being opened to them it was with great solemnity agreed unto by them and passed by the King into an Act of Parliament The very Statute of 1 E. 4. allows this Judgment to be good and that by virtue of it and the Agreement upon it H. 6. should have held the Crown for his life tho the very Right were with the D. of York But it being part of the Agreement that the Lords should support it and keep observe and strengthen inasmuch as appertaineth to them all the said things and resist to their power all them that will presume the contrary according to their Estates and Degrees E. 4. gets a solemn Declaration by that Statute that H. 6. had attempted the breaking the Agreement and therefore his dispossessing him was just c. He thought it advisable that the breach of the particular Agreement about the Crown as well as the Title it self should be declared and setled by Parliament And indeed the very nature of all Acts of Recognition and the constant usage of them in almost every Reign shew the Expediency of some publick Declaration to the People that they may know to whom their Obedience is due and imply as much as the Preamble of the Stat. 1 R. 3. speaks in express words which Preamble our Author quotes because it affirms the Title of an Usurper He was an Usurper but one who made as good and wise Laws as any lawful King his Predecessor That the most part of the People can't be sufficiently learned in the Laws and Customs which make out a Right and Title to the Crown And that the Court of Parliament is of such Authority and the People of the Land of such a Nature and Disposition that Manifestation or Declaration of any Truth made by the three Estates of the Realm assembled in Parliament and by Authority of the same makes before all things most faithful and certain quieting of men's minds and removes the occasions of Doubts and seditious Language This is Truth and Reason out of whose mouth soever it comes or for whatever End it was pronounced and in all Justice ought to protect every private Person in his submission to a Power acknowledged in that manner against all the Disturbers of the quiet of our present Settlement I come now to consider the Observations he makes upon the Authorities quoted by my Lord Coke to justifie the gloss made upon the words Seigneour le Roy in the 25 E. 3. The first is Baggot's Case To state this matter fairly as it appears on the Book the Case in short is this Baggot brings an Assize of his Office c. Ivie the Tenant pleads Baggot was an Alien c. and so could not hold the Office c. not being the King's Liege Subject Baggot replies his 9 E. 4. 7. b. 9 E. 4. 9. Letters of Naturalization Ivie sets forth the Act 1 E. 4. which recites at large the Pedigree and Title of E. 4. and the Usurpation of the three Henries and averrs that the Patent was granted by H. 6. one of the Usurpers and so leaves it to the Court to judge whether the Patent was valid in Law Baggot demurrs upon this Rejoynder and Ivie joyns in demurrer Brian of Counsel for Ivie insisted 9 E 4. 11. b. That King E. 4. being restored in his Remitter as Cousin and Heir of King R. 2. the Patent made by K. Henry who was but an Usurper and Intruder was void
already said will find the mistake that he is under when he says the Lawyers agree That it is this Statute only which has extended Def. f. 5. the words Seignior le Roy in 25 Edw. 3. to comprehend an Vsurper in possession as King for the time being whereas before 25 Edw. 3. meant Lawful and Rightful Kings only What is already said to that purpose will I believe satisfie every one that the Judges who are Expositors of Statutes and were to put that Act in Execution did never look upon themselves as competent for the determining the Title of the Crown but lookt upon him to be Seignior le Roy within that Act who executed the Office of King in administring Justice and protecting and defending the People The end of that Statute 11 H. 7. as I have said before was not so much to make a solemn Declaration of the Law which all through it is taken for granted as an indisputable Opinion of that time at least as it was to condemn the way that had too often been lately taken to destroy the good Effects of the Law in that particular by making so many revengeful Acts of Attainder upon every change They endeavoured as far as the Nature of the thing would admit of it to tie up even the Hands of future Parliaments from acting contrary to that easie and reasonable Rule And having done that little thought they had left a Liberty to private Men to vent their Opinions and Fancies raise Scruples in the minds of People and write Books to prove that a King is no King nor to be obeyed And that a bare Right to be a King which supposes and imports in the very terms themselves his being dispossessed of the Throne and Office makes him the Only Person meant by the words Seignior le Roy whereas he that is in full possession of the Office and Government is quite out of them But to shew our Author that the Notion was not quite new and first introduced by this Statute to serve a particular turn nor the Opinion of Lawyers only I would refer him to a Treatise Entituled An Historical Account of some things relating to the Nature of the English Government there f. 40. He will find the words of a great many Historians quoted which I will not Transcribe all censuring the Act of those Nobles who upon dislike to William Rufus that was possessed of the Government did endeavour to dethrone him and advance his Elder Brother Robert to the Throne as an Execrable Fact calling them Traiterous Perfidious and Perjured Persons And declaring that they who sided with William were Faithful to their Earthly Lord Though as appears in the same page those very Historians agreed that Robert had manifest Right to the Kingdom by course of Hereditary Succession Nay for want of other Authorities I would venture to make Use once more of our Author's Act 1 Edw. 4. which not only very fully asserts That the Vsurpers were by their Vsurpation possessed of the Regal Power Estate Dignity Preheminence Possession and Lordship of England to which purpose it was quoted before but goes on By Edward the Fourth's removing Henry the Sixth from the Occupation Vsurpation Intrusion Reign and Governance of the same Realm of England and Lordship to the Vniversal Comfort and Consolation of all his Subjects and Liege Men plenteously joyed to be amoved and departed from the Obeysance and Government of the Vnrighteous Vsurper c. Our Author may with little pains learn what the import of the Term Obeysance was at that time lookt upon to be I confess the Act of 11 Hen. 7. to me seems to make the most Solemn Declaration of this as a Rule not to be varied from That Allegiance is due to the King for the time being And 't is the Subjects Duty to pay it to him And I would desire no more from any Man but that he would read it over attentively to make him a Judge between my Author and me whether fuller words could reasonably be thought of to silence all Opinions to the contrary Let us see how our Author quits himself from them I believe he will not rely much upon the first Objection he seems to make That only the enacting part of Case f. 2â— a Statute is Law He brings it in with an If and never takes it up again so that at present without detaining my Reader in the Proof that it is day when the Sun shines I will take it for granted That what an Act of Parliament recites or declares to be Law is so And then instead of what our Author has set down as all that Case f. 27. this Statute proves It proves thus much at least That it is the Duty of every private Subject to attend and pay his Allegiance to the King in Possession And contrary to the Laws as they stand at present and to all Reason and good Conscience even for a Parliament whose Power can't be withstood to make his so doing Penal to him I will agree to him that Hen. 7. himself had not practised Def. f. 42. according to this Rule but made use of the same Liberty former Kings and Parliaments had taken of reaking his Vengeance on those that opposed him He was too fond of the Crown He would not else have set up for it without any Right at first And it is not to be imagined that he who made no scruple of obtaining it against Right and put off so long the making his Possession just when he had such an Opportunity of doing it by marrying her who had the undoubted Right would make any difficulty of securing himself in that possession by any means whatsoever This criminates him in his Morals proves him to be a Man whom Interest did Rule to the doing things which he was convinced were against Reason and Conscience and proves no more Nay I must offer in his Excuse that he afterwards made what amends he could by condemning his own former ill and using his utmost endeavours that the poor Subject should never be harrassed and punished at that barbarous rate more Can a Man be real in Objecting to a Law agreed unto Case f. 29. and passed by those Persons whom the whole Body of the Kingdom thought fittest to represent them and to whose Integrity and Understanding they entrusted their dearest Concerns That it was made by an Usurper in Title and 't is not he determines it for the good Case f. 18. of the Community Yet such Laws as are for the Publick Good he agrees are valid though passed by an Usurper Nay our Author goes further and enquires by helps dehors as the Lawyers call it Foreign to the words of the Act it self what the End and Design of the King under-hand was in procuring the Statute and that he discovers to be nothing less than to secure himself in his Unjust Usurpation because Perkin Warbeck happened to be up in Arms about that time so that
Nature obliges a Man to make Restitution for Injuries done I agree but that must be out of what is his own without Injury to another else having robbed one and having nothing of my own wherewith to make him Reparation I might rob another to do it So in the present Case If I have been accessary to the unjust dispossessing the rightful Prince nature obliges me to make him what recompence I justly may But if it fall out that nature does not at all intermeddle with determining what particucular Persons have a Right to the Government Or make one Man King the rest his Subjects but that the Case f. 40. Relation between the Persons governing and to be governed and the measures of Protection and Obedience thence flowing are of positive Institution and the Effect of the particular Laws of the Land And if the Laws of the Land have so fixt the Duty of my Allegiance to the King in Possession that acting in the condition of a private Subject I can't withdraw it from him without a breach of those Laws without taking from him what the Law has given him a Right unto The Law of Nature can't oblige me to that nor has the dispossessed Prince any Right by the Law of Nature to claim or exact that satisfaction from me so that the Statute 11 H. 7. does not at all thwart or contradict the Law of Nature or any Duty in dispensibly incumbent on the Subject by it This Consideration will indeed aggravate the Injustice of my contributing towards such an Usurpation and make People that have any sense of Religion very cautious how they venture upon doing a thing of that kind where the very Act of doing the thing puts it out of their Power to wipe out any part of their former Sin by an endeavour to make Reparation without their contracting a new Guilt Our Author compares the case of Obedience due Case f 23. to the King with the Case of the Subject as to the Protection which the King is obliged to give him These I agree are very fitly considered together as mutually explaining and proving one the other Let us see whether the reason of that Case will not fully come up to the proof of what I am endeavouring to make out The King is obliged to maintain his Subjects in their Rights and Properties not only while they are in possession but also when another has disseized them by fraud or violence True he is to do the latter which carries a resemblance to the case in question as well as the former But it must be according to the measures and pursuing the methods the Law prescribes Where a subject is disseized Law is to precede force There must be a decision by a proper Judge in his favour before there be a restoring him to his possession Till that be done he is to quiet and defend the Possessour in the Possession tho' gotten by fraud and injustice The King himself to whose Wisdom and Authority the Constitution has entrusted so much cannot by virtue of all that Power doe the greatest or least of his Subjects that Right which he in his private Capacity undoubtedly knows belongs and that the Law ought to adjudge to him and shall we then say that in the Kings case a private Man to whom the Law has given no manner of Authority to judge of any ones Title shall take upon him by force to attempt the unsetling a King who is quietly Possessed of the Government because he thinks another man has a better right Is it not more agreeable to the Comparison our Author has made and to the Reason of Mankind That where there is a National Submission in a Parliamentary way to the Possessour of the Throne Every pretender to impeach that Settlement ought to wait for a Declaration of his Right by the States of the Kingdom till which is done Particular Subjects ought with regard to common Safety and Peace to acquiesce under the Power from which they receive Protection and to which by their Representatives they have Submitted I own there may fall out very hard cases sometimes upon these grounds and such Objections as will not receive an easie Answer But I am sure it will be very easie to maintain That the mischiefs will be less in themselves and likely to fall out seldomer than by allowing every Subject a Liberty to embroil the State upon a pretence that the Government is not in the hands it ought to be In matters of this kind in a mixt Monarchy there will be some difficulties in the Theory that are unanswerable The notion of a mixt monarchy it self will not bear a strict disquisition For granting that of necessity there must in all Governments be some last resort for the final determination of all differences which will seem a very reasonable proposition any Man may immediately run it up to a Tyranny or Popular Government If the last resort and final determination of Right or Wrong between the King and People should be agreed to be in the King notwithstanding all the Laws now enacted he may when he pleases in Theory make his Will the sole Law For whenever he is minded to attempt it after the matter 's running through other hands it comes at last to him to give the Rule which is the gaining of his point So on the other side if the People are the ultimate Resort and sole Judges of the Rights of their Prince of necessity their determinations must be obeyed tho' they determine against his true Right And that will in consequence prove the Government no Monarchy tho' he be in Possession and carry the name of King there being a Power superiour to him and to which he is accountable for his Actions If both Prince and People are to join in it and they differ in their Sentiments there is no determination and consequently uncertainty and confusion This is the natural consequence of driving up these notions to their heighth But this is not therefore every day the case There is a good old saying that will interpose to save us Ipsae res nolunt malè administrari This will notwithstanding all those fine notions keep both the Parties from attempting successfully any thing extravagant and utterly inconsistent with that mixture of Power by which we are ruled so much to our ease and advantage tho' that mixture of Power can't be maintained in strict reasoning I say all this to this purpose I find it is strongly objected to what I have advanced viz. That a private Subject after a solemn submission of the Kingdom to an Usurper in Title ought not to attempt the restoring the King de jure till there be some solemn decision in his favour the Power of which I have placed in the States of the Kingdom That this way of applying to the Parliament for Justice and making their Claim there may be prevented by the Usurper's not admitting the States of the Kingdom to meet or receive
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 London Printed for W. Kogers at the Sun over-against St. Dunstan's Church in Fleetstreet MDCXCI REFLECTIONS ON The CASE of ALLEGIANCE to a King in Possession and The Defence of it SIR IF I could be uneasy under any of your Commands this you may be assured would be the time of my shewing it It is an hard task you have laid upon me The Books of which you require my thoughts are long and speak the Author whoever he is to be a Man of great Learning and Reason one who can argue to the best advantage his Subject will bear And the Collections he has made plainly shew that he has taken great pains and bent all his thoughts for some time to the maintenance of that Cause to which some Prejudice has unhappily determined him I Sir to your knowledg never saw the Books till within these very few days and I fear you will have too much reason from what I write to believe me when I tell you That the reading the Books once over and that with frequent Interruptions too wasted almost half the time I have been able to allow my thoughts upon the Subject This has prevented my consulting any Books written in favour of Submission to a King in Possession nay of reading Dr. Sherlock's Book which the Defence pretends to Answer You must not therefore be suprized if you happen to meet here with what others have said on the same Subject without any acknowledgment that I received it from them or which I more fear if you should find Opinions differing from those of very great Men who have undertaken this Controversy They were my Thoughts Sir which you required and I have taken a course to give them to you free neither biassed nor over-ruled by the Opinions or Authority of others The Question as 't is stated by the Author of the Case is put very cautiously and strongly in favour of the Cause he proposes to himself to maintain he has fenced it in with such Restrictions in the stating and the Exposition of the Terms that it would be a very unnecessary thing to undertake an Answer to him if his Book did not offer at the proof of more than the first Question under his Limitations does require from him No one I suppose who has submitted to Their Majesties Government who thinks it too the Duty of all English Men to do the same and to pay Faith and Allegiance to them will therefore believe himself at all concerned to maintain that If a Person who has no manner of Right by force exclude or depose a King whose Right to the Crown is clear and undoubted and thereby gets the Exercise of the Government into his hands the Regal Authority and undoubted Right remaining still in the excluded Prince the People ought to pay a full and entire Submission and Obedience to this King in Possession so as never to attempt any thing against him but stand by and defend him against the dispossessed Prince with his Life and Fortune This is a Case of our Author 's own making and bears no Resemblance to the present State of this Nation Nay on the contrary if I may take the liberty to reduce the general Question to our particular Case I think the two things agreed by him as Preliminaries will sufficiently justify any English Man in his swearing Allegiance and paying the Duty Case f. 2. of a Subject to Their present Majesties For the first of them agrees That a bare Possession tho purely by Vsurpation will carry a Right to the Subjects Allegiance in an Hereditary Monarchy where the whole Royal Line is extinct to prevent the Bloodshed and Confusion which might follow upon the Peoples attempting to set up another Person or Government This prudential Reason and a Submission upon it he lays down to be a sufficient Title to the Usurper and that it makes him from thenceforth King de Jure one to whom all Faith and Allegiance becomes due 'T is so obvious of it self that I might spare the observing That he frames his Case upon a Supposition of the whole Royal Lines being extinct for no other purpose than to restrain it so as to extend only to Cases where there is no other Person in being who has a just Title to the Crown and whose Right is invaded by that Possession The second agrees That where there are divers pretenders and it is not clear who has the true Right or Title the Subjects Allegiance is to follow the Possession If therefore the late King by the assuming to himself an Authority to suspend and by general and unlimited Dispensations to repeal Laws without Parliament by the entrusting almost the whole Power Military and Civil in the hands of such Persons only as would undertake with their endeavours to support him in those Excesses By the putting those few Laws which he found it his interest to observe in Execution by such generally as were by Law made incapable of all Trust and Rule By the constant aim and tendency that every one of his Actions had to enslave us at home not to omit the Bonds prepared for us by his immoveable Adherence to the Interests of the French King from which as a chargeable Experience teaches us the utmost effort we can make and that assisted with very great and powerful Alliances will scarce rescue us If his unwearied endeavours to destroy the Reformed Religion with a thousand other Male-Administrations that struck at the very Being and Foundation of the Constitution it self and the Laws and Liberties of the People of England did declare that he would not govern by our Laws or Act by an Authority limited by them If upon the Parliaments humble and modest Representation to him according to their Duty of the unwarrantableness of such Proceedings and the Alarm that the People took at his great Violations of their Rights and Breaches upon the Government he broke them up in Anger and thereby shewed an obstinate and setled Resolution to assert that unlimited Power to himself and govern according to it If having by these Arbitrary Proceedings drawn great Difficulties upon himself instead of taking proper Courses to secure his People against such Excesses for the future he held to the same Counsels still and by their Advice quitted the Kingdom then in the utmost Confusion without making any Provision for the Administration of the Government and voluntarily put himself into the hands of its avowed perpetual Enemy If all these things put together will amount either to a renouncing and disclaiming his Title to a Government limited by Laws or a disabling
granted that that Provision would keep the Right and Possession together to require the Obedience of every particular Subject to the Possessor from time to time without allowing the Rabble a liberty of examining into the Title So that it is very far from being an unreasonable Exposition of the Law tho it should happen to be a Protection to the Wife and Son of an Usurper in Title to say the Title of the Possessor of the Crown shall not be canvassed by every Subject but the Dignity of the Office shall set him above any particular persons passing Sentence on and exercising Authority over him In short The Common-Law which made such extraordinary Provision for the security of the Persons of the King and his Relations could not do it for any Sanctity of their Persons any otherwise than as they were invested with the Kingly Office and in relation to that It secured them for their own sakes but more for the sake of the Government and to preserve the Peace and Order of that It supposed indeed that no Person would obtain it but he who had a Right because no other ought to do so and all the Subjects are obliged under the greatest ties to prevent it But 't was as far from the Intention of the Law as it is from Sense and Reason to leave it at the liberty nay make it the duty of every particular person to raise Disturbances and throw an whole Kingdom into Confusion because he against the Recognition and Sense of the Body of the People thinks another's Title to the Crown better than his who wears it So to carry this on as against the People who have no Right at all to the Crown for the preserving and continuing the Hereditary Monarchy it provided for and secured the Son of the King in Possession as the Person who according to our Constitution has presumptively a Right to succeed his Father in the Throne till there be some Authoritative Declaration against his Father's Title I confess Heir Apparent to a King de facto who has no Title to the Crown but his own Possession as the Author has tacked the Def. f. 9. words together does seem odd but the difficulty is in the words only not in the thing The name King is never clogged with these words de Facto till he is out of Possession The private Subject must look upon him as his King and consequently on his Son as the Heir of his King and so not attempt any thing against them which is what the Laws against Treason provide for The de Facto which is all that imports any inconsistency or Contradiction does not then belong to him But we are told That the constant Practice and Custom Case f. 9. Def. f. 13. of the Realm is so far from warranting my Lord Coke 's Gloss that it proves the contrary For that the Parliaments upon every Revolution used to Attaint the Adherents to those who opposed them tho acting under a King in Possession nay dealt with the Possessor himself as a Traytor scarce allowed him the Name of a King or lookt upon his Acts of Government as Valid and Authoritative in themselves I lay all these together because the same Answer will in a great measure serve for all of them tho each may have its particular consideration None of those Proceedings amount to so much as a colourable Proof That to act against one who in Justice and according to our Constitution ought to be King but is out of Possession in Obedience unto and Defence of the King who is publickly submitted unto by the Body of the Kingdom and in Possession of the Government is by any Law at present a Law of the Land Criminal All those Attainders were by Parliaments whose Power is not to be contradicted or the Reasons of their Proceedings disputed It was without doubt by all moderate men at that time lookt upon as very hard and contrary to Equity to punish men by positive Laws ex post facto for what was no breach of any of the publick Laws or Acts of State then in being These Laws were undoubtedly iniquae unequitable but I believe no one would have put the Author to the trouble of proving them to be Laws Def. f. 15. The People either of themselves to make Court to the Power then uppermost or being over-awed by the Interest and Recommendation of those about the King did generally elect and return the Friends and Adherents of the prevailing Party whose Wounds being fresh and their Losses quick and piercing they kept themselves within no bounds of Justice or Moderation They were resolved to gratify their private Resentments and revenge themselves for Injuries done them or their Friends upon any terms so that they took not either the Laws of the Land or the common Rules of Justice for their guide but made both truckle to their Passions The King was glad to lessen the number of his Enemies the cutting off many of whom and frightning the rest into Submission by such Examples of his Severity he lookt upon as the only means to secure himself against another turn That this was the Case is certain and I wish we could find instances in our Ancient Histories only in the times of our Edward's and Henry's to prove that where there are two contesting Parties in a Kingdom neither of them will make use of the advantages they happen to obtain over the other with such a temper as right Reason and Prudence would direct But the violence of such Proceedings must not be offered as any proof or measure of Right nay they are unfit to be mentioned or made use of in any cool debate unless it be to create in the minds of Men an abhorrence of such Actings and by setting forth the calamitous Consequences that were produced by the punishing the poor Subject upon the various Successes on cach side to recommend that wise and equal Law which not only declared That the Subject 11 H. 7. ought to be indemnified in his paying his Service to the King for the time being for that it was his Duty to do so but provided That all Statutes made afterwards to the contrary should be void This latter part was all of the Statute which was new the residue was always Law and is there only authoritatively declared to be so And that part of it that was new can't have its full effect to restrain subsequent Parliaments to which no positive Laws can give bounds But yet their aiming at such a Restraint is a sufficient Caution to future Parliaments to consider very well before they make any Law contrary to it which is thereby adjudged a thing utterly unfit to be done and that in the most solemn manner by as wise a Prince as ever filled the Throne and a People whose Sufferings under the mischiefs of a contrary Practice had convinced them not only of the reasonableness but the absolute necessity of the thing I think I
Allegiance is due from every private Man some where And I am sure I may without contradicting any thing I have hitherto said fix the right to it in the Person of the King de jure where the Kingly Office is not exercised by any other But where another is possessed of the very Kingly Office which is wrought into the Constitution it self and he puts in execution all the same Laws by which rightful Kings ought to govern to that Office and the Person possessed of it my Allegiance is by those Laws due and no Law makes me a Judge of the King's Title And it was upon this Ground undoubtedly that my Lord Chief Justice Hales who plainly held the Law in the Case of the Statute 11 H. 7. to be as I now maintain it would never try any Treason or other Offences against the State as our Author says while he was Case f. 4. Judge under Cromwell But to return What if I should suppose as some wise Men have affirmed that when our Ancestors heretofore submitted to a certain Family to take away occasion of Factions and making Parties they confined the Crown to that Family but did not so strictly oblige themselves to him who should be next in Course of descent but that the States of the Kingdom who represent and include the body of the whole People if they found him absolutely unqualified and unfit for the Government might skip over him still keeping to some of that Line And since what the Original Frame of our Constitution was is not derived to us with any certainty by History or Authentick Records that may well be supposed to be our Constitution if constant Practice and Usage till very lately be a probable proof of Right in things where the positive Rule is lost If this were the case what would then become of the Supposition of a certain Person always lawful and rightful King by Vertue Case f. 8. 38. of the Original Constitution c. But not to rely upon this I must take leave to believe what I touch'd upon before That it was the Form of the Government it self of which our Ancestors who framed it were so fond and not of the particular Person or Family tho they were by that Form to have the greatest Trust and best Share comparing them with particulars not the whole Body in it And therefore I am fully satisfied as I said before that the very Fundamental Constitution may remain tho the Family should be changed by a Competent Power and that no Injury or Injustice is done them thereby since their Right was given them only by positive Laws and may therefore be taken away again by the same means And if so after all our Author 's ☜ Labour the Statute 11 H. 7. does no ways break in upon our Constitution If our Author would but explain the words King de jure as I have all through this Paper press'd him to do we should easily rid the Stat. 11 H. 7. of the Contradiction which he supposes Case f. 39 it implies A King de jure has a Right to something as he says that something is the possession of the Throne which will consequently draw the Royalties and Revenues of that with the Allegiance of the Subject But till he attains that Possession in vertue of which the Right to those Royalties Allegiance c. belongs to him he must content himself without them And the same Answer serves to his other Objection That this Statute is against the Law of Nature which Case f. 40. our Author from that Huddle of Inconsistencies Calvin's Case says makes Faith Obedience and Ligeance due to the lawful King c. and some parts of 'em indispensable and not to be transferred It is not worth the while to argue any thing from Calvin's Case the Authority of which can never be of advantage to either side because there is scarce any one Proposition unless it be the very point adjudged advanced through that whole Case as 't is reported by my Lord Coke but what may be answered that is contradicted by something else of the same Author in the same Case but to consider according to reason as much of it as our Author makes use of I will not dispute at present but that Obedience to Governours is due by the Law of Nature that is That the Law of Nature does extend it self to Civil Societies when they are framed and in general obliges such as are in the Condition of Subjects to pay their Governours all that Duty which according to the Frame of their Government and Laws is necessary to the Maintenance and Welfare of that Society Other natural Allegiance there is none nor does the Law of Nature tho our Author affirm the contrary without offering any Proof or Reason for it lay before the Subject any certain Duties which they are to put in practice whether the particular Laws of the Realm enjoyn them or not and such as no human Authority can dispence with as long as they stand in the Relation of Prince and Subject This is a very wild Notion and can have no Foundation in Reason Take away the Relative Terms of Prince and Subject and suppose that a Nation submits to a particular Person after this manner He shall have Rule over them and govern according to such particular Rules as then are or with their consent afterwards shall be agreed upon and none other Is not all the Freedom which they had by Nature but their being obliged to submit to the putting those Rules in execution left with them and unsubmitted May not any positive Law afterwards alter enlarge or abridge those measures of Obedience and Submission which were the Creatures of positive Law at first It may be said it will be inconsistent with the name of King to have no Allegiance due to him I would ask the Objector Which is more reasonable that a Notion the Pedantry of affirming positively what the natural Sense of a Term is should have Power over and render insignificant or repeal the plain Words of an express Law or that the Law should for once frame a new tho it may be an improper Sense for the Terms and over-rule the Grammarian If the Law should in express words say That he that has a just Title to the Crown shall be stiled King de jure while he is out of Possession tho that is not so nor is that name ever allowed him till he is restored And he that is in Possession King de facto that during the time of his Possession a temporary Allegiance shall be paid by the People to him and not to the King de jure I think common Sense will say that there is no inconsistency in this unless the words King de jure are so very Sacred that they can't lower their Signification to a positive Law but must eternally carry with them one and the same extent of Power and Exercise of Authority That the Law of