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
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
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
come to the House till a Law were passed for the Reversal of their Attainders nor ought to be in the House at the time of the Reversal But they went further and unanimously Resolved That there was no manner of Necessity to do any thing for the Reversal of the King's Attainder who was attainted too For that Eo facto that he took upon himself the Royal Dignity to be King he was discharged of all Incapacities and needed not any Act for the Reversal of his Attainder My Lord Bacon's Remark upon this Resolution is That it was A grave and safe Opinion and Advice mixed with Law and Convenience Now in this Resolution the Judges must either take H. 7. to have a Right to the Crown or that he had not but was an Usurper That they took the former for granted is I think very plain Or at least they must know that the Lady Elizabeth whose Cause he undertook and with whom by Pact precedent with the party who brought him in he was to Marry had so If they did so then they plainly determined that a Conviction of a Man under an Usurper for High Treason where the very Act of the Treason was Adherence unto and Attempts to recover the Rights of the dispossessed injured Prince still remains even after the Rightful Prince has regained possession of the Throne since all Incapacities continued upon those Loyal Men till their Convictions were Reversed by Parliament That is till a new Law was made to help them Till that was done those who had the Execution of the present Laws only could not say other than that the Offence whereof they were convicted which was an Attempt against the Prince then in possession was High Treason and they were still obnoxious to the Punishments the Laws inflict on Traytors although what they attempted was done to serve and support the Interests of the Rightful Princes If the Judges took Hen. 7. to be an Usurper yet we gain this point by their second Resolution They agree him to be invested with the Royal Authority by his Assuming the Crown and the Submission of the People By that his Natural Person is changed and so consolidated with the Politick Capacity Plow Com. 238. b. that every Imperfection was purged and all the Objections that lay either against his Person by Rich. 3. Attainder or against his Title which was for ever condemned by Act Temp. H. 6. of Parliament removed And this Opinion of the Judges in Henry the Seventh's case was not the first Instance of this kind as appears by the Case of Hen. 6. mentioned by Townsend who after his Resumption of the Crown held a Parliament though 1 H. 7. 5. b. Br. Parliament 105. he were before attainted and disabled For says the Book all that was void when he took the Crown upon himself Neither was the Notion of the Person being changed by the Assuming the Crown new or framed for that particular Case For we find that when Rich. 3. assumed the Royal Estate upon himself and he was undoubtedly an Usurper it was found necessary to make a Statute in the first Year of his Reign That where he was enfeoffed joyntly with others to an Vse the other Cofeoffees should stand seized to the Vse where he was sole seized the whole Estate should be vested in the Cestuique use and this because by the taking the Politick Capacity on himself his Natural Person was gone and Seignior le Roy can't stand seized to an Use If the Treason of Sir William Stanley in the time of Bac. H. 7. f 134 Case f. 3. Hen. 7. were what my Lord Bacon and our Author relate it to be viz. his saying That if he were sure that Perkin were King Edward 's Son he would never bear Arms against him It goes a very great way in the shewing what the Opinion of that time was and that the Lawyers don't agree that the Statute of 11 Hen. 7. has enlarged the sense of Seignior le Roy but that they thought 't was always the Duty of the private Subject to pay his Obedience to the possession This Case I say proves not only that it is Treason for a private person to over-rule the Title of the King that is in possession which my Lord Bacon deduces from the words but it makes it Treason to refuse his Active Obedience for the Support of that King in possession even against him who he is satisfied has a better Right This I am sure must be the Opinion of those who condemned him and the Historian in that place takes Notice that the Judges of that time were great and learned Men and the three Chief of them of the Privy Council And to shew how far the Law-givers of that time lookt upon private Subjects to be bound up by such Acts of Government made in the time of an Usurper as our Author would have called Inauthoritative null and void until an equal Power have adnulled or declared them to be so I will refer my Author to the Year-Book 1 Hen. 7. f. 5. b. There he will find a special Memorandum of the Reversal of an Act of Parliament which Act was so false and scandalous that upon Advice of the Justices it was not thought fit to recite the Matter or Effect of it in the Act of Reversal lest it should remain in remembrance And this Act was made directly against the Right of the Children of Edw. 4. to Bastardize them yet a special Note is made of it That having been done by a Parliament there was a necessity for another Act of Parliament to take this Scandalous Bill off from the Roll. They it seems did not look upon the private Judgment of the Clerk of the Parliament to be sufficient to adjudge of our Author's Nullities in themselves though that private Judgment determined in favour of what they lookt upon to be the Right joyned with the Possession I come now to consider the Statute 11 Hen. 7. c. 1. the Preamble of which declares That the Subjects by reason of their Duty of Allegiance are bound to serve their Prince and Soveraign Lord for the time being in his Wars for the Defence of him and the Land against every Rebellion Power and Might reared against him and with him to enter into Service if the Case so require And that whatever the Success fall out to be 't is not reasonable but against all Laws Reason and good Conscience that they so going with him in his Wars attending his Person or being elsewhere by his Command should lose or forfeit any thing for doing their true Duty and Service of Allegiance Thereupon 't is Enacted and Established by that Parliament That no person from thenceforth that attend upon the King and Soveraign Lord of this Land for the time being in his person or do him true and faithful Service of Allegiance shall for that be vexed or troubled either by Act of Parliament or otherwise Our Author by what has been
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