need not say any thing farther as to the Instances out of History during the Wars between York and Lancaster If there were need the Author has done it to my hand Case f. 11. and elsewhere at least as to any Argument of Right or Justice that can be drawn from the Vengeance they dealt to each other upon any Advantages E. 4. attainted H. 6. and all his Adherents being an Usurper upon his Rights and gave very hard words to him as well as to his Grand-father H. 4. the first Invader of the Right of the House of York and H. 6. his being actually a King in Possession was not a Protection against it Will it thence follow that by the standing Law of England a King in Possession not being rightful Heir to the Crown and all those that act under him are Traytors and Rebels to the dispossessed Prince Will not H. 6th returning his Complement to the full when he was restored to the Crown as effectually prove the Law to be with him being in Possession tho E. 4. had the better Title In truth none of these Instances prove any thing but that de Facto and de Jure were much alike esteemed when they got the Power into their hands they made their Parliaments say and do what they pleased when either of them had sufficient Power to put the Acts made against his Rival and those who adhered to him in Execution I can't forbear observing That in all these violent times there is not so much as one Instance of any Person adjudged a Traytor for his serving the King in Possession upon an Indictment in the ordinary course of proceedings according to the establisht Laws All those Determinations proceeded from the Parliament ex plenitudine potestatis And 't is plain that they did not so much as pretend to square their Actions to the Laws then in being by the Instance he gives where H. 6. is attainted of High Treason for Case f. 10. the death of Richard D. of York at the Battel of Wakefield when 't is apparent not only that the D. of York had by his own Agreement and Oath put himself into the condition of a Subject to H. 6. during his Life but that the poor King was at the time of the fighting that Battel in the Power of the D. of York himself left by him in the Custody of the D. of Norfolk and E. of Warwick Not to mention that the Author agrees the D. of York Case f. 11. was not King but only declared Heir to the Crown after H. 6th's death And all agree That the death of the Heir 3 Inst 9. Collateral to the Crown is not High Treason within 25 E. 3. As to his particular instances of hard Names given by Case f. 13. Ed. 4. to the pretended Parliament 49 H. 6. besides what has been observed in general before I will add only that the Right and Justice of his Cause depended upon the Nullity of their Proceedings and yet he durst not insist upon the Original Nullity of them which it may be supposed he knew 't was not the part of private Men or the Judges to determine And therefore it was done by a Law and that Law is an Act of Repeal only Reversing revoking and making not declaring the former proceedings void Nor is there any thing in what we find Case f. 14. that can amount to a Proof of his Position In the end of that Page he grants that Acts of Parliament passed under an Usurper are valid without any Confirmation If he had not we have a better Authority for it That of the self-same Parliament that gave the Determination in favour of the D. of Tork's Title to the Crown That the Laws took no place against that And they that were so bold to do that would not have been afraid to have carried it on further if Law or Reason would have suffered them Yet they and the D. of York himself solemnly declare That all the other Acts and Ordinances made in the Vsurper's Parliament be good and sufficient Now if it be essential to every Act of Parliament that the King's Approbation give it life surely the Law must look upon those Persons to have been Seigniors les Roys whose Laws are unquestionably allowed to be good Nay it appears most plainly that the Statute of 1 E. 4. c. 1. for confirmation of Judicial proceedings which our Author insists on was Case f. 14. Def. f. 37. Cautionary only and that from the Act it self for the Preamble says 't was made In eschewing of Ambiguities Doubts and Diversities of Opinions which may arise ensue and be taken c. when he was setled in the Throne and the Parliament and Judges as 't will be easily believed were ready to complement his Right to the highest pitch they could not strain it higher than to make it a doubtful case whether the Acts of the preceding Kings in Deed not in Right were not valid And the words used in the Statute are Declare Establish and Enact c. the first of which we know was never lookt upon as a proper word for introducing a new Law or made use of upon such an occasion But his third Argument deserves something a more particular Case f 11. Def. f. 32. consideration It is this If Treason lay only against the King in Possession whether King de jure or no then the Subjects may not under pain of High Treason admit any Claim of the King de jure against him for that were to be adherent to the Enemy of the King in possession I confess I wonder that a Man of our Author's Learning and Reason should set down such a Consequence But this was brought in 't is probable to make way for the main Assertion of his Book and the most material thing in the whole Controversie That the Parliament cannot Case f. 65. be and that there is no Judicature provided to determine the Title to the Crown where there is a Competition about it Both these will receive one Answer I should think if there were no Precedent or Express Authority in the point that it would be allowed a sufficient proof of the contrary That Right Reason and the very Nature of Government do make some such power of determining absolutely necessary For the Foundation of all Governments is supposed to be the good and benefit of those who form themselves into it and in all cases whatsoever unless there be an express provision to the contrary what is agreeable to the Sense and Reason of Mankind and necessary to the support and well-being of that Government must be supposed to be the very first general ground agreed upon so that in such cases where there is not any thing positive against it Is and ought to be seem in reason to be covertible terms And 2dly There cannot as the frame of our Constitution is any other be imagined than the States of the Kingdom This I am
and rendring him incapable to Exercise any Government at all Nay If the share and interest which the Body of the People have in the Preservation of the Laws and Constitution and their concern in the welfare of the whole will make it come up but to a doubtful Case If upon this to rescue us from those Confusions to preserve what remained of the Ancient Government and to restore what had been impaired the Representatives of the People did fill the deserted Throne by proclaiming the Authors of our Deliverance King and Queen and the Body of the People for the number of Male-contents is so inconsiderable that there is no need of softning the word upon their account have owned their Title to the Crown submitted and sworn Allegiance to them as their Governors And if it be visible to the whole World that their Government has produced all the good Effects that were proposed or aimed at and they are in as full and quiet Possession of the Throne as ever any Princes were who sat upon it with a repeated Recognition of their Title I cannot but think that every one who will give himself leave calmly to consider must agree That our Case comes up to that which our Author puts It does not cannot appear that any other Person has a better Right to the Crown and the consequence of our Author 's drawing from that will be That every English-man ought to bear Faith and pay Allegiance to Their Majesties who thanks be to God are in so full a Possession of the Throne But not to enter farther into the general Question which I think ought not to be too freely searcht into lest it give Advantage and Encouragement to a sort of People who will be forward out of Wantonness to put things in practice which nothing but the utmost necessity can justifie I conceive I shall effectually answer all that can be materially objected from the Case of Allegiance c. and the Defence of it against our present Settlement if I can maintain this Proposition That where a King is in the full and quiet possession of the Throne and Exercise of the Government has been solemnly proclaimed and freely and voluntarily recognized and submitted unto by the States of the Kingdom as their King has visibly the Power and Strength of the Nation in his hands the Laws have their due course in his Name and all publick justice is administred by those deputed and commissionated by him altho he had no precedent legal Right and that there is another person living who according to the ordinary course of Hereditary Succession has a just claim to the Crown yet the Laws of England do require every private subject to pay their Allegiance to such a King in possession and protect them in their so doing And this I hope will be fully made out by plain Law and all the seeming Objections offered against it from the Laws of the Land answered To save my self and the Reader some trouble hereafter it will be convenient before I enter into the particular consideration of our Author's Arguments and Objections to observe That the Government of England is to be considered in two respects 1st With regard to the Power of Legislature viz. The King and Body of the States who have power over all positive Laws to make new ones according as they in their Judgments shall think expedient and to alter amend and supply the defects of the old ones as they in prudence shall judg the present circumstances of Affairs require 2ly The Executive Power of which the King is supreme and Courts of Justice and other Officers subordinate under him To them it belongs not to deliberate or determine what in their opinions it were fit or reasonable the Law should be and thereupon declare that to be Law but to declare what the Law is as it at present stands in every case coming judicially before them and to put that Law in Execution This is so very obvious that it must without hesitation be agreed to me and so must the consequence that I draw from it That I need not make it any part of the present Question Whether the Acts of one who is called an Usurper in Title that tend immediately to the destruction of the right of the dispossessed Prince be just in themselves so that they ought to continue in force and not be repealed and annulled by a Power competent for that purpose upon the injured Prince's happening to be restored to his Right But whether such Acts being done according to the known legal Forms and Ceremonies by such a Possessor of the Throne as I have before described every private subject may not in good Conscience submit unto and obey them without taking upon him to judge of his Governour 's Title Nay further whether the Laws of the Land do not protect him in so doing and not only so but require it from him I think the Affirmative is agreeable to the Laws And I now come to consider what our Author says to the contrary The first Point he endeavours to make out is That notwithstanding the Opinions of the Eminent Lawyers whom he mentions which I must observe were delivered in the times of Kings whose Titles to the Crown were undoubted so that there was no necessity for their straining the sense of the Law to make it favour their Master's interest and which for ought that ever yet has appeared were never contradicted hitherto by any one of that profession A King de facto is not Seignior le Roy within the Statute of 25 E. 3. I shall through this Discourse take those words to mean one who is in the full and peaceable possession of the Throne and Exercise of the Government with the free submission of the People by their Representatives assembled in a Parliamentary way but wants a Title by proximity of Blood and Hereditary Succession and undertake for the defence of the duty of Allegiance to such an one only and not to any possession without a true Right short of that If any of the proofs which I shall make use of hereafter shall carry it further they will more strongly prove this But I will not answer for more I observe in general upon this Statute 1. That the punishment prescribed by it for the offences now under debate is the utmost to which a temporal Law can reach Death and Disgrace This will make it highly reasonable that the offence should be plain and certain And in the second place That this Statute was made in favour of the Subject that he might be at a certainty what hazards he runs and not be swallowed up in the Gulf before he apprehended himself to be beyond his Banks It made no new offence but was restrictive of the liberty that Judges had taken before of expounding every thing that an angry or jealous Prince did resent as a wound of his Majesty into High Treason This is so well known to all that have
sense for the words King de Jure but that of right he ought to have been King all that time tho the other in fact was so For his full satisfaction I will give him a taste of one out of many and it shall be his Darling Act the Statute 1 E. 4. which may be seen printed in the Record of Baggot's Case in the Year-book 9 E. 4 9 10. The Author quotes it often and once as an Authority for him in this point because speaking Historically and describing Persons according to the series of times that it speaks of them in it calls H. 4. Henry late Earl of Darby as he was when he reared the War against R. 2. which is the thing that follows that Name But let us see what other ill things it says of him Why He usurped and intruded upon the Royal Power Estate Dignity Preheminence Possession and Lordship of England And after he had done so and King Rich. 2. was dead it is true By Law Custom and Conscience the Right and Title of the said Crown and Lordship descended to the Earl of March But then as if it were afraid the sense of the words Right and Title should be mistaken it sets them in the next Sentence in a direct Opposition to the Possession of the Throne in the Sense I contend for where it says That E. 4. according to the Right and Title of the said Crown and Lordship after the decease of the Duke of York his Father took upon him to use his Right and Title to the said Realm and enter'd into the Exercise of the Royal Estate Dignity Preheminence and Power of the same Crown and to the Reign and Governance of the said Realm of England and Lordship And amoved H. 6. from the Occupation Vsurpation Intrusion Reign and Governance of the said Realm to the great Joy of the Subject for their being departed from the Obeysance and Governance of the unrighteous Vsurper c. If this be not enough take the words more plainly where the Statute tells us The Crown after the death of Rich. 2. should have descended to the Earl of March as next Heir of the Blood if the said Vsurpation had not been committed The effect of these words is again repeated with regard to E. the 4th's Title And the Statute expresly distinguishes That the King was in right from the death of his Father very just King of the same Realm but only from the fourth day of March in lawful Possession of the same Realm with the Royal Power Preheminence Estate and Dignity belonging to the Crown thereof with abundance more to the same purpose These Authorities without remarking on them will probably go a great way in proof of the Doctor 's Proposition and the rather because they are of times when de Jure was triumphant if they don't satisfy upon a little Intimation more shall be given I confess I can scarce with Patience hear some Opinions that are fondly broached upon so weak a Foundation as a private Judgment so very dangerous to all Governments and destructive to the Persons themselves who advance them If the Constitution of the Kingdom were plain and positive so that it were impossible for any unbiassed considering Man to think otherwise but that our Monarchy is so unalterably Hereditary that neither the Consent or other Act nor any manifest impediment or defect of the Person who is next in Blood could according to our Constitution devest him of his Right to the Crown or discharge the Subject from Obedience to him Then indeed a private Man whose certain knowledg of the Royal Pedegree convinced him where the undoubted Right was might reasonably think himself bound in Justice and Conscience to pursue that Title with his Services however Unsuccessful Violence and Injustice might for some time render the Undertaking But since it must be agreed That the Hereditary Right to the Crown by our Constitution was never lookt upon to be so sacred and inviolable but that the next in Course may have such a known unfitness and incapacity upon him of answering any of the ends of Government that he may without any Violation of that Constitution be laid aside As suppose him to instance in one that all Mankind agree in a perfect Ideot from his Nativity And that one who was once possessed of the Crown may devest himself of his Right of Government by a voluntary Quitting or Resignation of it which may be done without making the whole Nation witnesses to it So that it must be allowed that there may be instances wherein proximity of Blood in the right Line will not be an infallible Badge of a Right to govern and there may be great doubts who has the best Title And since in the Case of an absolute Incapacity to Rule and in differences and competition between Titles there must be some Judge And since Reason and Vsage say That things of that nature ought not to be of any private Determination but are proper for the Decision of those who represent the whole Body of the People only the whole being concerned in it I can't tell whether Pity or an hard Name will best suit that particular Member of the Body who will not acquiesce in the Decision which the States of the Kingdom his own Representatives amongst the rest make of such a Case but must be setting up particular Notions of his own and taking a great deal of Pains to warp and with violence strain the plain words of a Law to his own undoing If those who argue so warmly against themselves and every private Subject of England in this matter would but consider what is said before that the 25 E. 3. was made in favour of the Subject to shew him his danger before he fell into it and that it was not at all the end of that Law to settle the Right of the Crown which our Author agrees is done by the Fundamental Constitution and not any positive written Law but only to secure the Peace and Quiet of the Kingdom from the attempts of private Persons against their Governors That the description the Law generally gives of Treason is that 't is Crimen Laesae Majestatis which seems to refer principally to the Office and the Person as investd with that not to a dispossessed tho rightful Heir who is forced into a private Condition and has little of that Majesty to be guarded And that in Glanvill's time the Peace and Settlement of the Kingdom was so much considered that it was called Treason Machinari Seditionâ—m Regni as well as Mortem Regis They would surely confine their thoughts to their Closets till they could shew a little better Agreement between them and what has been the received Opinion in all Ages since the making of the Statute or till they can write enough to satisfy a prudent Man that it were to be wished it were otherwise The doing which I presume will take some time since I could never yet meet with
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
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
appropriated to the natural Capacity and 't is not due to the politick Capacity only that is to the Crown and Kingdom distinct from his natural Capacity And by the Act of Uniformity which declares it a Trayterous Position to take Arms by the King's Authority against his Person This shews that the ill of the distinction condemned there lies in the separating the Capacities when they are really joyned that is when the natural Person is in possession of the Kingly Office to set him up to fight against himself his own Authority against his Person this is contrary to Law which as it appears before consolidates the natural Person with the politick Capacity I am so far from denying this that it is the ground whereupon I take Obedience to be due to a King de facto But the mischievous part does not at all reach our Case where we suppose him who has a Right to be King to be utterly dispossessed and devested of the Office and the Right of the Possessor solemnly recognized by the Body of the People There 't is not a nice distinction that separates between the Capacities but evident Fact and Truth common Sense and the Laws of the Land and to the Person as a Person devested of the Office Allegiance is not due That it was a very great wrong unjustly to devest the Person of the Office and put another into it can't be doubted and 't is a part of that wrong that he is thereby devested of that which makes the Relation between him and the People that of right ought to be his Subjects and pay him Allegiance but till he reunite the Office to his Person the wrong remains and the Relation during that time fails It may be very well maintained that the Statute 11 H. 7. shall have all the Effect and Operation the plain Words of it will reasonably bear and yet none of those dismal Breaches upon the Constitution and Calamitous Consequences set forth Case f. 38. attend it That the Fundamental Constitution of England is a Monarchy and that settled antecedently to any Statute Law will be very readily agreed to him by me But he goes a little too fast when he infers thence That therefore there must of necessity be some certain person in every Age in whom the Constitution vests a Right by vertue of which he is lawful and rightful King of this Realm For 't is not of absolute necessity that the particular Race and Family should be part of that Fundamental Constitution May it not be rationally supposed that the Framers of our Government proceeded by degrees first debated what the form of the Government in general should be and fixt upon a Monarchy What kind of Monarchy would make another step and I will suppose that to prevent the ill effects of Ambition and canvasing for it they agreed it should be an Hereditary one such as should be governed by the course of descent not elective This in common sence it must be presumed they did before they came to fix upon certain Persons or Families into whose hands they should put the Government Nay 't is impossible to maintain our Government to be a limited or mixt Monarchy in its nature without such a supposition so that I can't by any means look upon the particular Family to be any part of the Original and Fundamental Constitution but at most only a secondary one a putting the Constitution that they had agreed upon into Act and Execution And therefore it may very well be for any thing that I can find in reason to the contrary That the Government may fall into the hands of persons that have no relation to the Line of the Princes first submitted unto who shall yet have a Right by vertue of the Fundamental Constitution Our Author has almost yielded me this in his first Case f. 2. Preliminary But to vary that instance a little Suppose during the Life of him that should happen to be the last of the Race of our Princes He and his Parliament should agree that after his death another Person and his Race should succeed to the Throne according to the directions and Measures prescribed by the present Laws would any body question his right to succeed The Fundamental Government would be still the same A mixt Monarchy according to the present Constitution And I cannot perswade my self that in the Constitution it self the interest of the particular Family was so highly regarded as that the one must necessarily fall with the other Our Author indeed I find thinks that because Hereditary is joyned to Monarchy Defence f. 12. when once it falls to another Family the Monarchy is gone An Estate in Fee-simple has this Quality that it is an Estate of Inheritance That is an Hereditary Estate If therefore the possessor transfer it to a Stranger must the Estate be gone suppose Hereditary should be expounded in the one case as well as the other to signifie such an Estate as will of its own nature descend to Heirs and vest in them a Title if the Discent be not interrupted by such methods as the Law allows of And be lookt upon to be set in opposition to Elective in the one case and an Estate determinable upon the death of the Party in the other I confess I should think it an exceeding of their Power for a King and Parliament to turn this Government into a Common-wealth for they act under the present Frame and Constitution Whenever that is dissolved they have no longer a right to act as Representatives of the People so that they cannot for them submit to a new form of Government To the doing any thing of that kind there must be first a dissolution of the present Frame and then either all must joyn in the erecting a new one or they must after they are reinstated in the Liberty which they had by nature agree upon some method of being represented and delegate their Right and Power to such Representatives This shews that this opinion does not offer at the warranting a subjection to any Usurper but such an one as is in possession under the form the present Constitution allows All others not agreeable to this Frame of Government are in above or beside the Law and consequently have not Right to Legal Allegiance which is the result of the present Constitution and of Laws made for the preservation of that Such a Power may hold me in subjection as a conquered Man or a Slave and for the obtaining my Life or Freedom I may anew stipulate with them and from that time they may justly claim my Allegiance by vertue of that stipulation I may stipulate anew I say if my former allegiance obstruct it not But that may very well fall out to be the case for till there is an entire dissolution of the Government whether that must be done by the agreement of all who have an interest in it or that a majority will determine the rest I own that