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
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
c. I will not repeat what Baggot's Councel offer because the greatest part of it is mentioned by our Author as well as my Lord Case f. 16. 9 E. 4. 12. Coke After hearing what was urged on both sides the Justices say They had conferred with the Judges of the common-Common-Pleas upon all the Points objected And they all agreed That none of the Objections had any thing in them to arrest the Judgment and therefore Baggot recovered The only Reflections I will at present make upon this Case is That altho what is referred unto by my Lord Coke might be Originally the Argument of Baggot's Counsel only yet surely in a Point of such Consequence as this the Judges would not have let these matters pass without some Check or Censure if they had not approved them They would not have given Judgment on the side of those who argued in that manner without distinguishing what they did agree unto and what was not to be allowed of if any part of what they had laid down had not been agreeable to the Law and their Opinions As Affairs then stood there was much greater danger that the Judges who owed their Offices to the Power in possession would lessen and vilifie the Acts of the cast-off dispossessed Prince and that the Counsel would be afraid of speaking up to the full what their Cause would bear Then that extravagant things should be asserted at the Bar and not only pass unreproved from the Bench but have the countenance of a Resolution of the Court on their side and that a very solemn one upon Advice with the other Judges which must be singly upon that point and not any of the others they not being worth the least debate or haesitation I think this were sufficient but I will add this further Observation That there never has been in any Times since the Times of most undoubtedly rightful Kings any contradiction to this Opinion or so much as a Quaere put upon it Brook in the Abridging of it recommends it with a Nota as a thing worth observing Coke Hales and Bridgman in Print declare this to be Law Our Author is the first hardy Man that has undertaken to set himself against so generally a received Opinion He has taken pains in it I confess but that he has not so throughly weighed it as he ought appears by the Answer he gives to that part quoted to prove That a Pardon granted by a King out of Possession is Case f 24. void If he had read the words over carefully he would have found they amount to thus much in English If 9 E 4. 2. he that is now King in the time of Henry VI. had made a Charter of Pardon it would be void even Now for every one who grants a Pardon must be King in Fact These words won't admit of the Evasion of its being void in Effect only and in its Operation not from a want of Authority to grant it but of Strength to enforce and support it The only Judge that speaks publickly for they were ticklish Times and they thought fit to act very cautiously for fear of giving Offence was Billing What he says plainly proves what our Author elsewhere will not admit That the Office of King and the Royalty it self is in the King de facto while he is in Possession This Billing's words as quoted by our Author prove There he gives a Reason Case f. 16. why the Legitimation by H. 6. should be good viz. That 't is an Act of Grace and it belongs to every King by reason of his Office of which Office he took H. 6. to be possessed to do Acts of Justice and Grace His other case of Exemptions put in the same place proves as 9 E. 4. 2. Br. Exemp 4. much For if he were not possessed of the Royalty it self he could not make any Grant to the Subject either of Interest to bind his Successor or of Ease to discharge the Subject in the time of a succeeding Prince from what the Law subjects or obliges him unto But our Author has found an Instance wherein it was Def. f. 41. held that Grants of a King de facto to the Prejudice of a King de jure are not valid If I should tell him that after the rightful Heir at least he that pretended to be so and to avoid his Grant upon that ground had agreed to submit to him as his King for his Life he was not an Usurper upon him then his Case will prove too much But the thing it self is not to be wondred at that a succeeding King should find or make a Reason for the resumption of Crown Lands There are People abroad in the World that would have helpt Henry II. to another viz. That the Revenues of the Crown are so far a Trust in themselves being given for the Support of the Government and Defence of the Kingdom that they are not of Right alienable But to return to Baggot's Case I agree that the Council do not argue or the Judges determine as our Author Case f. 17. observes from any Statute of this Realm There was not any such nor any need of one Common Law and common Reason justified their Resolution And if the Reason of the Thing and Necessity of Government determined that case to them where there was not any thing else to Govern it Had not that Man need have a great deal of Wit and Subtilty who undertakes to prove That as plain words in an Act of Parliament as can be devised having the same Reason and Necessity to enforce their being taken in their common and ordinary sense ought to be expounded away by the Judges into quite another thing only to avoid their falling in with that reasonable and convenient sense But this is not the only Book-case before the Statute of H. 7. which Rules our Point in effect When Hen. 7. had obtained an entire Victory killed King Richard in the Field and was Proclaimed King he resolved soon to call a Parliament One of the ends of his doing it speedily as Lord Bacon says was To have the Attainders of Bac. Hist H. 7. f. 11. all his Party which were in no small number reversed and all Acts of Hostility by them done in his Quarrel remitted and discharged And accordingly Acts were passed to that purpose But before it was done a Question in Law was moved Divers of the most considerable favourers of the King's Party during the Reign of Richard the Third were attainted by Outlawries and otherwise for that cause Or as my Lord Bacon expresses it His Partakers were attainted for Offences incident to his Service and Succour Many of these were Returned Knights and Burgesses for the Parliament the Judges are advised with upon it who forthwith assemble in the Exchequer-Chamber and all agree That the Lord Bacon ubi sup 1 H. 7. 4. Br. Parliament 37. Knights and Burgesses who were attainted ought not to