the one is a Right of a Legal Claim the other of a Legal Possession And that this may and must be in all Civil Governments and mere Legal Rights appears from the different Laws and Customs on which such different Rights are founded This I have hinted at before but must now explain it more particularly In all Civil Societies there must be particular Laws to determine mens personal and particular Rights and whatever is due to any man by such Laws is his Legal Right But yet we know these Laws can determine no Controversy without a living Judge for if every man were to judge for himself every man will make the Law to be on his side and then we had as good have no Laws at all and therefore the Fundamental Law of all Societies which is superior to all particular Laws is this That the last and final Judgment of Authority shall be esteemed the Law and that shall be every man's Right as to all the effects of Law which is thus adjudged him Whoever calmly considers things will find that it is impossible it should be otherwise without overturning all Civil Governments Suppose then that the true Heir to an Estate should be dispossessed of it by an Erroneous or Corrupt Judgment at Law and another by the same Judgment should by all Legal Methods used in such Cases be possess'd of it though he be not the true Heir here now is jus ad rem and jus in re The true Heir by the Laws of Inheritance has the Legal Right to the Estate but by the Supreme Law of all Societies which refers the decision of all personal Rights to a Legal Authority he who by a Legal Judgment is possessed of it has the Legal Right in the Estate against all Claims and Legal Authority must defend him in it and all who will submit to Laws and Legal Authority must acquiesce in it And thus it must be with respect to the Rights of Princes as well as of Subjects The Right to the Crown is often disputed as we all know and to say that when such Disputes happen there is no Authority in the Nation to decide them is to say that Princes have no Rights to their Crowns by the Laws of that Nation for there can be no Civil Laws of which there are and can be no Civil Judges for no man no not a Prince can be Judge in his own Cause and if Princes have no Legal Rights they can lose no Legal Rights when they lose their Crowns and I doubt their Natural Rights will affect the Consciences of very few Subjects A Supreme Independent Society must from the Nature of such Societies and the Reason of their Institution have Authority within it self to decide all Controversies which may arise about the Rights of every part or Member of the Society and to preserve it self from falling into a State of War which is a Dissolution of Civil Government and if there be such an Authority in every Nation when the Supreme Authority has determined such Disputes it must determine Subjects and no Right or pretence of Right can affect the Conscience after such a final Judgment unless Civil Rights can oblige Subjects to dissolve Civil Governments and to dispute Legal Rights not by the Law but by the Sword which is to overthrow all Civil Rights and to put an end to the Authority of Laws This shows how much those men are mistaken who think there can be no King in an Hereditary Monarchy but the next Lineal Heir and that no Allegiance being due or to be paid to him who is no King none can therefore be due to any Prince however possessed of the Throne if he be not the next Heir That no Obedience is due to him who is no King I readily grant though it may in some cases be paid to him who is no King but he may be a Legal King who is not the next Rightful Heir as almost half of the Kings of England since the Conquest were not and yet have been always own'd and obey'd as Legal Kings But the ground of the mistake is that they do not distinguish between Natural and Legal Relations but think a King to be a King by as certain and unchangeable a Right as a Father is a Father as if Laws were of the same force and power with Nature as if to be Heir to a King which in Hereditary Monarchies gives a Legal Title to Succession did as necessarily and unavoidably make a King as Natural Generation makes a Father These men do not consider that in Natural Relations the Right makes the Relation and enters its definition and therefore the Right and the Relation can never be separated The Right to be a Father is to beget and the definition of a Father is he who begets and therefore no man can be a Natural Father but he who begets and every one who begets is a Father But now in Legal Relations an Antecedent Right does not make the Relation nor is any part of its definition The Right to be a King is one thing and to be a King is another the Rights may be very different but the Notion of a King is the same The Rights may be Hereditary Patrimonial Testamentary by Election or by Conquest but the Notion of a King is one who Administers the Civil Government with a Sovereign Authority whoever does so is a King whatever his Title may be as he that begets is a Father though it be by Unlawful Embraces The answer to that question Who is King is not He who has the Right to the Crown but be who is invested with the Regal and Sovereign Authority But if we enquire how he came to ascend the Throne Whether he be an Hereditary or Elective King a King de facto or an Usurper These questions must be answered by the Claim or Title by which he holds That he was the Right Lineal Heir of the last King or that he was Elected by the people or that there being some dispute about the Crown it was adjudged to him by the Estates of the Realm or that he won it by his Sword and either keeps it still by Power or now wears it by the Consent and Submission of the people An Antecedent Right cannot belong to the definition of the King for then there could be no Kings but Hereditary or Testamentary Monarchs and as for any other Right he has it who is invested in the Regal Authority by those who are the Supreme Power of the Kingdom and represent the body of the people when there is no Monarch nor provision for administration of Government Whoever is invested with the true Regal Authority is a True and Right King for he to whom the true definition of a King belongs is a true King An Usurper who Governs by mere Power and by the forced Submission of the people has the Power but not the Authority of a King But he who is setl'd in the Throne by the
he parts with the Possession For though a Right to the Crown be a different thing from the Possession of the Crown yet the legal Possession of the Throne and the legal Right to Government are either the same thing or so inseparably annexed that to part with one is to part with both The Right of Government which is nothing but a Right to exercise all Acts of Government is given by the legal Possession and Investiture and therefore he who parts with his legal Possession and Administration of Government parts with his Right to Govern To forfeit the Obedience of Subjects I think is the same thing as to forseit the Right to Government and that he most certainly does who leaves the Government For Subjects cannot be bound to obey him who will not Govern who leaves them to take care of the Government themselves or gives up the Government to those who will take it No Prince has a Right to oblige Subjects to live without any Government when he thinks fit to leave them and therefore by leaving the Government he absolves them from his Government and gives them a Right to take care of themselves and if he gives them a Right to dispose of the Government he must give away his own Right to Govern Thus it is in the nature of the Thing whatever the Occasion be that moves Princes to leave their Thrones and how unwillingly soever they do it For when a Prince leaves his Throne he either leaves his Subjects in Possession of some new Powers or makes it necessary for them to submit to some new Government and the same Necessity which justifies a Prince in leaving his Throne and Government must Absolve his Subjects from their Allegiance But then the different Reasons for which Princes leave their Thrones make a great difference in the Obligations of Subjects as far as it is in their Power to receive or not to receive such a Prince again the understanding of which will be of great use in our present Case When a Prince is driven out of his Kingdoms by a Foreign Power if Subjects are able to do it they are bound in Conscience to resist the Usurper and to restore their Prince to his Throne again if they cannot resist they may and must submit As their King unwillingly left his Subjects to save his own Life and Liberty so Subjects may as unwillingly leave their King and submit to the Conqueror to save their own Lives and Liberties and Fortunes For the Necessity is equal on both sides the King does actually leave his Throne and Government though he be forced by a hard Necessity to do so and when the Throne is left empty Subjects are free but such a Vacancy being only the effect of Force Subjects ought to take no Advantage of it against their King when it is in their power to restore him but when they are under the same Necessity to fill the Throne that he was to leave it his leaving it vacant will justifie their filling it again and submitting to a new Prince If a King be driven out of his Kingdom by his own rebellious Subjects this will never justifie them in keeping him out For though the King be gone he did not leave them but they drove him away and if the Throne be vacant they themselves made it so and therefore are bound to fill it again with the Prince whom they have put out And yet how far Loyal Subjects in this case may submit to Force and Necessity and consult the Peace and good Government of their Country is a great dispute which I have no occasion to interpose in at present all that I have to say as to this matter is That though in this Case the Throne be de facto Vacant yet it is not such a Vacancy as will justifie Subjects in filling it with a new Prince But if the Throne be filled or a new Government set up how far Subjects may submit to it is anonother Question If a King without any force from his Subjects privately without their knowledge withdraws his Person and Authority it is certain he leaves his Throne empty but whether his Subjects may fill it with the next Heir or must invite him back to fill it again himself belongs to a publick Judgment upon a wise and equitable Consideration of all Circumstances and such a publick Judgment ought to determine all private Subjects The Throne is empty when the King has left it and an empty Throne must be filled because the Nation must be governed But yet there seems to be some difference in the nature of the thing between such a Vacancy as this by the King 's withdrawing his Person and Authority and a Vacancy by Death which gives the next Heir an immediate Right to ascend the Throne The Right of Inheritance and Succession does not immediately take place but upon the natural Death of the King Whether the Throne be so Vacant while the former King is living as to give Right to the next Heir to succeed is matter of Judgment and must be determined by the judicial Sentence of those to whom the Cognizance of such Matters belong Now though the Judgment of the Estates ought to be conclusive to private Subjects yet if it be lawful after such a Judgment to enquire into such Matters it seems to me that King James had given them sufficient Reason to justifie them to all the World in declaring his Throne vacant I have already observed for there is no need of proving what is self-evident that when a King has left his Throne it is empty and that the Necessities of Government require that an empty Throne should be filled again and then it must be in the Power of Subjects whom the King has left without any Government to shift for themselves to fill it Now if the Reason of the King 's leaving be such as makes it just for them if it be in their Power to call him back they ought to do it but if he left them for such Reasons as would make very good and Loyal Subjects glad to be rid of him they may with a good Conscience take the Advantage of his leaving them to fill the Throne with a more desirable Prince For no Prince has Liberty voluntarily to forsake his Government without giving up his Right to it for human Societies must be governed and therefore he actually devests himself of the Government who by leaving it makes it his own choice not to govern And when he has done so 't is very hard to conceive whence he should have Authority to resume the Government again at his Pleasure without the concurrence of the People whom he would govern So that to me it seems plain That a Prince who once quits his Government must expect a Restauration from the good Nature of his former Subjects not of Right His Appeal must be to Conscience and Equity not a Demand of their Duty by the strict Rules of Justice Let us
AN ENQUIRY INTO THE NATURE and OBLIGATION OF Legal Rights With Respect to the Popular Pleas OF THE Late K. JAMES's Remaining Right TO THE CROWN LICENS'D LONDON Printed by Thomas Hodgkin 1693. AN ENQUIRY INTO THE NATURE and OBLIGATION OF Legal Rights c. IT seems to me a needless Task to prove to Protestants That it is more for their Spiritual and Temporal Interest to have a Protestant than a Popish King and Queen and therefore I cannot apprehend any great Danger to Their Majesties Government from those Scandalous Libels which are writ with some Art and dispersed with greater Diligence to raise and foment New Discontents Those are very sanguine men who hope to persuade us That our Liberties and Properties will be more secure and that the Church of England will flourish better under the Government of the late King if he return than under the Government of King William and Queen Mary We remember how it lately was and we feel how it is at present and if we can trust our Memory and our Senses all the Wit of man cannot impose upon us in so plain a matter and therefore I shall take it for granted That the Argument from Interest ties the Subjects of England in the fastest Bonds of Duty and Allegiance to Their present Majesties But the Laws of Justice and Righteousness ought to have a greater Authority over Mankind than all other Temporal Considerations and at one time or other they will And therefore while men are persuaded That how advantagious soever the late Revolution may prove it is founded in Injustice no other Argument but Force will for any long time be able to keep the late King out or to establish Their present Majesties in the Throne Which shews That other Arguments are lost labour till the Dispute of Right and Wrong is better cleared And tho there have been many Wise things said about it it has not yet been stated to a General Satisfaction The Government of the late King gave great reason to his Subjects to be willing to part with him whenever he would set them at liberty and therefore if King James hath suffered no Injustice but what he has done himself if he hath delivered his Subjects from their Allegiance and if King William and Queen Mary are Legally Invested with the Royal Power and are the Legal King and Queen of England it will be no hard matter to make all men who love the Peace and Prosperity their Religion and the Liberties of their Countrey to be easy and satisfied and thankful for such a Change And to state this matter plainly to silence this Pretence of Right and Justice on the late King's side it will be necessary to enquire What Right Princes have to their Thrones This may at first be thought a Dangerous Enquiry but it will appear to have no hurt in it and the loud Clamours about Right which disquiet so many mens minds and disturb the Peace and Settlement of these Kingdoms and daily threaten us with new Convulsions or Revolutions make it absolutely necessary at this time to say some few plain Truths which carry their own Evidence and Conviction with them which will do no Wrong to Princes and will do great Right to Subjects The whole Resolution of this matter depends upon one single Question if so plain a Case may be called a Question viz. Whether Princes have a Natural or only a Legal Right to their Thrones I think I might reasonably enough take it for granted without disputing That no Prince has any other Right to his Throne but what the Laws of the Land or the Laws of Nations give him For tho some men have disputed warmly for the Natural and Patriarchal Right of Kings yet they have so few Followers and the Hypothesis it self is so new and built upon such uncertain Conjectures and so contrary to plain Matter of Fact and the universal practice of all Nations that it is not worth any man's contending about whoever has a mind to know the mystery of this may read the Second Dialogue of the Bibliotheca Politica and try if he can make any thing of it For who knows what the Paternal and Patriarchal Authority was Whether it were a Civil and Political or only an Oeconomical Authority such as Parents still have over their Children or not much more Who knows how this Authority descended and what difference there was between the Authority of the Supreme Father and of the immediate Fathers over their own Children Whether this by Natural Right does not make the whole World one Monarchy under the Government of the Lineal Heir of the Eldest Family And how came the World then contrary to Natural Right to be canton'd into so many Absolute and Independent Monarchies Does not this damn all Republicks and Commonwealths as Usurpations upon the Natural Rights of Monarchy For if the Natural Right of Government be in the Natural Heir all other Forms of Government besides Monarchy are contrary to Nature and an Usurpation upon Natural Right But be all this as it will Where is the Monarch this day in the world that derives his Pedigree and Lineal Descent from some Ancient Pataiarch who had this Natural Right of Government Do we not know what the Original of many Monarchies hath been and what Changes they have suffered How Pirates and Robbers have advanced themselves to Royal Dignity and founded New Kingdoms and begun a Race of New Kings And were all these the Lineal Heirs of those Kingdoms they subdued And yet how can they have the Natural Patriarchal Right of Government without it For Natural Rights can never be sparated from those Natural Relations which create them These are very great absurdities and yet I must do these men this right that unless you can find a Paternal Patriarchal Right there can be no Natural Right to Civil Government for there is no other Natural Right of Government but only the Natural Authority of Fathers For we are now speaking of the Right to Government not of the Nature and quality of it And therefore though we should grant that Kings succeed to the Paternal Authority that they have now the same Authority over their Subjects that Fathers anciently had over their Children which I doubt if truly stated would satisfy but few Kings yet it does not hence follow that they have the same Natural Right to their Thrones which Fathers have to their Authority There may be several different Rights to the same kind of Authority but he who is not in the Paternal Line nor by Primogeniture inherits the Fathers right cannot have a Natural Paternal Right For as for Natural descent in an Hereditary Monarchy where the next lineal Heir succeeds to the Crown whom we commonly style a Natural Prince and a Prince born who is the Natural Heir to the Crown which is his Birth-right it is plain this is not a Natural Right but the Effect of Laws For if this were the Right of Nature
then Elective Monarchies were a violation of the Rights of Nature if it be a Natural Right for the next Heir to succeed his Father in the Kingdom the next Heir of all Kings have the same Right for the Rights of Nature are equal and universal and then it is contrary to Natural Right for any Subjects to own or elect any King but the Natural Heir There must be in all Kingdoms the same Laws of Succession which now very much vary there must be no difference between Hereditary Patrimonial and Elective Kingdoms For the next Lineal Heir by a Natural Right must always be King It is certain the first Ring of every Family could have no Natural Right without recurring to an invisible Patriarchal Authority and if he had none how could be transmit that Right to his Posterity which he had not himself But I shall urge this no farther since the Wisest men even among the Assertors of K. J's Authority pretend to no more then a Legal Right Let us then in the next place consider the nature of those Legals Rights especially with respect to the Rights of Princes to their Thrones The whole Dispute about Legal Rights and the Rights of Princes to their Thrones are no other then Legal Rights must be resolved into the Laws of the Land and therefore we must consider the nature extent and obligation of National Laws for pure Legal Rights must of necessity be subject to all the changes restrictions limitations diminutions that Laws are and here are so many things to be consider'd that it is hard to reduce them into method But it will be most proper to begin with what immediately concerns the Late King 's Right I observe then 1. That the Law is satisfied when that is done which the Law requires to be done and Subjects are no longer bound in Conscience by that Law when they have answerd its demands Thus the Law of Succession is satisfied when the next Lineal Heir is placed on the Throne and when Subjects have done this they can never more be charged with denying him his Right of Inheritance when they have actually given it him This was the case of K. J. though his Protestant Subjects had too just apprehensions of a Popish Prince yet they set the Crown upon his head with all the usual Solemnities and own'd and recogniz'd him for their King with all the Formalities of Law So that the Subjects of England never denied nor do they to this day James the Second's Hereditary Right to the Crown they own'd and gave him his Right and he had it if he would have kept it and this answered the Law of Succession to the full but if the King will leave his Throne and make it Vacant the Law of Succession does not oblige Subjects to give him his Throne again but to fill the Vacant Throne with the next Heir The case of Edward the 4th and Charles the 2d was very different They were the undoubted Heirs to the Crown by a Lineal Succession and were unjustly kept from their Right and therefore Subjects were bound to do them Right by placing them on the Throne But the Question is not and never was Whether K. J. were the Rightful Heir but whether he still be the Legal and Rightful King to whom our Allegiance is due and his being once the Right Heir does not prive that he is now the Legal and Rightful King or that he has any Right to be so again If he hath no Right but only by Law I never could find or hear of any Law which gives him any Right to resume what he thought fit once to quit and renounce and consequently the Subjects of England deny him no Right in denying to restore him to his Abdicated Throne and then the Dispute of Right and Justice is out of doors as to this matter as far as the Right of Succession is concerned 2dly All Legal Rights are subject to some Legal Judgment or definitive Declaration and must be determined by it and such a Judgment is the rule and resolution of Conscience as to such adjudged Cases For we have no other rule in matters of Law but a Legal Judgment or Sentence and our Obedience to Government requires us to acquiesce in such a Judgment as is pronounced by a legal and competent Authority So that to govern and to judge must belong to the same Authority as far as I am bound to obey any man I must follow his Judgment and not my own especially when this judgment is pronounced by the last Judicature from whence lies no appeal Let us then apply this to our present case The late King withdrew his Person and Authority and left us without any provision for or face of Government The Estates of the Realm Assemble upon this great occasion adjudge this to be an Abdication and Desertion of the Government and declare the Throne Vacant and fill it with their Present Majesties And the Question now is Whether this be not such a Legal and Decisive Judgment as all the Subjects of England ought to acquiesce in If the Disputes about Legal Rights must be decided by Law not by the Sword which is not the decision of Civil Authority but of Force the sentence of competent Judges must end the Dispute and if the Estates of the Realm be not the proper and legal Judges of such Disputes as concern the Right to the Crown there can be none and if they be Subjects must acquiesce in their Judgment or it is all one as if there had been none for if men may pretend Conscience and adhere to their own private Opinions in contradiction to the definitive Sentence of the last and sole Judges the Dispute must end in Blows which is contrary to the Reason and Nature of humane Societies which were instituted to prevent Wars and to end all Controversies by a legal Judgment without the Sword I deny not but there may be great Injustice done by Corrupt or Ignorant Judges and the Law has made the best provision it can against this by allowing appeals from Inferior to Superior Courts But if the highest Authority from whence lies no Appeal happens to judge wrong there is no remedy but to bear it patiently We are not bound indeed to think that right which we know to be wrong but we are bound to acquiesce in it to all the intents and purposes of Law as much as if we did believe it right And as hard as this may sometimes prove there is the same necessity for this that there is for Laws and Civil Authority all Legal Rights are held by this tenure to be subject to a Legal judgment and determination and though some men may suffer by a wrong judgment it is much better to oblige them to acquiesce under it than by leaving them a right to dispute it to endanger the bringing the whole into a state of Anarchy and War Civil Authority will compel private men to submit to its decisions
free decision and declaration of the Supreme Authority of the Kingdom has the Authority as well as the Power of a King and therefore is a True King whether any private Subject think he had any Antecedent Right or not So that it is a groundless pretence That in an Hereditary Monarchy he is no King how Solemnly soever invested with the Royal Authority by the Estates of the Realm who does not Ascend the Throne by a Lineal Succession for he is a King who has the Authority of a King and he has the Authority of a King who is invested with the Regal Authority by the Estates of the Realm for there is no other human way of conveying the Regal Authority and then the Reason and Nature of things is so far from forbidding that it requires us to pay our Allegiance to him who is Legally invested with the Regal Authority and Power But yet this is not the question Whether in an Hereditary Monarchy the next Heir ought to be owned and Recognized for King But Whether Subjects may not with a good Conscience obey him as the Legal Rightful King to whom when the Right to the Crown is disputed the Estates of the Realm adjudge the Crown For all mere Legal Rights when any controversies happen about them must be declared by the judgment of a Legal and Competent Authority and Subjects have no Legal cognizance of any Legal Rights but by a Legal sentence and judgment Their private Opinions and Judgments in such cases as do not concern Natural but Legal Rights are not the Rule of Conscience for that would overthrow all Civil Authority but the publick judgment and therefore he must be owned and obeyed as King whom the Highest Authority of the Nation places on the Throne whatever our private Opinion may be about the Right of Succession Whoever will not allow of this could not in Conscience have paid their Allegiance to almost half the Kings that have been in England since William the Conqueror W. Rufus and H. 1. were not Lineal Heirs for their Elder Brother Robert was still living King Stephen and King John were Kings without an Hereditary Title Edward the 3d. was Crowned upon the Deposition and forc'd Resignation of his Father the three Henries 4 5 6. were of the Lancaster Line which was the Younger House and excluded the Rightful Heirs of the House of York and H. 7. had no Personal Right of Succession to the Crown but yet he had the Crown before he married the Heiress of York and took the Administration of the Regal Power to himself though the Authority was hers and kept the Crown after her death though the Right was in his Son which were as manifest Violations of the Right of Succession as the Three Henries had been guilty of So that there have been Eight Kings since the Conquest out of the Line of Succession and generally known to be so besides the Conqueror himself who could pretend no Lineal Succession to the Crown and these Kings Reigns put together amount unto near Two hundred years And what should the Subjects of England have done all this while if the Lineal Succession had been so Sacred that they were bound in Conscience to own no King but the Lineal Heir How should the Norman Line ever have begun who were not the Lineal Heirs and how came the Lineal Succession in the Norman Line to be so sacred which it self began without it and had no Lineal Succession for the first four Reigns But I must not dismiss this Argument without examining a late Author The Duty of Allegiance setled on its true grounds who Disputes very vehemently That Authority must go by Rightful Titles He says a great deal about it but a short answer will serve when once the case is plainly stated He defines Civil Authority to be a Right or Liberty in one to order or do a thing in Civil matters laying an obligation on others to follow or submit to him Though this be a lame and equivocal definition yet I shall not dispute with him about it if he will add the word Legal that Civil Authority is a Legal Right or Liberty c. I agree with him that Authority is very different from external Force and I have reason to grant to him for he ruins his own cause by it that God makes no Kings but those who are made Kings by some human Acts and have a Human and Legal Right to Kingship But now how does he prove from hence that in England suppose none can have a Legal Right to Govern but those who have this rightful Title of a Lineal Succession For if the Title is not the Authority but a Legal Investiture gives a Legal Authority it is possible that a Legal Title and a Legal Authority may be separated and the Authority continue Legal still Legal Authority must be conveyed in such manner and by such forms as the Law has prescribed or appoints to that purpose for there is no other way of conveying it and then that Authority which is given in form of Law and that only is a Legal Authority If then the Estates of the Realm who are the only Judges of such disputes adjudge and give the Crown to one whom we suppose not to have an antecedent Legal Title to it yet he becomes Legally possessed not only of the external Force and Power but of the Legal Authority of Government And therefore he may challenge as his due all Legal Obedience which must be the true Notion of Allegiance for nothing more then Legal Obedience can be due to a mere Legal Authority because he is invested with the Legal Authority the Regal state is his Legal Property against all other claims and his Subjects must defend him in it as the Legal Properties of private persons are determined by judgments of inferior Courts of Law and if God makes Kings by human Acts I hope it is no injustice in God to make him a King whom the Law makes a King and to enjoyn our Obedience to a Legal King and therefore whatever he can make of the Fifth Commandment the Legal King is our Politick Father and therefore entituled to that honour which is there commanded if that concerns Princes which I need not now dispute Legal Authority may be said to be annexed to the Legal Title while there is no Legal Judgment against it which was the case of Queen Mary and C. 1. and 2. But when one is solemnly declared King and placed in the Throne by the Estates of the Realm he is the legal King and has the legal Authority as the Royal Estate and Dignity was owned to be in H. 6. when the Duke of York disputed the Right to the Crown and thus it must be in all legal Rights as I have already proved and this strikes at the foundation of all this Author's arguments and therefore I need follow him no farther 5thly There is another difference between Legal and Natural Rights not
only that Legal Titles and Legal Authority may be parted from each other but that Legal Titles and Legal Authority may be rightfully separated from the Persons to whom they were once due which Natural Rights can never be A King may cease to be a King though a Father can never cease to be a Father for Laws have not the same force and power that Nature has All men confess this may be done by a voluntary Resignation which divests such a Prince of all Right and Authority to Govern and if it may be done any way his Right and Authority is not inseparable from his Person Our Adversaries indeed will not allow that a King can lose his Right unless he voluntarily part with it himself and therefore that no man can be King while a former King is living and that God himself cannot advance a King to the Throne while any one is living who ever had a Right to that Throne and never resigned his Right because it is contrary to Justice to give away the Throne from a Prince who has the Right to it as if God had not an Original Right to all the Kingdoms of the World but was confin'd to Human Rights and Claims in making or unmaking Kings But if a King can part with his Kingship it is possible he may lose it too for there are usually more ways than one of parting with that which may be parted with And besides what is granted viz. A Voluntary Resignation I shall consider two other Conquest and Abdication 1. Conquest Which I do not mention as if I thought this to be our Case that we are a Conquer'd People and that King William ascends the Throne by Conquest For whatever may be said of the Conquest of King James who was either forc'd out of his Kingdoms or left them voluntarily if the first he was Conquer'd if the second he Abdicated in the most proper Sense and I know no medium between them Yet the People of England are not Conquer'd nor did the King ever pretend any such Right to the Throne But let this be as it will all I intend at present is to convince these Men That the Crown may be lost by Conquest which may extinguish old Rights and begin a new one and deliver Subjects from their Allegiance to a Conquer'd Prince That de facto Kings do lose their Crowns by Conquest that many great Revolutions of States and Kingdoms are owing to this Cause and that no Nation ever made a scruple of Conscience about submitting to a Conqueror is plain beyond denial but the question is quo jure How a Conqueror can gain a Right to a Throne which another Prince has a Legal Right to And how Subjects tho Conquered can transfer their Allegiance from the Rightful Prince to the Conqueror who has no other Right but his Sword And I shall distinctly consider this with respect to Princes and with respect to Subjects Now the general Answer to both is this That Legal Rights can reach no farther than the Laws of the Land nor oblige any persons whom they do not oblige nor oblige any longer than the Laws oblige These are self-evident Propositions and need no proof for Rights which are founded only on Laws can reach no farther nor last any longer than the Laws do 1. In the first place then with reference to Princes no Legal Right that any Prince has to his Throne can debar another Foreign Independent Prince in case of a just Quarrel to subdue and conquer and take his Crown The reason is because the Laws of the Land which give a Prince his Crown do not oblige Foreign Princes but only Subjects The Laws of particular Countries are Laws only to themselves but there is no Law between Sovereign Princes but the Laws of Natural Justice and the Law of Nations The Rights of Princes with respect to each other are only Possession which is the only Right men can have to any thing in a state of Nature before the forming of Civil Societies and with them Legal Properties and for the same reasons that any man in a state of Nature might justly be turned out of his Possession a Prince may still with equal Justice be turned out of his Kingdom by another Prince and the Prince who conquers in a just War may seize the Throne of the conquered Prince and if he be placed there by the Consent and Submission of the people is no Usurper upon either Prince or People but a Rightful Prince who begins a new Legal Title How indefeasible soever a Prince's Right be by the Laws of the Land that is no rule to Foreign Princes so they do not violate the Laws of Nations nor the natural Rules of Justice in seizing his Throne and whenever the Crown may be justly taken it is justly lost and there needs neither the Death nor the Resignation of the Legal King to give a just Title to the Conqueror Possibly there have seldom been any such just Wars or just Conquests but it is enough to my purpose if such there may be and I think no man doubts but that there may be just Causes of War and a just War will make the Conquest just If any Prince or State be injurious to their Neighbours the injur'd Prince may demand Satisfaction and if it be denied may take it himself as every private man may do in a state of Nature when there is no superion to judge between them which brings such a Dispute to the Decision of the Sword which is the only redress of Injuries when there is no Civil Authority to judge between them and yet it were to no purpose to fight if it were unlawful to conquer and not only to do himself right but prevent suture wrongs from the injurious Prince For a Prince to invade the Dominions of another Prince or to assist such an aspiring Monarch to enslave his Neighbours is a just Cause for the injured Princes and their Confederates to oppose Force to Force to fight and conquer if they can and take the Crowns of such injurious Princes Nay it has been always accounted not barely a just Cause of War but an Heroical Act to subdue Tyrants and rescue their oppressed Subjects who either cannot or must not defend themselves To vindicate the injured and oppressed is what all mankind not only allow but applaud private men may do this against private Oppressors by a course of Law where they are under Laws or by private Force where they are not Princes who have the Power of the Sword may repress Violence and Injustice where-ever they see it for though they have no superior Authority over each others persons nor Jurisdiction in each others Kingdoms yet being under no Authority neither nor any Laws which forbid their redressing Injuries and relieving the oppressed it is so far from being a fault that it is great and generous to do it Every man in a state of Nature where there are no Civil Laws nor Government
cannot oblige the Conscience against Force for when Authority cannot protect it cannot command Civil Societies are instituted for mutual defence but when I am out of the Protection of Civil Authority my Natural Liberty of Self-defence returns If a man fall among Thieves he may make the best terms with them for his life that he can and no Laws can deny him this liberty for Self-preservation is a Natural Right and Nature is superior to human Laws and of greater Force it does not hence follow that the mere Oppression of Government restores this Natural Liberty because we have granted away this Right of Self-defence by entring into Societies and God has taken it away by forbidding us to resist Authority and it is a very different thing to defend our selves when Authority cannot defend us and to defend our selves against Authority the first we have not granted away the second is against the Fundamental Reasons of humane Government and the Nature of Societies supposeth that while the Constitution of the Government is secured we must sacrifice our private Rights and Interests to Publick Peace and Order but it was never the intention of Human Government to deny men the Right of Self-defence when Authority could not protect them This is the case of Slaves and Captives of besieged Cities and Garisons who have a Natural Right to submit to the Conqueror when their own Prince cannot relieve them And this wholly waves the Dispute about Authority for whatever Authority may be supposed to remain in the Prince his Authority is at an end as to those persons whom he cannot protect as Civil Societies themselves must dissolve and all their Authority end when they cannot defend themselves and when any Subjects are delivered from the Authority of the Prince who cannot protect them in paying their Allegiance to him they are at liberty to make the best Composition they can with that Prince in whose power they are and to become his Subjects and when they have bound themselves to him by Oath their former Allegiance is utterly extinct when we are at liberty from one Prince we may make our selves Subjects to another and when we have done so we can owe Allegiance to none but him To confirm all this I observe farther That the Laws of particular Countries are subordinate to the Laws of Nations and must give place to them By the Laws of Nations I mean such Laws as from the reason and nature of things and by common practice and implicit consent are made the rules and measures of Justice between Sovereign Princes and Independent States Now as I have already shown by the Laws of Nations Princes by a Just Conquest may acquire a Just Title to the Conquered Prince's Throne and if Princes may acquire such a new Right and Title it is certain Subjects by the Law of Nations may own such a New-acquired Right For the universal reason of Mankind must over-rule private and National Constitutions for every man is a Member of the Universe and a Citizen of the world as well as a Subject of a parricular Kingdom and the more universal Obligation always take place of particular Obligations for they are prior Obligations and supposed in that which is particular which therefore cannot derogate from them And it would be very strange if a Prince by the Law of Nations may acquire a new Right and yet it should be unlawful for Subjects to own his Right Nay The universal consent and practice of all Nations both of Princes and People have made this the standing Law of all Revolutions to submit to the prevailing Power even when there is no pretence of Right but only Force No people ever scrupled this till of late upon Principles of Conscience though the Laws and Liberties of a Nation have made some struggle to the last to shake off the yoke of an Usurper The Primitive Christians complied with all the Revolutions of the Empire and never disputed the Rights and Titles of their New Emperors and those who can find out Legal Rights for all their Emperors are well qualified if they so please to be Advocates-general for all the Usurpers that ever were in the World But the Christians of those days never concerned themselves either with making or unmaking Emperors but took them as they found them and believed them all to be set up by God as is evident from Tertullian's Apology The Christian Bishops of those days submitted even to Maximus himself and though Sulpicius Severus tells us they were censured for their forward and flattering Courtship to that Tyrant yet no man blamed them for their bare Submission and Obedience to him as Emperor which St. Martyn himself did though he treated him at first with a Monkish Liberty and Rudeness The irruptions of Goths and Vandals furnish us with as many Examples of this as they obtained Conquests for there were no Christians found so hardy in those days as to dispute their Titles and reserve their Allegiance for their Emperor And to this day it is as constantly practised without any scruple as there are Cities and Garisons besieged surrendred or taken and that before any Composition made by the Prince whose Subjects they were The Duty of Alleg. as a late Author insinuates contrary to the known and visible daily practice of all people This is what all Princes expect from the Subjects of other Princes when they fall into their power by the successes of War and therefore what in reason they must allow their own and such a general consent of Princes and People makes a standing Law for Revolutions And no man's Loyalty or Fidelity to Princes ought to suffer even in opinion upon this account Nay farther The Laws of our Country which are the rules and measures of our Civil Government can never oblige Subjects to the overthrow of all Government Yet should these Jacobite Principles take place that we must upon no pretence own any King but the Rightful Lineal Heir while he is living many cases may so happen wherein Subjects must be bound in Conscience to own no Government thus it must necessarily be whenever the Rightful King can't Govern and yet no body else must When he is Conquer'd and driven out of his Kingdoms and Subjects must not own the Conqueror though they can have no other Prince to Govern them I would only desire these men to tell me Whether any Laws can oblige men to live under no Government To dissolve Civil Socities into a state of Anarchy If there were such a Law made it would be a void nay an impious Law as being against the Laws of Nature and the Laws of God who has Created man a Sociable Creature and instituted Civil Societies for the Government of Mankind and is it not as unreasonable then to expound any Laws to such a sense as shall oblige Subjects to dissolve the Government of the Nation as far as in them lies and not to own any Authority but Force Whenever they
can prove that there ought to be no Government in a Nation while the Rightful Prince cannot Govern I will grant that Subjects ought to own no other Authority but if no Laws no Legal Rights can be more sacred than the very being of human Societies and Civil Government the Rights of Princes must give place to the necessities of Government for it is more absolutely necessary that human Societies should be maintained and governed than that any Prince how uncontested soever his Right be should Govern for I think Legal Rights which owe their very beings to human Societies were never intended to put an end to them This I hope is enough to elear this Point That a King may lose his Legal Right to the Crown by Conquest which gives the Conqueror in a Just War a new Right and sets Subjects at Liberty to transfer their Allegiance to the Conqueror And I shall observe by the way that though we are not a Conquered People yet most of those reasons which will justify Subjects in transferring their Allegiance to a Conqueror will much more justify our Submission and Allegiance to Their present Majesties whatever opinion we have about Right For it is certain the Authority of the Nation is now in their Hands and placed there by a legal Judgment and if National Laws which are the Laws of the Government cannot oblige the Conscience without a National Authority to give an Obligation to them much less against a National Authority then there can be no Law in England which at this time obliges the Consciences of English Subjects to pay their Allegiance to the late King James There is no such Law to be found in Westminster-Hall or Parliamentary Judgments or Determinations and then I know not where to find it There is no King in Westminster-Hall or on the Parliament Rolls but King William and Queen Mary no Treason but what is committed against them and therefore no Allegiance due by Law but only to them For Treason is a violation of our Allegiance and where no Treason can be committed no Allegiance can be due Tho' the Nation is not Conquered yet it is certain that private Subjects are under as great Restraint by the legal Change of the Government as if they were in the Power of a Conqueror for to resist would be equally fatal to them in both Cases and there is no Authority that can defend them And if Human Laws cannot oblige the Conscience against Force if every Man has a natural Right to preserve himself by yielding and submitting to Power when there is no Authority to defend him against it why may he not as well submit to the irresistible Power of a National Authority how unjust soever he thinks it is as to the Military Power of the Sword Why may not Men as well submit when they are conquered in the highest Judicature as in the Field It seems to me that there is little difference between them when Men must forfeit their Lives Estates or Honours either way And when the Authority of the late King whatever they suppose it to be can no more defend them from the Laws than from the Sword what shall hinder his Authority's being at an end to them and their being at liberty to take care of themselves The Subjects of England have a legal Right to their Lives and Liberties and Properties as well as the King and I know no Law that commands Subjects to forfeit their Lives and Liberties and Propeties meerly because they cannot defend the King in his nor the King them in theirs In Cases of such Extremity Kings will take care of themselves and Subjects have as much Right to take care of themselves If any Necessity will justifie Kings in leaving their Thrones and the Government and the Defence of their Subjects the same Necessity will justifie Subjects in submitting to a new Power No meer human Laws nor human Authority can oblige in Cases of extream Necessity The Authority of God indeed can because God can reward and punish beyond the Grave But though the Laws of Men are bound on us by the Authority of God yet God requires us to obey Men and their Laws no farther than their Authority reaches and therefore not in Cases of extreme Necessity which in most Instances will dispence with the positive part of Moral Laws themselves Secondly Let us now consider the Case of Abdication and Desertion which was plainly the Case of the late King James For he seeing himself deserted by his Subjects and by part of his Army who would not sight for him against their Religion and Liberties durst not venture the Fortune of a Battel and being as appears by his Actions resolv'd not to submit the Redress of all Grievances to a Free Parliament had no other way left but to withdraw his Person and fling up the Government The Qustion then is Whether this was such a Leaving of his Crown as put it into the Hands of the Estates to dispose of it to the next Heir We must not expect to find any Precedent of this Nature nor any Provision made for it in Law for there never was an Example of this kind before and probably never will be again But all such unusual Cases must be determined by living Judges according to the reason and nature of Things We know how it has been determined and what Disputes those Words Abdication and Desertion have caused but I shall not dispute about Words but consider the Thing I need not be at any pains to prove that Government is absolutely necessary and that all people have as natural a Right to supply the Vacancies of Government according to the Laws and Constitutions of the Kingdom as they had at first to form themselves into human Societies That Kings are made for Government and therefore have no longer any Right to Kingship than they will administer the Government And I think it is as plain that for a King deliberately to quit his Kingdoms without making any manner of Provision or leaving any Authority behind him to govern in his Name is actually to quit the Government For to leave off governing as he does who withdraws his Person and Authority is to quit the Government And when the King leaves his Crown and Government it must either of Right belong to the next Heir or the Body of the Nation and the Estates of the Kingdom will be restored to their Liberty of providing for themselves for the Nation must be governed It is evident indeed that Princes many times leave their Thrones without any intention to give up their Right to Government But the Question is not what they intend but what they do If to leave their Thrones empty which must be filled by some-body be in the nature of the thing or by necessary and unavoidable Consequence to give up the Possession of them to some-body else it is in vain to talk of parting with the Possession without parting with the Right as far as
his Throne his Abdication is as perfectly his own Act as his Misgovernment was and then Subjects might very innocently take the Advantage which without their Fault he had put into their Hands to deliver themselves from Fear and Slavery The Prince of Orange now our Gracious Sovereign had very just Reasons for what he did His Princess was the next Presumptive Heir to the Crown of England and in Her Right he was immediately concerned in the Protection and Defenc of these Protestant Kingdoms at least so far as to secure the Succession The late King made great haste to subvert the Fundamental Constitution of the English Government to change our Laws and Liberties and Religion and both to effect and secure such Usurpations took care as fast as he could to put the whole Civil and Military Power into the Hands of Papists What an evil Aspect this had on Protestant Heirs and Successors besides the present Oppression of the Subject every one saw especially when it was pretended that the Queen had brought forth a Prince of Wales to inherit the Crown and to perfect that blessed Work of Slavery and Popery If this will not justifie the Prince of Orange's early Care for a Legal Redress of Abuses which would infallibly have altered the Succession and defeated his Right if they had proceeded any farther I think the Heir to the Crown is in an ill condition for it may be with the latest to put in his Claim when another is step'd into the Throne before Him It is no new thing for the Parliament of England to settle the Succession to the Crown while the King is living and to make all legal Provisions to secure the Succession and if this may be done during the Life of the King the Prince had great Reason to make his Appeal to a Free Parliament and to take Arms to obtain such a Free Parliament which the humble Addresses and Supplications of Subjects could not obtain and this was all the Prince did to put him into this Fright and if he had not done it he had in some degree deserted his Right as King James has now deserted his Throne As for the Subjects of England the great Body of the Nation stood still and neither assisted nor opposed King James though generally they wished well to the Prince And what was the Fault of this The most Passive Men have always declared That they are not bound actually to serve and defend the King in his illegal Oppressions or in his Usurpations upon the Laws and Liberties and Religion of their Country for no Man can be bound by Law to fight for the King against the Laws For the Right of the King which is only a Right by Law can never be more Sacred than all the Laws and it seems very hard to fight for one Law against all other Laws to fight for a King to make our selves and all his other Subjects Slaves The Prince of Orange came with an Army into England to demand a Free Parliament to redress the Miscarriages of Government to secure the Succession our Liberties and Religion which were beyond denial in danger What now should the Subjects of England do Should they fight for King James against the Prince What had that been but to fight against a Free Parliament our Laws and our Religion Those Protestants who are now the most zealous Assertors of the late King 's Right did at that time for these Reasons excuse themselves from the Obligation of fighting for him And yet Engish Subjects cannot be charged with denying to assist their King against the Prince of Orange for they were never required to do it There were no new Commissions granted them without which some are of Opinion according to strictness of Law it had been Criminal in them to take Arms though it had been to defend their King And it seems very hard if such a difficult Juncture as that was when there were two Armies in the Bowels of the Kingdom will not justifie those Gentlemen who took Arms and stood upon their own defence and that they declared to stand by the Prince of Orange till all Miscarriages should be redress'd by a Free Parliament seems to me little more than what those Bishops themselves did who now refuse the Oaths for when they were required to do it they would not sign an Abhorrence of the Prince's Undertaking and at Guild-hall they figned the Lords Address to the Prince wherein they promised him their Assistance to procure a Free Parliament And if neither the Prince nor the Subjects of England were to be blamed for what they did it is easie to guess where the whole Blame must lie And if he wilfully brought this Necessity upon himself of quitting his Kingdoms and rather chose to leave his Throne than satisfie the just Demands of the Prince and of his own Subjects he left his Throne for such Reasons as made it just and necessary for his Subjects to fill it If these Principles be true they furnish us with plain and easie Answers to all the Difficulties relating to our present Settlement which I shall briefly observe as the Sum of this whole Discourse 1. As first Whether the late King James be still of Right the King of England or of Right ought to be so The only Argument to prove King James's remaining Right is That he was the Rightful Heir to the Crown and was legally and rightfully possessed of it and therefore is Rightful King still or at least of Right ought to be King Now from what I have already said and I hope proved the Answer to this is plain 1. That as to his Right of Succession the Subjects of England owned it and actually gave him the Crown with all the accustomed Rites and Ceremonies of Coronation and therefore there is no dispute about that But the Question is Whether a King who loses or gives away or deserts his Crown and falls from the Regal Power have a new Right of Succession when the Throne is again filled that is Whether if he part with his Crown he can be Heir and Successor to himself and by the Right of Inheritance challenge his Abdicated Throne again 2. That he was once a Rightful King does not prove that he is King still For legal Right to a Relation and the legal Relation may be separated he may be no King who had once a legal Right and a legal Possession of the Throne and he may be the legal King or One whom the Law owns to be King who had no immediate antecedent Right to the Throne For though in Relations which are founded in Nature the Right and the Relation cannot be separated yet in legal Relations they may And if he who had or has a legal Right to the Crown may be no King Subjects can owe him no Allegiance for Allegiance is due only to the King 3. That he was once a Rightful King does not prove that he has any Right to be King now