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-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
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
come to the House till a Law were passed for the Reversal of their Attainders nor ought to be in the House at the time of the Reversal But they went further and unanimously Resolved That there was no manner of Necessity to do any thing for the Reversal of the King's Attainder who was attainted too For that Eo facto that he took upon himself the Royal Dignity to be King he was discharged of all Incapacities and needed not any Act for the Reversal of his Attainder My Lord Bacon's Remark upon this Resolution is That it was A grave and safe Opinion and Advice mixed with Law and Convenience Now in this Resolution the Judges must either take H. 7. to have a Right to the Crown or that he had not but was an Usurper That they took the former for granted is I think very plain Or at least they must know that the Lady Elizabeth whose Cause he undertook and with whom by Pact precedent with the party who brought him in he was to Marry had so If they did so then they plainly determined that a Conviction of a Man under an Usurper for High Treason where the very Act of the Treason was Adherence unto and Attempts to recover the Rights of the dispossessed injured Prince still remains even after the Rightful Prince has regained possession of the Throne since all Incapacities continued upon those Loyal Men till their Convictions were Reversed by Parliament That is till a new Law was made to help them Till that was done those who had the Execution of the present Laws only could not say other than that the Offence whereof they were convicted which was an Attempt against the Prince then in possession was High Treason and they were still obnoxious to the Punishments the Laws inflict on Traytors although what they attempted was done to serve and support the Interests of the Rightful Princes If the Judges took Hen. 7. to be an Usurper yet we gain this point by their second Resolution They agree him to be invested with the Royal Authority by his Assuming the Crown and the Submission of the People By that his Natural Person is changed and so consolidated with the Politick Capacity Plow Com. 238. b. that every Imperfection was purged and all the Objections that lay either against his Person by Rich. 3. Attainder or against his Title which was for ever condemned by Act Temp. H. 6. of Parliament removed And this Opinion of the Judges in Henry the Seventh's case was not the first Instance of this kind as appears by the Case of Hen. 6. mentioned by Townsend who after his Resumption of the Crown held a Parliament though 1 H. 7. 5. b. Br. Parliament 105. he were before attainted and disabled For says the Book all that was void when he took the Crown upon himself Neither was the Notion of the Person being changed by the Assuming the Crown new or framed for that particular Case For we find that when Rich. 3. assumed the Royal Estate upon himself and he was undoubtedly an Usurper it was found necessary to make a Statute in the first Year of his Reign That where he was enfeoffed joyntly with others to an Vse the other Cofeoffees should stand seized to the Vse where he was sole seized the whole Estate should be vested in the Cestuique use and this because by the taking the Politick Capacity on himself his Natural Person was gone and Seignior le Roy can't stand seized to an Use If the Treason of Sir William Stanley in the time of Bac. H. 7. f 134 Case f. 3. Hen. 7. were what my Lord Bacon and our Author relate it to be viz. his saying That if he were sure that Perkin were King Edward 's Son he would never bear Arms against him It goes a very great way in the shewing what the Opinion of that time was and that the Lawyers don't agree that the Statute of 11 Hen. 7. has enlarged the sense of Seignior le Roy but that they thought 't was always the Duty of the private Subject to pay his Obedience to the possession This Case I say proves not only that it is Treason for a private person to over-rule the Title of the King that is in possession which my Lord Bacon deduces from the words but it makes it Treason to refuse his Active Obedience for the Support of that King in possession even against him who he is satisfied has a better Right This I am sure must be the Opinion of those who condemned him and the Historian in that place takes Notice that the Judges of that time were great and learned Men and the three Chief of them of the Privy Council And to shew how far the Law-givers of that time lookt upon private Subjects to be bound up by such Acts of Government made in the time of an Usurper as our Author would have called Inauthoritative null and void until an equal Power have adnulled or declared them to be so I will refer my Author to the Year-Book 1 Hen. 7. f. 5. b. There he will find a special Memorandum of the Reversal of an Act of Parliament which Act was so false and scandalous that upon Advice of the Justices it was not thought fit to recite the Matter or Effect of it in the Act of Reversal lest it should remain in remembrance And this Act was made directly against the Right of the Children of Edw. 4. to Bastardize them yet a special Note is made of it That having been done by a Parliament there was a necessity for another Act of Parliament to take this Scandalous Bill off from the Roll. They it seems did not look upon the private Judgment of the Clerk of the Parliament to be sufficient to adjudge of our Author's Nullities in themselves though that private Judgment determined in favour of what they lookt upon to be the Right joyned with the Possession I come now to consider the Statute 11 Hen. 7. c. 1. the Preamble of which declares That the Subjects by reason of their Duty of Allegiance are bound to serve their Prince and Soveraign Lord for the time being in his Wars for the Defence of him and the Land against every Rebellion Power and Might reared against him and with him to enter into Service if the Case so require And that whatever the Success fall out to be 't is not reasonable but against all Laws Reason and good Conscience that they so going with him in his Wars attending his Person or being elsewhere by his Command should lose or forfeit any thing for doing their true Duty and Service of Allegiance Thereupon 't is Enacted and Established by that Parliament That no person from thenceforth that attend upon the King and Soveraign Lord of this Land for the time being in his person or do him true and faithful Service of Allegiance shall for that be vexed or troubled either by Act of Parliament or otherwise Our Author by what has been
sure will be agreed unto me If there be any such Judicature it can be none but they And allowing them to be so common sense will say They being made Judges must thereby impliedly have a Right to act in it free from all precedent Obligations of Duty to either Party They act as freely in that point till the Determination is made as their Ancestors did when they may be supposed to be met together to agree upon a Form of Government Only that they are to keep to the Rule which they find setled and agreed on both sides viz. That our Government is an Hereditary Monarchy And the Question to be determined by them is Which of the Pretenders has the best Title upon that Foundation Is it not then an Affront put upon the judgment of a Reader to say That because it is maintained that the positive Laws of the Land for the Quiet and Preservation of the Monarchy forbid every private Subject in his capacity of a Subject to take upon him to censure the Title of a King possessed of the Throne it will thence follow That the States or Body of the Nation when there is such a stop in the proceedings by some doubt upon the very Constitution it self that the whole is likely to fall unless a decision be made of it shall not have an equal Power to rescue themselves from that Confusion as their Ancestors had to form themselves into Order They do this upon the Reason of the Constitution it self and by a Power and Fundamental Right which of necessity must be supposed to be reserved when they embodied themselves into a Politick frame they act in it upon their old Natural Liberty which could never be submitted to the Prince in this instance because the Question arises only upon the doubt who is the Prince And therefore the Duke of Tork in his Answer to the Objection that was made against his Claim to the Crown from the Oaths they had taken to Hen. 6. tells the Lords He lawfully may claim and pursue his right and demand Justice in such form as he doth And that all other persons and namely the Peers and Lords of this Realm may and by Law of God and Man ought to help and assist him in Truth and Justice notwithstanding those Oaths c. Our Author calls for a proof of the Authority of the Parliament Def. f. 34. or States of the Kingdom to determine the Rights of contesting Princes As if there were a printed Instrument of the Fundamental Constitution extant by which the Priviledges and Powers of each part of it are limited 'T is said before that necessity of Government warrants this and the same necessity warrants their convening in order to it without the formality of a Summons That Form and Method of proceeding supposes a King and Government setled and is one of the Rules which direct the King how he shall administer that Government and what are the Duties and Offices of particular persons under it This is above all those Forms a necessary Means to settle the Rule it self However I am pretty confident that those conversant in our ancient Histories and Parliamentary Records will find reason to carry the Power of the States of the Kingdom farther rather than to deny their Authority in this point The Claim of the D. of York 39 H. 6. is not the only instance of the thing but it being a very solemn and notorious one and a full proof of this point I will lay it down a little more fully and in a piece then it was for our Authors turn to do Richard Duke of York 39 H. 6. comes to the Parliament and by his Counsel puts in his Claim in Writing to the Crown deriving his Pedigree very plainly so as to entitle himself as next Heir by a Lineal Succession The Pedigree could not be unknown to any one of the Lords before whom the claim was laid yet King H. 6. having long enjoyed the Crown the Lords say The matter was so high and of such weight that it was not to any of the Subjects to enter into Communication thereof without his high Commandment Agreement and Consent had thereunto They thereupon go to the King opening the Claim He could not be put into a better condition then he was and therefore had he lookt upon this cautiousness of the Lords to be more than Complement he would never have consented to their hearing it but he does not offer to forbid their proceeding tho 't is certain he was sensible of the defects of his Title and therefore earnestly prays the Lords to examine strictly and raise all the Objections they could against the Duke's Title Then they read the Claim and order the Judges to say what they could in maintenance of the King 's Right They excuse themselves say It hath not been accustomed to call the Justices to Counsel in such matters the matter was too high and toucht the King's High Estate and Regalie which is above the Law and passed their Learning wherefore they durst not enter into any Communication thereof for it pertained to the Lords of the King's Blood and the apparage of this Land to have Communication and meddle in such matters But this was not the only reason the Judges gave for their silence They say They were the King's Justices and have to determine such matters as come before them in the Law between party and party they may not be of Counsel And this matter was between the King and the said Duke of York as two parties The Judges Excuse was allowed as proper for Counsel was not their Duty 't was not a matter to be adjudged by the express Laws of the Land of which they had the Exposition and Execution but by something above the positive Laws And they were not a part of the Parliament that Power of determining they had none But the King's Attorney and other Counsel being required to do what had been required of the Judges the like Excuse would not be admitted from them for they were the King 's particular Counsellers and therefore they had their Fees and Wages They return They were the King's Counsellers in the Law in such things as were under his Authority or by Commission but this matter was above his authority wherein they might not meddle Yet they are over-ruled for 't was their Duty to offer what they could in a Court of Judicature in defence of their Master's Title Then It was agreed by all the Lords that every Lord should have his freedom to say what he could say without any reporting or magre to be had for his trying And after the saying of all the Lords every after other Objections are framed against the Duke's claim The Duke puts in Answers to them and often prays that the matter might be determined The Lords solemnly declare that the Duke's Title could not be defeated but agree upon the Expedient which the Chancellor proposes desiring the Lords that if any of
he proposed to himself to secure his Title by that Act against the House of York And that Design shall make this Statute void though Perkin prove the Son of a Beggerly Jew and the Queen who had long before been Crowned and Reigned with him had undoubtedly the true Right to the Crown Neither can I yet work my self up to think That the Enacting a new Law in a particular Case contrary to the purview of a precedent general one is a total Repeal of that Law As for instance Suppose in the Case of my Lord Strafford Because he was attainted by Act of Parliament without Proof by two Witnesses and for Facts none of which considered singly and by themselves amounted to High Treason but made a great accumulative Crime therefore if it had not been for the Caution used That the like should never be drawn into Precedent or Example from that time forward a load of lesser Crimes must have grown up into one High Treason and the Statutes of 25 Edw. 3. c. had stood entirely Repealed in those points They for so much having in effect been declared to be null and Case f 31. invalid by a Lawful King and Parliament But besides this as to his Instance of the Duke of Northumberland's Attainder not to mention a great many other things which hinder its amounting to any manner of Proof of what he brings it for I must tell him that the Act confirming that Attainder did not in the least contradict the Statute 11 Hen. 7. for that he was attainted upon the Statute 25 Edw. 3. without being within any help from this Statute And therefore his Attainder was Legal though it had never been declared so by Act of Parliament though the Queen thought fit to make matters sure and put that in for Company with the Attainders of several others who were attainted upon other accounts The Lady Jane was never such a Queen in possession as is within this Law or to be accounted so She was 't is true Proclaimed by some few of her Friends and so was the late Duke of Monmouth in the West But did ever any one say or imagine that such a Possession entituled one to the Allegiance of the whole Kingdom That is as Extravagant on the one side as our Author's Opinion on the other Temper them and make it necessary to the obtaining such a Possession without a Just Title as shall claim the Duty of Subjection That there be a quiet and peaceable Submission to the Person who fills the Throne by the Body of the Nation a Recognition of him by the States the Treasure Power and Strength of the Kingdom in his hands Publick Justice administred only by those that are commissionated by him c. and you 'll find the Golden Mean The Observation made by the Author That Queen Mary was no more than Proclaimed when the Duke was Tried and Executed by her Authority makes nothing against this She had de jure a Title and a notorious one too for that the Succession was limited unto her by Name in Henry the Eighth's Acts for the Succession besides her being his Eldest Daughter And I will grant to him that he is much in the right when he affirms That at this day the next Heir of the Blood is actually Case f 48. Def. f. 7. King and in possession from the very moment of his Predecessor's Death and has a Right to the Allegiance of his Subjects from that time I have told him all along though less may amount to a disturbing or disquieting him that there must be more than a bare Proclaiming of another to dispossess him The affirming of which is not in any sort inconsistent with their Principles who maintain that Submission is due to a King who has obtained a full possession of the Throne So that the Author might have spared the mannerly Question he puts to Dr. Sherlock upon this Occasion Defence f. 55. His Argument is the same Case f. 34. King Henry the Eight having indulged himself very greatly in the taking and dismissing of Wives did from time to time according to the run of his Affections make several Laws for the Settlement of the Succession and laid great Penalties on the Infringers of those Laws and particularly on such Persons as should Usurp upon others to whom by the plain and express words of the respective Acts the Crown was limited and entailed These Laws were very necessary at that time because from the unusual Liberty he had taken in that particular of necessity great ambiguities and doubts must arise concerning the several Titles which might be pretended to the Crown and thence would probably ensue great effusion of Blood c. as the Statutes 25 H. 8. c. 22. c. speak To prevent this he very prudently takes care to tell his Subjects by Act of Parliament where their Obedience shall be paid names the Persons in course as they should succeed And forbids under the greatest Penalties any One to Usurp upon or Claim a Title otherwise than according to those Limitations These Acts supposing that Acts of Parliament can alter the Hereditary Course of Descent which perhaps my Author and some few others will not agree but I can't bring my self to make any doubt of amount to no more than this That any who should offer to break through that Limitation should be Usurpers and those that should aid and assist them therein be Traytors I have not yet pretended that those who aid and abett one that has no Title and put him into the possession of the Throne are innocent or that the Act of Exalting an Usurper to the Throne is justifiable All that I contend for is Obedience to them after they are in quiet possession So that these Acts make nothing for what my Author intends to prove or against what I propose to my self to defend They laid not any Obligation on Conscience contrary to the Statute 11 Hen. 7. But provided only to secure the Possession to those mentioned in that Settlement by making it Death for any to attempt or assist in the breaking of it But I will for once suppose those Acts had in express words Enacted That if Persons contrary to those Limitations did get into the Throne and obtain a full Possession of it all those who had been Assistant unto them in their so doing Or who should afterwards submit to them should be punished as Traytors Yet this would amount to no more than that the general precedent Law and the Obligation of it was Suspended and Repealed as to this particular Instance As if it had in express terms said In these particulars when the Right of Succession is so plainly determined to the Subject by a competent Power that there is no possibility of his being mistaken in it unless he be so wilfully Whoever attempts any thing contrary to them shall not have benefit of Indemnity from any former Laws but the Person set up and all his