REFLECTIONS Upon Two BOOKS, The One Entitled, The Case of Allegiance TO A KING in POSSESSION: The Other, AN ANSWER TO Dr. SHERLOCK'S Case of Allegiance to Sovereign Powers, IN Defence of the CASE of ALLEGIANCE to a King in Possession, On those Parts especially wherein the Author endeavours to show his Opinion to be agreeable to the Laws of this LAND.  
In a Letter to a Friend.  
London, Printed for W. Kogers, at the Sun over-against St. Dunstan's Church in Fleetstreet. MDCXCI.   

REFLECTIONS ON The CASE of ALLEGIANCE to a King in Possession, and The Defence of it.  
SIR,  
IF I could be uneasy under any of your Commands, this, you may be assured, would be the time of my showing it: It is an hard task you have laid upon me; The Books, of which you require my thoughts, are long: and speak the Author (whoever he is) to be a Man of great Learning and Reason; one, who can argue to the best advantage his Subject will bear. And the Collections he has made, plainly show, that he has taken great pains, and bend all his thoughts for some time, to the maintenance of that Cause, to which some Prejudice has unhappily determined him. I, Sir, to your knowledge never saw the Books till within these very few days, and I fear you will have too much reason from what I writ to believe me, when I tell you, That the reading the Books once over, (and that with frequent Interruptions too) wasted almost half the time I have been able to allow my thoughts upon the Subject. This has prevented my consulting any Books written in favour of Submission to a King in Possession, nay, of reading Dr. Sherlock's Book, which the Defence pretends to Answer. You must not therefore be suprized, if you happen to meet here with what others have said on the same Subject, without any acknowledgement that I received it from them; or (which I more fear) if you should find Opinions differing from those of very great Men, who have undertaken this Controversy. They were my Thoughts, Sir, which you required, and I have taken a course to give them to you free, neither biased, nor overruled by the Opinions or Authority of others.  
The Question, as 'tis stated by the Author of the Case, is put very cautiously and strongly in favour of the Cause he proposes to himself to maintain; he has fenced it in with such Restrictions in the stating, and the Exposition of the Terms, that it would be a very unnecessary thing to undertake an Answer to him, if his Book did not offer at the proof of more than the first Question under his Limitations, does require from him.  
No one, I suppose, who has submitted to Their Majesty's Government, who thinks it too the Duty of all English Men to do the same, and to pay Faith and Allegiance to them, will therefore believe himself at all concerned to maintain that, If a Person who has no manner of Right, by force, exclude, or depose a King, whose Right to the Crown is clear and undoubted, and thereby gets the Exercise of the Government into his hands, the Regal Authority, and undoubted Right remaining still in the excluded Prince, the People ought to pay a full and entire Submission and Obedience to this King in Possession, so as never to attempt any thing against him, but stand by and defend him against the dispossessed Prince, with his Life and Fortune. This is a Case of our Author's own making, and bears no Resemblance to the present State of this Nation: Nay, on the contrary, if I may take the liberty to reduce the general Question to our particular Case, I think the two things agreed by him, as Preliminaries, will sufficiently justify any English Man in his swearing Allegiance, and paying the Duty 
Case, f. 2.  of a Subject to Their present Majesties. For the first of them agrees, That a bare Possession, though purely by Usurpation, will carry a Right to the Subjects Allegiance in an Hereditary Monarchy, where the whole Royal Line is extinct; to prevent the Bloodshed and Confusion which might follow upon the People's attempting to set up another Person or Government. This prudential Reason, and a Submission upon it, he lays down to be a sufficient Title to the Usurper, and that it makes him from thenceforth King de Jure, one to whom all Faith and Allegiance becomes due. ('Tis so obvious of itself, that I might spare the observing, That he frames his Case upon a Supposition of the whole Royal Lines being extinct, for no other purpose than to restrain it so, as to extend only to Cases where there is no other Person in being, who has a just Title to the Crown, and whose Right is invaded by that Possession).  
The second agrees, That where there are divers pretenders, and it is not clear who has the true Right or Title; the Subjects Allegiance is to follow the Possession.  
If therefore the late King, by the assuming to himself an Authority to suspend, and by general and unlimited Dispensations to repeal Laws without Parliament; by the entrusting almost the whole Power, Military and Civil, in the hands of such Persons only as would undertake with their endeavours to support him in those Excesses; By the putting those few Laws which he found it his interest to observe, in Execution, by such generally, as were by Law made incapable of all Trust and Rule; By the constant aim and tendency that every one of his Actions had to enslave us at home, not to omit the Bonds prepared for us, by his  Adherence to the Interests of the French King, from which (as a chargeable Experience teaches us) the utmost effort we can make, and that assisted with very great and powerful Alliances, will scarce rescue us. If his unwearied endeavours to destroy the Reformed Religion, with a thousand other maladministrations, that struck at the very Being and Foundation of the Constitution itself, and the Laws and Liberties of the People of England; did declare, that he would not govern by our Laws or Act by an Authority limited by them. If upon the Parliaments humble and modest Representation to him (according to their Duty) of the unwarrantableness of such Proceed, and the Alarm that the People took at his great Violations of their Rights, and Breaches upon the Government, he broke them up in Anger, and thereby shown an obstinate and settled Resolution to assert that unlimited Power to himself, and govern according to it. If having by these Arbitrary Proceed drawn great Difficulties upon himself, instead of taking proper Courses to secure his People against such Excesses for the future, he held to the same Counsels still, and by their Advice quitted the Kingdom, then in the utmost Confusion, without making any Provision for the Administration of the Government, and voluntarily put himself into the hands of its avowed perpetual Enemy. If all these things put together, will amount, either to a renouncing and disclaiming his Title to a Government limited by Laws, or a disabling and rendering 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 Malcontents is so inconsiderable, that there is no need of softening 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 Englishman 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 searched 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 justify; I conceive I shall effectually answer all that can be materially objected from the Case of Allegiance, etc. 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 public justice is administered by those deputed and commissionated by him; although 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 myself 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 Judgements shall think expedient, and to alter, amend, and supply the defects of the old ones, as they in prudence shall judge 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 Princes 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 governor'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 aught that ever yet has appeared, were never contradicted hitherto by any one of that profession), A King de facto is not Signior 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 looked into the Law, that it were idle to quote Authorities for it. I will, add in the third place, as a thing not improper to be observed, That it would be a very hard thing before E. 3's time to prove a certain Hereditary Succession. The best Historian will find but few Instances of that kind from the Conquest till the time of the making of this Statute. So that the defect of Hereditary Title, could not be a thing forgotten, or slipped over, as out of the minds of King or People: Yet I can't perceive any thing in this Statute, to lead to such a distinction as is now made; though it was made as a Rule for the Subject, from which he might learn, how he might demean himself in those great matters with safety▪ There is not so much as an Hint, that the trying who has the just Right and Title to the Crown, whether He, who is owned by the States of the Kingdom, and has the full Government and administration of all Affairs; or another, who a thoughtful busy man (that can't content himself in the private station wherein God Almighty has placed him, but must make himself a Judge of the highest matters) will be fancying aught to be there. I say, That the trying that Point, should be left to a Jury of 12 men; as it must be, should a private person be proceeded against for an attempt upon the Possessor, in order to the restoring the dispossessed Prince; If it be true, that it is not Treason by that Law, for a private Subject to attempt any thing against the King in possession, in behalf of him, that of Right, by Hereditary Succession, aught to be King.  
This would be an hard Interpretation of a Statute, made in the time of a King who obtained possession of the Kingdom by a War levied against his Father, and a forced Resignation, after the Arms, of those who took part with him, were successful: In which taking up Arms against the King in possession, notwithstanding all that might justify it in Reason of State and Prudence, he was sensible that the Laws of the Land would not bear his friends out; and therefore thought fit, in the first year of his Reign, to have an Act of Parliament passed, to indemnify them against ordinary legal proceed; for what they had done. This he looked upon as necessary, though at the same time, he thought the Cause in which those who fell in the War, died, so just in itself, that he made a new Law on purpose, to save them from suffering in their Estates: For we find, in the same year, there was a Statute made, to entitle the Executors of those, who were Slain in his Quarrel, in the pursuit against his Father, to Actions to recover their Testators Goods.  
Lawyers account Co-temporaneam Expositionem, the best interpreter of the Sense of Statute-laws. I would fain have the Author, or any one else, who would confine the words Signior le Roy in that Statute, to, Lawful and Rightful King by Hereditary Succession only, to show any thing leading to that Interpretation in the History of that time, or any of the Kings Reigns before that. Where it was ever heard of before that Act, that Allegiance was due to the uncrowned, unsubmitted-unto Right Heir? Nay, I will go farther, Where in any public Record, before that Statute, there does appear a damning of the Title of such a King, after a Submission of the People to him, in favour of him that was nearer in Blood? Whether the several Predecessors of E. 3. who had not a legal Title by Hereditary Succession, are not called Kings, in the Statutes of almost every year of his Reign, and all their Acts unquestioned? If there were nothing extant to direct the Subjects to the contrary, and the King himself so often told them, that those, whom I must call Kings de Facto only, were Kings without any addition (the very letter of this Statute) it would instead of being an Ease and Relief to the People, have proved according to the present Interpretation, the greatest Snare that was possible.  
'Twas easy for them to see and know who exercised the Kingly Office, under whose Administration they had the benefit of the Laws, and by whose Authority all Judicial Proceed took their Course. They might too, without any great difficulty, learn who were the visible Attendants on the Throne, the King's near Relations, his Wife, Son, and Daughter. The Throne is but one, and they saw who possessed that. The name King, is a name of Office, which consists in Exercise, that too was as plain to them. The words of the Statute seem as plain, 'Tis Treason to compass or imagine the Death, etc. of the King: Would it not now be a very great hardship to put it upon a private Person, to seek an hidden Sense in plain Words, and at the peril of his Life and Family, to make himself judge of all the Difficulties which may arise upon our Constitution, (which, what it is in all points, never was or will be agreed upon)? Whether this Person that is so expressly within the words of the Statute, may not hereafter appear to have been wrongfully possessed: And upon that apprehension, to put the poor Man under an Obligation of laying himself, for the sake of a Nation, open to the Vengeance of one, who has the plain words of the Law on his side, and Power to back it? To put him under a necessity of being a Sacrifice to his own private Opinion, against the public acknowledgement of the Body of the People, in a case wherein common Sense, and the Wisdom of all Governments forbidden the admitting a private Person to be a Judge; nay, won't endure its being made the Subject of a nice and curious Inquiry?  
But I perceive by Defence f. 6, 7. That it is one main ground of our Author's Opinion, and whereon he principally relies, That the Law does not look upon the King de Facto to be King, but accounts him that is dispossessed, and the Jure aught to be so, to be so; and he calls upon Dr. Sherlock for Authorities to prove the contrary. This explains the two first Lines of his Book, where he makes it the description of a King de Jure, That he is the Person that has the Regal Authority. The Doctor had asserted, That the King de Facto was King, as a self-evident Proposition; and I should think myself very safe in my Proposition still, were I in the Doctor's case, without any other proof. But I will for once comply with the Author's Request, and refer him to a very ingenious Book, called, The Case of Allegiance to a King in Possession, where he may find a great many unanswerable Authorities to that purpose; even as many as ever there were Revocations, or Repeals of the Acts of such Kings. There they declare, That the Usurper was in fact King, but not in right; and after they have done so, unless there can be two Kings, they have left no other sense for the words, King de Jure, but that of right he ought to have been King all that time, though the other in fact was so. For his full satisfaction, I will give him a taste of one, out of many, and it shall be his Darling Act, the Statute 1 E. 4. which may be seen printed in the Record of Baggot's Case, in the Year-book, 9 E. 4, 9, 10. The Author quotes it often, and once as an Authority for him in this point, because (speaking Historically, and describing Persons according to the series of times, that it speaks of them in) it calls H. 4. Henry late Earl of Derby, as he was, when he reared the War against R. 2. which is the thing that follows that Name: But let us see what other ill things it says of him, Why, He usurped and intruded upon the Royal Power, Estate, Dignity, Pre-eminence, Possession, and Lordship of England. And after he had done so, and King Rich. 2. was dead, it is true, By Law, Custom, and Conscience, the Right and Title of the said Crown and Lordship, descended to the Earl of March. But then (as if it were afraid the sense of the words, Right and Title, should be mistaken) it sets them in the next Sentence, in a direct Opposition to the Possession of the Throne in the Sense I contend for; where it says, That E. 4. according to the Right and Title of the said Crown and Lordship, after the decease of the Duke of York his Father, took upon him to use his Right and Title to the said Realm, and entered into the Exercise of the Royal Estate, Dignity, Pre-eminence, and Power of the same Crown, and to the Reign and Governance of the said Realm of England, and Lordship. And amoved H. 6. from the Occupation, Usurpation, Intrusion, Reign, and Governance of the said Realm, to the great Joy of the Subject for their being departed from the Obeisance and Governance of the unrighteous Usurper, etc. If this be not enough, take the words more plainly, where the Statute tells us, The Crown after the death of Rich. 2. should have descended to the Earl of March, as next Heir of the Blood, if the said Usurpation had not been committed. The effect of these words is again repeated with regard to E. the 4th's Title. And the Statute expressly distinguishes, That the King was in right from the death of his Father, very just King of the same Realm, but only from the fourth day of March, in lawful Possession of the same Realm, with the Royal Power, Pre-eminence, Estate, and Dignity belonging to the Crown thereof; with abundance more to the same purpose. These Authorities, without remarking on them, will probably go a great way in proof of the Doctor's Proposition; and the rather, because they are of times when the Jure was triumphant; if they don't satisfy, upon a little Intimation, more shall be given.  
I confess, I can scarce with Patience hear some Opinions that are fond broached upon so weak a Foundation as a private Judgement; so very dangerous to all Governments, and destructive to the Persons themselves who advance them. If the Constitution of the Kingdom were plain and positive, so that it were impossible for any , considering Man, to think otherwise, but that our Monarchy is so unalterably Hereditary, that neither the Consent, or other Act, nor any manifest impediment or defect of the Person, who is next in Blood, could according to our Constitution, divest him of his Right to the Crown, or discharge the Subject from Obedience to him; Then, indeed, a private Man, whose certain knowledge of the Royal Pedigree convinced him where the undoubted Right was, might reasonably think himself bound in Justice and Conscience to pursue that Title with his Services, however Unsuccessful, Violence, and Injustice might for some time render the Undertaking. But since it must be agreed, That the Hereditary Right to the Crown by our Constitution, was never looked upon to be so sacred and inviolable, but that the next in Course may have such a known unfitness and incapacity upon him, of answering any of the ends of Government, that he may, without any Violation of that Constitution, be laid aside: (As suppose him, to instance in one that all Mankind agree in, a perfect Idiot from his Nativity) And that one, who was once possessed of the Crown, may divest himself of his Right of Government, by a voluntary Quitting, or Resignation of it; which may be done without making the whole Nation witnesses to it. So that it must be allowed, that there may be instances wherein proximity of Blood in the right Line, will not be an infallible Badge of a Right to govern; and there may be great doubts who has the best Title. And since in the Case of an absolute Incapacity to Rule, and in differences and competition between Titles, there must be some Judge. And since Reason and Usage say, That things of that nature, ought not to be of any private Determination, but are proper for the Decision of those who represent the whole Body of the People only, the whole being concerned in it; I can't tell whether Pity, or an hard Name will best suit that particular Member of the Body, who will not acquiesce in the Decision which the States of the Kingdom (his own Representatives amongst the rest) make of such a Case; but must be setting up particular Notions of his own, and taking a great deal of Pains to warp, and with violence strain the plain words of a Law to his own undoing. If those who argue so warmly against themselves, and every private Subject of England in this matter, would but consider what is said before, that the 25 E. 3. was made in favour of the Subject, to show him his danger before he fell into it, and that it was not at all the end of that Law, to settle the Right of the Crown, (which our Author agrees is done by the Fundamental Constitution, and not any positive written Law) but only to secure the Peace and Quiet of the Kingdom from the attempts of private Persons against their Governors, That the description the Law generally gives of Treason, is, that 'tis Crimen Laesae Majestatis, which seems to refer principally to the Office, and the Person as investd with that, not to a dispossessed, though rightful Heir, who is forced into a private Condition, and has little of that Majesty to be guarded: And that in glanvil's time, the Peace and Settlement of the Kingdom was so much considered, that it was called Treason, Machinari Sedition●m Regni, as well as Mortem Regis; They would surely confine their thoughts to their Closets, till they could show a little better Agreement between them, and what has been the received Opinion in all Ages, since the making of the Statute; or till they can write enough to satisfy a prudent Man, that it were to be wished it were otherwise. The doing which, I presume, will take some time; since I could never yet meet with One, till I saw the contrary in Print, who did not think it so reasonable in itself, and so much the common concern of Mankind to maintain it; that 'twas their Sense, words ought to be strained (if there were need of it) to support, not to destroy the Proposition I am endeavouring to maintain.  
The Author allows some of those particular Treasons recited in the Act, As the Clipping the usurper's Coin, 
Caese, f. 4.  Counterfeiting his Seal, nay, Levying War against him upon any account, but in behalf of the dispossessed Prince; may by the Law (that is by this Law, for there is none other for it) be punished as Treason. He is very cautious indeed in his wording of it; These may be Treason under an Usurper, and punished as Treason under an Usurper: And will not confess in express words, That these are Treasons against him, but that they are rather against the course of the Government, and the Authority of the Lawful King through him. The notion is fine, but 'tis of very late date; the Indictments upon which those Persons are to be punished, speak nothing of it; they say, 'Tis against the Duty of their Allegiance to him, and against his Crown and Dignity. And it will be hard to make the word King in one part of the Statute, signify only a certain Person, who ought of Right to be King, but is not so, and perhaps never may; when the same word, without any Explanation, stands in the next line for another Person possessed of the Throne by wrong, and in prejudice of the Man's right that was described by the selfsame word just before.  
When the Author convincingly proves, That the next of the Royal Line in course of descent, has as inherent and inseparable a Right to the Allegiance of the Kingdom, as God Almighty has to the Worship and Service of his Creatures; and that an Idol in Possession, as he words it, by virtue of its being set up in a Temple, is possessed of God's Power, and God Almighty devested of all Rule, (not to run the Parallel farther for fear of Blasphemy) than I will grant he has offered a good Argument to prove that the word King in this Statute 
Caese, f. 7. Defen. f. 4.  can only signify the Right Heir, by the same Reason that the word God in the third Commandment can mean none but the True God. The Being of God is in its Nature unchangeable, his Name, and Right to govern us incommunicable. The Office of a King, and the Right of particular Persons to that Office, are of politic Institution, and may be separated. It may often vary, and cease, either for a time, or absolutely, according to the Laws of the Constitution.  
So if the Author will make the Priesthood such an Office, as, that a Man's exercising the Functions of it will make him really and in truth a Priest, without entering in at the door (which my Profession does not lead me to the Interpretation of; but I suppose the Author must think, signifies some setting apart, by those with whom Christ has left such a Power) than his Text may bear some Resemblance to an Intruder into an Office, of which all sides agree Possession 
Defen. f. 4.  may be taken by force, and that that Possession does make him in fact (though not in Right and Justice) a King.  
I could have wished, that our Author had considered a little better, before he had made these and some 
Def. f. 69.  other Comparisons.  
Our Author will make me weary of putting him in mind what the end of the Statute 25 E. 3. was; if he had weighed that well, he would have found, That notwithstanding what is offered by him, from the word Heir, against the Interpretation, my 
Case f. 7. Def. f. 8.  Lord Coke was not so much in the wrong, when he said, That our Lord the King, meant him that is King.  
I have already said, That that Statute does not offer any thing towards the Determination of the Title to the Crown; who ought to be King, whether he that is in Possession, or another who pretends he has a just Claim to it, is not its business. There is, notwithstanding what our Author says to the contrary, another proper place for the deciding such a Controversy. But the Law declared by this Statute, secures the Throne against the Attempts of private Subjects, and binds them to a quiet Submission to the Office and Power, which is sacred, in whose hands soever it is And therefore (taking our Monarchy to be an Hereditary one, as it undoubtedly is) I can see nothing unreasonable, much less contradictious in the affirming, That the Eldest Son of a King de Facto, that is, one owned and submitted unto by the People as their King, is Heir apparent to the Crown, and aught to be looked upon as such, by every private Subject, until the Rightful Owner regain the Possession, or obtain the Sentence of those, to whom the Right of determining it belongs, in his favour.  
Possession, without any precedent Title, is a good Title against all the World, but him that has the true Right; so that, as between the Usurper and any private Person, the Usurper has a Right to the Throne, which is by the Constitution an Hereditary one. The Author himself will grant this, unless such private person act in behalf of him, whom he supposes to have the very Right; but of that Right, I cannot by any means allow the private Subject a Judge.  
I will readily agree, That this Statute did not intent any kindness to the Usurper, or the establishment of his Title: nay, that the principal aim and design of the Law (of which that Statute was declaratory) was to preserve the Government, by securing the Person of the King, (a Possession and Right then going together) and taking care of the Succession. And it has taken a much more effectual way to do it, than our Author's Interpretation, if that were admitted, would do. Let us turn our Author's Exposition into express words, and the Law will run thus, It shall be High Treason to compass, etc. the Death of the Lawful and Rightful King, etc. But if there be one in Possession of the Throne, who is not Lawful and Rightful King, than it shall be no fault for any particular Subject to compass, etc. his Death, in order to the instating him that has Right, in the Throne. Would ever any King, be his Title never so undoubted, think himself advantaged or secured by such a Provision, where, by express words of a Law, liberty would be given to every particular Subject, to examine and pass Sentence on his Right? Is it not a more reasonable and prudent Provision, and more likely, even to prevent an Usurpation in after times, to guard by express Law his Person, (who was at the time of the making the Law rightful Possessor) and that of him, who of Right aught to succeed him, and so downwards for ever under the highest Penalties. And (taking it for 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, though 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 'twas 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, though acting under a King in Possession; nay, dealt with the Possessor himself as a Traitor, scarce allowed him the Name of a King, or looked 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, though each may have its particular consideration.  
None of those Proceed 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 publicly 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 Proceed disputed: It was, without doubt, by all moderate men at that time looked 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 public 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 overawed 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 frightening the rest into Submission by such Examples of his Severity, he looked 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 Proceed 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.  aught 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 need not say any thing farther as to the Instances out of History, during the Wars between York and Lancaster: If there were need, the Author has done it to my hand, Case f. 11. and elsewhere; at least, as to any Argument of Right or Justice that can be drawn from the Vengeance they dealt to each other upon any Advantages. E. 4. attainted H. 6. and all his Adherents, being an Usurper upon his Rights, and gave very hard words to him, as well as to his Grandfather H. 4. the first Invader of the Right of the House of York; and H. 6. his being actually a King in Possession was not a Protection against it. Will it thence follow, that by the standing Law of England, a King in Possession not being rightful Heir to the Crown, and all those that act under him, are Traitors and Rebels to the dispossessed Prince? Will not H. 6th returning his Compliment to the full, when he was restored to the Crown, as effectually prove the Law to be with him being in Possession, though E. 4. had the better Title. In truth, none of these Instances prove any thing, but that de Facto and de Jure were much alike esteemed, when they got the Power into their hands; they made their Parliaments say, and do what they pleased, when either of them had sufficient Power to put the Acts made against his Rival, and those who adhered to him, in Execution.  
I can't forbear observing, That in all these violent times, there is not so much as one Instance of any Person adjudged a Traitor for his serving the King in Possession, upon an Indictment in the ordinary course of proceed according to the established Laws. All those Determinations proceeded from the Parliament, ex plenitudine potestatis. And 'tis plain, that they did not so much as pretend to square their Actions to the Laws then in being, by the Instance he gives, where H. 6. is attainted of High Treason for 
Case f. 10.  the death of Richard D. of York at the Battle of Wakefield, when 'tis apparent, not only that the D. of York had by his own Agreement and Oath put himself into the condition of a Subject to H. 6. during his Life; but that the poor King was at the time of the fight that Battle, in the Power of the D. of York himself, left by him in the Custody of the D. of Norfolk and E. of Warwick.  
Not to mention that the Author agrees, the D. of York 
Case f. 11.  was not King, but only declared Heir to the Crown after H. 6th's death. And all agree, That the death of the Heir 
3 Inst. 9  Collateral to the Crown, is not High Treason within 25 E. 3.  
As to his particular instances of hard Names given by 
Case. f. 13.  Ed. 4. to the pretended Parliament 49 H. 6. besides what has been observed in general before, I will add only, that the Right and Justice of his Cause depended upon the Nullity of their Proceed; and yet he durst not insist upon the Original Nullity of them, which (it may be supposed he knew) 'twas not the part of private Men or the Judges to determine: And therefore it was done by a Law; and that Law is an Act of Repeal only, Reversing, revoking, and making, not declaring the former proceed void.  
Nor is there any thing in what we find Case. f. 14. that can amount to a Proof of his Position. In the end of that Page he grants that Acts of Parliament passed under an Usurper are valid without any Confirmation: If he had not, we have a better Authority for it, That of the selfsame Parliament that gave the Determination in favour of the D. of Tork's Title to the Crown: That the Laws took no place against that. And they that were so bold to do that, would not have been afraid to have carried it on further, if Law or Reason would have suffered them. Yet they, and the D. of York himself, solemnly declare, That all the other Acts and Ordinances made in the usurper's Parliament, be good and sufficient. (Now if it be essential to every Act of Parliament, that the King's Approbation give it life, surely the Law must look upon those Persons to have been Signors les Roys, whose Laws are unquestionably allowed to be good.) Nay, it appears most plainly that the Statute of 1 E. 4. c. 1. for confirmation of Judicial proceed, which our Author insists on, was 
Case. f. 14. Def. f. 37.  Cautionary only, and that from the Act itself; for the Preamble says, 'twas made, In eschewing of Ambiguities, Doubts, and Diversities of Opinions which may arise, ensue, and be taken, etc. when he was settled in the Throne, and the Parliament and Judges (as 'twill be easily believed) were ready to compliment his Right to the highest pitch; they could not strain it higher, than to make it a doubtful case, whether the Acts of the preceding Kings in Deed, not in Right, were not valid. And the words used in the Statute are Declare, Establish, and Enact, etc. the first of which, we know, was never looked upon as a proper word for introducing a new Law; or made use of upon such an occasion.  
But his third Argument deserves something a more particular 
Case. f 11. Def. f. 32.  consideration. It is this: If Treason lay only against the King in Possession, whether King de jure or no, than the Subjects may not, under pain of High Treason, admit any Claim of the King de jure against him; for that were to be adherent to the Enemy of the King in possession.  
I confess I wonder that a Man of our Author's Learning and Reason should set down such a Consequence: But this was brought in, 'tis probable, to make way for the main Assertion of his Book, and the most material thing in the whole Controversy, That the Parliament cannot 
Case. f. 65.  be, and that there is no Judicature provided to determine the Title to the Crown, where there is a Competition about it.  
Both these will receive one Answer. I should think (if there were no Precedent or Express Authority in the point) that it would be allowed a sufficient proof of the contrary, That Right Reason, and the very Nature of Government, do make some such power of determining absolutely necessary. For the Foundation of all Governments is supposed to be the good and benefit of those who form themselves into it; and in all cases whatsoever, unless there be an express provision to the contrary, what is agreeable to the Sense and Reason of Mankind, and necessary to the support and well-being of that Government, must be supposed to be the very first general ground agreed upon: so that in such cases, where there is not any thing positive against it, Is and aught to be, seem in reason to be covertible terms. And 2dly, There cannot, as the frame of our Constitution is, any other be imagined, than the States of the Kingdom. This I am 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 settled 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 judgement 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, forbidden 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 proceed, by some doubt upon the very Constitution itself, 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 itself, and by a Power and Fundamental Right, which of necessity must be supposed to be reserved, when they embodied themselves into a Politic 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, etc.  
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 Privileges and Powers of each part of it are limited. 'Tis 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 settled, 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 itself.  
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, than 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 than he was; and therefore, had he looked upon this cautiousness of the Lords to be more than Compliment, he would never have consented to their hearing it; but he does not offer to forbid their proceeding; tho 'tis 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 touched 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; 'twas 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 Counsellors, and therefore they had their Fees and Wages: They return, They were the King's Counsellors 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 overruled, for 'twas 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 maugre 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 them could find any other or better means, that it might be showed; whereupon after sad and ripe Communication in this matter had, it was concluded and agreed by all the said Lords, that sith is was so, that the Title of the said Duke of York cannot be defeated, and in eschewing the great inconvenience that might ensue, to take the means above rehearsed (viz. That the King should keep the Crowns, and his Estate and Dignity Royal, during his life, and the said Duke, and his Heirs, to succeed him in the same.) The Lords open this Expedient to the King, and both the Parties solemnly submit and agree to it.  
From this proceeding 'tis very plain in the first place (which I touched upon before) That if the Judges who made the Excuse, and Lords who admitted it, know any thing of our Constitution, they are to judge according to the known and written positive Laws of the Land, which prescribe the Offices and Duties of particular persons, and to speak what their sense is; but have nothing to do with enquiring into, or giving their Judgement upon the King's Title: They are to put the Laws in Execution under the King: But they can't find any Law to condemn or meddle with the Title of the King in possession, no nor to defend it, (being called in question in a proper place.) The Laws with which they were entrusted, meddle not with it the one way or the other; And they declared themselves incompetent to give any Advice or Determination in it; though our Author will make every particular man a competent Judge of it.  
And 'tis as plain in the next place, That all the Parties agree the Parliament to be proper Determiners of such a difference, (which may inform our Author, who after erecting a Court in every private man's breast to do it, can't find in our Constitution any Court for that purpose.) Nay 
Case. f. 66.  the Judges tell you, The King and the Duke are before them as party and party: That is, Two persons, contesting in a proper Court, for a Judicial Determination.  
The Lords think so too; They oblige the King's Counsel to appear before them, and defend their Majesties Right, as a part of the Service that they own the King, for their Fees and Wages: The Duke often presses them for their Judgement, and at last they give it.  
In the third place, I observe that this Expedient is of the Lords own finding out, and they decree it. 'Tis true, in the Chancellor's repeating the Opinion of the Lords, there are the words, If he would, upon which great stress is often laid, not only by our Author, but others; and more than the thing will justly bear: The Chancellor says, That it was thought by all the Lords that the Title of the said Duke cannot be defeated: That is, That none of those things objected to it, had destroyed the Right of the Duke and his Line, for ever. And in eschewing the great Inconvenience that may ensue, a mean was found to save the King's Honour and Estate, and to appease the said Duke if he would, &c (which imports no more, then that the mean they agreed upon, would be to his satisfaction, if he would be contented with reasonable terms) This, I say, is only the repetition of the Chancellor of the result of the Lords Debate: But when they come to the Judgement, that is general; That the said mean shall be taken; and this given, before any Declaration of the Consent either of the Duke or King to it; though afterwards, upon its being opened to them, it was with great solemnity agreed unto by them, and passed by the King into an Act of Parliament.  
The very Statute of 1 E. 4. allows this Judgement to be good; and that, by virtue of it, and the Agreement upon it, H. 6. should. have held the Crown for his life, though the very Right were with the D. of York: But it being part of the Agreement that the Lords should support it, and keep, observe and strengthen, inasmuch as appertaineth to them, all the said things, and resist to their power, all them that will presume the contrary, according to their Estates and Degrees. E. 4. gets a solemn Declaration by that Statute, that H. 6. had attempted the breaking the Agreement, and therefore his dispossessing him was just, etc. He thought it advisable, that the breach of the particular Agreement about the Crown, as well as the Title itself, should be declared and settled by Parliament: And indeed the very nature of all Acts of Recognition, and the constant usage of them in almost every Reign, show the Expediency of some public Declaration to the People, that they may know to whom their Obedience is due; and imply as much as the Preamble of the Stat. 1 R. 3. speaks in express words, which Preamble our Author quotes, because it affirms the Title of an Usurper; (He was an Usurper, but one who made as good and wise Laws, as any lawful King his Predecessor) That the most part of the People can't be sufficiently learned in the Laws and Customs which make out a Right and Title to the Crown: And that the Court of Parliament is of such Authority, and the People of the Land of such a Nature and Disposition, that Manifestation or Declaration of any Truth made by the three Estates of the Realm assembled in Parliament, and by Authority of the same, maketh, before all things most faithful and certain quieting of men's minds, and removes the occasions of Doubts and seditious Language. This is Truth and Reason out of whose mouth soever it comes, or for whatever End it was pronounced; and in all Justice ought to protect every private Person in his submission to a Power acknowledged in that manner, against all the Disturbers of the quiet of our present Settlement.  
I come now to consider the Observations he makes upon the Authorities quoted by my Lord Coke to justify the gloss made upon the words Seignor le Roy in the 25 E. 3. The first is Baggot's Case. To state this matter fairly, as it appears on the Book, the Case in short is this. Baggot brings an Assize of his Office, etc. Ivy the Tenant pleads, Baggot was an Alien, etc. and so could not hold the Office, etc. not being the King's Liege Subject. Baggot replies, his 
9 E. 4. 7. b. 9 E. 4. 9  Letters of Naturalisation. Ivy sets forth the Act 1 E. 4. which recites at large the Pedigree and Title of E. 4. and the Usurpation of the three Henry's, and averrs, that the Patent was granted by H. 6. one of the Usurpers; and so leaves it to the Court to judge whether the Patent was valid in Law: Baggot demurs upon this rejoinder, and Ivy joins in demurrer. Brian, of Counsel for Ivy▪ insisted, 
9 E 4. 11. b.  That King E. 4. being restored in his Remitter, as Cousin and Heir of King R. 2. the Patent made by K. Henry, who was but an Usurper and Intruder, was void, etc. I will not repeat what Baggot's Council 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 Judgement, and therefore Baggot recovered▪ The only Reflections I will at present make upon this Case is, That although, 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 Judgement 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 than stood, there was much greater danger, that the Judges, who owed their Offices to the Power in possession, would lessen and vilify the Acts of the castoff, 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 publicly (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 itself 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 'tis 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 itself, 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 itself is not to be wondered 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 helped 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 Subtlety 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, aught 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 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, than 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 Traitors; 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 Politic Capacity, Blow. 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 jointly with others to an Use, the other Cofeoffees should stand seized to the Use; where he was sole seized, the whole Estate should be vested in the Cestuique use; and this, because by the taking the Politic Capacity on himself, his Natural Person was gone, and Signior 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 showing 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 Signior le Roy, but that they thought 'twas 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 overrule 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 show how far the Lawgivers of that time looked 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 anulled, 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 Bastardise 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 Judgement of the Clerk of the Parliament to be sufficient to adjudge of our Author's Nullities in themselves; though that private Judgement determined in favour of what they looked upon to be the Right, joined 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 Sovereign 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, 'tis 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 'tis Enacted and Established by that Parliament, That no person from thenceforth, that attend upon the King and Sovereign Lord of this Land for the time being, in his person, or do him true and faithful Service of Allegiance, shall for that be vexed or troubled, either by Act of Parliament or otherwise.  
Our Author by what has been already said, will find the mistake that he is under, when he says the Lawyers agree, That it is this Statute only, which has extended 
Def. f. 5.  the words Signior le Roy in 25 Edw. 3. to comprehend an Usurper in possession, as King for the time being, whereas before, 25 Edw. 3. meant Lawful and Rightful Kings only. What is already said to that purpose, will, I believe, satisfy every one, that the Judges, who are Expositors of Statutes, and were to put that Act in Execution, did never look upon themselves as competent for the determining the Title of the Crown, but looked upon him to be Signior le Roy within that Act, who executed the Office of King, in administering Justice, and protecting and defending the People. The end of that Statute 11 H. 7. as I have said before, was not so much to make a solemn Declaration of the Law (which all through it is taken for granted, as an indisputable Opinion of that time at least) as it was to condemn the way that had too often been lately taken, to destroy the good Effects of the Law in that particular; by making so many revengeful Acts of Attainder upon every change. They endeavoured, as far as the Nature of the thing would admit of it, to tie up, even the Hands of future Parliaments, from acting contrary to that easy and reasonable Rule: And having done that, little thought they had left a Liberty to private Men to vent their Opinions and Fancies, raise Scruples in the minds of People, and writ Books to prove that a King is no King, nor to be obeyed: And that a bare Right to be a King, (which supposes and imports in the very terms themselves his being dispossessed of the Throne and Office) makes him, the Only Person meant by the words Signior le Roy; whereas he that is in full possession of the Office and Government, is quite out of them.  
But to show our Author that the Notion was not quite new, and first introduced by this Statute to serve a particular turn, nor the Opinion of Lawyers only, I would refer him to a Treatise, Entitled, An Historical Account of some things relating to the Nature of the English Government; there, f. 40. He will find the words of a great many Historians quoted, which I will not Transcribe, all censuring the Act of those Nobles, who, upon dislike to William Rufus that was possessed of the Government, did endeavour to dethrone him, and advance his Elder Brother Robert to the Throne, as an Execrable Fact, calling them Traitorous, Perfidious, and Perjured Persons: And declaring, that they who sided with William, were Faithful to their Earthly Lord: Though as appears in the same page, those very Historians agreed, that Robert had manifest Right to the Kingdom by course of Hereditary Succession.  
Nay, for want of other Authorities, I would venture to make Use once more of our Author's Act 1 Edw. 4. which not only very fully asserts, That the Usurpers were by their Usurpation possessed of the Regal Power, Estate, Dignity, Pre-eminence, Possession, and Lordship of England, to which purpose it was quoted before, but goes on; By Edward the Fourth's removing Henry the Sixth from the Occupation, Usurpation, Intrusion, Reign, and Governance of the same Realm of England and Lordship, to the Universal Comfort and Consolation of all his Subjects and Liege Men, plenteously joyed to be amoved and departed from the Obeisance and Government of the Unrighteous Usurper, etc. Our Author may with little pains learn what the import of the Term Obeisance was at that time looked upon to be.  
I confess, the Act of 11 Hen. 7. to me seems to make the most Solemn Declaration of this, as a Rule not to be varied from, That Allegiance is due to the King for the time being; And 'tis the Subject's Duty to pay it to him: And I would desire no more from any Man, but that he would read it over attentively, to make him a Judge between my Author and me, whether fuller words could reasonably be thought of to silence all Opinions to the contrary: Let us see how our Author quits himself from them.  
I believe he will not rely much upon the first Objection he seems to make, That only the enacting part of 
Case. f. 2●.  a Statute is Law: He brings it in with an If, and never takes it up again: so that at present, without detaining my Reader in the Proof, that it is day when the Sun shines, I will take it for granted, That what an Act of Parliament recites or declares to be Law, is so. And then instead of what our Author has set down as all that 
Case. f. 27.  this Statute proves; It proves thus much at least, That it is the Duty of every private Subject, to attend and pay his Allegiance to the King in Possession; And contrary to the Laws as they stand at present, and to all Reason and good Conscience, even for a Parliament, whose Power can't be withstood, to make his so doing Penal to him.  
I will agree to him, that Hen. 7. himself had not practised 
Def. f. 42.  according to this Rule, but made use of the same Liberty former Kings and Parliaments had taken, of reaking his Vengeance on those that opposed him: He was too fond of the Crown; He would not else have set up for it, without any Right at first: And it is not to be imagined that he, who made no scruple of obtaining it against Right, and put off so long the making his Possession just, when he had such an Opportunity of doing it, by marrying her who had the undoubted Right, would make any difficulty of securing himself in that possession by any means whatsoever: This criminates him in his Morals, proves him to be a Man whom Interest did Rule, to the doing things which he was convinced were against Reason and Conscience; and proves no more. Nay, I must offer in his Excuse, that he afterwards made what amends he could, by condemning his own former ill, and using his utmost endeavours, that the poor Subject should never be harrassed and punished at that barbarous rate more.  
Can a Man be real in Objecting to a Law, agreed unto 
Case f. 29.  and passed by those Persons, whom the whole Body of the Kingdom thought fittest to represent them, and to whose Integrity and Understanding they entrusted their dearest Concerns: That it was made by an Usurper in Title, and 'tis not (he determines it) for the good 
Case. f. 18.  of the Community: Yet such Laws as are for the Public Good, he agrees, are valid, though passed by an Usurper. Nay, our Author goes further, and inquires, by helps dehors as the Lawyers call it, Foreign to the words of the Act itself, what the End and Design of the King underhand was, in procuring the Statute; and that, he discovers to be nothing less, than to secure himself in his Unjust Usurpation; because Perkin Warbeck happened to be up in Arms about that time; so that 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 Beggarly 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 myself 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. etc. 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, 'tis 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 entitled 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, Public Justice administered only by those that are commissionated by him, etc. 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, etc. as the Statutes 25 H. 8. c. 22. etc. 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 myself 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 Traitors. 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 myself 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 Traitors: 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 Adherents, and those that support him in his Usurpation, shall be punished as Traitors. This would have been so far from a total Repeal, that it would rather have been a Confirmation of the precedent Laws in all other cases but those particular Instances.  
The same is to be said to the Oaths enjoined by those Laws of H. 8. for the establishing the Succession: Supposing them to have laid an Obligation upon Conscience, contrary to the general Purvieu of the 11 H. 7. for the time to which they extended, yet the matter of them is long since ceased: And I can't find any Reason or Authority to prove, that a contrary provision, only for a fixed and determinate time, does, for ever, repeal a general positive Law.  
The late Oaths of Obedience in Queen Eliz. and King James' times, have left the Title to the Crown, as general and unsettled as it was in the time of H. 7. So that the Subjects are now obliged by Virtue of those Oaths to the true Successors in the Kingly Power; and I think what is already said, makes it plain, that a private Subject must look upon those who are in full and quiet possession of the Throne, to be truly and lawfully so, till they are either devested of the Power, or their Right condemned by those that have Authority to do it. The word Heirs, I own is joined to Successors in these Oaths; but if either, as the Lawyers say, Haeres dicitur ab Haereditate, or the words of themselves, being joint, extend only to such an Heir as is a Successor, (as I must think, till I hear better Arguments to the contrary, than I ever yet have met with,) these Oaths will make for, not against me.  
However I can't find any contradiction between these Oaths and the Statute 11 H. 7. They do not speak Ad idem. 'Tis too gross to be put upon any Man at this time of day, to say, These Oaths oblige us to any certain Person under the name Heirs and Successors during the life of the Possessor; so that the end of these Oaths was to put an Obligation on Conscience to prevent the Act of Usurpation, and preserve the Government Hereditary: The Act of H. 7. supposes that settled, and declares what a Subject is to do when it is so.  
Besides I think the Lawyers generally agree it for a Rule, That it must be a very plain Contrariety, and absolute Inconsistency, that shall effect a Repeal of a former by a subsequent Statute, without express words of Repeal: And that a Law being once established, with the universal consent of the whole Kingdom, it must not be looked upon to be abrogated by any strained Construction of general and ambiguous Words. And if this be true, I am sure the Stat. 11 H. 7. stands yet unrepealed by any of the Laws our Author has produced against it.  
I can't but wonder to hear a private person determining, That a Statute, That is, a Law of the Land, 
Case f. 36. Defence f. 47.  must be looked upon as null and invalid, in respect of the matter of it, because in his Opinion, It establishes Iniquity, and is made, as he says, Case f. 32. To the disherison of a lawful King, That is, a King of the Laws making. In plain English this amounts to thus much; The Title which the King has to the Crown, though it belongs not to him, either by the Law of God or Nature, but by a positive Law of the Land, can neither be wholly defeated, or abridged in part, nor the Power or Rights of it moderated for a certain time, by as positive a Law: This is a very Paradox, and needs a man of our Author's Learning and industry to make it look colourable.  
This and a great deal more of our Author's arguing, Case f. 37, 38, 39, 40, 41. will fall to the ground, if he will, till he proves the contrary, admit, 1. That the word King does not necessarily import in itself, in all places, any certain and determinate Rights and Privileges; but that the positive Laws of the Land are Bounds unto, and may prescribe the Order and Form of legal Ligeance, and may enlarge or abridge those Rights which the name King, according to the natural extent and sense of the Word would have entitled the Person unto. And 2dly, if I could prevail upon him not to lay so much stress upon that Word, when 'tis joined to de jure; not suppose him still in possession of the Office, but fairly English it, a Person who has Right to the Office and Government, but is wrongfully put out of it.  
The fallacy grounded upon the latter of these, runs through so many parts of the Book, that more than half his arguing part might have been saved, if he he would have stated it truly: If he would but agree to me, that the word King, is rather a name of public Office than personal Right, there would be an end of a great part of the Dispute. Let us turn it into Governor and see how the Question will then stand. Whether in this Government, the Subjects are to pay their Service and Duty to him that is in Fact their Governor, though he obtained the Government by unjust means, or to him who ought to be their Governor, but plainly is not, nor has a Power to exercise any Acts of Government, either over, or in defence of them. I am apt to think it would be an hard thing for a man of very great parts, so much as to amuse any man, if he would state the case so; or to persuade him, that the Duty of the person governed, has any relation to the Right of the person, distinct from the Office. In short, That private man goes beyond his Line who looks upon him that is out of Possession to be his King, or acts accordingly, when the Throne is filled with a Possessor qualified as I have before set down: And if so, the Statute 11 H. 7. implies nothing of that Contradiction which the Case f. 53. fixes upon it.  
I would not be mistaken in this, so as to have it objected to me, That I am coming within the reach of that mischievous Position of separating the Person and Office: It was always my Opinion that the doing it (as it has been formerly made use of) would be in consequence very pernicious and is contrary to the Rules of Law. The mischief of that Position is, the distinguishing between the King's Acts and Capacities, while he is a King and in Possession: to say some of his Acts are those of his natural person, separated from his politic Capacity, and upon that supposition to take a liberty of acting against his natural Person, as supposing that distinct from his politic Capacity. This appears to be the Mischief, by what is quoted out of Calvin's Case; where 'tis said, That Ligeance 
Defence f. 25.  is due to the natural Person of the King, which is ever accompanied by the politic Capacity, and the politic Capacity as it were appropriated to the natural Capacity; and 'tis not due to the politic Capacity only, that is, to the Crown and Kingdom distinct from his natural Capacity. And by the Act of Uniformity, which declares it a Traitorous Position, to take Arms by the King's Authority against his Person: This shows, that the ill of the distinction condemned there, lies in the separating the Capacities when they are really joined; that is, when the natural Person is in possession of the Kingly Office: to set him up to fight against himself, his own Authority against his Person; this is contrary to Law, which, as it appears before, consolidates the natural Person with the politic Capacity. I am so far from denying this, that it is the ground whereupon I take Obedience to be due to a King de facto: But the mischievous part does not at all reach our Case, where we suppose him, who has a Right to be King, to be utterly dispossessed and devested of the Office, and the Right of the Possessor solemnly recognized by the Body of the People: There, 'tis not a nice distinction that separates between the Capacities, but evident Fact and Truth, common Sense, and the Laws of the Land; and to the Person, as a Person devested of the Office, Allegiance is not due. That it was a very great wrong unjustly to divest the Person of the Office, and put another into it, can't be doubted; and 'tis a part of that wrong, that he is thereby devested of that which makes the Relation between him and the People, that of right aught to be his Subjects, and pay him Allegiance; but till he reunite the Office to his Person, the wrong remains, and the Relation during that time fails.  
It may be very well maintained, that the Statute 11 H. 7. shall have all the Effect and Operation the plain Words of it will reasonably bear; and yet none of those dismal Breaches upon the Constitution, and Calamitous Consequences set forth, Case f. 38. attend it.  
That the Fundamental Constitution of England is a Monarchy, and that settled antecedently to any Statute Law, will be very readily agreed to him by me: But he goes a little too fast when he infers thence, That therefore there must of necessity be some certain person in every Age, in whom the Constitution vests a Right; by virtue of which, he is lawful and rightful King of this Realm: For 'tis not of absolute necessity that the particular Race and Family should be part of that Fundamental Constitution.  
May it not be rationally supposed that the Framers of our Government proceeded by degrees; first, debated what the form of the Government in general should be; and fixed upon a Monarchy: What kind of Monarchy would make another step, and I will suppose that, to prevent the ill effects of Ambition and canvasing for it, they agreed, it should be an Hereditary one, such as should be governed by the course of descent, not elective: This in common sense it must be presumed they did, before they came to fix upon certain Persons or Families, into whose hands they should put the Government: Nay 'tis impossible to maintain our Government to be a limited or mixed Monarchy in its nature, without such a supposition: so that I can't by any means look upon the particular Family to be any part of the Original and Fundamental Constitution; but at most, only a secondary one, a putting the Constitution that they had agreed upon into Act and Execution: And therefore it may very well be, for any thing that I can find in reason to the contrary, That the Government may fall into the hands of persons, that have no relation to the Line of the Princes first submitted unto, who shall yet have a Right by virtue of the Fundamental Constitution.  
Our Author has almost yielded me this in his first 
Case f. 2.  Preliminary: But to vary that instance a little: Suppose during the Life of him that should happen to be the last of the Race of our Princes, He and his Parliament should agree, that after his death another Person and his Race should succeed to the Throne according to the directions and Measures prescribed by the present Laws, would any body question his right to succeed? The Fundamental Government would be still the same; A mixed Monarchy according to the present Constitution: And I cannot persuade myself that in the Constitution itself, the interest of the particular Family was so highly regarded, as that the one must necessarily fall with the other. Our Author indeed I find thinks, that because Hereditary is joined to Monarchy, 
Defence f. 12.  when once it falls to another Family, the Monarchy is gone. An Estate in Fee-simple has this Quality, that it is an Estate of Inheritance: That is, an Hereditary Estate: If therefore the possessor transfer it to a Stranger, must the Estate be gone? suppose Hereditary should be expounded in the one case as well as the other, to signify such an Estate as will of its own nature descend to Heirs, and vest in them a Title if the Descent, be not interrupted, by such methods as the Law allows of: And be looked upon, to be set in opposition to Elective in the one case, and an Estate determinable upon the death of the Party in the other.  
I confess I should think it an exceeding of their Power, for a King and Parliament to turn this Government into a Commonwealth; for they act under the present Frame and Constitution: Whenever that is dissolved, they have no longer a right to act as Representatives of the People; so that they cannot, for them submit to a new form of Government. To the doing any thing of that kind, there must be first a dissolution of the present Frame, and then, either all must join in the erecting a new one, or they must, after they are reinstated in the Liberty which they had by nature, agree upon some method of being represented, and delegate their Right and Power to such Representatives. This shows that this opinion does not offer at the warranting a subjection to any Usurper, but such an one as is in possession, under the form the present Constitution allows. All others, not agreeable to this Frame of Government, are in, above or beside the Law, and consequently have not Right to Legal Allegiance, which is the result of the present Constitution, and of Laws made for the preservation of that. Such a Power may hold me in subjection as a conquered Man or a Slave, and for the obtaining my Life or Freedom, I may anew stipulate with them; and from that time they may justly claim my Allegiance by virtue of that stipulation: I may stipulate anew, I say, if my former allegiance obstruct it not: But that may very well fall out to be the case, for till there is an entire dissolution of the Government (whether that must be done by the agreement of all who have an interest in it, or that a majority will determine the rest) I own that Allegiance is due from every private Man some where; And I am sure I may, without contradicting any thing I have hitherto said, fix the right to it in the Person of the King de jure, where the Kingly Office is not exercised by any other: But where another is possessed of the very Kingly Office, which is wrought into the Constitution itself, and he puts in execution all the same Laws by which rightful Kings ought to govern; to that Office, and the Person possessed of it, my Allegiance is by those Laws due, and no Law makes me a Judge of the King's Title.  
And it was upon this Ground undoubtedly that my Lord Chief Justice Hales (who plainly held the Law in the Case of the Statute 11 H. 7. to be as I now maintain it) would never try any Treason or other Offences against the State, as our Author says, while he was 
Case, f. 4.  Judge under Cromwell.  
But to return: What if I should suppose, (as some wise Men have affirmed) that when our Ancestors heretofore submitted to a certain Family, to take away occasion of Factions and making Parties, they confined the Crown to that Family, but did not so strictly oblige themselves to him who should be next in Course of descent; but that the States of the Kingdom, who represent and include the body of the whole People, if they found him absolutely unqualified and unfit for the Government, might skip over him, still keeping to some of that Line. (And since what the Original Frame of our Constitution was, is not derived to us with any certainty, by History or Authentic Records, that may well be supposed to be our Constitution, if constant Practice and Usage, till very lately, be a probable proof of Right in things where the positive Rule is lost.) If this were the case, what would then become of the Supposition of a certain Person, always lawful and rightful King, by Virtue 
Case f. 8. 38.  of the Original Constitution, etc. But not to rely upon this, I must take leave to believe what I touched upon before, That it was the Form of the Government itself, of which our Ancestors, who framed it, were so fond, and not of the particular Person or Family; though they were by that Form to have the greatest Trust and best Share (comparing them with particulars, not the whole Body) in it: And therefore I am fully satisfied, as I said before, that the very Fundamental Constitution may remain, though the Family should be changed by a Competent Power; and that no Injury or Injustice is done them thereby, since their Right was given them only by positive Laws, and may therefore be taken away again by the same means: And if so, after all our Author's ☜ Labour, the Statute 11 H. 7. does no ways break in upon our Constitution. If our Author would but explain the words King de jure, as I have all through this Paper pressed him to do, we should easily rid the Stat. 11 H. 7. of the Contradiction which he supposes 
Case, f. 39  it implies.  
A King de jure has a Right to something, as he says; that something is the possession of the Throne, which will consequently draw the Royalties and Revenues of that, with the Allegiance of the Subject. But till he attains that Possession, in virtue of which the Right to those Royalties, Allegiance, etc. belongs to him, he must content himself without them.  
And the same Answer serves to his other Objection, That this Statute is against the Law of Nature, which 
Case, f. 40.  our Author from that Huddle of Inconsistencies. Calvin's Case, says, makes Faith, Obedience, and Ligeance, due to the lawful King, etc. and some parts of 'em indispensable, and not to be transferred.  
It is not worth the while to argue any thing from Calvin's Case, the Authority of which can never be of advantage to either side, because there is scarce any one Proposition (unless it be the very point adjudged) advanced through that whole Case, as 'tis reported by my Lord Coke, but what may be answered (that is, contradicted) by something else of the same Author in the same Case; but to consider according to reason, as much of it as our Author makes use of. I will not dispute at present but that Obedience to Governors is due by the Law of Nature; that is, That the Law of Nature does extend itself to Civil Societies when they are framed; and in general obliges such as are in the Condition of Subjects, to pay their Governors all that Duty, which, according to the Frame of their Government and Laws, is necessary to the Maintenance and Welfare of that Society: Other natural Allegiance there is none; nor does the Law of Nature (though our Author affirm the contrary, without offering any Proof or Reason for it) lay before the Subject any certain Duties which they are to put in practice, whether the particular Laws of the Realm enjoin them or not, and such as no human Authority can dispense with, as long as they stand in the Relation of Prince and Subject. This is a very wild Notion, and can have no Foundation in Reason: Take away the Relative Terms of Prince and Subject, and suppose that a Nation submits to a particular Person after this manner: He shall have Rule over them, and govern according to such particular Rules, as then are, or with their consent afterwards shall be agreed upon, and none other. Is not all the Freedom which they had by Nature, but their being obliged to submit to the putting those Rules in execution, left with them, and unsubmitted; May not any positive Law afterwards alter, enlarge, or abridge those measures of Obedience and Submission, which were the Creatures of positive Law at first? It may be said, it will be inconsistent with the name of King to have no Allegiance due to him. I would ask the Objector, Which is more reasonable, that a Notion, the Pedantry of affirming positively what the natural Sense of a Term is, should have Power over, and render insignificant, or repeal the plain Words of an express Law; or that the Law should for once frame a new, though it may be an improper Sense, for the Terms, and overrule the Grammarian? If the Law should in express words say, That he that has a just Title to the Crown shall be styled King de jure while he is out of Possession, (though that is not so, nor is that name ever allowed him till he is restored:) And he that is in Possession King de facto; that during the time of his Possession a temporary Allegiance shall be paid by the People to him, and not to the King de jure: I think common Sense will say, that there is no inconsistency in this, unless the words King de jure are so very Sacred, that they can't lower their Signification, to a positive Law, but must eternally carry with them one and the same extent of Power and Exercise of Authority.  
That the Law of Nature obliges a Man to make Restitution for Injuries done, I agree, but that must be out of what is his own, without Injury to another; else, having rob one, and having nothing of my own wherewith to make him Reparation; I might rob another to do it: So in the present Case, If I have been accessary to the unjust dispossessing the rightful Prince, nature obliges me to make him what recompense I justly may: But if it fall out, that nature does not at all intermeddle with determining what particucular Persons have a Right to the Government, Or make one Man King, the rest his Subjects, but that the 
Case f. 40.  Relation between the Persons governing, and to be governed, and the measures of Protection and Obedience thence flowing, are of positive Institution, and the Effect of the particular Laws of the Land: And if the Laws of the Land have so fixed the Duty of my Allegiance to the King in Possession, that, acting in the condition of a private Subject, I can't withdraw it from him, without a breach of those Laws, without taking from him what the Law has given him a Right unto: The Law of Nature can't oblige me to that; nor has the dispossessed Prince any Right by the Law of Nature to claim or exact that satisfaction from me; so that the Statute 11 H. 7. does not at all thwart or contradict the Law of Nature, or any Duty in dispensibly incumbent on the Subject by it.  
This Consideration will indeed aggravate the Injustice of my contributing towards such an Usurpation, and make People that have any sense of Religion, very cautious how they venture upon doing a thing of that kind; where the very Act of doing the thing, puts it out of their Power to wipe out any part of their former Sin, by an endeavour to make Reparation, without their contracting a new Gild.  
Our Author compares the case of Obedience due 
Case f, 23.  to the King, with the Case of the Subject, as to the Protection which the King is obliged to give him: These, I agree, are very fitly considered together, as mutually explaining and proving one the other. Let us see whether the reason of that Case will not fully come up to the proof of what I am endeavouring to make out.  
The King is obliged to maintain his Subjects in their Rights and Properties not only while they are in possession, but also, when another has disseized them by fraud or violence: True, he is to do the latter (which carries a resemblance to the case in question) as well as the former: But it must be, according to the measures, and pursuing the methods the Law prescribes. Where a subject is disseized, Law is to precede force: There must be a decision by a proper Judge in his favour, before there be a restoring him to his possession: Till that be done, he is to quiet and defend the Possessor in the Possession, tho' gotten by fraud and injustice: The King himself, to whose Wisdom and Authority the Constitution has entrusted so much, cannot by virtue of all that Power do the greatest or least of his Subjects that Right, which, he in his private Capacity undoubtedly knows belongs, and that the Law ought to adjudge to him; and shall we then say, that, in the King's case, a private Man, to whom the Law has given no manner of Authority to judge of any one's Title, shall take upon him, by force, to attempt the unsettling a King, who is quietly Possessed of the Government, because he thinks another man has a better right? Is it not more agreeable to the Comparison our Author has made, and to the Reason of Mankind, That where there is a National Submission, in a Parliamentary way, to the Possessor of the Throne, Every pretender to impeach that Settlement, aught to wait for a Declaration of his Right by the States of the Kingdom, till which is done, Particular Subjects, aught, with regard to common Safety and Peace, to acquiesce under the Power from which they receive Protection, and to which, by their Representatives, they have Submitted.  
I own there may fall out very hard cases sometimes, upon these grounds, and such Objections as will not receive an easy Answer: But I am sure it will be very easy to maintain, That the mischiefs will be less in themselves, and likely to fall out seldomer, than by allowing every Subject a Liberty to embroil the State, upon a pretence that the Government is not in the hands it ought to be.  
In matters of this kind in a mixed Monarchy, there will be some difficulties in the Theory, that are unanswerable. The notion of a mixed monarchy itself, will not bear a strict disquisition: For, granting that of necessity there must in all Governments be some last resort for the final determination of all differences (which will seem a very reasonable proposition) any Man may immediately run it up to a Tyranny or Popular Government.  
If the last resort and final determination of Right or Wrong between the King and People, should be agreed to be in the King; notwithstanding all the Laws now enacted, he may when he pleases (in Theory) make his Will the sole Law: For whenever he is minded to attempt it, after the matter's running through other hands, it comes at last to him to give the Rule, which is the gaining of his point. So on the other side, if the People are the ultimate Resort, and sole Judges of the Rights of their Prince, of necessity their determinations must be obeyed, tho' they determine against his true Right. And that will in consequence prove the Government no Monarchy, tho' he be in Possession, and carry the name of King, there being a Power superior to him, and to which he is accountable for his Actions. If both Prince and People are to join in it, and they differ in their Sentiments, there is no determination, and consequently uncertainty and confusion.  
This is the natural consequence of driving up these notions to their height: But this is not therefore every day the case: There is a good old saying, that will interpose to save us: Ipsae res nolunt malè administrari. This will, notwithstanding all those fine notions, keep both the Parties from attempting successfully any thing extravagant, and utterly inconsistent with that mixture of Power, by which we are ruled, so much to our ease and advantage, tho' that mixture of Power can't be maintained in strict reasoning. I say all this to this purpose: I find it is strongly objected to what I have advanced (viz. That a private Subject after a solemn submission of the Kingdom to an Usurper in Title, ought not to attempt the restoring the King de jure, till there be some solemn decision in his favour, the Power of which I have placed in the States of the Kingdom) That this way of applying to the Parliament for Justice, and making their Claim there, may be prevented by the Usurper's not admitting the States of the Kingdom to meet, or receive such Claim, etc.  
If I should grant that they have no Power of meeting to that purpose, without the consent of the Usurper (which I do not;) and so, that this is a defect in our Laws, and one of the cases against which a certain Remedy is unavoidably wanting in a mixed Monarchy; yet I may venture to say, That if the right of the dispossessed Prince be apparent, all the Attempts of the Usurper to suppress it, will at long run prove unsuccessful. We see the Parliament of H. 6. and Convention of 1660. did find Opportunities of doing right to the injured Prince; and without them the People, whether they ought or no, is one case; but I think I may venture to say they will not long bear it.  
If Usurpations do put us under these great Difficulties, the natural Influence that the Consideration of that will have, is, that the Nation will submit unto and suffer but very few of them; and 'tis a very unlikely thing, that the Rightful Prince should be turned out without great Misadministrations. But after all, I think no one need be ashamed of owning it to be his Opinion, That if it should unhappily fall out to be the Case, that one of that Family to whom the Crown was at first limited, should be injuriously dispossessed of that Crown; and the restoring him to it, could be compassed by no means, but such as would lay a Foundation for daily Disturbances and Civil Wars in future Reigns, that that Person's Right which was given him by the Laws, ought not to be set in Competition with the Laws themselves, and the Peace and Quiet of the whole Body of the People.  
The Consequences which our Author draws from his Supposition, that Cromwell had been made King (which I confess would have been very mischievous and intolerable) move me not at all. In the first place; notwithstanding what he affirms, That it was almost come to a Conclusion that he should take that Title upon him. I can't grant that there was any likelihood of his being a King in Possession, entitled to the Protection and benefit of this Law. Perhaps he might have made an Interest in some of the Army (though most People believe the fear of their falling off from him, kept him from it) to have proclaimed him; and in the House of Commons, or Parliament as they called themselves, to have submitted to him. But I have before said, a bare proclaiming one King won't do the business, for than we may have as many Kings de facto as there are Rabbles of People in the Nation: But to make one who had no visible Right before, such a King de facto as may claim a Temporary Allegiance from the People, he must have not only the Power of the Nation in his Hands, and the Administration of Justice in his Name; but (what Cromwell, as he had been forced to manage matters for the getting himself into that monstrous lawless Power he enjoyed, could never have obtained,) the Submission of the remaining parts of the Constitution, the Lords and Commons, to him as their King and Governor. Till that is done, I know no Obligation any private man is under of paying Allegiance to such a King, never having by himself or his Representatives, submitted to him. As on the other side, when that is done, and I receive the benefit of Protection from him, till his Possession which protects me is lost; or the Submission which was made for me revoked and undone by an equal Power: I know nothing that can justify my thinking myself wiser and more knowing than my own and the whole People's Representatives; and from such an overweening Opinion of myself, endeavouring the Disturbance or Subversion of a Government well and fully settled.  
But why in the second place should such Suppositions of what may be, be used as Arguments: May we not from the Observation, That no instance like that did ever yet happen to set Conscience so upon the Rack, reasonably attribute some share in the Guidance of those Affairs to the Providence of a good God, who hitherto has; and, as we have reason from that Experience to hope, (unless by our Unthankfulness we draw the contrary on ourselves) will still continue to deliver us from such Difficulties and Snares.  
If all those Advantages which our Author reckons up, would have followed his obtaining the Crown, and if it was in his Power to have taken it when he had pleased, Does not the neglecting those Advantages seem to proceed from an Infatuation, as if Providence had determined against him? And ought not that rather to strike an Awe and Reverence on the Minds of all People towards their present Majesty's Persons and Government; every step of whose Undertaking and Progress till their Advancement to the Throne, seems to be a Series of Providences; and the Effects of whose Government are such, as a Man need not stand in fear of being taxed with Impiety, if he attribute the Cause of them immediately to God's own Hand.  
Before our Author comes to Answer Objections, (which I'll not meddle with, but leave them to shift for themselves) he produces Two Arguments to prove his Assertion, and it would be unjust not to take notice 
Case, f. 48.  of them. The first I have granted already, and it makes nothing against me. The second I will but just mention, and leave the Reader to make his own Observations upon it. 'Tis the difficulty of knowing 
Case f. 53.  who is a King in Possession: It were a great hardship to put the determining that upon the Judgement of ordinary Subjects, Persons of mean Understanding; and therefore for that Reason their Allegiance shall not be due there; but 'tis nothing to require it of the same Persons, that they be perfect Masters of our Fundamental Constitution, and the Pedigree of the Royal Family, that they know Who it is 
Case, f. 56  in whom the Crown is vested, deemed, and judged by the Law: These are things more obvious to them than what they see and feel every day.  
This, Sir, I think sufficient to be said to what is urged from the Laws of the Land in the Case or Defence, as far as they concern the Position I undertook to maintain. Perhaps the Reader may think I have copied the Author's Pattern, in offering things which seem to prove more than the Question, according to the strictness with which I have stated it, required: I am not sensible that I have omitted the taking notice of any one Argument that is materially offered from the Laws, in conttradiction to my point; I am sure if I have, it was passed over for want of taking notice of, not by design, as what I thought could not receive an Answer.  
But, Sir, when I have said this, I must bespeak all the favourable Allowances your good Nature can give, to what I have written, to the ill handling a good Cause, that would have born a much better Defence in the substantial Parts of it; and more, to the Faults that I have been guilty of in the manner of it: An ordinary Reader would hardly pardon the latter, because he will think a little care might have avoided them; and I am sensible how guilty I am of the worst of that kind, abundance of Repetitions; which must be tedious and uneasy. All the excuse that I can offer for myself is, that the manner of writing in the way of Reflection, (which obliges me often to take notice of the same Arguments used to different purposes) and not as an entire Discourse, has made that unavoidable. And, Sir, you know I have not had time enough allowed me to make it short: Whose Fault that is You can best tell: And therefore, whatever others do, you in Justice must excuse,  
SIR, Your Humble Servant.   

Books lately Printed for William Rogers.  
A Sermon Preached at Whitehall before the Queen on the Monthly Fast Day, September 16. 1691. 4 to.  
A Persuasive to Frequent Communion in the Holy Sacrament of the Lord's Supper. Eighth Edition. 12 more.  
Both by his Grace John, Lord Archbishop of Canterbury.  
A Sermon Preached on the 28th of June, at St. Andrews Holbourn, by John Moor, D. D. Bishop of Norwich Elect, when he took his leave of that Parish. 4o  
A Sermon Preached at St. Marry le Bow, on Sunday the 5th of July 1691. at the Consecration of the Most Reverend Father in God John, Lord Archbishop of York, and the Right Reverend Fathers in God, John, Lord Bishop of Norwich, Richard, Lord Bishop of Peterborough, Edward, Lord Bishop of Gloucester; by Joshua Clarke, Chaplain to the Right Reverend Father in God, the Lord Bishop of Norwich. 4o  
The Necessity of Serious Consideration, and Speedy Repentance, as the only way to be safe both living and dying. By Clement Elis Rector of Kirkby in Nottinghamshire. 80.  
Sir W. Petty's Political Anatomy of Ireland. 80.  
The Case of the Allegiance due to Sovereign Powers, Stated and resolved according to Scripture and Reason, and the Principles of the Church of England, with a more particular Respect to the Oath lately Enjoined of Allegiance to their Present Majesty's King William and Queen Mary. The 6th Edition. 4 to.  
A Vindication of the Case of Allegiance due to Sovereign Powers, in Reply to an Answer to a late Phamphlet Entitled Obedience and Submission to the Present Government, demonstrated from Bishop Overal's Convocation book; with a Postscript in Answer to Dr. Sherlock's Case of Allegiance etc. 4 to.  
A Sermon Preached at White-hall before the Queen on the 17th of June 1691. being the Fast day. 4 to.  
A Practical Discourse concerning Death, the fifth Edition. 8o  
A Practical discourse concerning a Future Judgement, 80. (will be Published in a few days)  
These five by the Reverend Dr. Sherlock Dean of St. Paul's, Master of the Temple, and Chaplain in Ordinary to their Majesties.   

LICENCED,  
October 10. 1691. J. Fraser.   

ERRATA  
Page 11. Line 16. for Nation read Notion. p. 30. l. 1. read so that. p. 30. l. 14. for trying r. seying. p. 31. l. 23. for Majesties, r Matters.