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*' mediate heir, and vest the inheritance in any "one else." Thus not only the Pretender/ but even the present prince of Wales can be excluded from the throne, with the consent os' the king, lords, and commons.
Grotius, a learned and sanguine stickler for indefeasible right, tho' he cannot agree that the son of a dethroned king, can be lawfully excluded, yet is forced to acknowledge, that the fame son, if not born whilst his father was in posseflion, can be deprived of his right, to the throne with the consent of the people, because such a prince, says he, has no acquired right. Ilkid *' interest inter natos et nascituros, quod nas"cituris nondum quæfitum sit jus, atque adeo "iis auserri possit populi voluntate." Grot, de jure belli, lib. 2. c. 7. 26. This decides for ever the fate of Charles the Third, who was born along time after his grandfather's expulsion. It is moreover grounded on the clearest principles of reason. '' "'
In effect, does reason allow that subjects should be distracted, between kings in actual possession of the throne, and the grandsons and great grandsons of kings who had formerly enjoyed it? Bound by the law of God to pay tribute to, and obey the king, whose image fs stampt on his coin: • Cujus est hæc imago'?
.Bound by the dictates of conscience to assert the claims of his rival: to pull down their king with one hand; to support him on 'the throne with tl>e other. Carrying within themselves two opposite laws, which mixing and encountering like certain chymical liquors, raise a fermentation that cannot be allayed to the end of time. - . •.. '-';
Let us suppose that Charles Stuart fada right to the throne; his posterity (if ever he chance to have any) to the last generation will claim the fame. Let us suppose the Hanoverian line in possession to the end of time. Lo, a curipus sight! The frame of government turning on two hinges, without being supported by either •, two mathematical lines always approaching, without ever touching, and all future genera- . tions balanced and suspended between bothr without knowing which of the two to incline to. . Good sense, the law of nature, or the general good of mankind, to which the claims and interest of one man should be subordinate, do they admit such rigorous equity?'
Celebrated objection of civilians, canonists, and divines :» . .■■
"Time is no'active principle. Every thing is "done in time, but nothing by it; and a long
** prescription, without a lawful title, is no leni"tive to the alarmed conscience of the possef"for, nor bar to the claims of the dispossessed." The civil Jaw has decided so. L. 3. 11. 3. ff. .de acq. vel amit. poss. "Non capit longa pos"sessione qui soit alienum esse." And the canon law, Cap. possessor' dereg. juris. in 6. "Posses** sormalæ fidei ullo tempore non præscribit."
Answered: If a long prescription, without an original title, cannot secure the consciences of kings and subjects, God help the world! For .great kingdoms, if traced back to their origin, are great robberies. "Sine justitia magna reg** na sunt magna latrbcinia."* By;this rule, the Stuarts had no right to the throne of England*: for their original title was defective, as derived from William the Conqueror, an usurper, or .from the ancient Saxons who plundered and dispossessed the Britons. How can we calm the consciences of the Dutch, Portuguese, &c. formerly the subjects of Spain? I belieVe the most scrupulous amongst them are unconcerned for the rights of their formerma-sters.
However, I acknowledge that time alone, without some concurrent cause, cannot legalize a prescription. But in regard to kings and the
'* St. Augustine.
allegiance due from their subjects, a great number of reasons supply the deficiency of the original title requisite to commence a prescription, viz. the consent of the greatest and wisest part of a nation,—-the acquiescence of the whole community,—the peace of the public, disturbed by factions and civil wars, ever and always attendant on changes in -government,—the general good of mankind, inconsistent with the revival of old claims,—in sine, the dispensation of a just God, who visited on Saul's posterity their father's cruel treatment of the Gibeonites; and who positively declares, that ' he wrests
* the sceptre from one family, to lodge it in f the hands of another, in punishment of for
* mer crimes.' "Transfert sceptrum de regno "et de gente, ad populum alterum." "When *' the political law has obliged a family to re"noupce the succession," says the president Montesquieu, " it is absurd to insist on the res"titutions drawn from the civil law. It is ri-' diculous to pretend to decide the rights of "kingdoms, of nations, and of the whole globe, "by the fame maxims on which we should de♦' termine the right of a gutter between indi**. viduals."*
Further.. King James the Second's quitting England, without even appointing a regent,
and f Montesquieu's Spirit of Laws, Vol. II. page 193.
and his subsequent behaviour at the Boyne, is' an abdication of the throne, or else there never has been a resignation of royalty, fear! He was intrepid enough before his son-in-law became his competitor; and tho' prince William wanted neither courage nor wisdom,, yet hi? prowess was not so famed in the history ©f the times, as to strike terror into a tolerable general, much less into the heart of a king, whom an exalted rank, j.he love of his subjects, and, paternal authority, should have animated with courage and-resolution. Old captain O'Regan was not afraid when he desired king William'? officers " to change generals, and fight the bat-. *' tie over again."*
In times of invasion, thrones cannot be secured without bloodshed. If the fear of a ball cannot dispense subjects with fighting for their prince, the prince is bound to share the danger, or at least to remain in some part of the kingdom to watch and direct their operations. If the safety of the people be the supreme law, saluspopulf suprema ejio, and that kings- are appointed guardians of the property and lives of their subjects, who in the beginning could have instituted a republican as well as a regal government, the king who prefers his personal safety to that of his subjects, flies into a foreign
country, • Hist, of Eng. in a series of letters, &c- .