An impartial disquisition, how far conquest gives the conqueror a title

An impartial disquisition, how far conquest gives the conqueror a title

Table of contents

CHAP. I.

CHAP. II.

CHAP. III.

CHAP. IV.

CHAP. V.

CHAP. VI.

CHAP. VII.

[Page] [Page] An Impartial Disquisition, how far CONQUEST gives the Conqueror a TITLE.Reader, THis is an abstract of a Treatise written by Mr. Ghest, a learned and pious Suffolk Divine, when the Usurpers over: Charles the Martyr pretended a Title by Conquest.

FINIS.

CHAP. I.

COnquest is no sufficient Title to Rule; for then all Conquerors are lawful Princes; but they are not, for

1. Justice only gives right, and the rule of justice is suum cuique, we are commanded. Rom. 13. 7. to Render to all their dues; but here in the Case of Conquest right is pretended to that, which is anothers, only by taking it from him, and so Justice founded upon Injustice.

2. Right continues, as long as the Cause remains, and force cannot reach that, for it cannot destroy the gift and donation of God, nor bring to pass, that a Father shall be no Father, or an Heir no Heir, or one Lawfully chosen not chosen.

3. If Conquest be a sufficient title, then there never was an Usurper in the world; for, till he prevails, he is but an Attempter, and as soon as he prevails, he is a Lawful Prince.

4. Then it would not only be Lawful for the Usurper to withhold anothers Right, but unlawful for the wronged King, or his friends to seek the recovery of his own, which is contrary to what 2 Sam. 18. 1. David did in the case of Absolom, and 2 Kings 11. Joash in the case of Athaliah.

5. If Conquest gives a title, then a strong Thief hath right to all he takes away by violence; or else God hath left every private man in better condition than his own Deputies See Deut. 1. 17., since force can take away the Royalty of these, but not the property of those.

6. If Conquest give a sufficient title, then that devilish Maxim is true, Prosperum scelus virtus est, that wickedness crowned with prosperity commences virtue; and there is no difference between good and evil, but event. A Rebel falls, and is a Traytor; he prospers and is a lawful Prince; which pricks up apace towards Atheism.

7. This proclaims liberty to all ambitious, and covetous persons to embroyl the world, if whatever they can get is their own. Certainly God, who loves mankind, and delights in order, peace and righteousness, never made this Law.

CHAP. II.

GOD's word allows not of any title by Conquest, for

1. It forbids all violence, rapine and wrong, nay, so much as coveting that which is anothers, commands all to be content with their own, requires restitution of what is wrongfully taken away. Nor must we say with Apud Sueton. Sect. 30. Caesar, Si jus violandum est, regnandi causâ violandum est; if right and equity be to be trampled on at any time, it is, when a Crown is to be acquired.

2. What is said, John 10. 1. He that enters not in by the door into the sheepfold, but climbs up some other way, the same is a thief and a robber, is universally true of all Governments; Kings are Cons. Psal. 78. 71. Isai. 44. 28. Shepherds too, and the same common rule of justice holds in the Shepherd's title to his Flock, and so every where both in Church and State.

3. It is said, Rom. 13. 1. The powers that are &c. the word is, [...], not [...], (now [...] signifies only lawful, and just [Page] power, while [...] signifies the power of an Usurper) so that we must be subject to him, who hath the right and authority to rule, even tho' devested by the force of an Usurper. Such powers are said Vers. 2. to be the ordinance of God, [...], which signifies an Edict, or a Law, so that no Usurper is God's ordinance, unless he can show either some particular Charter from God, or some general Law in favour of Usurpers.—Again, in the same Verse it is said, they that resist, shall receive to themselves damnation; not a right, or title to the supreme power, that would make the Law both partial, and useless, restraining none, but those, whom Princes might restrain without it.—Once more, in Verses 4, 5, 6. These powers are said to be God's Ministers, [...]. Now none can enter into God's service, or Ministry, but by his leave, unless we think, that Usurpers may seize God's Commission too.

4. We are commanded Mat. 22. 21. to render to Caesar the things that are Caesar's, [...] here signifies to restore to the right owner, what is unjustly taken away, or detained from him, (so the word is used by the LXX. in the Old Testament) Gen. 20. 7, 14, Levit. 5. 6. Num. 5. 7. Judg. 17. 3, 4. 1 Sam. 7. 14. & cap. 12. 3. 2 Sam. 3. 14. 1 Kings 20. 34. Nehem. 5. 12. Isai. 42. 22. Ezek. 33. 15. and so in the New Testament also, Matth. 5. 26. chap. 18. 25, 26, 28, 29, 30, 34. Luk. 19. 8. So that it binds not only to the payment of all dues to the owner, that accrue to him, while the possession is undisturb'd, but to restitution also, of what he is unjustly deprived of.

5. Christ's actions are our instructions: Now, when one would have put our Lord upon the doing an act of power, Luk. 12. 14. He answers, Man, who made me a Judge, &c. It seems, a Governor must be duly made, or set in the place, he cannot set himself there; it is above the pitch of a Creature to create his own power by his own force, it must be derived from another; nor can every one's appointment give a title, but his only, who hath right to appoint: 'tis not, Hath any one? but, Who hath appointed me?

6. Men of all sorts, and of all sides (just, and unjust, Plaintifs, and Defendants) have taken this for granted, that force, and conquest gives no See 1 King. 20. 34. Judg. 11. 13, 15, 21. title.

7. God himself hath given sentence in the case. Nimrod was the first Usurper, he got all by might; [...] Gibbor, as he is called, Gen. 10. 8. yet a double brand there is upon him, Vers. 9. that he was, 1. a mighty Hunter; till men turn into beasts, a mighty Hunter will not be turn'd into a lawful King. And then, 2. [...] Lipne Jehovah, [...], against the Lord, so it should be translated; for 'tis evident, that 'tis spoken to his Infamy.—God expresly forbids the Israelites to invade the Edomites, the Moabites, or the Ammonites, Deut. 2. 4, 5, 9, 19. the precepts are particular, but the reason is universal, and holds against all invasions of the rights of others, (because God gave them their lands for a possession) and as to the Ammonites, who long after invaded, and conquer'd part of the holy Land, Thus saith the Lord, Jerem. 49. 1. hath Israel no sons? hath he no heir? why then doth their King inherit Gad, and his people dwell in his Cities? as if he should say, Tho' the King of Ammon hath gotten possession by the Sword, yet the right remains still to the heir, though dispossest: 'tis therefore that such Conquerors are compared Nahum. 2. 12, 13. to Lyons, that tear in pieces, and fill their holes with prey, and their dens with rapine; and, behold, saith the Lord of Hosts, I am against you, my sword shall devour the lyons, and I will cut off the prey from the earth. 'Tis therefore also, that the Habak. 1. 6. Chaldeans, who possess the dwelling places, that are not theirs, that keep not at home, that enlarge their desires as[Page]Hell, and as death, and cannot be satisfied, that gather to them all nations, and heap to them all people, Hab. 2. 5, 6. have heavy judgments denounced against them, Woe to him, that increaseth that, which is not his, how long? &c. See also, Jerem. 51. 35, 36. Ezek. 35. 10, 11. & chap. 36. 5. & Amos 1. 13. in all which places sore punishments are denounc'd against Usurpers; and it were absurd to say, that the divine Justice would punish any for useing that, which is the direct, and immediate way to get a good Title.

CHAP. III.

Conquest proves not a right by God's donation immediate. Some men pretend, that God by the Event of the War, giving victory, gives right withal to the Conqueror, and for this they have two Colours. The first Argument is deduc'd from Reason; Providence governs all, therefore this victory, and so 'tis God's Will. To which I Answer. It seems the Alcoran hath not been English'd for nothing; with the Mahometans indeed all is their own fish that comes into the net: but if every attempt crowned with success, proves, that God gives a right, then he, who destroys the true Religion, and sets up a false; he, who kills, ravishes, robs, hath right on his side; 'tis par casus, unless they shew, that Event shewes God's Will in one thing more than another, which it does not, since all comes alike to pass by God's Providence: Should it be objected, that this Assertion must be restrain'd to Kingdoms, because War between those, who have no superiour on earth to judge them, is an appeal to God to determine the right: I Answer, 1. Then this extends not to Subjects, who have a King to judge them. 2. If it be meant of all those, who acknowledge, or pretend to have no Superiours, then all wicked men may make use of it; since 'tis but to pretend, and then appeal to God, and, if they prevail, God, it seems, gave them leave. 3. 'Tis to throw God's Law (the rule of right, and wrong) behind us, and to tempt him to give a particular sentence; against Matth. 4. 7. Thou shalt not tempt the Lord thy God. 4. How knows the Objector, that every King, who fights for his own, makes such an ungodly appeal? 5. Suppose both parties are so presumptuous, how knows he, that God is bound to listen to every presumptuous Appellant, and give judgment at his beck? the Truth is, Event shews no more; but that God permits it, because he can work good out of it, and fulfil his own wise, and just, tho' hidden counsel; but to say, he approves whatever he permits, is blasphemy.

2. The second colour is from Scripture, Dan. 4. 17, 25, 32. The most high ruleth in the Kingdom of men, and giveth it to whomsoever he will. To this I Answer,

1. If you mean this of God's gift of right to rule, 'tis not said, he giveth it to every one, who is in possession, but to whom he pleaseth. 2. If you mean it of possession (and so it is to be understood, as it appears from vers. 25. and the whole Context) it follows not, God gives possession to whom he will, therefore he gives right, whenever he gives possession; the scope of all was to cure Nebuchadnezzar's pride, and to shew him, that whosoever possesseth a Kingdom, doth it by a Providence which can dispossess him. Indeed no one possesses a Kingdom without some gift from God, but 'tis often only permissive, it creates no right. Thus 1 Sam. 24. 10. c. 26. 23. Saul in the Cave was by God delivered into David's hand, and Christ was Act. 2. 23. delivered by the determinate counsel of God; had David hereby a right to kill Saul, or the Jews a right to kill Christ. Nay, tho' Nebuchadnezzar was out of possession (Dan. 4. 25. They shall drive thee from among men) Yet still 'tis his Kingdom, and his Counsellors, and his Lords, ver. 26. 36. His right it seems remained.

CHAP. IV.

[Page]

COnquest in a just war gives no just title: A just War is that, which is made by a Soveraign Prince for a just cause: while both conditions are wanting in our Case; but suppose they were not, if such a Conquest gives title, 'tis 1. either by extraordinary Donation, and that none, I think, can now pretend to. Or, 2. By the Law of Nations. But 1. that Law, according to those who alledge it, gives only an external shew of Justice, true internal justice obliging at the same time to restitution, of which restitution, See Grot. de jure belli, & pacis, l. 3. c. 6. Sect. 1. Jure Naturae quidem bello justo ea nobis acquiruntur, quae aut paria sunt ei, quod cùm nobis sit debitum, aliter consequi non possumue, aut etiam quae nocenti damnum inferunt intra aequum poenae modum.—conf. §. §. 2, 3, &c. & cap. 10. §. 3. Grotius proving it to be the opinion of Jews, and Mahometans as well as Christians, and that the Holy Scripture, Isai. 58. 6. averrs, that those mens fasts are not acceptable to God, qui non jure captos detinebant, who do not let the oppressed go free, and who (Jon. 3. 8.) do not turn from the violence, that is in their hands.

2. Shew us this Law of Nations, where is it, or how is it morally possible, that all Nations should meet to give it: if you interpret common practise to be the consent of all, I presume, the dispossessed do not consent, and the rest are either gainers, or unconcerned.

3. The Law of Nature gives not this right, for then it must be either by way of reparation of the wrong, or punishment of the fault; the first allows no more then an equal recompence for the injury, and leaves the rest to the enemy still; the second supposes Authority, for who hath power to punish, must have power to examine, and to judge the merits of the cause; but a Superiour to the Supreme implies a contradiction; Par in parem non habet imperium; equals have no authority one over another; Rom. 14. 4. who art thou, that judgest another man's servant? 1 Cor. 5. 12. what have I to do to judge them, that are without? are most sure maxims of the Law of Nature.

4. The Law of Scripture gives no such right. Deut. 20. 10, 15. There is a rule given, how the Israelites were to deal with all Nations (except the seven, which were given up to utter ruine) and the case is double; if they will treat take Tribute of them; if they will fight it out, and you Conquer, take the Spoil, but in neither case a title to the Government.

Tribute may be given, and service may be done by one King to another (as appears from Gen. 14. 4, 8, 9. 2 Sam. 10. 19. 2 Kings 3. 4. & ch. 18. 7, 14.) and yet those who pay the Tribute, and do the service be Kings still, as appears by the above-cited places; so then the Conqueror may exact tribute sufficient to make amendment for the injury; but whatever be meant by Tribute, or Service, the Conqueror acquires no title by Conquest but by the consent of the Conquered to the Articles of peace, of which in the next conclusion.

CHAP. V.

Qu. WHether the consent of the people conquered, and their submission to the Conqueror gives him a title?

Ans. It is a kind of destiny upon people, that their name is used, their benefit pretended, their power to create right to govern magnified, and all to their hurt, Isai. 3. 12. O my people they which lead thee, cause thee to err; and so again, ch. 9. 16. in the Septuagint it is [...], and so in the Hebrew, and in the margin of our Translation, they which call thee blessed, and undertake to make thee so. People are never in greater danger, than when they listen to these same (Beatificantes) men, who promise to make them blessed, so it hath been here, and after the misery that is come upon us, the peoples consent is pretended.

[Page] To show what really the people hath to do in the giving title, or right to Government, we will consider in general the means of acquiring dominion;—All power is from God, we take that for granted, therefore whoever hath a title, must show some manifestation of God's will for it; now this in the case of Governors must be either by extraordinary supernatural designation, as in Moses, Joshua, the Judges, Saul, David, Jehu, &c. or by a general Law, that may hold in all ordinary cases; (for as to event, that manifests only God's permission, not his gift, as I shew'd before) as for the first of these, it was good, where it could be shown, which now it cannot: The second cannot be any humane Law; for tho' just Laws are in their kind, and degree significations of God's will, who will have us obey his Deputies for conscience sake, yet in giving title to supreme power they have no place. For 1. National laws presuppose it, and are made by it. 2. The law of Nations is either the same with the law of Nature, which is God's law, binding all Nations, or if it be taken for a humane law, enacting that, which the law of nature hath left at liberty, 'tis a meer empty name, for there is no humane supreme power, to which all Nations are subject, that should enact such a law. Jus gentium indeed, or right of Nations there is, but no Lex gentium; one Nation may have right against another, either by the law of Nature alone, or by mutual Pacts, which bind by vertue of the law of Nature, which obliges all to perform their covenants.

So then none can claim right to Government, but by the Laws of God, and they are two-fold, of Nature, and Scripture, but both to be used here promiscuously; the rule of both is, Honour thy Father and thy Mother, which subjects the children to both Parents, but first to the Father, as supreme; no place is left here for popular election, it being impossible, that children should choose their father, who are in subjection as soon as they are, and to govern whom the Father hath a natural capacity, even before he hath them.

In this Paternal right is founded the government of whole Nations, as appears from Genes. 10. 5, 20, 31, 32. where it is often observed, Vid. Joseph. Antiq. lib. 1. cap. 7. that by those three sons of Noah were the nations divided in the earth after their families, and generations, which confutes the common dream, that Nations were constituted by collection of several Families into one Mass, (like Epicurus's world out of Atomes) for the Scripture makes it clear to have been quite contrary, by spreading one root into many branches, (see Acts 17. 26.) and this will be easily believed, when it is considered Cons. Gen. 11., how long they lived in that Age (six hundred, four hundred, all even to Nahor, above two hundred years) and that Exod. 6. 16, 18, 20. in four generations from Levi to Moses Seventy Gen. 46. 27. men were multiplied to six hundred thousand, that were men Exod. 12. 37., besides children, and you will see, that one of those Fathers might live to be by his meer Paternal power King of a populous Nation.

Nor did those Kingdoms upon the Father's death cantonize after the number of his Sons, the Elder brother was Heir of his Father's power, and governed the Families of his brethren also: So Genes. 4. 7. God saith to Cain, subject to thee shall be his desire (sc. thy brother's) and thou shalt rule over him: Hence Isaac in blessing, as he thought, his first-born, Gen. 27. 29. saith, be Lord over thy brethren, and let thy mother's sons bow down to thee. And so Jacob also in blessing Judah, (who inherited the regal power) Gen. 49. 8. expresses himself: nay, even our Saviour's kingdom over his brethren (that is, the members of the Christian Church) is often put [Page] upon this title of primogeniture, as being Rom. 8. 29. Col. 1. 15, 18. Hebr. 1. 6. Revel. 1. 5. the first-born among many brethren; so then the people have no more to do to make a King, than a child to make his father; God the sole giver of life disposes of what Parents every one shall be born, who shall be heirs of Kings, and whom they shall inherit for their subjects; for the word Inheritance is in Scripture language Psal. 16. 5. Colos. 1. 12. Act. 26. 18. [...] that is, a lot, and the whole disposing (judgment, or right) of that is from the Lord: Prov. 16. 33. The people have no part in it, so that if they presume to give this inheritance to another, let them take heed of that woe Isai. 45. 9, 10. Woe be to him, who striveth with his maker, &c. and Woe be to him, who saith to his father, what begettest thou? &c. namely, while they have one of God's appointment; for when he hath left them destitute, then they may interpose, and elect, but let them not be fond of wanting one, that they may please themselves in choosing, for they cannot be damn'd to a worse condition in this world, than to be without a King. As it is threatned, Hosea 10. 3. They shall say, we have no King, because we feared not the Lord. Numb. 27. 17. That the congregation of the Lord shall be as sheep, that have no shepherd Vid. Lam 5. 3.: and Isai. 3. 5, 6, 7. The people shall be oppressed every one by his neighbour, and then follows the people's part in choosing a King; a man shall take hold of his brother, saying, be thou our Ruler: Now, when people come to choose, if they will put the power into the hands of many, (too many to keep counsel, or agree upon action) and so serve many Masters at once, if they will choose for a head the beast of many heads, that monstrous form of Polity, where the whole body is all head, and every single limb the body, where all are sons of the people, all are father, and every one a son; be ruled by the many, that can believe any thing, and judge of nothing, that have the wit of a child, and the fury of a Giant, the silliness of an Innocent, and the rage of a Tyrant; be governed by most voices, who are sure to choose the worst, since there are more fools, and knaves, than wise and virtuous; or if they will be ruled by a Senate, and for fear of one Tyrant (whom death will end) submit to four hundred, that for one head lopt off will supply two, and make slavery immortal; or if they do see Monarchy the best, and yet will mix it with some trick of their own to spoil it (as by making it elective, &c.) tho' these forms of popular contrivance be but degenerations of that paternal power in one, (which is always chosen, when God chooses for us, as best suiting with his universal Monarchy) yet when the choice is left to the people, 'tis valid, as well as that, which a foolish woman makes of a bad husband.

Thus much of the means of acquiring supreme power; now, how far the people's submission can operate towards the making the Conqueror's title good.

1. While they have a King of God's providing by paternal right, they have nothing to do either to confer, or transfer that right. 2. Tho', when the people have chosen a popular government, and are lawfully setled under it, their submission (perhaps) to the Conqueror may transfer a right (because then they are in two capacities, being both Sovereigns and Subjects, so that their submission includes the consent of all that are interessed) yet in other forms of Government, where the people are meer subjects, the supreme power is not theirs to give, they cannot give away what is another man's, much less what is God's, and by his immediate gift confer'd on the lawful King. 3. When people are destitute of a Government, and choose one, the King chosen holds not his power from them, but immediately from God; their choice, 1. proves not, that the King derives his power from them; the wife chooses her husband, and the Parish the Constable, yet the first hath his power from God, the other from the [Page] King; and therefore the power not being derived from the people, they cannot resume or transpose it, any more than the wife, &c. 2. The people's choice hinders not the King's receiving his power immediately from God, tho' their choice be an instrumental act, by means whereof God's power is conveyed to the King's person which is chosen, yet it argues not, that God first invests the people with the supreme power, and seats it inseparably in them, and that then they derive it to the King in subordination to themselves, as the King doth to an inferior Magistrate: only when they want a Father by Inheritance, they choose and make an Adoptive one, who derives not his power from them, but immediately from God by that Law of Nature, which gives the father power over his children.

Obj. But how is this immediately from the Law of Nature, when there comes a voluntary act of man between?

Ans. That voluntary Act of the people is not done by virtue of any supreme power seated in the people, but by allowance of the Law of Nature, which, as other laws, contains in it concessions, as well as precepts.

1. It teacheth, that power to rule is necssary for the preserving of mankind, which cannot subsist but in society, nor that without order and government. 2. It allows us to provide necessaries by any means, that may be used without impiety against God, or injury to man, and therefore to appoint themselves a King, when they are destitute. 3. It commands them to be subject to the King thus chosen; so that from first to last this power is founded immediately on the law of Nature; now not only this, but almost all the laws of Nature suppose a voluntary act of men to constitute the matter of their precepts and prohibitions, & yet bind meerly by their own force. Prayer, oaths, dedications of holy things, all external acts of religion suppose acts of men to give words their signification, to administer and take the oaths, to dedicate the holy things, but yet the precepts commanding the duties, and forbidding the abuse; bind immediately without any help from humane authority. So theft supposeth propriety of goods, adultery supposeth marriage, &c. but yet the commandments, that prohibit those sins bind expresly by virtue of the Divine authority.

CHAP. VI.

Qu. WHither Kings, &c. can deprive themselves of supreme power, or give it from the right heirs?

Ans. Here three questions arise, one touching resignation, whither a King can give up his power? and two concerning succession, whither a King can invert the natural order, and disinherit his lawful heir, and whither he can give a stranger right to succeed by adopting him. In deciding these three questions, there is great diversity both of precedents, & humane laws, but 'tis not material, since only divine laws can regulate such translations. If God hath given Kings power to dispose of their Kingdoms at pleasure, they have no Superior upon earth, that can take it from them; if not, they can neither create it themselves (for there is no power, but by the gift of a Superior, Joh. 19. 11.) much less can their subjects, being inferiors, give it them.

Therefore for the resolution of this question, distinguish, 1. Between the effect such an act of a King may have upon himself, or upon others, for tho' he may devest himself of his Regalities, it follows not that he can deprive his heir of his title, or give it away to another. 2. As to his devesting himself, distinguish between the lawfulness of the act, and the validity of it; it may be, Fieri non debuit factum valet, what ought not in justice to have been done, is notwithstanding valid, when 'tis done. Compare Gen. 25. 33, 34. with Heb. 12. 16. Esau lost his birthright by selling it, yet sinn'd in doing it, sc. by undervaluing the power which God had given him, and whatever damage did hereby accrue to Esau's posterity, was from God's immediate designation, not from any power in Esau, 3. Distinguish of Kings; those, whose Progeny [Page] was in their lifetime multiplied into a Nation, could not devest themselvs, because they could not cease to be Fathers of their children, who by the law of Nature are subject to them; but an hereditary King may relinquish his title, as well as any other Inheritance, Psal. 106. 40. He abhorred his own Inheritance: Jer. 12. 7. I have forsaken mine house, I have left mine heritage. Shepherds of men may break their staves, and cast off their flocks, Zech. 11. 10, 11.

But notwithstanding all this an hereditary King cannot deprive his Heir, if he have one, nor hinder the peoples choice, if he have no Heir.

1. He cannot devest his Heir, for God designs him by making him first-born, or next of blood, nor can the father alter his inheritance any more than his primogeniture; Cons. Jos. 1. 2. Hebr. 3. 5. Ps. 89. 20. Jer. 27. 6. Wisd. 6. 5. Rom. 13. 4, 6. the King is but God's servant, and so cannot make void his Lord's choice; by God's Law the rights of primogeniture are the first-born's, (Deut. 21. 15, 16, 17.) nor can they be taken from him while he lives; even if he deserves to be deprived, it must be a judiciary proceeding that removes him.

2. If he wants an Heir, he cannot transfer the inheritance to whom he will without the peoples consent; they are Sons and not slaves, and therefore cannot be alienated at pleasure, Joh. 8. 35. The servant abideth not in the house forever, but the Son abideth ever. There are three degrees of Dominion. 1. Over goods inanimate or irrational; we may sell these, or destroy them, Matt. 20. 15. 2. Dominium despoticum, vel herile, the dominion over slaves, whom we may alienate, but not destroy, Exo. 21. 20, 21. 3. Dominium Regale, the dominion of Kings over their Subjects, which neither enables to destroy nor alienate, being instead of the paternal; the King can no more make another King over his subiects, than a Father can make another man the father of his children.

The summ is; a King may relinquish his power, but not invest a stranger with it without the consent of the Heir, if he have any, or, if he have none, without the peoples accepting the person. Possession belongs to the King in being, Succession to the Heir in being, Election to the People, when destitute of both, and none can be deprived of their proper due without their own consent. Indeed (as was said before) when the people is both Soveraign, and Subjects, their submission includes all; as Soveraign they may resign, and then as a body without a head they may choose, and no Heir hath any injury; for the body of the people have no Heir.

CHAP. VII.

Qu. WHither a long possession can make the Conqueror's title good?

Ans. 'Tis absurd to think, that prescription can justifie wrongs; for the rule of Law is, Non confirmatur tractu temporis, quod de jure non subsistit ab initio, that no length of time makes that lawful, which was not so from the beginning. 'Tis true,

1. In time all obstacles may be removed, and so the Usurper acquire a Title, the right Heirs being all extinguish'd, or relinquishing their right, and then the peoples submission doth it, but time it self gives no title.

2. Long possession may be, tho' not the ground, yet the proof of a title; but such a proof, as admits of divers exceptions; for if there be a right Heir, that claims, or else would claim, but that he wants either notice of his title, or power to make it good, here prescription proves nothing; but Possession may continue so long without any claim, or attempts to the contrary, that it may be (tho' no title, yet) a proof, that either the Possessor is the Heir, or that the People have chosen him upon the failing or cession of the Heir; and thus only do man's Laws approve prescription in private inheritances, not as if they preferred an Usurper before the right owner, who continues his claim and proves his title; and this was the case between Isra [...] and the Moabites, Judg. 11. 25, 26, 27. which case duly weigh'd will easily solve the Objection.

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An impartial disquisition, how far conquest gives the conqueror a title

Ghest, Edmund.

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1688

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Transcribed from: (Early English Books Online ; image set 45287)

Images scanned from microfilm: (Early English books, 1641-1700 ; 1384:57)

Source

— An impartial disquisition, how far conquest gives the conqueror a title, Ghest, Edmund..

Extent

8 p.

s.n.,. [London? :: 1688?]. (Caption title.) (Attributed by Wing to Edmund Ghest.) ("Reader, This is an abstract of a treatise written by Mr. Ghest, a learned and pious Suffolk divine, when the usurpers over Charles the Martyr pretended a title by conquest.") (Reproduction of original in the Harvard University Library.)

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