de jure I answer this is plainly a different case and the ground of the difference lyes here that in all Controversies between Private Persons about a Title to an Estate there is a Court of Judicature provided to determine who has the Right Title but in a Competition of two Princes for the Crown there is no such Court of Judicature provided For where there is such a Court of Judicature there the very Reason of Government requires that any Person who is in Possession of an Estate tho it be by unjustly disseizing or excluding another who has the Right to it is to be looked upon as to the jus externum by every Subject of that Government as if he were the rightful Possessor till upon a Tryal in Court he be adjudged not to be so and if upon a Tryal he tho against Truth and Right by Perjury of Witnesses a corrupt Judgment or false Verdict be adjudged by the Court to be the rightful Possessor he is then still by the Subjects of that Government to be looked upon and treated as such till the other Person who is thus injured can have his remedy against him in a legal Way and recover his Estate by another Tryal Hence therefore it follows that the disseized or excluded Landlord is not any other way to disturb the others unjust Possession but by having recourse to the Law and the Tenants are to swear fealty to the Lord in Possession and to pay him their Rents and Services and can do no other Service to their rightful Landlord then by giving him their Assistance towards the recovery of his Right in a Legal way for their paying their Rents and Services to another cannot be an Injury to the rightful Landlord because as a Member of the Government he submits his Rights to the Legal Constitution and besides may recover Damages of the unjust Possessor for the profits of the Estate which he has enjoyed during the time he has been in Possession but it would be an Injury to the Tenants to pay their Rent twice over once to him to whom the Law constrains them to pay it and again to him to whom their Consciences tell them it should be paid of Right And the same would be the Case in a Competition of two Princes for the Crown if there were a Court of Judicature settled in the Kingdom to take Cognizance of their Claims and to determine the Controversy between them judicially and to oblige the Parties contending for the Crown to acquiesce in their Judgment and the Subjects to stand by him whose Right they determine it to be for then any King in Possession were to be looked upon and obeyed as King de jure till by a Sentence of this Court he were pronounced to be an Vsurper and another Prince declared to be the rightful King and the Prince deprived or excluded by the Sentence of this Court were to sit down and quit his Pretensions and the Subjects would be to be directed wholly by this Court and to swear Allegiance to that Person and to stand by him with their Lives and Fortunes to whom this high Court should adjudge the Right to the Crown But then if there be no such Court it will then be left to the Subjects to inform their own Consciences who it is in whom the Crown is invested deemed and judged to use the Expression of the Stat. 1 a Sess 2. c. 4. Mar. by the Law not any such Court and when they know it they are to follow the jus internum and to stand by him who has the Right tho a Tenant in the case of a Private Landlord is obliged to follow the jus externum and to be directed by the Courts of Judicature where he is to pay his Rents and Services and to swear fealty I need not take upon me to prove that there is no such Court settled in our Constitution It is not the Nobility or Council of the former King for their Proclaming of the New King is not a judicial decretory Sentence of his Right and Title but the first Act of their Allegiance to him presupposing his Right if it were otherwise Queen Jane had then been the lawful i. e. Legal Queen of England and not Queen Mary But we find it so far from that that the Lords of the Council were looked upon as Guilty of Treason in Proclaiming Queen Jane and adhering to her when Proclaimed Neither is it the three Estates assembled in Parliament for then 1st They should meet immediately upon the decease of any King to determin any dispute that might be about the Title to the Crown whereas their meeting depends upon the Writs of the new King to call them together 2 dly Their Acts of recognition should be first passed before any other but we find them as it may seem designedly placed after some others in the Parliaments 1 Mar. and 1 Eliz. Indeed a Parliament were a fit Court to determin such a controversie if it could be free and impartial upon an Vsurpation and were not under the awe of him that by the Power of the Sword lays the strongest claim to the Crown I shall shew how fit a Parliament may be to be set up for an infallible Judge of Controversies of this Nature by transcribing a part of the Act of Recognition of Ric. 3 d. Printed at large at the end of the a p. 712 713 714. exact abridgment of the Records We consider that you be the undoubted Heir of Richard Duke of York very Inheritor of the Crown and Dignity Royal and as in right King of England by way of inheritance We consider also your great b Mr. Pryn's note His pretended vertues and fitness to Reign Without one word of his desperate Treasons Regicides Murders Hypocrisie and other vices Wit Prudence Justice Princely Courage Wherefore these Premises duly by us considered we desiring effectually the Peace Tranquillity and Weal-public of this Land And having in your great Prudent Justice Princely Courage and Excellent Vertue singular confidence have chosen in all that in us is and by that our Writing Choose you High and Mighty Prince our King and Sovereign Lord c. To whom we know of certain it appertaineth of inheritance so to be chosen And hereupon we humbly desire pray and require your most Noble Grace that according to the Election of us the three Estates of your Land as by inheritance you will accept and take upon you the said Crown and Royal Dignity as to you of right belonging as well by inheritance as by lawful Election Albeit that the Right Title and Estate which our Sovereign Lord King Richard the 3 d. hath to and in the Crown and Royal Dignity of this Realm of England been just and lawful as Grounded upon the Laws of God and Nature and also upon the Ancient Laws and laudable Customs of this said Realm And also taken and reputed by all such Persons as been learned in the above said Laws
n. 11 12 seq in Dr. Bracly's Hist of the Succession p. 26. As first that they had all taken an Oath of Allegiance to King Hen. 6. then that the Crown was entailed upon the Heirs Males of Hen. 4. by Act of Parliament c. To which the Duke of York Answers That neither their Oaths nor the Act of entail were of any force or effect to the suppression of Truth and Right against him that is Right Inheritour of the same Corones c. And the Lords upon consideration of his Answer conclude and agree That his Title could not be defeated Now if by the Law and Custom of England Treason lay against the King in Possession only whether King de Jure or not and the Allegiance of the Nation were due to him only then it had been a sufficient Answer to the Duke's claim to tell him that though his Title were Good and the Right of Blood inherent in him yet at that time Hen. 6. was King in Possession to whom alone their Allegiance was due thereupon by the Law of the Land even though they due thereupon by the Law if the Land even though they had not taken an Oath to him and that they could not lay him aside and admit the Duke into the Possession of the Crown without incurring the Guilt and Penalty of High Treason This I say had been a more clear and effectual Answer to the Duke to debar him at least from giving King Henry the present Possessor any disturbance but neither Lords nor the King's Council seem to know any thing of this but urge only the Oaths they had taken as a ground of their Allegiance being due to King Henry and admit that even their Oaths were null and void as they tended to the suppression of the Right of the Heir to the Crown It may be objected That the Lords did not hereupon depose Hen. 6. but continued him in Possession for his life and declared the Duke the next Heir They did so but it is plain they did it not as of Right but by Vertue of the Duke's consenting and agreeing to it The express Words in the Records are r Rot. Parl. 39 H 6. n. 18. in Dr. Brady's Hist of the Sucess p. 27. For eschuying the great inconvenients that may ensue a mean was found to save the King's Honour and Estate and to appease the said Duke if he would viz. That the King should enjoy the Crown during life the Duke to be declared the true Heir and to possess it after his death c. Fourthly If Treason lay only against the King in Possession Whether King de Jure or no then the Law in other regards would look upon the King in Possession as having the Dignity and Authority of a King as well as it does in this point that it makes Treason to lye against him But we find the Law does not so regard the Kings in Possession when it considers them as Usurpers and not Kings de Jure As First The Law where it considers them as Usurpers does hardly vouchsafe them the Name of King So in the Statute 1 Ed. 4. above cited Hen. 4. whereever he is mentioned is called not by the Name of King Henry but f Year Book 9 Ed. 4. 9. Henry Earl of Derby And the same Act speaking of Hen. 5 6. styles them Henry late called King Henry 5. and Henry late called King Henry 6. And in that part of it where their judicial Acts and Grants an Confirmed they are called all along the late t Stat. 1. Ed. 4. c. 1. pretended Kings and Kings indeed and not in Right and their Reigns their pretensed Reigns And the Stat. 17 Ed. 4. * c. 7. made to annul the Parliament 49. H. 6. called by Hen. 6. when Ed. 4. was fled out of the Realm stiles that Parliament a pretensed Parliament unlawfully and by Usurped Power summoned by the Rebel and Enemy to our Sovereign Lord the King Hen. 6. late indeed and not of right King of England So also the Stature 11. Hen. 7. c. 6. though it was made by that very King who afterwards pretends so much to be due to the King in Possession where it speaks of Rich. 3. calls him only Richard Duke of Gloucester as if he had never worn the Crown And the Stat. 1. Mar. u Sess 2. c. 4. where it Confirms the Recognizances Bonds c. which were dated as made in the Reign of Queen Jane calls her only the Lady Jane Dudley Wise of Guilford Dudley Esq otherwise called the Lady Jane Grey and after wards w c. 16. where it Attaints her with her Husband and the Duke of Northumberland c. it names her with no more ceremony then barely placing her next to her Husand Guilford Dudley Esq and Jane his Wise Now these Statutes speaking thus of those our Kings whom they consider as Usurpers shews that our Law has no regard to an Usurper though King in Possession but looks upon him as no King And yet this is very well consistent with other Statutes giving these Usurpers the name of King where they are considered not with a regard to their Usurpotion but with regard to their having the Execution of the Kingly Office and to some necessary and beneficial Acts of Government done by them Secondly The Law does not look upon the Acts of Government done by a King in Possession an Usurper as valid and authoritative in themselves This is fully and clearly proved by the Statute 1. E. 4. c. 1 that part of it which is printed in the Statute Book the business whereof is To confirm the judicial Acts of Hen 4 5 6. and all Processes during their Reigns and several of their Grants and Letters Pattents c. And the Style wherein it confirms them which is repeated at the end of every particular head of Judicial Acts Processes Grants c. is by enacting That they shall be of the same force and vertue as if they had been made by any King lawfully Reigning in this Realm and obtaining the Crown of the same by a just Title This supposes that they looked upon them as not having in themselves the same force and vertue as if they had been made by lawful Kings and yet they ought to have had the same force and vertue if the Law makes the King in Possession King to all intents and purposes of Government while while he is in Possession Whether he be King de Jure or not The same is further proved from the Stat. 1 Mar. Sess 2. c. 4. the business whereof is to confirm the Recognizances Indentures Bonds Patents c. made with Queen Jane's Name in the date of them during her short Reign which it does by enacting That they shall be as good and effectual as if Queen Mary's Name were expressly contained in them I do not say that these Recognizances under Queen Jane and the Judicial Acts Processes c. of Hen. 4 5 6. ought
to have been looked upon as invalid without this confirmation but though they might have stood good without it yet that would not have been by vertue of any Authority in these Kings but upon account of the necessity of Government and the presumed consent of the Kings de Jure excluded from their Right It may be Objected that the Acts of Parliament made by Hen. 4. 5. 6. were not confirmed by the Parliament 1. Ed. 4. therefore it may be concluded that that Parliament looked upon the Statutes made by an Usurper and his Parliament as good and effectual without the Confirmation of a King de Jure I Answer There are some of their Acts of Parliament confirmed there viz. any Acts made by them for the founding any Abbeys Religious Houses c. And any made for the Town of Shrewsbury and though the rest of their Acts of Parliament might be looked upon as valid without confirmation of Ed. 4. yet their being looked upon as valid is not to be ascribed to any Authority in a King de Facto sufficient to make them so For then that Authority must have had the same effect in all their other Acts of Government their judicial Acts Grants Letters Patents c. as it had in the Statutes made in the Parliaments holden by them These instances from our Statutes and Records of Purliament may be sufficient to prove the contrary to what my Lord Coke gives for Law Viz. That Treason does not lye only against the King in Possession whether King de Jure or no I come therefore now to consider his proofs of his Assertion We have in his note upon the words Seignior le Roy in the Statute of Treasons first his main Assertion That by those words is meant the King in Possession only though he be de Facto and not de Jure and not the King out of Possession though de Jure and for the proof of this he refers us in the Margin to the Stat. 11. H. 7. c. 1. Secondly We have some other points of Law which he brings to Illustrate and Confirm his main position viz. That Treason against a King de Facto is punishable by the King de Jure when he comes to the Crown And That a Pardon granted by a King de Jure that is not also de Facto is void and for the proof of these he refers to the Year-Books of Law Cases 4 Ed. 4. 1. and 9 Ed. 4. 1. 2. The Stat. 11 H. 7. c. 1. which he refers to for his main position I have set down before as a distinct Argument from whence it is inferred that Allegiance is due to the King in Possession and therefore I shall consider it apart in its proper place and consider here my Lord Coke's Secondary Points That Treason against a King de Facto is punishable by the King de Jure when he comes to the Crown and a Pardon granted by a King de Jure out of Possession is void And they are rather to be considered first because if they are sufficient to prove that Trason lies against a King in Possession only they prove that it did so by the Common Law before the Statute of Hen. 7. and so overthrow all that has been alledged above to the contrary My Lord Coke's references for the proof of these points are to the 4 Ed. 4. 1. and 9 Ed. 4. 1 2. in the Year-Books Under the first I find nothing of this Nature and have some reason to think it is but one and the same with the latter but under the latter reference I find a Plea in the Case of one Bagot and to clear that Plea shall set down a short History of his Case This Bagott and one Shyrenden were x 7 E. 4. 29. 9 E. 4. 6. disseized of the place of Clerk of the Crown by one Ive and thereupon sue him Ive's Plea against Bagott is That he was an Alien born in Normandy and so could not hold a Place here being not the King's leige Subject Bagott brings a y 7 E. 4 31. 9 E. â— 7. Patent of Naturalization granted him by Hen. 6. to which Ive's Council object That Hen. 6. was only a King de Facto and not de Jure and that Ed. 4. the King de Jure had in his First Parliament declared what Grants of Hen. 4 5 6. Kings de Facto should be valid and had not there made any provision to ratify any such Grants as Bagott's Patent was therefore his Patent was null To this Bagott's Council Answer z 9 E. 4. 1. That notwithstanding that Act of Ed. 4. in his First Parliament Hen. 6. Letters Patents were good because Hen. 6. was King in Possession and it is convenient that the Realm have a King under whom the Laws shall be upheld and maintained Therefore though be were not King but only by Usurpation yet every judicial Act done by him touching the Royal jurisdiction shall be good and shall bind the King de Jure when he returns to his Crown They instance in Pardons Licenses of alienation in Mortmaine Grants of Wards Liveries c. They urge also That the King de Jure Ed. 4. shall have the advantage of all Forfeitures made to King Hen. 6. and for a Trespass committed in H. 6 ths time the Writ shall run contra pacem Henrici 6. nuper de Facto non de Jure c. And a Man shall be arraigned of Treason committed against Hen. 6. in compassing his Death They urge also that any Gifts or Grants made by King Henry that were not to the diminution of the Crown shall stand good c. The Council on the other side plead That any common Person desseized of his Right and returning again shall defeat all the mean Acts therefore a King de Jure returning invalidates all the Acts of the Usurper c. But they do not make any direct reply to the Arguments of Bagott's Council After that Bagott's Council urge at another hearing a 9 E. 4. 4. 2. That if Ed. 4. in King Hen. 6th time had granted a Charter of Pardon it would be void for every one that Grants a Charter of Pardon ought to be King de Facto This is all the plea of Council upon this point and all that I find of the Judges is First that Judge Billing says b 9 E. 4. 2. That to every King by reason of his Office it belongs to do Acts of Justice and Grace Justice in Executing the Laws Grace in granting Pardon to Felons and such a legitimation as this of Bagotts then that the Judges c 9 E. 4. 1 2. After they had conferred with the Judges of the Common Pleas give Judgement for Bagott It appears upon the view of this Account of the Proceeding That what my Lord Coke refers to here is nothing but the Argument of Bagott's Council That their Argument is mainly grounded upon the necessity of Government because there must be some King to
Council that any thing can be alleged from that Plea to make out the Lord Chief Justice Coke ' s Gloss upon the Stat. 25 E. 3. C. 2. viz. That the Treasons in that Statute can be Committed only against the King in Possession whether King de Jure or no or to prove That the Allegiance of the Subjects is due to the King in Possession only whether King de Jure or no. 2 ly Though Bagott ' s Council had made such a Plea and the Court had allowed of it yet this is not enough to make it good Law especially when the very Statute of Edw. 3. and other Statutes and the Practice of the Realm even in Edw. 4 th's and after in Hen. 7 th' s and Queen Mary ' s time prove the contrary as was shewed above 3 dly Though there were Statutes and Customs for it viz. That a Man might be Guilty of Treason and punished as a Traytor for acting in behalf of his lawful and rightful King against an Usurper in Possession and not Guilty for acting in an Usurper ' s Cause against his lawful and rightful King out of Possesion yet such a Statute and Custom would be null and invalid as contrary to the Fundamental Constitution of the Realm and to the Law of God and Nature as will appear under the next head the Stat. 11 Hen. 7. c. 1. which I come now to consider This Statute is my Lord Coke ' s main proof of his assertion That Treason lies only against the King in Possession and may be urged as sufficient by it self to make it Law since that time though it had not been so either by Statute or Common Law before and it is also made a distinct Argument to prove directly That Allegiance is due to the King in Possession only The main of the Statute is in these Words The King our Sovereign Lord calling to his remembrance the Duty of Allegiance of his Subjects of this his Realm and that they by reason of the same 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 that for the same Service what Fortune ever fall by chance in the same Battle against the Mind and Will of the Prince it is not reasonable but against all Laws Reason and Good Conscience that the said Subjects going with their Sovereign Lord in Wars any thing should loose or forfeit for doing their true Duty and Service of Allegiance It be therefore ordained enacted and established by the King our Sovereign Lord that from henceforth no manner of Person or Persons whatsoever he or they be that attend upon the King and Sovereign Lord of this Land for the time being in his Person and do him true and faithful Service of Allegiance in the same or be in other Places by his Commandment in the Wars within this Land or without that for the said Deed and true Duty of Allegiance he or they be in no wise Convict or Attaint of High Treason ne of other Offences for that Cause by Act of Parliament or otherwise by any Process of Law whereby he or any of them shall lose or forseit Life Lands c. but to be for that Deed and Service utterly discharged of any vexation trouble or loss provided always that no Person or Persons shall take any benefit or advantage by this Act which shall hereafter decline from his or their said Allegiance The Statute consists of two Parts the Preamble and the Body and upon the view of it we may observe 1 st That it is not enacted in the Body of the Statute that the Subjects shall be obliged to pay Allegiance to the King for the time being so that if what is enacted in the Body of a Statute only be Law then the Allegiance of the Subjects is not due by Virtue of this Statute to the King for the time being The direct intent of the Body of it is to indemnifie those that fight under the King in Possession and their being indemnified for fighting under him is no Argument that it is lawful for them to do it much less that it is their Duty for they may be Guilty in foro interno of Treason and Rebellion for fighting under the King in Possession against the King de Jure and yet it may not be unjust or improper to indemnifie them in foro externo by such a Statute 1 st Because many that fight under the King in Possession do it in the Simplicity of their Hearts 2 ly Because this would prevent any revengeful effusion of Blood by the King de Jure at his coming to the Crown All therefore that the Body of the Statute proves is that though by the Stat. 25 Edw. 3. it were Treason to fight for an Usurper against the King de Jure out of Possession yet he that fights for an Usurper against the King de Jure out of Possession is indemnified by this Statute and so he is not punishable as a Traytor though he has the Guilt of Treason upon his Conscience and if he may still be Guilty of Treason then still his Allegiance may be due to the King de Jure out of Possession so as to oblige him not to act any thing against him in behalf of the Usurper 2 ly We may observe upon the view of the Statute that the Preamble of it does not directly and positively declare that the Allegiance of the Subjects is due to the King for the time being but only obliquely supposes and insinuates it The King is said to call to his remembrance his Subjects Duty of Allegiance and that they by Virtue of it are bound to fight for the King for the time being c. This is not to declare it to be so by Virtue of the Authority of King and Parliament to interpret the former Laws about the Subjects Allegiance but to suppose it as a thing certainly fixed and determined by the Law already and so also it is obliquely insinuated in the Body of the Act that their fighting under a King de Facto is doing their true Duty and Service of Allegiance And if this be only supposed and that Supposition have no ground neither in the Fundamental Constitution of the Realm nor in any former Statute or Custom but these all do all of them clearly demonstrate the contrary as was shewed above then I think the Preamble of this Statute cannot be urged upon the Consciences of the Subjects as a Law obliging them to transfer their Allegiance from their lawful King to any Usurper getting into the Possession of the Throne and to Fight under the Usurper against their lawful King if he attempt to recover his Crown 3ly We may observe upon the view of this Statute that one thing laid down in the Preamble as the ground for the indemnifying part of the Act is expresly false viz. That it is not
not amount to a consent For their cause of their not repealing it may be First Because the subsequent Kings since Henry the 7 th have not had any occasion to see the evil consequences of it by any general complyance of the Nation with an Usurper against their lawful King under colour of being obliged thereto by this Statute Secondly The Statute has been generally understood to do no more than Indemnifie those that fight under the King de Facto and this our Kings might not look upon as unjust or inexpedient and therefore might see no necessity of repealing the Statute But it cannot be conceived but that any lawful King who had been excluded or deposed by an Usurper and had seen that the Nation had looked upon themselves as obliged by this Act to stand by the Usurper against him would if ever he had come to the Crown have made it his business to declare it null and invalid Secondly This Statute has in effect been declared to be null and invalid by the subsequent lawful Kings and Parliaments I say it has been in effect declared null and invalid though not expresly repealed by the subsequent Kings and Parliaments and that in two ways First By their proceeding expresly contrary to the Letter of it Secondly Their laying a contrary Obligation on the Consciences of the Subjects First By their proceeding expresly contrary to the Letter of this Statute The Statute enacts That those that serve the King for the time being in his Wars shall be in no wise convict or attaint of High Treason by Act of Parliament or otherwise by any process of Law And that if any Act or Acts or other process of Law hereafter thereupon for the same happen to be made contrary to this Ordinance that then that Act or Acts or other Process of the Law whatsoever they shall be stand and be utterly void Now if notwithstanding this any Persons have for acting that for which this Statute Indemnifies them been convicted and attainted of High Treason by Process of Law and executed thereupon and this Conviction and Attaindor and their execution thereupon has been declared by Act of Parliament to be Lawful and Just and according to the Laws of the Realm It follows that the Authority whereby they were convicted attainted and executed and their attaindors confirmed in Parliament must be looked upon to declare this Statute null and invalid And yet we did a plain instance of this in the case of the Duke of Northumberlund c. in Q. Mary ' s time The Duke of Northumberland had been sent down with an Army by Order of Council and by a Warrant under the Great Seal in behalf of Queen Jane the then alone Proclaimed Queen against Queen Mary for this Treason he is afterwards tryed by his Peers attainted and executed and his attaindor confirmed in the next a 1 Mar. Sess 2. c. 16. Parliament and therein he and other Persons are declared to have been lawfully justly and according to the Laws of the Realm convicted or attainted and to have suffered the pains of Death according to their demerits And yet this could not be looked upon as according to Law if the Stat. 11 Hen. 7. were looked upon as valid Which will more clearly appear if we consider that the very Plea of the Duke of Northumberland seems to be grounded on this Statute His Plea consisted in two points which he proposed to the Court one whereof was b Dr. Burnet ' s Hist Reform p. 2. p. 248. ld Reflection on the 3 d. and 4 th Tomes of Mr. Varillas as p. 126. Though this was a point in Law that might have some colour in it yet it was far from confounding any for a Council or a Great Seal flowing from an Usurper is nothing so this Authorty could not justify him Whether a Man acting by the Authority of the Great Seal and the Order of the Privy Council could become thereby guilty of Treason To this the Court with the advice of the Judges made answer That the Great Seal of one that was not lawful Quen could give no Authority nor Indemnity to those that acted on such a Warrant Now if this Plea were legally over-ruled upon this Ground and he thereupon attainted and executed and his attaindor confirmed in Parliament as Just and Legal it plainly follows that the Judges and and his Peers which over-ruled his Plea and the Parliament which confirmed their proceedings do in effect declare the Statute 11 H 7. null and invalid and must be conceived either not to have though of it or if they did to have looked upon it either as temporary only for King Henry ' s Reign or as of no Force or Authority because tending to the disherison of the lawful Queen But it may be said Queen Jane was not in full Possession of the Crown being only Proclaimed Queen and not continuing in the Throne more then ten days I answer First She was Proclaimed Queen by the Lords of the Council and by the City and in most great Places of the Kingdom and had taken upon her the Exercise of the Government and had her Council and Great Seal c. And if this be not enough to make her Queen in Possession it is to be shewed what more was necessary to make her so and upon what Grounds especially when it appears that Queen Mary her self was no more then Proclaimed when the Duke of Northumberland c. was tryed attainted and executed by her Authority Neither was she so much as Proclaimed when he committed this Treason against her for immediately after she was Proclaimed by the Lords of the Council he before he received their Orders submitted and a Dr. Burnet's hist Reform P. 2. p. 239. Proclaimed her himself at Cambridge Secondly If this be sufficient to take off the Argument from the Proceedings against the Duke then this rather should be the Ground whereupon his Plea was over-ruled but it is plain that both his Plea and the Answer the Court made to it by the Advice of the Judges suppose Queen Jane to have been Queen in Possession and his Plea was not over-ruled because she was not in full Possession but because she was not lawful Queen and therefore her Great Seal could give no Authority nor Indemnity to those that acted by such a Warrant And if this Ground be good and legal as we see it was conceived to be by the Judges and allowed of by the Peers and the Parliament it plainly nulls King Henry's Statute and justifies the Attainting for Treason any Person that fights against a King de jure out of Possession though by a Warrant under the Broad Seal and an Order from the Council of an Vsurper in full Possession Secondly The Statute 11 H. 7. has been in effect declared null by the succeeding lawful Kings and Parliaments in as much as they have laid the contrary obligation upon the Consciences of the Subjects For if the succeeding Kings
Children that shall Vsurp the Crown before their time how can this be understood with a reserve that if any of them should Vsurp and get into the Throne the Subjects then should be obliged to abett and maintain them 3. But 3 ly the Question is not so much whether the succeeding Kings and Parliaments have repealed the Statute 11 H. 7. as whether they have not looked upon it always as null and of no Authority and I think their passing Acts of Attaindor contrary to the Letter of it and making it Treason to stand by an Vsurper and obliging the Subjects to Swear to defend the lawful King and the Succession against all Persons whatsoever is a sufficient proof that our Kings and Parliaments ever since the 25 th of Hen. 8. have looked upon the Statute 11 H. 7. as of no Authority and in effect declared it to be null and invalid II. But granting that this Statute was made by a Legal Authority and has stood ever since unrepealed I proceed to shew in the second place that it is to be looked upon as in it self null and invalid in respect of the matter of it A Statute though made at first by a lawful Authority and not after repealed by any subsequent Parliament may yet be looked upon as null and invallid if the matter of it be impossible or unjust if it be repugnant to Common Sense or contrary to the Law of God and Nature So the Lord Chief Justice Coke observes Inflit. P. 2. p. 587. in his Commentary upon the Stat. de asportatis Religiosorum one branch of which Statute he says was declared by the Court of Common-Pleas to be void because impossible and inconvenient to be observed and quotes Bracton for the Properties of a Law Lex est sanctio justa jubens honesta prohibens contraria It may be therefore a sufficient proof of the nullity of this Statute that it is not as Bracton requires Sanctio justa jubens honesta prohibens contraria but rather as I shall proceed to shew a Statute establishing Iniquity by a Law For it either devests the lawful King of his Right to the Crown and gives it to the Usurper or it still reserves his right to him but yet notwithstanding orders the Subjects to obey and stand by the King in Possession tho an Usurper The first of these cannot fairly be pretended for if it gives away the Right of the lawful King then 1 st He ceases to be King de jure the lawful and rightful King of this Realm and this besides that it is contrary to what our Lawyers allow takes away the ground of this whole dispute the distinction between King de jure and the King de facto 2 ly He cannot then justly make War upon the Nation for the recovery of his Crown but must sit down quietly by his loss and is answerable for all the Blood that is shed in the War he makes if he attempt to restore himself by a Foreign Force for if his Right be tranferred he cannot then justly demand the Subjects Allegiance and what he cannot justly demand that he has no right to use force for the recovery of and therefore must be content to stay till the Usurper dye and then perhaps his Right may revive again unless the Usurper be so wise as to provide himself a Successor and leave him in Possession 3 ly It will follow if this Statute give away the Right of the lawful King to the Usurper that one King with his Parliament may make a Statute to alienate and transfer the Right to the Crown from those that are the lawful Kings by the Fundamental Constitution of the Realm to such as by the Fundamental Constitution are not the lawful Kings but Vsurpers Now this I conceive is not in the Power of any King and Parliament however Legal much less of such as Henry 7 th and his Parliament was We have a Fundamental Constitution whereby England is determined to be a Monarchy and that antecedently to any Statute Lan. This Constitution vests a Right in some certain Person in every Age who is by Vertue of the Right vested in him the lawful and rightful King of this Realm whether this Person be he next in Blood to the former King or another of the Royal Line to whom the Crown descends by Vertue of a Limitation of the Succession from the next in Blood to him for whether the one or the other of these is the rightful King he is so by Vertue of the Fundamental Constitution which vests the right to the Crown in him Now for any one King with a Parliament to make a Law that for the future not the next Heir of the Blood nor any other to whom the Succession is limited but any Person whatsoever that shall get into Possession of the Throne tho it be by deposing a rightful King regnant and usurping his Crown shall from thence forth become the rightful and lawful King and the right of the Prince that he has dispossess'd be devolved upon the Vsurper is effectually to subvert the Fundamental Constitution of the Realm and if it be in the Power of the King regnant and his Parliament to do this then it follows that any King with a Parliament may deprive the lawful Issue of his Brother and set up a Bastard of his own that they may exclude and disinherit the whole Royal Line and entail the Crown upon the King of France or any other Foreign Prince they may lay aside the whole right of Succession and make the Monarchy Elective that they may change the form of the Government into a Republick and make the Kings no more then Consuls or Dukes of Venice and vest the Supreme Authority in the Senate or People In short that England is no longer a Monarchy or Hereditary then the King regnant and his Parliament pleases And yet if these things were done by any King and Parliament I believe it would be looked upon as an Injury to the subsequent Kings or to the Royal Line and they would be justified if they would not allow any such Statute to have any force but protest against it as Illegal and of no Authority and yet all this might be done according to Law if the King and Parliament have a Power to alienate and transfer the Right of all the subsequent lawful Kings to any Vsurper that shall be strong enough to depose or exclude them But I needed not to have proved this which is supposed in the question viz. that this Statute does not give away the Right of the lawful King deposed or excluded but still leaves him King de jure and reserves to him a right to claim and recover his Crown only it obliges the Subjects notwithstanding to stand by the King in Possession though an Usurper I shall therefore proceed upon this Supposition and shew that this Statute as it requires the Subjects to stand by the Usurper in Possession against their rightful and
in Possession but as obliging the Subjects in point of Conscience to stand by the King in Possession against the King de jure is unreasonable unjust and inhuman And then it is no Authority of Man though it were of the most lawful King and Parliament can oblige the Subjects to such a Law But to all this it may be said that it were indeed unjust thus to oblige the Subjects to transfer their Allegiance from the rightful King were it not that the Public Good and Peace of the Nation required it to be so that when an Usurper is once settled in the Possession of the Crown all that Bloodshed and Confusion may be prevented which would be the consequence of the Subjects attempting to dispossess the Vsurper and to restore the King de jure To this I answer First The King is worth ten thousand a 2 Sam. 18. 3. of his Subjects so that he is not to be kept out of his Right meerly for their ease and quiet Else they might as well save themselves the trouble and hazzard of fighting for the King in Possession and oblige him to decide his quarrel with the King de jure or any Foreign Prince by a Private Duel Secondly A great part of the Nation in an Vsurpation are such as have forfeited their lives by Treason and Rebellion by their deserting or their rising up against their lawful King Therefore no reason as to them at least that a Law should be made to set aside the Lawful Prince's Right for their ease and quiet to exclude him from a Possibility of recovering his Crown that they may freely enjoy the Fruits of their Treachery and Rebellion under the Usurper Thirdly But then such a Law if we look beyond the present time when the Usurper is newly got into Possession does not so much contribute to the Peace and Security as it does in all human prospect to the disturbance and ruin of the Nation For First It obliges the exiled Prince to endeavour to obtain Foreign Assistance for the recovery of his Crown and gives a just right to any Foreign Prince to make War upon the Usurper and the Nation in the exiled Prince's behalf as he is unjustly deprived of his Crown Now this puts the Nation in continual danger as long as the Usurpation lasts of being Conquered and brought under a Foreign Yoke and being made a prey to Mercenary Souldiers who mind nothing but Plunder and Rapine having no regard for a Country which is not their own Secondly It gives all encouragement to Ambitious Spirits to attempt upon the Crown when they find it by such a Statute as this made as it were the Prize of any one that can win it by Force and he that gets it by unjust violence is as secure as he that has the most lawful Title the Subjects being as much obliged to stand by him Thirdly It does not only keep out the Lawful King but also precludes his Heirs too from the Succession For there is no Usurper but after he has settled himself in the Throne makes it his next business to entail the Crown upon his Line and to leave his Son in Possession of it And the consequence of this is two Families as of York and Lancaster continually watching all opportunities to dethrone each other And the reading how much blood was spilt during the contest between those two Houses is enough to satisfy any Man how much such a Law contributes to the Peace of a Nation which both encourages any Usurper to seize upon the Crown and enables him both to maintain himself in Possession and to set up his Posterity after him and so to lay the Foundation of a certain War upon the Nation as often as either the Heirs of the Family of the lawful Prince are able to make a descent here with sufficient Force and to gain a Party here to joyn them or his own Family if they are routed are able to make a new attempt to repossess themselves of the Crown I shall add one Argument more against the Statute and the consequences which are drawn from it and that is by applying them to a particular instance Allegiance is due by this Statute to him only that is King in Possession and Treason lyes against him only Therefore if Cromwell had been made King we know it was almost come to a conclusion that he should take that Title upon him then these had been the consequences First That King Charles the 2 ds Party had been Rebels and Traitors if after that they had attempted to restore him to the Crown or given him any aid or comfort Secondly That they would have been obliged by vertue of their Allegiance to fight him to the death if he himself had attempted the recovery of his Right And all this notwithstanding the clear conviction of their Consciences that King Charles the 2 d was their Sole Rightful and Lawful King And Cromwell an Usurper Nay farther though Cromwell was not made King i e. did not assume the Title yet seeing he had the Exercise of the Regal Authority though under another Name the consequences in all equity and reason ought to be the same For the Law must be supposed not to regard the Name and Title but the Power and Authority and Office of a King as it is certain he had then the Nation were bound to pay him Allegiance and those that dyed for rising against him for King Charles's Interest were not Martyrs for their Loyalty but Traitors and Rebels for acting against their bounden Allegiance Neither can it be consistent with Common Sense or Honesty to urge upon the Consciences of Men the Letter of the Law against the reason and equity of it and to make the same thing Treason in one moment and the bounden Allegiance of the Subjects in the next upon the change of a Word Treason to be adherent to Cromwell while he had only the Supream Authority without the Name of King but their bounden Allegiance to adhere to him as soon as he had taken that Name upon him It will not now I hope be thought any great Presumption if upon these reasons I charge that Statute with injustice of which my Lord Bacon gives so a Dit H. 7. P. 1077. fair a Character and discovers in it not only the depth of prudence and foresight but justice also and magnanimity and a Spirit wonderfully Pious and Noble The Cunning and State Policy of it does easily appear but it is not so easie to discover any Piety or Justice in a Law that makes evil good and good evil I cannot parallel it to any other but that which he made in his first Parliament b Bac. p. 1003. That the Inheritance of the Crown should be rest remain and abide in the King c. This Act made him an Vsurper upon the rights of the House of York and the other confirmed him so This which put him in Possession of the Crown had created
and Customs Yet nevertheless forasmuch as it is considered that the most part of the People is not sufficiently learned in the abovesaid Laws and Customs whereby the truth and right in this behalf of likelyhood may be hid and not clearly known to all the People and thereupon put in doubt and question And over this how that the a Mr. Ps. note Yet he that considers 39 H. 6. n. 8. to 33. and 1 E. 4. n. 8. to 40. will scarce believe this for a truth neither proved it so in his own case Court of Parliament is of such Authority and the People of this Land of such a nature and disposition as experience teacheth that manifestation and declaration of any truth and right made by the three Estates of this Realm assembled in Parliament and by Authority of the same maketh before all things most faith and certain quieting of Mens minds and removeth the occasion of doubts and seditious language Therefore at the request and by the Assent of the three Estates of this Realm and by the Authority of the same be it pronounced decreed and declared that our Sovereign Lord the King was and is the very undoubted King of this Realm of England as well by right of consanguinity and inheritance as by lawful Election Consecration and Coronation I do not observe that the Recognition was first drawn up and presented to King Richard at his Coronation by a party of his own Creatures taking upon themselves to Recognise and Elect Him their King in the name of the Three Estates of the Realm However afterwards it was not found difficult to bring the Three Estates in full Parliament to make this their own Act and not only to submit to King Richard as King de facto but to recognize Him to be King de jure Prynn's Remarks upon it in the Margin are sufficient to shew their Honesty and Sincerity in this proceeding how well qualified they approv'd themselves for an Infallible Judge of Controversies about the Right to the Crown by their base and servile Flattery in extolling the singular Vertues of that bloody Tyrant by their declaring Him the true and undoubted Heir of the Crown by their establishing a new andunheard of Right of Inheritance whereby it belong'd to an Hereditary King to be chosen by the Parliament and lastly after they had acted thus contrary to the Light and Conviction of their own Consciences pretending to an Incontestable Authority to quiet the Consciences of the Nation How they quieted their Consciences appears by the Sequel of the History when the Nation within two Years call'd in Hen. 7 th to depose this Tyrant upon his Oath to Marry the Daughter of Edw. the 4 th the Heir of the Crown and there we find the Parliament soon change their Note and prononnce the late True and Vndoubted Heir of the Crown a Traitor and Vsurper FINIS An Advertisement to the Reader in relation to the foregoing Discourse There are some passages in this discourse which may seem to allow too much to an Usurper in Possession viz That some degree of Submission may and ought to be paid to his Acts of Government that some of his Judicial Acts Grants c. ought in equity to be looked upon as valid and that some Acts against hi may be punished as Treason To prevents these passaes being mistaken or perverted I thought it proper to to add some farther explanation of them The Question touching the Subject's complyance under an Usunper in Possession supposes these two things 1. That the Usurper is got into the Throne and that he has seized the Power of the Nation into his Hands so that the Subjects who still adhere to their Loyalty and Allegiance are not an present able to make Head against him to remove him from the Throne and to restore their Lawful King to his Right 2. That whether the Loyal Party will or no the Government will from thenceforth proceed under the Name and as by the Authority of the Usurper till the Lawful Prince and his Party are in a condition to displace him i. e. The Usurper will Name his Council Judges and inferiour Magistrates Officers of his Court and his Army c. will call Parliaments make Laws levy Taxes grant Commissions and take upon him to execute all other Acts of Royal Authority and will have a Party to act under him in all Places of Trust and Power during his Usurpation Upon this ground therefore it will not be difficult to explain the abovementioned passages and to shew that they do not allow too much to an Usurper in Possession As First That some degree of Submission and Obedience may be paid to his Acts of Government i. e. Whilst the Loyal Party are not able to make head against him to deprive him of the Crown they may be allowed and obliged to pay a Submission and Obedience to those Acts of Government done by the Usurper which tend to the Publick Safety and Welfare and are not prejudicial to the Right and Interest of their Lawful King For this Submission and Obedience 1. Does not imply any Recognition of the least Right or Authority in the Usurper for the ground of it is not any such Authority but a prudent regard to their own Safety the Publick Good and their absent Prince's Interest involed in both whose Will therefore they must presume allowing nay requiring them to act thus as most for his Service in their present circumstances 2. It does not at all contribute to the Settlement of the Usurpation and the Confirmation of the Government in the Hands of the Usurper for the Government will proceed as by his Authority whether they will or no till they are in a condition to oppose it effectually and may be more settled if they should throw away their own Lives and ruine the Cause of their Lawful Prince by any rash and weak attempt 3. It does not dis-ingage them from imbracing all opportunities of acting any thing that may be really serviceable to their Lawful Prince's Interest and may make way for his recovery of his just Rights Secondly It is allowed in the Discourse That some Judicial Acts and Grants c. of an Usurper ought in Equity to be looked upon as valid viz. Such as are not to the prejudice of the Interest of the Lawful King or of the Publick This is grounded upon the same supposition that the Government will be carried on by the Usurper and his Adberents whether the Lawful Prince and his Party will or so and then it is for the Good of the Nation the Lawful Party and he Lawful Prince that Justice should be administred and the Order of Government preserved and consequently that the Sentences passed in Courts under the Usurper and his Commissions and Grants c. be looked upon as valid as far as they are not against the Right of the Lawful King and tend to the preservation of publick Justice and Order For the allowing this does not imply 1. An allowance of any Right or Authority in the Usurper for the Government may still be conceived to subsist and the Laws to stand in force by virtue of the Lawful King's Authority and consequently these Judicial Acts c. may be looked upon as useful by virtue of his presumed Will whereby they are ratified and confirmed 2. Neither does it justifie the Adherents of the Usuper in their joyning to act under him as the Instruments of his Usurped Power for this is Treason in them their swearing Allegiance to him taking Commissions from him and acting for his Interest against their Lawful Prince and yet some Acts done by them to preserve Publick Justice and Order may be looked upon as convenient not by virtue of any Legal Authority which they have but as Reason and Necessity requires that these Acts should have their effect Thirdly The Discourse That some Acts against an Usurper may be punished as Treason This also supposes the Government and Power of the Nation to be in the Usurper's Hands and that it is requisite and just that while it is so Murder Robery and such other Offences against Right and Order be punished though by the Usurper's Commission and Warrant The same therefore is to be granted as to any Acts within the Stat. 25 Edw. 3. which are committed under the Reign of an Usurper against the Order of Government and the Royal Authority considered in it self and not against the Usurper's Person or Government as such such are Clipping and Coining betraying any place of strength to any Foreign Prince invading the Nation not on the Lawful King's behalf c. Now these Acts may be allowed as punishable under an Usurper without implying an allowance of any Authority in him for they are punished by Virtue of the Lawful Prince's Authority and without implying that the inferiour Magistrates under him have any Legal or Just Commission any farther than as they may be conceived to have the Will and Consent of the absent Prince authorizing them to execute Justice upon such Criminals or at least ratifying the thing done thought without a Legal Commission This I thought proper to add for the farther explanation of these Passages to prevent their being mistaken or perverted I have nothing more but to desire that they may be considered as Concessions in relation to the Plea of Bagott's Council which is so much insisted upon for the Lawfulness of transferring Allegeance to a King de Facto and I have though it the fairest way of answering the Argument from that Plea not to reject it where it seems not to be unreasonable but to shew that the Lawyers might have some reasonable grounds to argue in that manner for the validity of Bagott's Patent and yet their Plea cannot be made use of to prove that Allegiance is due to a King in Possession if an Usurper FINIS ERRATA Pag. 9. l. 19. after those add that p. 33. l. 12. for was r. were p. 38. l. 7. for the r. that Ibid. l. 9. for he r. the. p. 41. l. 16. for thus r. this p. 46. l. 22. for routed r. outed Ibid. l. 24. for the r. this p. 47. l. 22. Marg. for Dit r. Vit. p. 49. l. 7 Marg. for Confident r. Considerat Ibid. l. 17. Marg. for 6. r. 9. Ibid l. 22. for use the r. use his p. 53. l. 8. after comprehend add both p. 154 l. 7. for noâ— r. noâ— p. 56. l. 28. for Mento r. Merito
THE CASE OF ALLEGIANCE TO A KING IN POSSESSION Printed in the Year 1690. THE CASE of ALLEGIANCE TO A KING IN POSSESSION BY the King in Possession may be meant First The Person who is invested with the Regal Authority Secondly The Person who has the exercise of the Government in his Hands The King in Possession in the former Sense is only the King de Jure i. e. he that has the true Right and Title to the Crown for he is immediately invested with the Regal Authority upon the Death of his Predecessor before he is either Crowned or Proclaimed and though he be excluded or deposed from the exercise of the Government by a Rebellion or Usurpation yet he is not thereupon devested of his Authority But the Question is of the King in Possession in the other Sense viz. the Person who has the exercise of the Government in his hands Whether though he be not King de Jure but an Usurper and so has not the Regal Authority yet in as much as he has the execution of the Kingly Office the Subjects are bound to bear Faith and Allegiance to him To state which Question exactly First It is not meant of this case namely where there is No Person surviving who has the Right to the Crown as suppose in an Hereditary Monarchy the whole Royal Line were Extinct Because here there is no dispute but the subjects may and ought to bear Faith and true Allegiance to the King in Possession though he came in at first by Usurpation For the whole Royal Line being Extinct the Subjects are at liberty to give themselves up to the Usurper and his Line and this it may be their Duty to do to prevent that Bloodshed and Confusion which may follow upon their atten pring to set up another Person or Government and when they have thus given themselves up to the Usurper he becomes from thenceforth King de Jure and all Faith and Allegiance becomes due to him V. Sanderson de Conscient Praelect 5. Sect. 13. 14. Secondly Neither is the Question meant of this case where there is one or more who pretend a Title to the Crown besides the Possessor but it is not clear who has the true Right and Title For here also it is not disputed but the Subjects while they don't know who has the Right are to pay their Allegiance to the King in Possession and the Reason is not barely because he is King in Possession but because he being in Possession and no better Title appearing his Title is presumed to be Just and Lawful and so he is supposed to be King not only de Facto but de Jure till it do appear that some other Person has a better Right to the Crown And this according to the old-Rule in Ribus dubus melior est Conditio Possidentis V. Sarderson de Consc Prae 5 Sect. 15. But Thirdly The Question is properly meant of this Case where a King whose Right to the Crown is clear and undoubted is Excluded or Deposed by an Userper Whether then the Subjects are to bear Faith and Allegiance to the Usurper as King in Possession and here it may be granted 1. That the Subjects may lawfully pay a Submission and Obedience under the Usurper as to all those Acts of Government which tend to the Preservation and Welfare of Community and are not distructive of the King de Jure's Right and Interest as for instance The Laws made by the Usurper for the publick Good the defence of the Nation against a Forreign Invasion not made in behaâ—f of the King de Jure the execution of Justice Trade c. They may lawfully submit to and obey these Acts of Government under the Usurper because this is no renouncing of their Allegiance to their lawful King nor acting against his real Interest but is consistent with their acting still all that they are capable to do in the present circumstances for the restoring of their lawful King and dethroning the Usurper Nay they may be obliged in Duty to pay an Obedience to the Acts of the Usurper in things of this Nature not by virtue of any Authority in the Usurper but First For their own Safety and Advantage Secondly For the good of the Community Thirdly Because these Acts of Government done by the Usurper are ratified by the Authority of the lawful King he being to be presumed to Will and Consent to whatever is done for the publick Good and not against his own Interest though done by his Enemy U. Sanders de Conscient Prael 5 Sect. 17 18 c. He adds another Ground of this Obligation the Protection the Subjects have from the Usurper but I think this lays no obligation upon them but in point of Prudence for their own Safety for they cannot be obliged to him in Justice or Gratitude for his Protection who deprives them of a more legal Protection from their rightful King Secondly Neither is it disputed but the Subjects while they have not number or force to oppose the Usurper may sit down quietly and not make any resistance against such Acts of Government as are contrary to the Right and Interest of their lawful King because their making any opposition without sufficient Force would be only to throw away their Lives and lose the King de Jure so many Loyal Subjects who might be ready to act for his Service upon a fair opportunity But Thirdly The point in dispute is whether the Subjects may and ought to pay a full and entire Submission and Obedience to the Usurper so as never to attempt any thing against him while he is in Possession in behalf of the King de Jure upon the fairest occasion but on the contrary to stand by him even against the King de Jure himself with their Lives and Fortunes The Affirmative is maintained now upon these Grounds First The Authority of our greatest Lawyers who make Treason to â—â—e only against the King in Possession whether he be King de Jure or no and not against a King out of Possession though he be the King de Jure Secondly The Statute 11 H. 7. c. 1. which makes the Allegiance of the Subjects due to the King for the time being First The Authority of our Lawyers The Lawyers quoted for this Opinion are the Lords Chief Justices Coke Hale c. The Lord Chief Justice Hale says it in his Pleas of the Crown p. 12. But then it is much doubted whether that Piece be his and he himself may be justly looked upon to be of another Opinion in this point because he would never be brought to try any a See his Life by Dr. Burnet p. 36 c. Treasons or other Offences against the State when he was Judge under Oliver Cromwel My Lord Coke says it in his Institut Part 3d. p. 7. in his Comment upon the Words Seignior le Roy in the Statute of Treason 25 Edw. 3. c. 2. by which words he says is to
be understood the King in Possession though he be King de Facta and not de Jure and not the King out of Possession though he be the King de Jure The Acts declared Treason in that Statute are To compass the Death of the King Queen or Prince To Ravish the Queen or the King 's Eldest Daughter or the Prince's Wife To Levy War against the King or to be adherent to his Enemies giving them aid or comfort To Counterfeit the Great or the Privy Seal or the King's Coin To kill the Chancellor Treasurer Judges c. in the Execution of their Office The sense therefore of my Lord Coke's Assertion is That these Acts are Treason when they are committed against a King in Possession whether he be King de Jure or no and not Treason when they are committed against a King out of Possession though he be King de Jure Before I examine the grounds of his Assertion I shall first state the point of Controversy The Question therefore is not Whether some of these Acts may not be punished as Treason under an Usurper if they are committed against the necessary Order of Government and not done for the restoring of the King de Jure to his Crown or promoting his Inrest For the Subiects are obliged to pay a Submission and Obedience to the Usurper as to all Acts of Government that are not destructive of the King de Jure's Rights and interest and therefore if herein they oppose or disturb the Government they may by the Law be adjudged Traytors and punished as such Thus therefore it may be Treason under an Usurper First To Counterfeit or Clip his Coin or to Counterfeit his Broad Seal or Privy Seal or to kill a Judge siting upon the Bench some these Offences touch not the Person or Interest of the Usurper but the Order of Government and as it is just that the Order of Government should proceed under an Usurper so it is just that these Acts against the Government should be punished as well as Robbery Murder and the like as Offences not against the Usurper but the Lawful King Secondly To Levy War against him or to be adherent to his Enemies or to compass his Death out of a private seditious Principle and not out of any regard to the Right and Interest of the Lawful King as suppose any Man should practice with a Forreign Prince to Invade the Nation not in the Lawful King's behalf or should betray any Fort or Castle or any part of the Country to him or the like for these also are Offences not so much against the Person and Interest of the Usurper as against the course of the Government and strike through the Person of the Usurper at the Person and Authority of the Lawful King and in that regard may be justly looked upon and punished as Treason So the Swearing falsly though by an Idol may be looked upon and punished as Perjury because it terminates upon the Majesty of the true God But all this may be granted and yet it does not follow that the Allegiance of the Subjects ought or may be paid to the King in Possession if he be an Usurper for still their Submission and Obedience to him is limited with a reserve to the Right and Interest of the Lawful King The Question therefore must be Whether it be Treason to act against the Usurper in Possession for the Right and Interest of the King de Jure out of Possession to be adherent to the King de Jure to give him and his Party Aid and Comfort and to Levy War against the Usurper for the restoring of the King de Jure to his Crown And whether it is not Treason to be adherent to the Usurper and to Fight for him against the King de Jure out of Possession This therefore must be that which my Lord Coke lays down for Law where he Asserts that Treason lies only against the King in Possession I shall proceed therefore to consider the grounds of his Assertion It is indeed true in Fact that the Acts declared to be Treason in the Statute 25 Edw. 3. will be adjuged and punished as Treason under every King in Possession whether he be King de Jure or no for though he be an Usurper yet while he is in the Throne the Laws Courts of Judicature and every thing else is made to favour his side as much as if he were the most Lawful and Rightful King His Party are held to be the Loyal Subjects in the Eye of the Law and the adverse Party Rebels and Traytors So the Laws may be fitly compared to the Banks cast up against the Sea which are made to keep out an Inundation but when once the Water is got over them they keep it in In like manner the Laws are made to prevent an Usurpation but when once an Usurper is got into the Throne then they are made to become a Fence to him to keep in Possession of it Now there is hardly any Monarchy wherein there have been more Usurpations then there have been in Ours and it ought not to be strange if in all these the Usurpers took upon them to act as Lawful Kings and Obedience was paid to them as such by the Major part of the Nation at least while they continued in the Throne and those that stood by them against the King de Jure whose Rights they had Usurped were looked upon as Faithful and Loyal Subjects and rewarded accordingly and those that rose up against them in behalf of their Rightful Kings were declared Traytors and Rebels and punished as such and so the whole course of the Government ran on their side They called Parliaments and then the Laws were made in favour of their Title they made the Judges and no wonder then if all the Laws as well as the Sat. 25. Edw. 3. were interpreted in their Favour and Treason lay in their own Courts against them only But it s being always thus in Fact is no iust Ground for any Man to declare it to be so in point of Right and to give it for Law that Treason is only against the King in Possession whether he be the King de Jure or an Usurper We may therefore take leave to examine whether there be any better Grounds for this Assertion It would seem a very odd Question for any to ask touching the Laws which are made in any setled Monarchy for the desence of the King's Person Crown and Dignity who is meant by the King in those Laws The Lawful and Rightful King of that Realm or any one that gets into the Possession of the Throne though he be not the Rightful King but an Usurper Common Sense would hardly allow such a Question to be put For the King de Jure and not an Usurper is Truly and Properly King and therefore if the Words of a Law are to be understood in their Natural and Proper Sense the Word King cannot be understood to
mean an Usurper unless with an express limitation to determine it to that Sense Besides the Law is made for the defence of Right and therefore cannot be understood to be designed for the Security and Settlement of an Usurpation but made to prevent it I granted above That there may be some Acts committed against the Person and Government of an Usurper which the Law may justly condemn and punish as Treason as swearing falsely by an Idol may be justly looked upon as Perjury and will by the true God himself be punished as such But if because some Acts against an Usurper may be punished as Treason a Lawyer may make this comment upon the Statute of Treason that by our Lord the King is meant only the King in Possession whether he be King de Jure or no I think a Divine upon the other Ground that swearing falsely by an Idol may be punished as Perjury may as well make this gloss upon the Third Commandment that by the Lord thy God is meant there the God in Possession he that is Worshiped in the Land whether he be the true God or not But to shew what are my Lord Coke's Grounds for his gloss I shall set it down in his own Words with the references he makes in the Margin to the Statutes and Year Books of our Law Cases This Act is to be understood of a King in Possession of the Crown and Kingdom V. 11 H. 7. for if there be a King regnant in Possession though he be Rex de Facto non de Jure c. 1. yet he is Seignior le Roy within the purview of this Statute And the other that hath Right and is out of Possession is not within the Act 4 E 4. 1. Nay if Treason be commited against a King de Facto 9 E. 4. 1 2. and after the King de Jure cometh to the Crown he shall punish the Treason done to the King de Facto And a Pardon granted by a King de Jure that is not also de Facto is void We may Observe here First this Gloss is not grounded upon the Act it self for that says only Seignior le Roy which Words my Lord C ke Interprets of the King in Possession be he King de Jure or â—o Nay it is plain that the Act does intend only the King de Jure if we consider the other Parts of it For First it 's Treason by the Act to kill the Prince the King 's Eldest Son and Heir Apparent to the Crown and it is plain the Reason of the Law in this has its care for the Succession Now the Heir Apparent of the Crown cannot be the Son of an Usurper for this implies a Right to Succeed after his Father but the Son of an Usurper though his Father be in Possession of the Crown has no Right of Succession If therefore by the Prince here cannot be meant the â—on of an Usurper though King de Facto then it must be only the Son of the King de Jure and consequently by parity of Reason by the King in the Statute must be meant only the King de Jure Secondly It is Treason by the Statute to violate or Ravish the Queen or the Prince's Wife and this also is grounded upon the care the Law has to preserve the true Right of Succssion and it is Treason likewise to Ravish the King 's Eldest Daughter and let my Lord Coke himself give the Reason because a Inst it Par. 3. p. 9. for default of Male Issue she only is Inheritable to the Crown Now the Law cannot be supposed to be thus concerned for the Issue of an Usurper who have no Right to Inherit the Crown though we might suppose the Law were willing to maintain the Usurper himself in Possession of the Crown for his own Life these instances therefore are a farther proof that the Statute it self had an Eye only upon the Lawful King and never intended any such kindness to an Usurper as to oblige the Subjects to stand by him on pain of being guilty of Treason if they did otherwise And if the Stat. 25 E. 3. c. 2. Which is only a Declaration of what was Treason Originally by the Common Law be not applicable to a King in Possession if not de Jure then besides the Vindication of the Statute it self from my Lord cok'es Gloss we have gained another very material point viz. That Treason did not then by the Common Law lie against the King in Possession if he were not King de Jure Secondly We may Observe that the Lord Chief Justice Coke does not found his Gloss upon the Funaamental Constitution of the Realm and indeed that makes flatly against him England is a settled Monarchy and in every such Monarchy the Right to the Crown is always vested in some certain Person who is the Rightful and Lawful King and to this Person the Fundamental Constitution appropriates the Regal Authority and the Allegiance of the Subjects and consequently they cannot properly be guilty of violating their Allegiance but against him only For the Constitution of the Realm makes him King and no other and makes them Subjects to him and to none other and therefore in strictness of Law Treason ought to lye against him only and no other at least it ought not to lye against any other but in such case wherein the Offences against another Person terminate upon the Lawful Kings Authority and are destructive of his Interest and so are punishable by vertue of his presumed Will and Consent Thirdly Neither is my Lord Coke's gloss grounded upon the constant Practice and Custom of the Realm but that also proves the contrary For if Treason by the Practice and Custom of the Realm lay only against a King in Possession of the Crown and Kingdom then 1. Those only would be attainted by our Kings and Parliaments who acted against a King in Possession but we shall find the contrary always practiced We shall find that all our Kings whether lawful or not with their Parliaments have attainted those acted against them but then they have not only attainted those that acted against them while they were in Possession but those also that opposed their obtaining or recovering the Possession of the Crown and acted against them under another King in Possession And this we shall find in every instance where any of our Kings came into the Possession of the Crown not without a violent Opposition made against him by the adherents of another King whom he deposed So Ed. 4. in his First Parliament b Exact Abridg of the Records of the Tower 1 Ed. 4. n. 20. 24. attaints those that fought for Hen. 6. against him And Hen. 6. when Nine years after Ed. 4. fled out of the Realm and he was again restored to the Crown calls a Parliament and c Trussel's Continuat of Daniel's Hist p. 1 89. Stat. 17. attaints those that acted for King Ed. against him And
again when Ed. 4. returned and deposed King Hen. Ed. 4. c. 7. a Second time then Ed. 4. in his next Parliament d Abridg. of the Records 14 Ed 4. n. 34 35. 36. attaints those that had acted against him on King Henry's side So also Hen. 7. himself e See a large Catalogue of their names in Baker's Chr. in the begining of the life of Hen. 7. attainted by Parliament those that fought against him under Rich. 3. in Bosworth-field And Queen Mary first convicted and then in her First Parliament f 1 Mar. Sess 2. c. 16. attainted the Duke of Northumberland c. for acting for Queen Jane against her Now their attainting those that opposed their obtaining or re covering the Possession of the Crown shews that they did not attaint them of Treason as acting against a King in Possession but as acting against a King de Jure whether in Possession or out of it I might add that in the Parliament 4. Ed. 3. the Murderers of Ed. 2. g Abridg. of the Records 4. Ed. 3. n. 5. a King Deposed and out of Possession are Attainted of Treason But here my Lord Coke h Coke's Institut part 3d. p. 7. He says it was Treason before the Stat. 25. Ed. 3. to kill the King's Father or Uncle but that the Statute restrained it to the killing the King Queen or Prince says something which may take of the force of the Argument viz. that this was Treason not as Ed. 2. had been once King but as he was the Father of the King Regnant and that upon the same ground the Murtherers of Edmond Earl of Kent were Attainted of Treason by the same Parliament because he was the King's Uncle If Treason by the Practice and Custom of the Realm lay only against the King in Possession then certainly a King in Possession himself cannot be guilty of Treason for what he does while in Possession much less can be guilty for what he does against a King out of Possession and yet we shall find the very Kings themselves who are looked upon as Usurpers as well as their adherents attainted or declared guilty of Treason by the subsequent Kings and Parliaments So in the Parliament 1. Ed. 4. King Hen 4. himself is declared a Traytor for puting to Death Rich. 2 after Richard was Deposed and Hen. himself was in full Possession of the Crown The words are i Rot. Parl. 1. Henry Earl of Derby against his Faith and Ligeaunce reared War at Flint in Wales against the said King Rich. Ed. 4. n. 9. in Dr. Brady's Hist of the Succession Printed for Cave Pulleyn 1681. p 30. Year Books 9 Ed. 49. 2. him took and Imprisoned in the Tower of London of great violence And the same King Richard so being in Prison and living usurped and intruded upon the Royal Power Estate Dignity taking upon himself the name of King and Lord of the same Realm And not therewith satisfied or content but more grievous things attempting wickedly of unnatural unmanly and cruel Tyranny the same King Richard Anointed Crowned and Consecrate and his Liege and most high Lord in the Earth against God's Law Man's Legiance and Oath of fidelity with the uttermost punition attermenting Murdered and destroyed with most vile heincus and lamentable Death c. Besides in the same Parliament 1 Ed. 4. Hen. 6. k Abridg. of the Records 1 Ed. 4 n. 17. 21 22 23 24. is several times Attainted first for the Death of Richard Duke of York at the Battle of Wakefield then for delivering up Berwick to the King of Scots and procuring him to Invade England and practicing to deliver up Carlisle to him and lastly for being in Arms against Ed. 4. in the Bishoprick of Durham all which Treasons were commited before King Edwards Coronation and so before he was King in full Possession and the first Treason lies against Richard Duke of York who was not King but only Declared Heir to the Crown 39 Hen. 6. by l Abridg. of the Records 39 Hen. 6. 11. 20. 22. Agreement between Hen. 6. and the Duke that Henry should be King for his Life and the Duke after him which Agreement though it left Hen. 6. still King in Possession yet it seems he was judged liable to an Attainder of Treason for fighting against the Person that had the Right Title to the Crown Neither did Hen. 6. when he was again Restored to the Crown Attaint only the adherents of Ed. 4. but m Trussel's Continuation of Daniel's Hist p. 189. himself also And in like manner Hen. 7. Stat. 17 Ed. 4. c. 7. with his Parliament Attainted n Baker's Chron. in the beginning of the Life of H. 7. King Rich. 3. for being in Arms against Hen. 7. in Bosworth Field So also did Queen Mary Attaint o 1 Mar. Sess 2. c. 17. Queen Jane for Usurping her Crown Now if we reflect upon these Proceedings of our Kings and Parliaments that they always Attainted those Kings whom they looked upon as Usurpers it plainly follows that they proceeded upon this Principle that our Law allows of no other King but a King de Jure and therefore when an Usurper gets in to Possession of the Crown though while he has the Laws in his Power they must seem to be of his side yet when once the Government is free it looks upon him as no King but considers him as a Subject of and a Rebel and p Sat. 17. Traytor against the King de Jure For if an Usurper were truly King he could not then be guilty of Treason Ed. 4. c. 17. except against himself so that if there be a Person against whom the Law makes him a Rebel and Traytor there H. 6. is called a Rebel against Ed. 4. then it follows that the Law looks upon that Person only as King and the Usurper as still his Subject though King in Possession Thirdly If Treason lay only against the King in Possession whether King de Jure or no then when once there is an Usurper got into the Throne the Subjects must look upon themselves as obliged upon pain of High Treason not to admit of any claim of the King de Jure nor to attempt to bring him into Possessien of his Right during the Usurpers Life though they are fully convinced in their Consciences of his just Title to the Crown for this were to be adherent to the Enemy of the King in Possession But this notion of their Duty to the King in Possession it appears the Nation had not formerly from the Case of Richard Duke of York when he came to put in his claim to the Crown in the Parliament 39 Hen. 6. Q Abridg. of the Records 39 H. 6. n. 10. seq Rot. The Lords in that Parliament alledge against the Duke's claim all that King Henry's Council could suggest to them in behalf of a King in Possession Parl. 39. H. 6
uphold and maintain the Laws and therefore any King's Acts of Government though he be an Usurper must be held valid That they themselves limit the validity of the Grants of a King de Facto that they be not to the diminution of the Crown That they do not argue from any Statute of the Realm That what they say is not directly Answered to or denied by the Council on the other side nor by any of the Judges but one of the Judges Billing seems to declare his Opinion upon the Reason of the thing to the same purpose and all the Judges with the advice of the Judges of the Common Pleas determine the Case in savour of Bagott This is the utmost that can be made of this Case and d Tit. Treason N. 10 Brooke in his grand Abridgment makes no more of it Nota says he Dicitur non negature quod de proditione factâ tempore H. 6. que fuit Usurper del Crown le party sera arraigne pour ceo tempore E. 4. vel bujusmodi pour compassant le mort de Roy H. 6. quod nota sic vide quod trespasse tempore unins Regis poet estre puny tempore alterius Regis comment que I un fuit Usurper He Observes that it is said i. e. by Bagotts Council and not denied i. e. by the Council against him or the Judges That Treason against H. 6. Compassing his Death may be punished by Ed. 4. or any other lawful King The reference that Brooke has in the Margin is 4 E. 4. i. e. but there is nothing there in the Year-Books of that nature and the very words make it appear that he quotes Bagotts Case and therefore it seems to be a mistake of the Press for 9 Ed. 4. 1 2. which Brooke after e N. 28. refers to in the same page for the same thing and I believe my Lord Coke Transcribing these quotations out of Brooke took them for two distinct quotations whereas really are one and the same And if this be the utmost this Case amounts to then first it is not Authority sufficient to make it Law that this was plèadèd by Council and not denied by the Judges or the adverse Party Secondly Neither if we grant the particular points in the Plea will it follow either that Treason by our Law lies only against the King in Possession or that our Allegiance is due to him only And this will appear by considering the particular points contained in the Plea As First That the Judicial Acts and Grants of a King de Facto shall stand good when the King de Jure recovers his Crown This they themselves limit to such Grants as are not to the diminution of the Crown And Equity and Reason allows that the Acts of Government done by an Usurper neither to the prejudice of the Community nor of the Lawful King's interest may and ought to be reputed valid after the Lawful King's return for those Acts not being against his Right and Interest and being necessary to the very being of the Government under the Usurper while he cannot be Deposed from his Usurped Power those Acts say the King de Jure himself is to be presumed to ratifie by his Consent and Allowance and therefore upon this presumption they become valid and Authoritative by vertue of his Authority and not the Usurpers So all Laws made by the Usurper in Parliament for the publick Good all Sentences passed in Courts all Commissions granted by him all the Actions of the Ministers of State and inferiour Magistratesacting under his Commission as far as the Reason of Government requires and they are no prejudice to the Rightful King ought to stand in full force even when the King de Jure comes to the Crown And upon this ground Bagott's Patent for Naturalization was looked upon as valid even against the Letter of the Statute 1 E. 4. c. 1. which Statute by Confirming some Grants of II. 4 5 6. might seem to anull all the rest which it did not Confirm and so the Council against Bagott urge it and yet Bagotts Patent was held good though not Conflrmed by that Statute which shews that it was held good not by vertue of any Written Law but because as Bagott's Council Plead the Reason of Government and common Equity requires that such Acts of an Usurper should stand good as tend not to the diminution of the Crown But then this is no proof that all other Judicial Acts and Grants whatsoever though tending directly to the prejudice of the Lawful King should be looked upon to Oblige him at his return or to bind the Consciences of his Subjects while he is out of Possession for though the King de Jure may be presumed to consent to and the Subjects are allowed to Obey the Usurper's other Acts of Government yet this cannot be extended to those Acts that strike at the Authority and Interest of the King de Jure himself Nor can we suppose that Bagott's Council Pleading here in Edw. 4 time and before his Judges would say that any of H. 6. Acts done plainly to the disherison of King Edward were to be looked upon as valid nor can we conceive that King Edward ' s Judges would have admitted such a Plea if the Council had made it This therefore may be enough to shew that the Plea of Bagott's Council may be approved of in this point and yet it is no good consequence that every Act of an Usurper is Authoritative or that the Subjects are obliged to pay Allegiance to him 2. The Second point in the Plea of Bagott's Council is That the King de Jure at his return to the Crown shall have the advantage of all Forfeitures for any Trespasses committed against a King de Facto and that he may Punish Treason committed against a King de Facto by any one that compassed the King de Facto ' s Death This also is very true if we restrain it to such Acts against the King de Facto as the Right and Interest of the King de Jure does not require or justifie the doing it For First There are many Offences which are only against the Order of the Government and the Peace of the Society or the Rights of some private Persons and not against the King de Facto's Person or Crown as Theft Murder Perjury and some kinds of Treason as Clipping and Coyning killing a Judge upon the Bench Counterfeiting the King's Seal adhering to a Foreign Enemy that makes War not upon the Usurper as such in the Lawful King's behalf but upon the Nation and so implicitely upon the Lawful King whose Interest would be ruined if a Foreigner should Conquer the Nation betraying any Fort or Castle or the like Now these Offences are justly punishable by the King de Jure himself when he comes to the Crown or by the inferiour Magistrates acting under the Usurper ' s Commission while the King de Jure is out of Possession they
are justly punishable by himself because they terminate upon his Authority and upon the interest which he has in the regular and orderly Prcceeding of the Government though he is excluded from the Administration of it They are punishable also by the inferiour Magistrates by vertue of his presumed Will Authorizing them to act for his and the Nation 's Interest though under an Usurper And upon this ground we find that Judge f Dr. Burnet's Life of Judge Hale p 36 c. Hale did not scruple to Try Felons under Oliver Cromwel though he scrupled to Try any Offenders against the State Secondly There may be some Acts against the very Person and Crown of the Usurper which may be done out of a private seditious Principle or for the interest not of the King de Jure but some other Person merely to disturb the Government or to set up a Second Usurper in the place of the First Now these Acts may be justly pnnished as Treason either by the Inferiour Magistrates under the Usurper or by the King de Jure when he comes to the Crown For First These Acts strike indirectly at the King de Jure ' s Person and Crown through the Usurper and therefore either himself may punish them as done against himself or the inferior Magistrates may punish them by virtue of his presumed Will and Consent Secondly The Necessity of Government requires that the Laws and Courts of Judicature stand by the King in Possession though an Usurper against any other Person pretending to the Crown but the Lawful King And therefore an attempt to kill or depose him to make way for another Usupation may be justly punished as Treason even by the King de Jure himself and his Consent may be presumed to authorize the inseriour Magistrates to do it during his Exile Thus therefore it might have been just for Edw. IV. to attaint of Treason any Person that had compassed the Death of King Hen. VI. or levyed War against him for any other end and purpose than to promote King Edward ' s Interest and to bring him to the Crown And so this second point of the plea of Bagott ' s Council may be allowed of But then it is no consequence that any Acts done against the Usurper in behalf of the King de Jure to bring him to the Crown may be justly punished either by the Usurper or by the inferiour Magistrates under him or much less by the King de Jure himself when he comes to the Crown Neither is it conceivable that Bagott ' s Council meant this by their plea that those who Acted against Hen. VI. to bring Ed. IV. to the Crown might be Attainted by Ed. IV. for Traytors and Rebels for fighting against Hen. VI. the King in Possession in King Edward's behalf this would have been a beld Plea in King Ed. IV's time and before his Judges and yet this must be their Plea to prove from it that Treason can be commited against only the King in Possession It may be Objected that the Attaindors of Pesons by a King de Facto for fightingagainst him in behalf of the King de Jure have been looked upon as valid by the Kings de Jure when they came to the Crown For instance Rich. 3. had Attainted those that came against him under Hen. 7. and his Parliament declare Richard to be an Usurper yet they thought not fit to let any of them whom he had Attainted sit in Parliament g Bac. Vit. Hen. 7. p. 1004. till their Attaindors were first taken off which is a confession that they looked upon their attainders as valid till they were repealed To this I Answer First Rich. 3. though he was an Usurper being not the First of the Blood of the House of York yet his Title to the Crown was good against Hen. 7. he being of the House of Lancaster and not the First of the House neither his own Mother being alive 2. But Secondly Granting that Hen. 7. and his Parliament looked upon Hen. 7. as King de Jure and Rich. 3. as an Usurper of the Crown as they stile him their thinking it proper to take off the attaindors of those whom Rich. 3. had attainted is no certain proof that they looked upon their attaindors as valid for though they had looked upon them as null in themselves yet they might think fit to Repeal them for the satisfaction of the Nation and the security of the Persons Attainted who might otherwise have been liable to be Execited upon these Attaindors if there should have been a turn So no question Ed. 4. looked upon the Proceedings of the Parliament 49 H. 6. Summoned by Hen. 6. when Ed. 4. in the ninth year of his Reign was fled out of his Realm wherein himself and all his adherents were Attainted as null and invalid else he would have Repealed those Proceedings in his next Parliament yet eight years after he thought fit to Repeal them h Stat. 17. Ed. 4. c. 7. for the surety of his Noble Person his Noble Issue and the inheritable Succession of the same and for the surety of all the Lords Noblemen and other his Servants and Subjects i. e. to secure them from any danger from the Attaindors in that Parliament if there ever should be a return of the Lancastrian Family Thirdly Granting that King H. 7. and his Parliament did look upon these Attaindors as valid what is the consequence viz. that they allowed it was Treason to fight Rich. 3. the King in Possession though an Usurper in behalf of Hen. 7. whom they conceived to be the King de Jure Then sure if they thought it was Treason to fight against Rich. 3. the King in Possession they could not look upon it as Treason to fight for him And yet the very same Parliament i Bac. Vit. H. 7. p. 1004. 1005. Attaints both Rich. 3. himself and all those that fought under him in Bosworth Field So that we see what good Law we are like to have if we believe every thing which may be given us for Law out of the Statute and Year-Books for then we may upon the Authority of the very same Parliament make it Treason on both sides to fight for Hen. 7. against Rich. 3. and to fight for Rich. 3. against Hen. 7. The former to fight against Rich. 3. that Parliament is conceived to allow to be Treason because they looked upon the Attainders of those whom Rich. 3. had Attainted for being in Arms against him as valid till they were Repealed and the latter to fight for Rich. 3. they declared to be Treason because they Attainted those that were in Arms under him against Hen. 7. Before I pass on to the last point of Bagott ' s Plea I may from this Second Part of it give an Answer to one of the most specious Arguments that is brought to prove that our Allegiance is due to the King de Facto though not de Jure The
Argument is drawn from the usual Form of the k Considera for the taking the Oath of Alleg. P. 5. n. 3. Indictments for Treason which runs for commiting that Crime Contra debitum Fidei Ligeantiae suae quod praefato Domino Regi naturaliter de Jure impendere debuit or Contra Dominum Regem Supremum naturalem Dominum suum or Contra naturalem Ligeantiam Domino Regi debitam Now if in the Indictment for Treason against a King de Facto and not de Jure the Treason be said to be committed Against our Supream and Natural Leige-Lord against our Natural Allegiance due to him against that Duty of Faith and Allegiance which we naturally and of right ought to yield to him then surely our Allegiance is due to a King in Possession though not de Jure To this I Answer First It is no wonder if in the Reign of the King de Facto himself the Indictments for Treasons committed against him run thus in the usual form for though he be an Usurper yet being in Possession he will no question assume to himself the sâ—â—le and Authority of a Lawful King and while the Laws and Courts of Judicature are in his Power they must call him their Supreme and Natural Liege-Lord and implead any one that Acts against him for violating the Allegiance which naturally and of right he ought to pay him But the question is not whether an Indictment for Treason against the King de Facto will run thus in his own Reign but whether it will run in the same form in the Reign of the King dde Jure after he has recovered his Crown Secondly Though it should run so in the Subsequent Reign of the King de Jure yet this would be no certain proof that the Law looks upon a King in Possession though an Usurper as our Natural Liege-Lord and our Allegiance as due to him naturally and of right For the Lawyers use to keep close to their usual forms in Indictments especially and retain in them many expressions as improper to be used in some particular Cases as these expressions are in the Case of a King de Facto and not de Jure But Thirdly It does not appear that an Indictment for Treason committed against Hen. 6. brought against the Person that committed it in Ed. 4. time would have run in the same form as if he had been King de Jure It does not appear because if there were any such Indictment to be found it would have been produced by those that urge this Argument but all that they alledge to prove Treason against a King de Facto is Baggot ' s Case and that rather proves the contrary viz that an Indictment under Ed. 4. for Treason committed against Hen. 6. would not run in the usual form as in the Case of a King de Jure An Indictment for a Trespass usually runs Contra pacem Domini Regis Coronam dignitatem suam and this form is also a part of an Indictment for Treason which is both Contra pacem contra ligeantiam Now 't is said expresly by Bagott ' s Council that an Indictment for a Trespass against Hen. 6. brought in Ed. 4. time would run thus l 9 E. 4. 71. Sup. a pf Contra paoem Hen. 6. nuper de Facto non de Jure c. and if so then by parity of Reason the same expression would be used in Indictments for Treason and if that expression be put in I think it will require that those of Natural Liege-Lord and Allegiance due naturally and of Right be left out otherwise the Indictments must run thus Contra Dominum Regem Hen. 6. nuper de Facto non de Jure Supremum naturalem Dominum suum or contra debitum fidei Legeantiae suae quod Domino Regi Hen. 6 nuper de Facto non de Jure naturaliter de Jure impendere debuit i. e. against his Supreme and Natural Liege-Lord Hen. 6. late King in deed but no in Right or against that Duty of Faith and Allegiance which he naturally and of Right ought to pay to Hen. 6. late King in Deed and not of Right These expressions I think do not very well suit together at least the addition of King de Facto and not do Jure does seem so to qualifie the rest that no Act can be made Trason in any such Indictment that is done against the King de Facto in behalf of the King de Jure to bring him to the Crown for then the Indictment must run thus A. B. Against his natural Allegiance due to Hen. 6. late King de Facto and not de Jure was aiding and assisting to our Sovereign Lord that now is Edw. 4. then King de Jure but not de Facto for the recovery of his Right This therefore may be a sufficient Answer to the Objection from the form of the Indictments for Treason to shew that they are no proof that our Allegiance is due to the King de Facto though he be not King de Jure But I pass on to the last point in the Plea of Bagott ' s Council That a Pardon granted by a King de Jure out of Possession is void and this may very well be admitted For a King de Jure out of Possession while his Subjects are not able to restore him cannot send over a Pardon of Felony Treason or the like to any purpose but only to have his own Authority exposed and his Loyal Subjects lose their Lives or Estates by endeavouring to maintain it For to have this Pardon take effect it must be pleaded in Court and there it cannot have its effect to save any Person whom the Usurper will have excuted besides that the Person pleading it would be in danger to be proceeded against as a Traytor for abetting the King de Jure's Authority against the Usurpors This may clear the meaning of that part of the Plea of Bagott ' s Council that a Pardon granted by a King de Jure out of Possession is void i. e. it cannot have its Effect and be pleaded and received in Court while the King de Jure is out of Possession But then it does not follow because he cannot execute his Royal Authority in the pardoning or punishing Treason while he is out of Possession that therefore there can be no Treason Committed against him while he is out of Possession or that it is Treason to act for him against the Usurper for though the King de Jure have not the Exercise of the Government yet he has a Right to it and the Subjects may thereupon be obliged in Conscience to bring him into the Possession of his Right when they are able and it may be Treason in them to fight against his Right for the Usurper though King in Possession To conclude therefore First It does not appear upon the view of the particular Points in the Plea of Bagott ' s
reasonable but against all Laws Reason and Good Conscience that the Subjects going with their Sovereign Lord in Wars even though against the King de Jure as it must be understood any thing should lose or forfeit for doing this their true Duty and Service of Allegiance Now this if it be meant as it must be concerning those that Fight for an Usurper against their lawful King that it is aginst the Laws Reason and good Conscience to punish them in the least for so doing is very high indeed For 1 st Though our Law might think fit to Indemnify them yet it is not so clear that all other Laws Divine and Humane even the Laws of Reason and Good Conscience do make it unjust to punish them who not in the Simplicity of their Hearts but upon a Traytereus and Rebellious Principle fight in Defence of an Usurper in the Throne against their lawful Prince excluded or deposed from his just Rights It would not I suppose have been unlawful for David to have punished those which came in Arms against him under Absalom to keep him from recovering his Throne Nor I believe would his Heart have smote hem if he had executed any of them for Traytors as it did when he cut off Saul's Skirt In short to say this is contrary to Reason and Good Conscience is to set up a new Standard of Reason and Religion and to make it contrary to all Laws is to accuse all Nations but our own of Injustice and Cruelty Secondly Nay it is to accuse our own Nation too and several of our Kings and Parliaments and among the rest King Henry the 7 th and his First Parliament who did not think it against all Laws Reason and Good Conscience to attaint a sup p. those that fought against Hen. the 7 th under Ric. the 3 d the King in Possession and de Jure too against Hen. 7 th in Bosworth-Field So that to me the wording of this Act appears to be a Copy of King Hen. 7 th's countenance who could call to his remembrance that it is against all Laws Reason and good Conscience that the Subjects should be attainted for fighting under the King in Possession and could forget to repeal his own Statute whereby those that adhered to Ric. the 3 d. stood attainted for doing this their true Duty and Service of Allegiance And with what Face could he or his Parliament say it was against all Laws when it was not against his own When both himself and other Kings before him with their Parliaments had attainted both the adherents of the Kings in Possession and the very Kings in Possession themselves But granting this were the Body of the Statute and a direct Law enacting that the Subjects shall pay their Allegiance to an Usurper in Possession and fight for him against their lawful King and be Indemnified for it Then it will remain to be considered whether the Statute can be looked upon as valid and obligatory And I conceive it ought not to be looked upon as valid and obligatory upon these Reasons First Because it was made by an Usurper and a Parliament no farther Legal than as it had its Authority from him and it was made for this end and design to secure the Usurper himself in the Possession of the Throne and to confirm his Soldiers to his Party by Indemnifying them if they stood by him aud depriving them by the Proviso at the end of the Statute of the benefit of the Statute if they should dosert him That Henry the 7 th was an Usurper upon the Rights of the House of York I need not prove And that this Statute was made to secure him in his Usurpation against any one pretending or having Right and Title of that House appears by the time when the Statute was made which was when Perkin a Bac. Vit. H. 7. p. 1077. and seq Warbeck was up in Arms against him declaring himself to be Ric. the 2 d. Son of Edw. the 4 th and consequently the Heir of the House of York and the danger King Henry was in upon this by the sense the generality of the Nation had of the Right to the Crown being in the House of York appears by the Words of Sir William Stanley b Bac. p. 1071. the very Person who set the Crown on King Henry's Head after the Battle of Bosworth that if he certainly knew that the Young Man Perkin were the Son of King Edward the 4th he would never fight nor bear Arms against him so little did he understand at that time that which King Henry could so well call to his remembrance that the Subjects ought by virtue of their Allegiance to sight for the King for the time being against the lawful Heir of the Crown This therefore was the Authority whereby and the end for which c Dr. B's Reply to Mr. Varillas p. 71. Hen. 7. Weakened the Rights of the Crown of England more than any that ever reigned in it He knew he could not Found his Title on his descent from the House of Lancaster for then he could have been no more than Prince of Wales since his Mother by whom he had that pretension out-lived him a Year and he would not hold the Crown by his Queen's Title for then the Right had been in her and had passed from her to her Children upon her Death and therefore he who would not hold the Crown upon such a doubtful Tenure made that dangerous Law That whosoever is in Possession of the Crown is to be acknowledged as the Legal King this Statute was made And if so then it ought to be looked upon as null and invalid For though a Law made by an Usurper for the good of the community and not prejudicial to the lawful Right of the Crown my in equity be looked upon as valid yet no other Law made to the disherison d See the Answer of Richard Duke of York to the Objection made against his claim from the Act of Entail made by Henry the 4th upon his Heirs Male The said Act taketh no place neither is of any Force or Effect against him that is right Inheritor of the said Crowns as it accordeth with God's Law and all natural Laws how it be that all other Acts and Ordinances made in the said Parliament sithen been good and sufficient against all other Persons Rot. Parl. 39. H. 6. n. 17. Quoted by D. Brady in Hist Suc. P. 27. of a lawful King ought to be held obligatory upon the Consciences of the Subjects to make it their Duty to do that which otherwise would be an Act of the Highest-Treason viz. To fight for an Usurper against their rightful and lawful King It may be objected that the subsequent lawful Kings have consented to this Statute I answer First They have not consented to it any farther then by their not expresly repealing it or declaring it to be null in some of their Parliaments and this does
and Parliaments have expressly made it High Treason to stand by any Usurper against the King de jure or his Heirs and lawful Successors whom the Usurper has deposed or excluded from the Crown if they have obliged the Subjects to Swear to maintain the King de jure and his lwful Heirs and Successors against any Vsurper who shall depose or exclude them Then herein they have obliged the Subjects to act contrary to the Statute of Hen. the 7 th which requires them to maintain and defend the Vsurper against the lawful King his Heirs and Successors Now that the Succeeding Kings and Parliaments since Henry the 7 th have done this will appear from clear and undenyable instances First They have expressly made it High Treason to stand by an Vsurper against the King or his Heirs and lawful Successors whom the Usurper has deposed or excluded This is done by Henry the 8. in the several Acts a Stat. 25. H. 8. c. 12. 28. H. 8. c. 7. 35. H. 8. c. 1. for the security of his Succession made in the 25 28 and 35 th Years of his Reign in each whereof after the Settlement of the Succession it is made Treason for any Persons to do any thing whereby either the King himself or his Heirs according to that Settlement may be disturbed or interrupted in the enjoyment or inheritance of the Crown and Treason in all that should abbet aid or maintain them And in the Act 28 H. 8. it is enacted that if any of the Kings Children or any to whom he should dispose the Crown by his Will should Vsarpe upon any who were to inherit the Crown before them they and all their abettors and maintainers should be adjudged High Traitors So also 1 Edw. the 6. it is made Treason for any to whom the Crown was limited by the Act 35 H. 8. to Vsurpe upon one another and Treason also in their Abettors Aiders and Maintainers I do not pretend to justifie the Proceedings of Hen. the 8 th and his Parliaments touching the Succession only this I may rightly infer from them that they without any regard to the Statute of Hen. the 7 th made it Treason to maintain any one in Possession of the Crown but those Persons who should succeed according to the limitations made by them and therefore did not leave the Subjects free to yield their Allegiance according to King Hen the 7 th' s Statute to every Person whatsoever that should get into Possession of the Crown Secondly They have obliged the Subjects to swear to maintain and defend the King and his lawful Heirs and Successors against any Usurper that should depose or exclude them So each Act for the Settlement of the Succession in King Henry the 8th's time had an Oath annexed to be taken by the Subjects for the observance and defence and maintenance of it I shall set down the first a Stat. 26. H. 8. c. 2. Oath from which the others vary but little only in that of the 35th H. 8. the Pope's Supremacy is abjured ye shall swear to bear faith truth and obedience alâ—nely to the King's Majesty and to his Heirs of his Body of Queen Ann begotten or to be begotten and further to the Heirs of our Sovereign Lord according to the limitation in the Statute made for surety of his Succession and not to any other within this Realm nor Foreign Authority or Potentate and that to your cunning wit and to the uttermost of your Power without guile fraud or other undue means ye shall observe keep maintain and defend the said Act of Succession and all the whole effects and contents thereof And this ye shall de against all manner of Persons of what Estate dignity degree or condition whatsoever they be And in no wise do or attempt nor to you Power suffer to be done or attempted directly or indirectly any thing to the let hindrance damage or derogation thereof by any manner of means or for any manner of pretence So help you God c. This Oath and others of the like form were annexed to the Acts about the Succession in King Henry the 8th's time to be taken by the Subjects and it is plain they laid an obligation upon their Consciences directly contrary to the Stat. 11. H. 7. They are obliged to pay their Allegiance to no other Person Native or Foreigner but the King and his Heirs according to those Acts And therefore cannot be at liberty to pay their Allegiance to every Person that gets into Possession of the Crown They are obliged with their utmost Wit and Power to maintain those Acts of Succession against all manner of Persons whatsoever and therefore cannot fight against the King de jure H. 8. or his Heirs according to those Acts in defence of any other Person though he may become the King for the time being They are to their Power not to suffer any thing to be done in derogation of those Acts and therefore not to suffer any Person in the Throne that gets into it contrary to them So that unless they can reconcile contradictions their obligation to these Acts is inconsistent with any obligation to King Henry the 7th's Statute And the same Argument to come nearer to our own time may be drawn from the Oaths of Supremacy and Allegiance enacted in Parliament by Queen a Stat. 1 Eliz. c. 1. 3 Jac. c. 4. Elizabeth and K. James whereby the Subjects are also sworn to bear Faith and true Allegiance to the King his Heirs and lawful Successors and him and them to defend to the utmost of their Power against V all Conspiracies and Attempts whatsoever which is inconsistent with their transferring their Allegiance to an Usurper and maintaining him in Possession of the Crown against the lawful King deposed or his Heir excluded by him But it may be said that our sworn Allegiance is such only as is due by the Law of the Land if therefore the Law transfers our Allegiance from the lawful King and his Heirs to a King in Possession then our Allegiance must be understood to be sworn to them with that reserve I answer 1 st The Oaths imposed by the Acts of Succession in H. the 8 th' s time do plainly contradict the Stat. 11 H. 7. and the Oaths of Supremacy and Allegiance made by Queen Elizabeth and King James must be understood to do so too being partly couched in the same words and the Oath of Supremacy drawn from the former Oath of Supremacy enacted by the Stat. 35. H. 8. and both equally intended for the Security of the lawful King and the Succession and therefore 2 ly When a subsequent Statute imposes an Oath contradictory to the Letter of a former Statute it must be interpreted virtually to repeal that former Statute So for instance the Stat. 28 H. 8. c. 7. obliges the Subjects to swear to maintain the Settlement of the Succession made by that Statute even against any of the King's
lawful King is to be looked upon as in it self null and invalid And this I understand not of the Case of an intricate dispute about the Title to the Crown where the Subjects cannot discern who has the Right but of the case where a King whose Right to the Crown is clear and undoubted is excluded or deposed by an Usurper And I conceive the Statute as understood of this case null and invalid upon these Reasons 1st It implies a Contradiction that such a Person should be still the King de jure and yet the Subjects knowing him to be so should be obliged to pay their Allegiance to another For if he is a King de jure he has a Right and that Right is to somthing or other but there is nothing he can have a Right to as King but the Allegiance of the Nation that he should be their Governour and they his Subjects unless we will say he has a Right only to the material Crown and Scepter and not to that which they are only the Ensigns of the Government of the Nation And if he has a Right then the Subjects knowing him to have it must be under an Obligation answering to that Right 2 dly The Allegiance of the Subjects is proprium quarto modo omni soli semper to use my Lords Coke a Calvin's Case f. 12. Expression to the lawful and rightful King by the Fundamental Constitution of the Realm and therefore for the Reasons before laid down cannot be taken away from him by any Statute Law For as the constitution of the Realm vests the Right to the Crown iâ— him only so it must appropriate the Allegiance of the Subjects to him only as it makes him alone King so it must make the Nation subject to him alone unless he may be truly a King and yet none be under an obligation to be governed by him If I am a a Maiach â— 6. Father where is my Honour If I am a Master where is my Fear 3 dly The Allegiance of the Subjects and some parts of it especially are due to the lawful King only by the Law of Nature and therefore no Human Law can take the whole Allegiance of the Subjects or the indispensable parts of it away from him and transfer them to the Usurper The Law of Nature extends it self to all the Conditions and Relations of Men it considers them as Private Persons with relation to God and themselves only and there prescribes to them the Duties of Godliness and Sobriety It considers them as in a Family and there prescribes the Duties of Children to their Parents and Parents to their Children Husbands to their Wives and Wives to their Husbands Masters to their Servants and Servants to their Masters It considers them as in a Civil Society and there prescribes to Subjects their Duty to their Prince and to the Prince his Duty towards his Subjects The Law of Nature does not make one Man King and the rest his Subjects but when it once finds them made so whether by their own or any other Persons Act then it lays before them some Duties which they are to Practice whether the particular Laws of the Realm enjoyn them or not and such as no Human Authority can dispense with as long as they stand in that Relation Now these Duties on the Subjects part are signified by the Words Fidelity and Allegiance And so we find my Lord Coke says Calvin's Case f. 13. That Ligeance Faith and Obedience of the Subjects to their Sovereign was before any municipal or judicial Laws I st For that Government and Subjection were long before any municipal or judicial Laws 2ly For that it had been in vain to have prescribed Laws to any but to such as ought obedience Faith and Ligeance before in respect whereof they were bound to observe them And from this he draws this Consequence seeing then that Faith Obedience and Ligeance are due by the Law of Nature it followeth that the same cannot be changed or taken away It is therefore plain and undeniable that there are some Duties owing by Nature to that Person who is our lawful Prince by the Constitution of the Kingdom and these Duties at least as far as they can be performed for his real Service are due to him as long as he is supposed to continue our lawful Prince And upon this ground we may justly pronounce the Stat. 11 H. 7. null and invald for it supposes the excluded or deposed Prince to be still the rightful and lawful King and yet 1 st This Statute tranfers the whole and entire Allegiance of the Subjects from the rightful King to the Vsurper Now tho the Statute of the Realm may in some cases disengage the Subjects from doing some Offices to their King which otherwise their natural Duty would call upon them to perform yet no human Law can take away all their Duty from him without being directly contrary to the Law of Nature and consequently null and invalid 2 ly This Statute obliges the Subjects to deny their rightful King those parts of their Allegiance which are most indispensable and to act quite contrary to them There can be no part of the Subjects Duty more indispensable then to defend the lawful King's Person Crown and Dignity to maintain his Right and Title to the Crown who is to defend his Subjects Right to their Lives and Estates For thus they are to hazard their Lives in Battle against his Enemies and that not only in One Battle but also in a Second and Third and though in all they be defeated yet if they can they are obliged to raise New Forces to make head once more against the Enemy Neither is there any more reason why they should wholly give up their Princes cause when an Usurper has got into the Throne then there is that they should desert him upon his loosing the first Battle for then they are disabled at present to stand up against the Usurper and to meet him in the Field and yet that does not free them from their Obligation to Fight him again as soon as they have Forces enough and Opportunity to do it and if the Usurper become not only Master of the Field but the Throne too this is only a higher degree of Success and a greater Victory which puts the Subjects in a greater incapacity to assert the cause of their injured Prince but does not free them from their obligation to assert his just Right to the Crown when they are capable They are therefore still under an indispensable obligation to restore their rightful King to his Throne when they have sufficient Strength and a fair Opportunity presents it self to them But their Obligation to do this will farther be clear if we consider the Subjects in a double regard as 1 st Those that were truly Loyal and did not contribute to the deposing or exlcuding their rightful King and setting up the Usurper 2 ly Those that rebelled against their
rightful Prince and set up the Usurper in his stead The former are obliged to restore their lawful Prince to his Right when they have force enough and opportunity to do it because their Allegiance does not cease upon their King 's being out of Possession of his Throne but it is only under a Suspension as far as they are under an Incapacity of exerting it for his Service and revives again as soon as they find themselves in a capacity of acting But the others are obliged to it upon a double account First by Vertue of Allegiance Secondly by Vertue of that Law of Nature which requires every Man to make restitution for the Injuries he has done to any other and therefore obliges them that contributed to the deposing or excluding their rightful King to make him recompense for that Injury by their being as active in bringing him back into the Possession of his Crown If therefore to restore their rightful King be an indispensable Duty incumbent by the Law of Nature upon his Loyal and much more upon his Disloyal Subjects then the Stat. 11. H. 7. is null and invallid as contrary to Nature for it supposes the King out of Possession to have a Right and yet obliges the Subjects not to pay him his right when they are capable It supposes them that deposed or excluded him to have done him wrong and yet obliges them not to restore him to his Right nor to make him any Reparation for the Injury they have done him But if this be unjust to oblige his Subjects not to help him to the recovery of his Right it is not only so but Inhumane and Barbarous to oblige them by Vertue of their Allegiance to Fight against him in Defence of the Usurper and to oppose him to the Death if he attempt to recover his Crown without their Assistance For how can his Misfortune in the loss of his Crown while his Right to it stands as good as ever create such a change in regard of their Obligation to him that they should now be bound to Fight him to the Death for whom they were so lately obliged to hazard their Lives Is he still their lawful King and the King in Possession an Vsurper how can it then be consistent with the common Principles of Humanity to oblige them who were born his Subjects to Fight for his Enemy against him upon no other change of Circumstances but only his being unjustly deprived of his Crown This is contrary to the Law of Nature 1 st Because it obliges the Subjects to fight in an Vnjust against a Just and Righteous Cause against the Person that has the Right for him that has it not but is Guilty of the highest Injustice and Violence for him that has no Authority to commissionate the Subjects to act under him against him that is invested with that Authority 2 ly Because it makes the same thing just and unjust and the same Persons both Loyal Subjects and Rebels and Traytors in the very same Cause for consider it either in regard to those that deposed or excluded their King and set up an Usurper or to those that stood firm to their Allegiance It supposes the former to be Rebels and Traytors in deposing or excluding their King and yet makes them Loyal Subjects in standing by the Vsurper and opposing their lawful Kings return it supposes the latter to be Loyal Subjects for defending their King's Person and Crown and yet makes them Rebels for attempting to restore him to his Crown tho his Right be still the same and as good as ever To be short what is it that makes the Subjects that depose their King and set up an Usurper Rebels and Traytors in the very act of deposing him and siding with the Usurper Is it not their withdrawing from him that Allegiance which is due to him and giving it to another and what is it that makes the others Loyal Subjects but their adhering firm to their Allegiance And how then shall the one become Loyal Subjects by continuing in the same act of Treachery and Rebellion and others Rebels by continuing in the same Act of Loyalty And might not such a Law as well oblige a Man to fight against his own Father in Defence of an Adulterer that has turned him out of Doors and pretends to Lord it over his Family And this will still appear more unjust and unreasonable if we compare the King'S Case with the Case of his Subjects as to what Protection he is obliged to give them The King is obliged to maintain his Subjects in their Rights and Properties against any Invader and that not only while they are in Possession of them but also when another has disseized them by fraud or violence Then the King is obliged to relieve the injured Person to do him justice against the oppressor and to restore him again to his right by Law or by Force by Law in a Legal Tryal of the Cause and award of judgment by Force by ordering a Posse comitatus to Execute the Sentence of his Courts and to reinstate his Subjects in the Possession of their Rights Nay he is obliged to hazzard his own Sacred Person and Crown in a Case of necessity in Defence of his Subjects to engage himself in a War with a Foreign Prince or State for an injury done to his Merchants in their Trade and Commerce to Rescue his Subjects from the Oppression of a Powerful Faction at home or the Plunder and Rapine of an Army from abroad to Head their Armies and Fight their Battels himself in Person which we find looked upon in Scripture a 1 Sam. 8. 20. as a Principal part of the Kingly Office and not dispensed b 2 Sam. 183. 21. 17. with but out of regard rather to the Public Interest then the King 's Personal Ease or Safety And how unjust and inhuman would such a Law be taken to be which should enact that while the Subjects are in Possession of their Estates and Liberties the King should be obliged to Protect and Defend them against any Oppressor or Invader But if they were once Ejected Robbed Plundered or Enslaved and their Estates or Persons in the Possession of another that then the King should not be obliged to concern himself any farther for them but rather on the contrary to maintain the Oppressor or Invader in the Possession of what he has gotten by fraud or violence And if such a Law were unjust and inhumane in the Case of a Subject shall it be just and obligatory in the Case of a Prince Shall his Right be so precarious and his Subjects Rights so secured to them that he shall be obliged to restore them and they obliged to keep him out He obliged to Defend them against any Oppressor or Invader and they obliged to stand by an Vsurper against him All these Reasons shew that the Law as it is now urged not as indemnifying only those that act under the King
him much trouble already and was likely to create him more when Perkin Warbeck was up yet he was resolved to stand or fall by it and studied only how to secure himself in his unjust Possession and rather then depart from what he had done already to the disherison of one Family he was content to make a Law which effectually disinherits his own Children or any other Lawful King or Heir of the Crown if they are so unhappy as to have an Vsurper step before them into the Throne or dispossess them when they are in it Yet both these Statutes fully discover the Wisdom and Policy of the Legislator for they carry in them the fairest shew and colour of equity and justice but serve in reality to the contrary design What more just then that the Inheritance of the Crown should be rest remain and abide in the King if it were lawfully vested in him already and what more true and easie for a King lawfully possessed of the Crown to call to his remembrance then that his Subjects owe him Allegiance and by vertue of it are bound to fight for him against a Rebellion or Vsurpation and ought not to be attainted for it by any subsequent King or Parliament This in the Preamble of the Stat. 11. of Hen. 7. And nothing can be more agreeable to all Laws Reason and good Conscience if it be meant of the rightful King regnant But if it be meant as really it was by King Henry at least of the King for the time being as such whether rightful King or no It is Absolutely false within the Practice as well as Memory of King Henry 7. who himself had attainted Richard 3 d. the then King for the time being and those that fought for him in Bosworth Field and should not have forgot to repeal that Statute whereby they stood attainted when he remembred that it was against all Laws Reason and good Conscience to attaint any Man for Serving in the Wars under the King for the time being It appears therefore that this Law was not made bona fide and such a Law may ensnare and impose upon the Consciences of the Subjects but is not fit to direct or oblige them Unless we can conceive that his Saying he remembred it to be so for the time past when he knew it to be otherwise is enough to make it to be so for the future I have considered as fairly and impartially as I could the Grounds whereupon some now give it for Law that Allegiance is due only to a King in Possession I shall add one or two Arguments against this Position And First Allegiance is not due only to a King in Possession because England is an hereditary Monarchy where there is no Interregnum but the Right Heir of the Crown is actually King at the very moment when his Predecessor dyes And yet it may be a considerable time before he can take upon him the Exercise of the Government as suppose he be in a Foreign Country If therefore he be actully King before he can be in Possession of the Exercise of the Government then the Nation are his Subjects before he is King in Possession in the sense of this question and consequently he has a right to their Allegiance though not yet King in Possession But to this some would answer by a distinction of a twofold a Consident for the taking of the Oath of Allegiance 32. right ARight to the Possession of the Crown and a Right to the Allegiance of the Subjects The Right to the Possession of the Crown they would say descends to the Right Heir immediately upon his Predecessor's decease and in that Sense he is actually King But the Right to the Subjects Allegiance is annexed to the Possession of the Crown and therefore does not accrue to the Heir of the Crown till he is in Possession And for this distinction they produce some kind of Authority from the form of Expression in the Act of recognition b Bagott's Case 6. E. 4. p. 9. 10. of Edward the 4 ths Right to the Crown where he is declared to have been in right from the death of the Noble Prince his Father Richard Duke of York who was slain at the Battel of Wakefield Dec. 30. 1460. very just King of the Realm yet because he did not take upon him to use the said Right and Title to the said Realm till on the 4 th of March following and then entred into the Exercise of the Royal Estate c. and to the Reign and Government of the said Realm From thence is dated his being in lawful Possession of the same Realm with the Royal Power Preheminence Estate and Dignity belonging to the Crown thereof and his being lawfully Seized and Possessed of the Crown of England in his said Right and Title and from thenceforth to have to him and his Heirs all Mannors Castles Honours Services Gifts of Offices Prerogatives c. To this may be replyed First Other Parliaments express themselves in a manner inconsistent with this distinction So most fully the Parliament a Sess 2. c. 4. 1. Mar. By and immediately after whose Edw. 6ths Decease the Imperial Crown of this Realm with all Dignities Dominions Honours Preheminences Prerogatives Stiles Authorities and Jurisdictions to the same united annexed or belonging did not only descend remain and come unto our most dread Sovereign Lady the Queen's Majesty but also the same was then immediately and lawfully invested deemed and judged in Her Highness's most Royal Person by the due course of Inheritance and by the Laws and Statutes of the Realm Nevertheless the same her Highness's most lawful Possession was for a time disturbed and disquieted by the Traiterous Rebellion and Usurpation of the Lady Jane Dudley c. This is Prefaced in that Act as the Ground whereupon the Queen and her Parliament saw a necessity of confirming those Recognizances Bonds c. That bore date as in the First Year of the Reign of Queen Jane viz. Because though Queen Mary was not yet in Possession by the Lady Jane's Vsurpation yet all Authority and jurisdiction being invested in her Person any thing under the Name of Queen Jane wanted a just and lawful Authority I may add to this the Recognition of b 1 Jac. c. 1. King James 1 st where the Parliament declares that immediately upon the Dissolution and Decease of Queen Elizabeth the Imperial Crown of the Realm of England and all the Kingdoms Dominions and Rights belonging to the same did by inherent Birthright and lawful and undoubted Succession descend and come unto his most Excellent Majesty Secondly I have sufficiently proved above c Sup. p. that Treason lay always against our Kings even before they were in Possession And if so then a Right to the Allegiance of the Subjects is not a consequent of Possession but antecedent to it I may add to the Proofs brought above the resolution of all the Judges in King
James's the 1sts time in the case of Watson and Clerk whose Plea was that what they had Acted against King James was not Treason because done before his Coronation But the Judges over-ruled the Plea upon this Ground a Coke Calvin's Case f. 10. 11. That presently by descent his Majesty was compleatly and absolutely King without any essential Ceremony ex post facto Now if he was presently by descent so compleatly and absolutely King that Treason lay against him then he was so fully King that the Allegiance of the Subjects was due to him I may add likewise that those who had acted against King Charles the 2 d between his Father's death and his coming into Possession were thought to need an Act of Indemnity though it pleased him to except none out of that Act but those who were the Murtherers of his Royal Father Thirdly As to Edward the 4 th's Case this may be looked upon as particular in it that when Richard Duke of York his Father had laid Claim to the Crown in Henry the 6 th's time he and his Son signed an Agreement that b Rot. Parl. 39. H. 6. n. 18. Henry the 6 th should enjoy the Possession of the Crown during his life And therefore though Richard and after his death Edward the 4 th his Son was in right very just King of the Realm yet he could not lay claim to the Subjects Allegiance till either Henry the 6 th were dead or the Agreement between them Cancelled by King Henry's breach of his part in it and so Edward the 4 th seized upon the actual Possession of the Crown Therefore the Parliament might well date his being seized of the Rights and Prerogatives of the Crown from the day when he took upon him to use his Right and Title and amoved King Henry for the breach of the Agreement made between them Fourthly But to take this evasion as fully and clearly as I can it may be enquired what is this Right to Possession contradistinct and antecedent to the Right to the Subjects Allegiance it must be either 1 st A Right in the Heir of the Crown to lay Claim to the Exercise of the Government and to take upon himself to act as King or 2 ly It is a Right that the Subjects should accept and take him for their King and submit themselves to him as King and put the Exercise of the Government into his hands If it be a Right to lay Claim to the Exercise of the Government and to take upon himself to act as King this is to be done by the Heir of the Crown on his part who will not be wanting as far as in him lyes to put himself into Possession if this will do it And truly the very form of Recognition of Edw. 4. above cited may seem to favour this Notion for that dates his being in Possession from his taking upon him to use his Right and Title to the Realm and so also does the Lords Carriage towards his Father Richard D. of York in the Parliament 39. H. 6. a Rot. Parl. 39. H. 6. n. 18. Sup. p. where upon his making out his Claim they confess his Title could not be defeated but propose to him the saving King Henry's Honour and Estate by letting him Enjoy the Crown for his Life if he would which is as good as to acknowledge that if he would not himself must be in immediate Possession of the Crown But if this Right to Possession be a Right that the Subjects should accept and take the right Heir of the Crown for their King and submit themselves to his Authority and put the Exercise of the Government in his hands whence is it that they are under this Obligation Is it not by Vertue of their natural and sworn Allegiance to the King his Heirs and Successors So Queen Mary looked upon it in her Letter to the Lords of the Council upon Kings Edward's Death b Fox's Acts and Mon. Vol. 3. p. 14. Heylin's Hist Reform p. 157. We require you and charge you and every of you of your Allegiance which you owe to God and Us and none other that every of you for our Honour and the Surety of our Person only Employ your selves and forthwith upon the Receipt hereof cause our Right and Title to the Crown and Governance of the Realm to be proclaimed in our City of London and other places And this our Letter signed with our Hand shall be your sufficient Warrant in that behalf Neither do they return her for Answer that they owed her no Allegiance she being not in Possession of the Crown but say For as much as our Sovereign Lady Queen Jane is after the Death of our Sovereign Lord Edw. 6. invested and possest with the just and right Title in the Imperial Crown of this Realm We must therefore as of most bounden Duty and Allegiance assent unto her said Grace and none other except we should as faithful Subjects cannot fall into greivous and unspeakable Enrmities And this Answer they send to Queen Mary before they proceed to Proclaim Queen Jane and I need not add that some of them were soon after attainted of High Treason for this breach of their Allegiance to Queen Mary If therefore the Right to the Possession of the Crown be a Right in the true Heir of the Crown that Subjects should accept and take him for their King and put the Exercise of the Government into his hands and the Subjects are obliged to take him for their King and to put the Exercise of the Government into his hands by Vertue of their bounden Allegiance on pain of incurring the Guilt of High Treason if they take any other for their King then the Allegiance of the Subjects is due to the Heir of the Crown before he is in Possession of it then their putting him in Possession with all the Ceremony of proclaiming Recognizing Crowning him doing Homage and taking an Oath of Allegiance to him is but a part and the first Fruits of their Allegiance and their one whole entire Allegiance consists both in their first owning and accepting him for their King and ever after serving honouring and obeying him as such as the one whole entire Duty we owe to God comprehends our Beleif and Acknowledgment of him for our God and the payment of all Worship Service and Obedience to him And this is not to be applyed only to the Heir of the Crown consider'd before he is in Possession but to a King de jure dispossessed of his Throne I argued above that the very Statute 11 H. 7. which requires the Subjects to fight against him supposes him still to be King de jure if so he has a Right true but that is only a a Considerat for taking Oath of Alleg p. 32. mediate Right to recover first the Possession of his Throne and not till then does his right return to the Allegiance of the Subjects but if he have a Right
to fight for them against the King and the Royal Family and they that acted against them were to be judged Rebels and Traytors 2. The Truth of this Principle seems to depend upon one of these two Grounds either 1st because the Subjects enjoy all the Common Benefits of Civil Government from this Protection of the King de Facto and in return for them are bound to pay him their Allegiance by the Law of Gratitude Or 2 ly because the King de Facto has the Lives and Fortunes of the Subjects at his Mercy and therefore it is at least Lawful for them when their rightful King cannot rescue them out of his Hands to swear a new Allegiance to him 1. The Subjects enjoy all the Common Benefits of Civil Government from this Protection of the King de Facto and therefore in return for them are obliged to pay him their Allegiance by the Law of Gratitude To this I answer 1 st I granted above that the Subjects are to pay some degree of Submission and Obedience to a King in Possession though an Usurper for their own Safety and the publick Order and Peace of the Nation and upon the presumed Will of the King de Jure 2. It does not appear that they are obliged to pay him even this degree of Submission and Obedience on the score of Gratitude for the Power and Authority whereby he takes upon him to protect them is not his own but the lawful King's and he first deprives the Subjects of the lawful King's Protection before he tenders them his own and therefore in effect takes away from them as much as he gives and besides invades the Subjects Rights who were not obliged to be Subject to any but their Lawful Prince and his not depriving them of Protection is only forbearing doing them a farther Injury so that though they reap some benefit from his Protection and ought in Prudence to comply with him as far as it is Lawful yet it does not seem that they are obliged to it upon the score of Gratitude 3. But though they were obliged in point of gratitude to pay him some degree of Submission and Obedience it does not follow that they can lawfully transfer their Allegiance to him for that is not their own to give but there is still a reserve of it due to the rightful King when it can be Exerted for his Service 2. But Secondly The King de Facto has their Lives and Fortunes at his Mercy and therefore it is at least Lawful for them when the King de Jure cannot Rescue them out of his Hands to save their Lives and Means of subsistence by swearing Allegiance to that Person who has them in his Power To this I Answer That swearing Allegiance ' implies two things 1. A full and entire Submission so as never to attempt any thing against the King de Facto for the King de Jure And this when they must do it or dye may seem to be Lawful because their Death deprives the King of so many of his Subjects and their engaging never to Act for him does no more and is but the same as if they should take Quarter of an Enemy in War that has them at his Mercy And this may be true where there is so Service to be done to their King's Cause and the true Profession of the Principles of Loyalty by their suffering Death and Sacrificing their own Lives towards the recovery of a Nation from a Principle of Rebellion to a true Sense of their Allegiance But in most Usurpations there is first a Rebellion of the Subjects and an Apostasy from he Principles of Loyalty and in this case it may be considered whether any whose Examples might have influence upon the 〈◊〉 of the Nation may not be obliged even to loose their Lives for the King de Jure because here their Deaths may do some service to Religion and the King's Cause whereas in War their dying rather then to take Quarter and make themselves Captives to an Enemy that has their Lives at his Mercy would do their King so Service at all 2. Allegiance imports an Engagement of the Subjects to stand by and maintain the King in Possession against the King de Jure and this if any of them engages to do the King de Jure does more then than lose a Subject for he gets an Enemy who if he Act according to his new Engagement is obliged even to oppose him to the Death if he endeavours to recover his Crown But why may not this be done since the end for which Men are placed under a Government is the Preservation of their Lives and Properties and therefore when that Protection fails them whereby they should be Preserved without any fault of their own their rightful King being deposed or excluded and unable at present to recover his Right and they at present reduced to those Streights that they must either make themselves the Subjects of the King in Possession or suffer Death or lose the necessary means of Subsistence why may they not in this case give themselves up to him that has them in his Power and swear Allegiance to him This then is the main Ground The end for which we are placed under a Government is Protection when that Protection fails us and our Lives and Fortunes are at Stake then we may for our own Preservation put our selves under another Protection and swear Allegiance to the Person who has us in his Power Let us consider whither this Principle will carry us 1 st It allows us to swear Allegiance to any Person that gets our Persons and the means of our Subsistence into his hands and before we can have Protection from the Government will either kill or ruine us if we do not reneunce our King and put our selves under his Command to stand by him against all Persons whatsoever This Person may be the head of a Rabble a Jack Cade a Robin Hood a Massaniello or who not For it is not the Person that Authorizes our Subjecting our selves to his Government but the Power he has to force us to it at the Peril of our Lives 2 dly It is not only our duty to the King that this Principle justifies the Deserting of but also all other Obligations which are incumbent upon us as we are Members of a Civil Society and Subjects to a Government For instance in our constitution the obligation we are under to the Succession of the Royal Line to the Fundamental Constitution of the Monarchy as it is not Despotick and Arbitrary but limitted by Law in the Exercise of the Royal Authority and also to the present Legal Establishment wherein are included the Rights of all our fellow Subjects to their Lives Liberties and Properties To these Rights we are obliged as Subjects of the English Monarchy as well as to the King's Person Crown and Dignity Now suppose a King should design to destroy any one of these for instance the Right of
Succession in the next Heir suppose he were resolved to force the Nation by the Assistance of a Party that would stand by him to set aside the next Heir and to swear Allegiance to another Person suppose he should begin to impose this Oath upon some of them whose lives or their means means of Subsistence were most in his Power and require them upon pain of Death to take an Oath contrary to the Right of Succession Suppose the Successor not able to hinder this and the Nation either not able to resist or not all of a mind in that point What here must these Men do They are indeed Members of this Society and were made so suppose by the Act of their Forefathers who subjected themselves and their Potesterity to an Hereditary Monarchy as the best form of Government and likely to give them the best and securest Protection Here these poor Men find they fail of their end the King has their Lives in his Power and will take them away unless they renounce their natural and sworn Obligations to the Right of Succession the Successer is not present or able to Protect them and they can do him no service now but only to dye Martyrs for his right and this they are not engaged to do as Members of this Society and Subjects of this Government neither are they obliged to it for the Right of the King himself but may if another gets his Crown and has their Lives at his Mercy transfer their Allegiance to him and therefore much rather may renounce the right of the next Heir when they must either do it or dye I might make just the same supposition as to out obligations to the Established Form of Government and to the Lives Liberties and Properties of the rest of our Fellow-Subjects included therein suppose a King a designs to overthrow all these and to make those of his Subjects that most depend upon him swear that they will concur with him in betraying the Rights of their Fellow-Subjects included therein suppose he require some of them to take this Oath at the Peril of their Lives or the loss of all their means of Subsistence if they resuse they scruple it because it is contrary to their Obligations to the Legal Establishment But what is the Ground of that Duty The Protection they enjoy under this Form of Government Here that Protection sails them the King is too hard for his People and they cannot or think they ought not rise up in the common Cause why then these Persons have nothing to do but to submit and swear to stand by the King in the Exercise of his Arbitrary and Despotick Power For why should they be obliged either to die or starve rather than the rest of the Nation who cannot protect them should be brought under another Form of Government and made to submit themselves to a lower degree of Subjection These I think are the plain Consequences of this Principle We are under an Obligation to the Rights of the King his Heirs and Successors and our Fellow-Subjects If when our Lives are at Mercy and the King is not able to protect us we may then renounce his Right and swear Allegiance to another King then by parity of Reason when our Lives are at stake and the Successor or our Fellow-Subjects are not able to rescue us we may then renounce the Right of Succession or swear to joyn in subverting the Legal Establishment and the Liberties and Properties of our Fellow-Subjects secured thereby For we are brought under Obligations only for our own Preservation and are not obliged to die Martyrs for any Humane Right but may to save our own Lives engage to do any thing against the Rights of our King his Heirs and our Country There was a time when most of the Nobility and Gentry and every one in Publick Station in the Court Westminster-Hall the Army and the Country were brought under such a Tryal as this and required either to quit their Places or to joyn with the King in taking off the Penal Laws and Tests some of these there were whose Places were a Livelihood to themselves and their Families and the Quality they had lived in made it the same thing in a manenr to them to dye as to beg We know what then was the Sense of the Nation that any thing ought to e suffered rather than contribute the Assistance of one Vote to the doing of that the effect whereof might be the introducing of Popery and Arbitrary Government And yet if this be a good Principle that to save our Lives or means of subsistence we may renounce any Humane Right I thing these Persons needed not to have been State-Martyrs but might lawfully have complyed with him who had the means of their subsistence in his Power Or if we are obliged not to betray the Rights and Liberties of our Fellow-Subjects nor the Right of Succession but rather to submit to dye or starve than to joyn with the King in the Subversion of either of these why are we not under the same Obligation to the King's Person Crown and Dignity Why are we not equally obliged not to renounce his Right though at the Peril of our Lives A conscientious Man could not though for the saving of his Life joyn with any other in an Act of Injustice or Violence upon the Person or Estate of the meanest of his Fellow-Subjects and if so sure he ought rather to dye a thousand Deaths than to make himself a partaker with other Men in their Sins of Usurpation or Rebellon by engaging to joyn with a King de Facto and his Adherents to keep a King de Jure from his Right There have been who were thus persuaded when they were brought under a severe Tryal for their Loyalty to King Charles the Martyr and his Family and there have been who have had occasion to shew themselves as true to the Right of Succession and the Legal Establishment in Church and State It is indeed very unhappy to be under such a Constitution where a Man is so often brought in danger of loosing his Life or means of Subsistence or parting with his Integrity but if England be such a place where there is no living except a Man will be ready at every turn to renounce either his King or the Succession or the Rights of his Country if I say England be such a place and yet the English be looked upon as the best Constitution in the World I think then an honest Man need look no farther but prepare to go into a better Country i. e. an Heavenly I shall answer one Objection more and that is drawn from the Case of a Tenant to a private Estate who swears fealty and pays all his Rents and Services to the Lord of the Manour in Possession tho he have not the Right Title to the Estate therefore the Subjects by parity of Reason ought to pay their Allegiance to a King in Possession tho not