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A29884 The case of allegiance to a king in possession Browne, Thomas, 1654?-1741. 1690 (1690) Wing B5183; ESTC R1675 63,404 76

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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