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