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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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
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