Selected quad for the lemma: conscience_n
Text snippets containing the quad
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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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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 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