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
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
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
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
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
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