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
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
James's the 1sts time in the case of Watson and Clerk whose Plea was that what they had Acted against King James was not Treason because done before his Coronation But the Judges over-ruled the Plea upon this Ground a Coke Calvin's Case f. 10. 11. That presently by descent his Majesty was compleatly and absolutely King without any essential Ceremony ex post facto Now if he was presently by descent so compleatly and absolutely King that Treason lay against him then he was so fully King that the Allegiance of the Subjects was due to him I may add likewise that those who had acted against King Charles the 2 d between his Father's death and his coming into Possession were thought to need an Act of Indemnity though it pleased him to except none out of that Act but those who were the Murtherers of his Royal Father Thirdly As to Edward the 4 th's Case this may be looked upon as particular in it that when Richard Duke of York his Father had laid Claim to the Crown in Henry the 6 th's time he and his Son signed an Agreement that b Rot. Parl. 39. H. 6. n. 18. Henry the 6 th should enjoy the Possession of the Crown during his life And therefore though Richard and after his death Edward the 4 th his Son was in right very just King of the Realm yet he could not lay claim to the Subjects Allegiance till either Henry the 6 th were dead or the Agreement between them Cancelled by King Henry's breach of his part in it and so Edward the 4 th seized upon the actual Possession of the Crown Therefore the Parliament might well date his being seized of the Rights and Prerogatives of the Crown from the day when he took upon him to use his Right and Title and amoved King Henry for the breach of the Agreement made between them Fourthly But to take this evasion as fully and clearly as I can it may be enquired what is this Right to Possession contradistinct and antecedent to the Right to the Subjects Allegiance it must be either 1 st A Right in the Heir of the Crown to lay Claim to the Exercise of the Government and to take upon himself to act as King or 2 ly It is a Right that the Subjects should accept and take him for their King and submit themselves to him as King and put the Exercise of the Government into his hands If it be a Right to lay Claim to the Exercise of the Government and to take upon himself to act as King this is to be done by the Heir of the Crown on his part who will not be wanting as far as in him lyes to put himself into Possession if this will do it And truly the very form of Recognition of Edw. 4. above cited may seem to favour this Notion for that dates his being in Possession from his taking upon him to use his Right and Title to the Realm and so also does the Lords Carriage towards his Father Richard D. of York in the Parliament 39. H. 6. a Rot. Parl. 39. H. 6. n. 18. Sup. p. where upon his making out his Claim they confess his Title could not be defeated but propose to him the saving King Henry's Honour and Estate by letting him Enjoy the Crown for his Life if he would which is as good as to acknowledge that if he would not himself must be in immediate Possession of the Crown But if this Right to Possession be a Right that the Subjects should accept and take the right Heir of the Crown for their King and submit themselves to his Authority and put the Exercise of the Government in his hands whence is it that they are under this Obligation Is it not by Vertue of their natural and sworn Allegiance to the King his Heirs and Successors So Queen Mary looked upon it in her Letter to the Lords of the Council upon Kings Edward's Death b Fox's Acts and Mon. Vol. 3. p. 14. Heylin's Hist Reform p. 157. We require you and charge you and every of you of your Allegiance which you owe to God and Us and none other that every of you for our Honour and the Surety of our Person only Employ your selves and forthwith upon the Receipt hereof cause our Right and Title to the Crown and Governance of the Realm to be proclaimed in our City of London and other places And this our Letter signed with our Hand shall be your sufficient Warrant in that behalf Neither do they return her for Answer that they owed her no Allegiance she being not in Possession of the Crown but say For as much as our Sovereign Lady Queen Jane is after the Death of our Sovereign Lord Edw. 6. invested and possest with the just and right Title in the Imperial Crown of this Realm We must therefore as of most bounden Duty and Allegiance assent unto her said Grace and none other except we should as faithful Subjects cannot fall into greivous and unspeakable Enrmities And this Answer they send to Queen Mary before they proceed to Proclaim Queen Jane and I need not add that some of them were soon after attainted of High Treason for this breach of their Allegiance to Queen Mary If therefore the Right to the Possession of the Crown be a Right in the true Heir of the Crown that Subjects should accept and take him for their King and put the Exercise of the Government into his hands and the Subjects are obliged to take him for their King and to put the Exercise of the Government into his hands by Vertue of their bounden Allegiance on pain of incurring the Guilt of High Treason if they take any other for their King then the Allegiance of the Subjects is due to the Heir of the Crown before he is in Possession of it then their putting him in Possession with all the Ceremony of proclaiming Recognizing Crowning him doing Homage and taking an Oath of Allegiance to him is but a part and the first Fruits of their Allegiance and their one whole entire Allegiance consists both in their first owning and accepting him for their King and ever after serving honouring and obeying him as such as the one whole entire Duty we owe to God comprehends our Beleif and Acknowledgment of him for our God and the payment of all Worship Service and Obedience to him And this is not to be applyed only to the Heir of the Crown consider'd before he is in Possession but to a King de jure dispossessed of his Throne I argued above that the very Statute 11 H. 7. which requires the Subjects to fight against him supposes him still to be King de jure if so he has a Right true but that is only a a Considerat for taking Oath of Alleg p. 32. mediate Right to recover first the Possession of his Throne and not till then does his right return to the Allegiance of the Subjects but if he have a Right