lawful King is to be looked upon as in it self null and invalid And this I understand not of the Case of an intricate dispute about the Title to the Crown where the Subjects cannot discern who has the Right but of the case where a King whose Right to the Crown is clear and undoubted is excluded or deposed by an Usurper And I conceive the Statute as understood of this case null and invalid upon these Reasons 1st It implies a Contradiction that such a Person should be still the King de jure and yet the Subjects knowing him to be so should be obliged to pay their Allegiance to another For if he is a King de jure he has a Right and that Right is to somthing or other but there is nothing he can have a Right to as King but the Allegiance of the Nation that he should be their Governour and they his Subjects unless we will say he has a Right only to the material Crown and Scepter and not to that which they are only the Ensigns of the Government of the Nation And if he has a Right then the Subjects knowing him to have it must be under an Obligation answering to that Right 2 dly The Allegiance of the Subjects is proprium quarto modo omni soli semper to use my Lords Coke a Calvin's Case f. 12. Expression to the lawful and rightful King by the Fundamental Constitution of the Realm and therefore for the Reasons before laid down cannot be taken away from him by any Statute Law For as the constitution of the Realm vests the Right to the Crown iâ— him only so it must appropriate the Allegiance of the Subjects to him only as it makes him alone King so it must make the Nation subject to him alone unless he may be truly a King and yet none be under an obligation to be governed by him If I am a a Maiach â— 6. Father where is my Honour If I am a Master where is my Fear 3 dly The Allegiance of the Subjects and some parts of it especially are due to the lawful King only by the Law of Nature and therefore no Human Law can take the whole Allegiance of the Subjects or the indispensable parts of it away from him and transfer them to the Usurper The Law of Nature extends it self to all the Conditions and Relations of Men it considers them as Private Persons with relation to God and themselves only and there prescribes to them the Duties of Godliness and Sobriety It considers them as in a Family and there prescribes the Duties of Children to their Parents and Parents to their Children Husbands to their Wives and Wives to their Husbands Masters to their Servants and Servants to their Masters It considers them as in a Civil Society and there prescribes to Subjects their Duty to their Prince and to the Prince his Duty towards his Subjects The Law of Nature does not make one Man King and the rest his Subjects but when it once finds them made so whether by their own or any other Persons Act then it lays before them some Duties which they are to Practice whether the particular Laws of the Realm enjoyn them or not and such as no Human Authority can dispense with as long as they stand in that Relation Now these Duties on the Subjects part are signified by the Words Fidelity and Allegiance And so we find my Lord Coke says Calvin's Case f. 13. That Ligeance Faith and Obedience of the Subjects to their Sovereign was before any municipal or judicial Laws I st For that Government and Subjection were long before any municipal or judicial Laws 2ly For that it had been in vain to have prescribed Laws to any but to such as ought obedience Faith and Ligeance before in respect whereof they were bound to observe them And from this he draws this Consequence seeing then that Faith Obedience and Ligeance are due by the Law of Nature it followeth that the same cannot be changed or taken away It is therefore plain and undeniable that there are some Duties owing by Nature to that Person who is our lawful Prince by the Constitution of the Kingdom and these Duties at least as far as they can be performed for his real Service are due to him as long as he is supposed to continue our lawful Prince And upon this ground we may justly pronounce the Stat. 11 H. 7. null and invald for it supposes the excluded or deposed Prince to be still the rightful and lawful King and yet 1 st This Statute tranfers the whole and entire Allegiance of the Subjects from the rightful King to the Vsurper Now tho the Statute of the Realm may in some cases disengage the Subjects from doing some Offices to their King which otherwise their natural Duty would call upon them to perform yet no human Law can take away all their Duty from him without being directly contrary to the Law of Nature and consequently null and invalid 2 ly This Statute obliges the Subjects to deny their rightful King those parts of their Allegiance which are most indispensable and to act quite contrary to them There can be no part of the Subjects Duty more indispensable then to defend the lawful King's Person Crown and Dignity to maintain his Right and Title to the Crown who is to defend his Subjects Right to their Lives and Estates For thus they are to hazard their Lives in Battle against his Enemies and that not only in One Battle but also in a Second and Third and though in all they be defeated yet if they can they are obliged to raise New Forces to make head once more against the Enemy Neither is there any more reason why they should wholly give up their Princes cause when an Usurper has got into the Throne then there is that they should desert him upon his loosing the first Battle for then they are disabled at present to stand up against the Usurper and to meet him in the Field and yet that does not free them from their Obligation to Fight him again as soon as they have Forces enough and Opportunity to do it and if the Usurper become not only Master of the Field but the Throne too this is only a higher degree of Success and a greater Victory which puts the Subjects in a greater incapacity to assert the cause of their injured Prince but does not free them from their obligation to assert his just Right to the Crown when they are capable They are therefore still under an indispensable obligation to restore their rightful King to his Throne when they have sufficient Strength and a fair Opportunity presents it self to them But their Obligation to do this will farther be clear if we consider the Subjects in a double regard as 1 st Those that were truly Loyal and did not contribute to the deposing or exlcuding their rightful King and setting up the Usurper 2 ly Those that rebelled against their
owe him no Allegiance so the Subjects are not bound to pay their Allegiance to him that is not their King and owes them no Protection Now this also is very true that God and Nature has laid mutual obligations upon Kings and their Subjects as he has in all other Relations between Man and Man as of Parents and their Children and the like And this is the Sense of the Maxim in our Law as appears from the plain and express words of the Lord Chief Justice Coke a Calvin's Case f. 4. Between the Sovereign and Subjects there is duplex reciprocum ligamen quia sicut subditus Regi tenetur ad obedientiam ita Rex subdito tenetur ad protectionem mento igitur ligeantia dicitur a ligando quia continet in se duplex ligamen and with this agreeth Mr. Skene in his Book de expositione verborum Ligeance is the mutual Bond and obligation between the King and his Subjects whereby the Subjects are called his Liege-Subjects because they are bound to obey and serve him And the King is called their Liege-Lord because he should maintain and defend them Therefore it is truly said that Protectio trahit Subjectionem and Subjectio Protectionem But then though these Duties are reciprocal yet the ground of the obligation to perform them is the relation to which these Duties are annexed and not the reciprocal Obligation on the other side A Father is bound to take care of his Children not because they are under a mutual Obligation to Honour their Parents but because he is their Father And a Son is not bound to perform his Duty to his Father because his Father is reciprocally obliged to take care of him but because he is his Son So the ground of the Subjects Duty to their King is not because he is bound to protect them but because they are his Subjects and the King is bound to protect his Subjects not because they are also obliged to pay him Allegiance but because he is their King God and Nature designes Men to love in a Family and Civil Society and has appointed a means to preserve them there by their mutual Duties to each other It is therefore the Hall of God annexing such Duties to each Relation of Father and Son King and Subject which is the ground why they are due and why the one part is obliged to perform these Duties and the other has a Right to injoy the benefit of that performance and God's making the Obligation reciprocal is not the ground of the Duties on either side but an Encouragement and Motive to the performance of them And hence it will follow 1. That the Obligations to the Duties of Protection or Allegiance hold as long as the Relations of King and Subjects 2. That where there are not the mutual Relations of King and Subject there there are not these Obligations to perform the Duties of Protection or Allegiance annexed to these Relations And this will be a good ground to judge of the Truth of this Maxime in the 3 d Sense which is 3. That actual Protection and Allegiance are reciprocal viz. That the Subjects are bound to pay their Allegiance to him from whom they receive actual Protection but are not obliged to pay their Allegiance to him who does not actually Protect them And in this sense it is brought as an Argument to enforce our paying Allegiance to a King in Possession though not de Jure But it will easily appear that it is as false in this Sense as it is true in the other two Senses For if the Relations of King and Subject be reciprocal and the Duty of Allegiance be annexed to the Relation of a Subject and holds as long as the Subjects stand in that Relation then if the King de Jure be still their King and they his Subjects though they have not actual Protection from him yet their Allegiance is due to him as far as they are capable of exorting it for his Service Again if there be no obligation to perform the Duty of Allegiance but where there is the Relation of a Subject to which that Duty is annexed then if the Nation are not Subjects to a King de Facto nor he their King they are not bound to pay him Allegiance though he is ready to give them actual Protection so that Protection without the true Relation of King does not infer an Obligation to Allegiance nor the want of Protection take away that Obligation in him who is still under the Relation of a Subject to another that is his King Which is farther clear because actual Allegiance and Protection are not reciprocal i e. actual Performance of the Duty of Allegiance does not infer an Obligation in the King to give Protection to every Alien who is willing to make himself the King 's Subject neither does the neglect of paying his Duty of Allegiance in any Subject discharge the King of his Duty of giving him his Protection as far as is consistent with the other part of the King's Duty to govern his Subjects for he is still obliged to give him all that which the Law allows to a Criminal a Legal Tryal by a Jury c. and may be obliged to extend his Royal Clemency to him where it may tend to the Reformation of the Person and is consistent with the due ends of Government To be short there is not any Man but enjoys the Benefits of his Father's Care and his Prince's Protection for a long time before he is capable to perform either the Duty of a Son or the Allegiance of a Subject viz. from the moment of his Birth to his riper Years and therefore if actual Allegiance be the ground of the King's Duty to Protect his Subjects he is not obliged to extend his Protection to an Infant or a Child or if the incapacity or neglect of his Subjects do not discharge him from performing towards them the Duty of a King why should his incapacity or fault discharge them from performing their Duty of Allegiance to him much less authorize them to transfer what is his Right to another because from him only they have actual Protection But to proceed farther in Confutation of this false Principle that actual Protection and Allegiance are reciprocal 1. This Principle obliges the Subjects to pay Obedience to every Usurpation whether the Person that Usurps be one or more whether he be King or no So any one in the late times would have been obliged upon this Principle to have born Faith and true Allegiance to the Rump the Committe of Safety the Protector and all other Usurped Powers who got the Government into their Hands during that time for they having got the Sovereign Power into their Hands from thenceforth all the People of England were under their Protection and therefore might have sworn to bear Faith and true Allegiance to them and were obliged to Assist and Defend them in the Possession of their Usurped Authority and
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