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
Children that shall Vsurp the Crown before their time how can this be understood with a reserve that if any of them should Vsurp and get into the Throne the Subjects then should be obliged to abett and maintain them 3. But 3 ly the Question is not so much whether the succeeding Kings and Parliaments have repealed the Statute 11 H. 7. as whether they have not looked upon it always as null and of no Authority and I think their passing Acts of Attaindor contrary to the Letter of it and making it Treason to stand by an Vsurper and obliging the Subjects to Swear to defend the lawful King and the Succession against all Persons whatsoever is a sufficient proof that our Kings and Parliaments ever since the 25 th of Hen. 8. have looked upon the Statute 11 H. 7. as of no Authority and in effect declared it to be null and invalid II. But granting that this Statute was made by a Legal Authority and has stood ever since unrepealed I proceed to shew in the second place that it is to be looked upon as in it self null and invalid in respect of the matter of it A Statute though made at first by a lawful Authority and not after repealed by any subsequent Parliament may yet be looked upon as null and invallid if the matter of it be impossible or unjust if it be repugnant to Common Sense or contrary to the Law of God and Nature So the Lord Chief Justice Coke observes Inflit. P. 2. p. 587. in his Commentary upon the Stat. de asportatis Religiosorum one branch of which Statute he says was declared by the Court of Common-Pleas to be void because impossible and inconvenient to be observed and quotes Bracton for the Properties of a Law Lex est sanctio justa jubens honesta prohibens contraria It may be therefore a sufficient proof of the nullity of this Statute that it is not as Bracton requires Sanctio justa jubens honesta prohibens contraria but rather as I shall proceed to shew a Statute establishing Iniquity by a Law For it either devests the lawful King of his Right to the Crown and gives it to the Usurper or it still reserves his right to him but yet notwithstanding orders the Subjects to obey and stand by the King in Possession tho an Usurper The first of these cannot fairly be pretended for if it gives away the Right of the lawful King then 1 st He ceases to be King de jure the lawful and rightful King of this Realm and this besides that it is contrary to what our Lawyers allow takes away the ground of this whole dispute the distinction between King de jure and the King de facto 2 ly He cannot then justly make War upon the Nation for the recovery of his Crown but must sit down quietly by his loss and is answerable for all the Blood that is shed in the War he makes if he attempt to restore himself by a Foreign Force for if his Right be tranferred he cannot then justly demand the Subjects Allegiance and what he cannot justly demand that he has no right to use force for the recovery of and therefore must be content to stay till the Usurper dye and then perhaps his Right may revive again unless the Usurper be so wise as to provide himself a Successor and leave him in Possession 3 ly It will follow if this Statute give away the Right of the lawful King to the Usurper that one King with his Parliament may make a Statute to alienate and transfer the Right to the Crown from those that are the lawful Kings by the Fundamental Constitution of the Realm to such as by the Fundamental Constitution are not the lawful Kings but Vsurpers Now this I conceive is not in the Power of any King and Parliament however Legal much less of such as Henry 7 th and his Parliament was We have a Fundamental Constitution whereby England is determined to be a Monarchy and that antecedently to any Statute Lan. This Constitution vests a Right in some certain Person in every Age who is by Vertue of the Right vested in him the lawful and rightful King of this Realm whether this Person be he next in Blood to the former King or another of the Royal Line to whom the Crown descends by Vertue of a Limitation of the Succession from the next in Blood to him for whether the one or the other of these is the rightful King he is so by Vertue of the Fundamental Constitution which vests the right to the Crown in him Now for any one King with a Parliament to make a Law that for the future not the next Heir of the Blood nor any other to whom the Succession is limited but any Person whatsoever that shall get into Possession of the Throne tho it be by deposing a rightful King regnant and usurping his Crown shall from thence forth become the rightful and lawful King and the right of the Prince that he has dispossess'd be devolved upon the Vsurper is effectually to subvert the Fundamental Constitution of the Realm and if it be in the Power of the King regnant and his Parliament to do this then it follows that any King with a Parliament may deprive the lawful Issue of his Brother and set up a Bastard of his own that they may exclude and disinherit the whole Royal Line and entail the Crown upon the King of France or any other Foreign Prince they may lay aside the whole right of Succession and make the Monarchy Elective that they may change the form of the Government into a Republick and make the Kings no more then Consuls or Dukes of Venice and vest the Supreme Authority in the Senate or People In short that England is no longer a Monarchy or Hereditary then the King regnant and his Parliament pleases And yet if these things were done by any King and Parliament I believe it would be looked upon as an Injury to the subsequent Kings or to the Royal Line and they would be justified if they would not allow any such Statute to have any force but protest against it as Illegal and of no Authority and yet all this might be done according to Law if the King and Parliament have a Power to alienate and transfer the Right of all the subsequent lawful Kings to any Vsurper that shall be strong enough to depose or exclude them But I needed not to have proved this which is supposed in the question viz. that this Statute does not give away the Right of the lawful King deposed or excluded but still leaves him King de jure and reserves to him a right to claim and recover his Crown only it obliges the Subjects notwithstanding to stand by the King in Possession though an Usurper I shall therefore proceed upon this Supposition and shew that this Statute as it requires the Subjects to stand by the Usurper in Possession against their rightful and
de jure I answer this is plainly a different case and the ground of the difference lyes here that in all Controversies between Private Persons about a Title to an Estate there is a Court of Judicature provided to determine who has the Right Title but in a Competition of two Princes for the Crown there is no such Court of Judicature provided For where there is such a Court of Judicature there the very Reason of Government requires that any Person who is in Possession of an Estate tho it be by unjustly disseizing or excluding another who has the Right to it is to be looked upon as to the jus externum by every Subject of that Government as if he were the rightful Possessor till upon a Tryal in Court he be adjudged not to be so and if upon a Tryal he tho against Truth and Right by Perjury of Witnesses a corrupt Judgment or false Verdict be adjudged by the Court to be the rightful Possessor he is then still by the Subjects of that Government to be looked upon and treated as such till the other Person who is thus injured can have his remedy against him in a legal Way and recover his Estate by another Tryal Hence therefore it follows that the disseized or excluded Landlord is not any other way to disturb the others unjust Possession but by having recourse to the Law and the Tenants are to swear fealty to the Lord in Possession and to pay him their Rents and Services and can do no other Service to their rightful Landlord then by giving him their Assistance towards the recovery of his Right in a Legal way for their paying their Rents and Services to another cannot be an Injury to the rightful Landlord because as a Member of the Government he submits his Rights to the Legal Constitution and besides may recover Damages of the unjust Possessor for the profits of the Estate which he has enjoyed during the time he has been in Possession but it would be an Injury to the Tenants to pay their Rent twice over once to him to whom the Law constrains them to pay it and again to him to whom their Consciences tell them it should be paid of Right And the same would be the Case in a Competition of two Princes for the Crown if there were a Court of Judicature settled in the Kingdom to take Cognizance of their Claims and to determine the Controversy between them judicially and to oblige the Parties contending for the Crown to acquiesce in their Judgment and the Subjects to stand by him whose Right they determine it to be for then any King in Possession were to be looked upon and obeyed as King de jure till by a Sentence of this Court he were pronounced to be an Vsurper and another Prince declared to be the rightful King and the Prince deprived or excluded by the Sentence of this Court were to sit down and quit his Pretensions and the Subjects would be to be directed wholly by this Court and to swear Allegiance to that Person and to stand by him with their Lives and Fortunes to whom this high Court should adjudge the Right to the Crown But then if there be no such Court it will then be left to the Subjects to inform their own Consciences who it is in whom the Crown is invested deemed and judged to use the Expression of the Stat. 1 a Sess 2. c. 4. Mar. by the Law not any such Court and when they know it they are to follow the jus internum and to stand by him who has the Right tho a Tenant in the case of a Private Landlord is obliged to follow the jus externum and to be directed by the Courts of Judicature where he is to pay his Rents and Services and to swear fealty I need not take upon me to prove that there is no such Court settled in our Constitution It is not the Nobility or Council of the former King for their Proclaming of the New King is not a judicial decretory Sentence of his Right and Title but the first Act of their Allegiance to him presupposing his Right if it were otherwise Queen Jane had then been the lawful i. e. Legal Queen of England and not Queen Mary But we find it so far from that that the Lords of the Council were looked upon as Guilty of Treason in Proclaiming Queen Jane and adhering to her when Proclaimed Neither is it the three Estates assembled in Parliament for then 1st They should meet immediately upon the decease of any King to determin any dispute that might be about the Title to the Crown whereas their meeting depends upon the Writs of the new King to call them together 2 dly Their Acts of recognition should be first passed before any other but we find them as it may seem designedly placed after some others in the Parliaments 1 Mar. and 1 Eliz. Indeed a Parliament were a fit Court to determin such a controversie if it could be free and impartial upon an Vsurpation and were not under the awe of him that by the Power of the Sword lays the strongest claim to the Crown I shall shew how fit a Parliament may be to be set up for an infallible Judge of Controversies of this Nature by transcribing a part of the Act of Recognition of Ric. 3 d. Printed at large at the end of the a p. 712 713 714. exact abridgment of the Records We consider that you be the undoubted Heir of Richard Duke of York very Inheritor of the Crown and Dignity Royal and as in right King of England by way of inheritance We consider also your great b Mr. Pryn's note His pretended vertues and fitness to Reign Without one word of his desperate Treasons Regicides Murders Hypocrisie and other vices Wit Prudence Justice Princely Courage Wherefore these Premises duly by us considered we desiring effectually the Peace Tranquillity and Weal-public of this Land And having in your great Prudent Justice Princely Courage and Excellent Vertue singular confidence have chosen in all that in us is and by that our Writing Choose you High and Mighty Prince our King and Sovereign Lord c. To whom we know of certain it appertaineth of inheritance so to be chosen And hereupon we humbly desire pray and require your most Noble Grace that according to the Election of us the three Estates of your Land as by inheritance you will accept and take upon you the said Crown and Royal Dignity as to you of right belonging as well by inheritance as by lawful Election Albeit that the Right Title and Estate which our Sovereign Lord King Richard the 3 d. hath to and in the Crown and Royal Dignity of this Realm of England been just and lawful as Grounded upon the Laws of God and Nature and also upon the Ancient Laws and laudable Customs of this said Realm And also taken and reputed by all such Persons as been learned in the above said Laws
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