Selected quad for the lemma: england_n
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A29884
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The case of allegiance to a king in possession
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Browne, Thomas, 1654?-1741.
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1690
(1690)
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Wing B5183; ESTC R1675
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63,404
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76
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reasonable but against all Laws Reason and Good Conscience that the Subjects going with their Sovereign Lord in Wars even though against the King de Jure as it must be understood any thing should lose or forfeit for doing this their true Duty and Service of Allegiance Now this if it be meant as it must be concerning those that Fight for an Usurper against their lawful King that it is aginst the Laws Reason and good Conscience to punish them in the least for so doing is very high indeed For 1 st Though our Law might think fit to Indemnify them yet it is not so clear that all other Laws Divine and Humane even the Laws of Reason and Good Conscience do make it unjust to punish them who not in the Simplicity of their Hearts but upon a Traytereus and Rebellious Principle fight in Defence of an Usurper in the Throne against their lawful Prince excluded or deposed from his just Rights It would not I suppose have been unlawful for David to have punished those which came in Arms against him under Absalom to keep him from recovering his Throne Nor I believe would his Heart have smote hem if he had executed any of them for Traytors as it did when he cut off Saul's Skirt In short to say this is contrary to Reason and Good Conscience is to set up a new Standard of Reason and Religion and to make it contrary to all Laws is to accuse all Nations but our own of Injustice and Cruelty Secondly Nay it is to accuse our own Nation too and several of our Kings and Parliaments and among the rest King Henry the 7 th and his First Parliament who did not think it against all Laws Reason and Good Conscience to attaint a sup p. those that fought against Hen. the 7 th under Ric. the 3 d the King in Possession and de Jure too against Hen. 7 th in Bosworth-Field So that to me the wording of this Act appears to be a Copy of King Hen. 7 th's countenance who could call to his remembrance that it is against all Laws Reason and good Conscience that the Subjects should be attainted for fighting under the King in Possession and could forget to repeal his own Statute whereby those that adhered to Ric. the 3 d. stood attainted for doing this their true Duty and Service of Allegiance And with what Face could he or his Parliament say it was against all Laws when it was not against his own When both himself and other Kings before him with their Parliaments had attainted both the adherents of the Kings in Possession and the very Kings in Possession themselves But granting this were the Body of the Statute and a direct Law enacting that the Subjects shall pay their Allegiance to an Usurper in Possession and fight for him against their lawful King and be Indemnified for it Then it will remain to be considered whether the Statute can be looked upon as valid and obligatory And I conceive it ought not to be looked upon as valid and obligatory upon these Reasons First Because it was made by an Usurper and a Parliament no farther Legal than as it had its Authority from him and it was made for this end and design to secure the Usurper himself in the Possession of the Throne and to confirm his Soldiers to his Party by Indemnifying them if they stood by him aud depriving them by the Proviso at the end of the Statute of the benefit of the Statute if they should dosert him That Henry the 7 th was an Usurper upon the Rights of the House of York I need not prove And that this Statute was made to secure him in his Usurpation against any one pretending or having Right and Title of that House appears by the time when the Statute was made which was when Perkin a Bac. Vit. H. 7. p. 1077. and seq Warbeck was up in Arms against him declaring himself to be Ric. the 2 d. Son of Edw. the 4 th and consequently the Heir of the House of York and the danger King Henry was in upon this by the sense the generality of the Nation had of the Right to the Crown being in the House of York appears by the Words of Sir William Stanley b Bac. p. 1071. the very Person who set the Crown on King Henry's Head after the Battle of Bosworth that if he certainly knew that the Young Man Perkin were the Son of King Edward the 4th he would never fight nor bear Arms against him so little did he understand at that time that which King Henry could so well call to his remembrance that the Subjects ought by virtue of their Allegiance to sight for the King for the time being against the lawful Heir of the Crown This therefore was the Authority whereby and the end for which c Dr. B's Reply to Mr. Varillas p. 71. Hen. 7. Weakened the Rights of the Crown of England more than any that ever reigned in it He knew he could not Found his Title on his descent from the House of Lancaster for then he could have been no more than Prince of Wales since his Mother by whom he had that pretension out-lived him a Year and he would not hold the Crown by his Queen's Title for then the Right had been in her and had passed from her to her Children upon her Death and therefore he who would not hold the Crown upon such a doubtful Tenure made that dangerous Law That whosoever is in Possession of the Crown is to be acknowledged as the Legal King this Statute was made And if so then it ought to be looked upon as null and invalid For though a Law made by an Usurper for the good of the community and not prejudicial to the lawful Right of the Crown my in equity be looked upon as valid yet no other Law made to the disherison d See the Answer of Richard Duke of York to the Objection made against his claim from the Act of Entail made by Henry the 4th upon his Heirs Male The said Act taketh no place neither is of any Force or Effect against him that is right Inheritor of the said Crowns as it accordeth with God's Law and all natural Laws how it be that all other Acts and Ordinances made in the said Parliament sithen been good and sufficient against all other Persons Rot. Parl. 39. H. 6. n. 17. Quoted by D. Brady in Hist Suc. P. 27. of a lawful King ought to be held obligatory upon the Consciences of the Subjects to make it their Duty to do that which otherwise would be an Act of the Highest-Treason viz. To fight for an Usurper against their rightful and lawful King It may be objected that the subsequent lawful Kings have consented to this Statute I answer First They have not consented to it any farther then by their not expresly repealing it or declaring it to be null in some of their Parliaments and this does
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