THE CASE OF ALLEGIANCE TO A KING IN POSSESSION Printed in the Year 1690. THE CASE of ALLEGIANCE TO A KING IN POSSESSION BY the King in Possession may be meant First The Person who is invested with the Regal Authority Secondly The Person who has the exercise of the Government in his Hands The King in Possession in the former Sense is only the King de Jure i. e. he that has the true Right and Title to the Crown for he is immediately invested with the Regal Authority upon the Death of his Predecessor before he is either Crowned or Proclaimed and though he be excluded or deposed from the exercise of the Government by a Rebellion or Usurpation yet he is not thereupon devested of his Authority But the Question is of the King in Possession in the other Sense viz. the Person who has the exercise of the Government in his hands Whether though he be not King de Jure but an Usurper and so has not the Regal Authority yet in as much as he has the execution of the Kingly Office the Subjects are bound to bear Faith and Allegiance to him To state which Question exactly First It is not meant of this case namely where there is No Person surviving who has the Right to the Crown as suppose in an Hereditary Monarchy the whole Royal Line were Extinct Because here there is no dispute but the subjects may and ought to bear Faith and true Allegiance to the King in Possession though he came in at first by Usurpation For the whole Royal Line being Extinct the Subjects are at liberty to give themselves up to the Usurper and his Line and this it may be their Duty to do to prevent that Bloodshed and Confusion which may follow upon their atten pring to set up another Person or Government and when they have thus given themselves up to the Usurper he becomes from thenceforth King de Jure and all Faith and Allegiance becomes due to him V. Sanderson de Conscient Praelect 5. Sect. 13. 14. Secondly Neither is the Question meant of this case where there is one or more who pretend a Title to the Crown besides the Possessor but it is not clear who has the true Right and Title For here also it is not disputed but the Subjects while they don't know who has the Right are to pay their Allegiance to the King in Possession and the Reason is not barely because he is King in Possession but because he being in Possession and no better Title appearing his Title is presumed to be Just and Lawful and so he is supposed to be King not only de Facto but de Jure till it do appear that some other Person has a better Right to the Crown And this according to the old-Rule in Ribus dubus melior est Conditio Possidentis V. Sarderson de Consc Prae 5 Sect. 15. But Thirdly The Question is properly meant of this Case where a King whose Right to the Crown is clear and undoubted is Excluded or Deposed by an Userper Whether then the Subjects are to bear Faith and Allegiance to the Usurper as King in Possession and here it may be granted 1. That the Subjects may lawfully pay a Submission and Obedience under the Usurper as to all those Acts of Government which tend to the Preservation and Welfare of Community and are not distructive of the King de Jure's Right and Interest as for instance The Laws made by the Usurper for the publick Good the defence of the Nation against a Forreign Invasion not made in behaâ—f of the King de Jure the execution of Justice Trade c. They may lawfully submit to and obey these Acts of Government under the Usurper because this is no renouncing of their Allegiance to their lawful King nor acting against his real Interest but is consistent with their acting still all that they are capable to do in the present circumstances for the restoring of their lawful King and dethroning the Usurper Nay they may be obliged in Duty to pay an Obedience to the Acts of the Usurper in things of this Nature not by virtue of any Authority in the Usurper but First For their own Safety and Advantage Secondly For the good of the Community Thirdly Because these Acts of Government done by the Usurper are ratified by the Authority of the lawful King he being to be presumed to Will and Consent to whatever is done for the publick Good and not against his own Interest though done by his Enemy U. Sanders de Conscient Prael 5 Sect. 17 18 c. He adds another Ground of this Obligation the Protection the Subjects have from the Usurper but I think this lays no obligation upon them but in point of Prudence for their own Safety for they cannot be obliged to him in Justice or Gratitude for his Protection who deprives them of a more legal Protection from their rightful King Secondly Neither is it disputed but the Subjects while they have not number or force to oppose the Usurper may sit down quietly and not make any resistance against such Acts of Government as are contrary to the Right and Interest of their lawful King because their making any opposition without sufficient Force would be only to throw away their Lives and lose the King de Jure so many Loyal Subjects who might be ready to act for his Service upon a fair opportunity But Thirdly The point in dispute is whether the Subjects may and ought to pay a full and entire Submission and Obedience to the Usurper so as never to attempt any thing against him while he is in Possession in behalf of the King de Jure upon the fairest occasion but on the contrary to stand by him even against the King de Jure himself with their Lives and Fortunes The Affirmative is maintained now upon these Grounds First The Authority of our greatest Lawyers who make Treason to â—â—e only against the King in Possession whether he be King de Jure or no and not against a King out of Possession though he be the King de Jure Secondly The Statute 11 H. 7. c. 1. which makes the Allegiance of the Subjects due to the King for the time being First The Authority of our Lawyers The Lawyers quoted for this Opinion are the Lords Chief Justices Coke Hale c. The Lord Chief Justice Hale says it in his Pleas of the Crown p. 12. But then it is much doubted whether that Piece be his and he himself may be justly looked upon to be of another Opinion in this point because he would never be brought to try any a See his Life by Dr. Burnet p. 36 c. Treasons or other Offences against the State when he was Judge under Oliver Cromwel My Lord Coke says it in his Institut Part 3d. p. 7. in his Comment upon the Words Seignior le Roy in the Statute of Treason 25 Edw. 3. c. 2. by which words he says is to
Council that any thing can be alleged from that Plea to make out the Lord Chief Justice Coke ' s Gloss upon the Stat. 25 E. 3. C. 2. viz. That the Treasons in that Statute can be Committed only against the King in Possession whether King de Jure or no or to prove That the Allegiance of the Subjects is due to the King in Possession only whether King de Jure or no. 2 ly Though Bagott ' s Council had made such a Plea and the Court had allowed of it yet this is not enough to make it good Law especially when the very Statute of Edw. 3. and other Statutes and the Practice of the Realm even in Edw. 4 th's and after in Hen. 7 th' s and Queen Mary ' s time prove the contrary as was shewed above 3 dly Though there were Statutes and Customs for it viz. That a Man might be Guilty of Treason and punished as a Traytor for acting in behalf of his lawful and rightful King against an Usurper in Possession and not Guilty for acting in an Usurper ' s Cause against his lawful and rightful King out of Possesion yet such a Statute and Custom would be null and invalid as contrary to the Fundamental Constitution of the Realm and to the Law of God and Nature as will appear under the next head the Stat. 11 Hen. 7. c. 1. which I come now to consider This Statute is my Lord Coke ' s main proof of his assertion That Treason lies only against the King in Possession and may be urged as sufficient by it self to make it Law since that time though it had not been so either by Statute or Common Law before and it is also made a distinct Argument to prove directly That Allegiance is due to the King in Possession only The main of the Statute is in these Words The King our Sovereign Lord calling to his remembrance the Duty of Allegiance of his Subjects of this his Realm and that they by reason of the same are bound to serve their Prince and Sovereign Lord for the time being in his Wars for the Defence of him and the Land against every Rebellion Power and Might reared against him and that for the same Service what Fortune ever fall by chance in the same Battle against the Mind and Will of the Prince it is not reasonable but against all Laws Reason and Good Conscience that the said Subjects going with their Sovereign Lord in Wars any thing should loose or forfeit for doing their true Duty and Service of Allegiance It be therefore ordained enacted and established by the King our Sovereign Lord that from henceforth no manner of Person or Persons whatsoever he or they be that attend upon the King and Sovereign Lord of this Land for the time being in his Person and do him true and faithful Service of Allegiance in the same or be in other Places by his Commandment in the Wars within this Land or without that for the said Deed and true Duty of Allegiance he or they be in no wise Convict or Attaint of High Treason ne of other Offences for that Cause by Act of Parliament or otherwise by any Process of Law whereby he or any of them shall lose or forseit Life Lands c. but to be for that Deed and Service utterly discharged of any vexation trouble or loss provided always that no Person or Persons shall take any benefit or advantage by this Act which shall hereafter decline from his or their said Allegiance The Statute consists of two Parts the Preamble and the Body and upon the view of it we may observe 1 st That it is not enacted in the Body of the Statute that the Subjects shall be obliged to pay Allegiance to the King for the time being so that if what is enacted in the Body of a Statute only be Law then the Allegiance of the Subjects is not due by Virtue of this Statute to the King for the time being The direct intent of the Body of it is to indemnifie those that fight under the King in Possession and their being indemnified for fighting under him is no Argument that it is lawful for them to do it much less that it is their Duty for they may be Guilty in foro interno of Treason and Rebellion for fighting under the King in Possession against the King de Jure and yet it may not be unjust or improper to indemnifie them in foro externo by such a Statute 1 st Because many that fight under the King in Possession do it in the Simplicity of their Hearts 2 ly Because this would prevent any revengeful effusion of Blood by the King de Jure at his coming to the Crown All therefore that the Body of the Statute proves is that though by the Stat. 25 Edw. 3. it were Treason to fight for an Usurper against the King de Jure out of Possession yet he that fights for an Usurper against the King de Jure out of Possession is indemnified by this Statute and so he is not punishable as a Traytor though he has the Guilt of Treason upon his Conscience and if he may still be Guilty of Treason then still his Allegiance may be due to the King de Jure out of Possession so as to oblige him not to act any thing against him in behalf of the Usurper 2 ly We may observe upon the view of the Statute that the Preamble of it does not directly and positively declare that the Allegiance of the Subjects is due to the King for the time being but only obliquely supposes and insinuates it The King is said to call to his remembrance his Subjects Duty of Allegiance and that they by Virtue of it are bound to fight for the King for the time being c. This is not to declare it to be so by Virtue of the Authority of King and Parliament to interpret the former Laws about the Subjects Allegiance but to suppose it as a thing certainly fixed and determined by the Law already and so also it is obliquely insinuated in the Body of the Act that their fighting under a King de Facto is doing their true Duty and Service of Allegiance And if this be only supposed and that Supposition have no ground neither in the Fundamental Constitution of the Realm nor in any former Statute or Custom but these all do all of them clearly demonstrate the contrary as was shewed above then I think the Preamble of this Statute cannot be urged upon the Consciences of the Subjects as a Law obliging them to transfer their Allegiance from their lawful King to any Usurper getting into the Possession of the Throne and to Fight under the Usurper against their lawful King if he attempt to recover his Crown 3ly We may observe upon the view of this Statute that one thing laid down in the Preamble as the ground for the indemnifying part of the Act is expresly false viz. That it is not
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-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
mean an Usurper unless with an express limitation to determine it to that Sense Besides the Law is made for the defence of Right and therefore cannot be understood to be designed for the Security and Settlement of an Usurpation but made to prevent it I granted above That there may be some Acts committed against the Person and Government of an Usurper which the Law may justly condemn and punish as Treason as swearing falsely by an Idol may be justly looked upon as Perjury and will by the true God himself be punished as such But if because some Acts against an Usurper may be punished as Treason a Lawyer may make this comment upon the Statute of Treason that by our Lord the King is meant only the King in Possession whether he be King de Jure or no I think a Divine upon the other Ground that swearing falsely by an Idol may be punished as Perjury may as well make this gloss upon the Third Commandment that by the Lord thy God is meant there the God in Possession he that is Worshiped in the Land whether he be the true God or not But to shew what are my Lord Coke's Grounds for his gloss I shall set it down in his own Words with the references he makes in the Margin to the Statutes and Year Books of our Law Cases This Act is to be understood of a King in Possession of the Crown and Kingdom V. 11 H. 7. for if there be a King regnant in Possession though he be Rex de Facto non de Jure c. 1. yet he is Seignior le Roy within the purview of this Statute And the other that hath Right and is out of Possession is not within the Act 4 E 4. 1. Nay if Treason be commited against a King de Facto 9 E. 4. 1 2. and after the King de Jure cometh to the Crown he shall punish the Treason done to the King de Facto And a Pardon granted by a King de Jure that is not also de Facto is void We may Observe here First this Gloss is not grounded upon the Act it self for that says only Seignior le Roy which Words my Lord C ke Interprets of the King in Possession be he King de Jure or â—o Nay it is plain that the Act does intend only the King de Jure if we consider the other Parts of it For First it 's Treason by the Act to kill the Prince the King 's Eldest Son and Heir Apparent to the Crown and it is plain the Reason of the Law in this has its care for the Succession Now the Heir Apparent of the Crown cannot be the Son of an Usurper for this implies a Right to Succeed after his Father but the Son of an Usurper though his Father be in Possession of the Crown has no Right of Succession If therefore by the Prince here cannot be meant the â—on of an Usurper though King de Facto then it must be only the Son of the King de Jure and consequently by parity of Reason by the King in the Statute must be meant only the King de Jure Secondly It is Treason by the Statute to violate or Ravish the Queen or the Prince's Wife and this also is grounded upon the care the Law has to preserve the true Right of Succssion and it is Treason likewise to Ravish the King 's Eldest Daughter and let my Lord Coke himself give the Reason because a Inst it Par. 3. p. 9. for default of Male Issue she only is Inheritable to the Crown Now the Law cannot be supposed to be thus concerned for the Issue of an Usurper who have no Right to Inherit the Crown though we might suppose the Law were willing to maintain the Usurper himself in Possession of the Crown for his own Life these instances therefore are a farther proof that the Statute it self had an Eye only upon the Lawful King and never intended any such kindness to an Usurper as to oblige the Subjects to stand by him on pain of being guilty of Treason if they did otherwise And if the Stat. 25 E. 3. c. 2. Which is only a Declaration of what was Treason Originally by the Common Law be not applicable to a King in Possession if not de Jure then besides the Vindication of the Statute it self from my Lord cok'es Gloss we have gained another very material point viz. That Treason did not then by the Common Law lie against the King in Possession if he were not King de Jure Secondly We may Observe that the Lord Chief Justice Coke does not found his Gloss upon the Funaamental Constitution of the Realm and indeed that makes flatly against him England is a settled Monarchy and in every such Monarchy the Right to the Crown is always vested in some certain Person who is the Rightful and Lawful King and to this Person the Fundamental Constitution appropriates the Regal Authority and the Allegiance of the Subjects and consequently they cannot properly be guilty of violating their Allegiance but against him only For the Constitution of the Realm makes him King and no other and makes them Subjects to him and to none other and therefore in strictness of Law Treason ought to lye against him only and no other at least it ought not to lye against any other but in such case wherein the Offences against another Person terminate upon the Lawful Kings Authority and are destructive of his Interest and so are punishable by vertue of his presumed Will and Consent Thirdly Neither is my Lord Coke's gloss grounded upon the constant Practice and Custom of the Realm but that also proves the contrary For if Treason by the Practice and Custom of the Realm lay only against a King in Possession of the Crown and Kingdom then 1. Those only would be attainted by our Kings and Parliaments who acted against a King in Possession but we shall find the contrary always practiced We shall find that all our Kings whether lawful or not with their Parliaments have attainted those acted against them but then they have not only attainted those that acted against them while they were in Possession but those also that opposed their obtaining or recovering the Possession of the Crown and acted against them under another King in Possession And this we shall find in every instance where any of our Kings came into the Possession of the Crown not without a violent Opposition made against him by the adherents of another King whom he deposed So Ed. 4. in his First Parliament b Exact Abridg of the Records of the Tower 1 Ed. 4. n. 20. 24. attaints those that fought for Hen. 6. against him And Hen. 6. when Nine years after Ed. 4. fled out of the Realm and he was again restored to the Crown calls a Parliament and c Trussel's Continuat of Daniel's Hist p. 1 89. Stat. 17. attaints those that acted for King Ed. against him And
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
to have been looked upon as invalid without this confirmation but though they might have stood good without it yet that would not have been by vertue of any Authority in these Kings but upon account of the necessity of Government and the presumed consent of the Kings de Jure excluded from their Right It may be Objected that the Acts of Parliament made by Hen. 4. 5. 6. were not confirmed by the Parliament 1. Ed. 4. therefore it may be concluded that that Parliament looked upon the Statutes made by an Usurper and his Parliament as good and effectual without the Confirmation of a King de Jure I Answer There are some of their Acts of Parliament confirmed there viz. any Acts made by them for the founding any Abbeys Religious Houses c. And any made for the Town of Shrewsbury and though the rest of their Acts of Parliament might be looked upon as valid without confirmation of Ed. 4. yet their being looked upon as valid is not to be ascribed to any Authority in a King de Facto sufficient to make them so For then that Authority must have had the same effect in all their other Acts of Government their judicial Acts Grants Letters Patents c. as it had in the Statutes made in the Parliaments holden by them These instances from our Statutes and Records of Purliament may be sufficient to prove the contrary to what my Lord Coke gives for Law Viz. That Treason does not lye only against the King in Possession whether King de Jure or no I come therefore now to consider his proofs of his Assertion We have in his note upon the words Seignior le Roy in the Statute of Treasons first his main Assertion That by those words is meant the King in Possession only though he be de Facto and not de Jure and not the King out of Possession though de Jure and for the proof of this he refers us in the Margin to the Stat. 11. H. 7. c. 1. Secondly We have some other points of Law which he brings to Illustrate and Confirm his main position viz. That Treason against a King de Facto is punishable by the King de Jure when he comes to the Crown And That a Pardon granted by a King de Jure that is not also de Facto is void and for the proof of these he refers to the Year-Books of Law Cases 4 Ed. 4. 1. and 9 Ed. 4. 1. 2. The Stat. 11 H. 7. c. 1. which he refers to for his main position I have set down before as a distinct Argument from whence it is inferred that Allegiance is due to the King in Possession and therefore I shall consider it apart in its proper place and consider here my Lord Coke's Secondary Points That Treason against a King de Facto is punishable by the King de Jure when he comes to the Crown and a Pardon granted by a King de Jure out of Possession is void And they are rather to be considered first because if they are sufficient to prove that Trason lies against a King in Possession only they prove that it did so by the Common Law before the Statute of Hen. 7. and so overthrow all that has been alledged above to the contrary My Lord Coke's references for the proof of these points are to the 4 Ed. 4. 1. and 9 Ed. 4. 1 2. in the Year-Books Under the first I find nothing of this Nature and have some reason to think it is but one and the same with the latter but under the latter reference I find a Plea in the Case of one Bagot and to clear that Plea shall set down a short History of his Case This Bagott and one Shyrenden were x 7 E. 4. 29. 9 E. 4. 6. disseized of the place of Clerk of the Crown by one Ive and thereupon sue him Ive's Plea against Bagott is That he was an Alien born in Normandy and so could not hold a Place here being not the King's leige Subject Bagott brings a y 7 E. 4 31. 9 E. â— 7. Patent of Naturalization granted him by Hen. 6. to which Ive's Council object That Hen. 6. was only a King de Facto and not de Jure and that Ed. 4. the King de Jure had in his First Parliament declared what Grants of Hen. 4 5 6. Kings de Facto should be valid and had not there made any provision to ratify any such Grants as Bagott's Patent was therefore his Patent was null To this Bagott's Council Answer z 9 E. 4. 1. That notwithstanding that Act of Ed. 4. in his First Parliament Hen. 6. Letters Patents were good because Hen. 6. was King in Possession and it is convenient that the Realm have a King under whom the Laws shall be upheld and maintained Therefore though be were not King but only by Usurpation yet every judicial Act done by him touching the Royal jurisdiction shall be good and shall bind the King de Jure when he returns to his Crown They instance in Pardons Licenses of alienation in Mortmaine Grants of Wards Liveries c. They urge also That the King de Jure Ed. 4. shall have the advantage of all Forfeitures made to King Hen. 6. and for a Trespass committed in H. 6 ths time the Writ shall run contra pacem Henrici 6. nuper de Facto non de Jure c. And a Man shall be arraigned of Treason committed against Hen. 6. in compassing his Death They urge also that any Gifts or Grants made by King Henry that were not to the diminution of the Crown shall stand good c. The Council on the other side plead That any common Person desseized of his Right and returning again shall defeat all the mean Acts therefore a King de Jure returning invalidates all the Acts of the Usurper c. But they do not make any direct reply to the Arguments of Bagott's Council After that Bagott's Council urge at another hearing a 9 E. 4. 4. 2. That if Ed. 4. in King Hen. 6th time had granted a Charter of Pardon it would be void for every one that Grants a Charter of Pardon ought to be King de Facto This is all the plea of Council upon this point and all that I find of the Judges is First that Judge Billing says b 9 E. 4. 2. That to every King by reason of his Office it belongs to do Acts of Justice and Grace Justice in Executing the Laws Grace in granting Pardon to Felons and such a legitimation as this of Bagotts then that the Judges c 9 E. 4. 1 2. After they had conferred with the Judges of the Common Pleas give Judgement for Bagott It appears upon the view of this Account of the Proceeding That what my Lord Coke refers to here is nothing but the Argument of Bagott's Council That their Argument is mainly grounded upon the necessity of Government because there must be some King to
Argument is drawn from the usual Form of the k Considera for the taking the Oath of Alleg. P. 5. n. 3. Indictments for Treason which runs for commiting that Crime Contra debitum Fidei Ligeantiae suae quod praefato Domino Regi naturaliter de Jure impendere debuit or Contra Dominum Regem Supremum naturalem Dominum suum or Contra naturalem Ligeantiam Domino Regi debitam Now if in the Indictment for Treason against a King de Facto and not de Jure the Treason be said to be committed Against our Supream and Natural Leige-Lord against our Natural Allegiance due to him against that Duty of Faith and Allegiance which we naturally and of right ought to yield to him then surely our Allegiance is due to a King in Possession though not de Jure To this I Answer First It is no wonder if in the Reign of the King de Facto himself the Indictments for Treasons committed against him run thus in the usual form for though he be an Usurper yet being in Possession he will no question assume to himself the sâ—â—le and Authority of a Lawful King and while the Laws and Courts of Judicature are in his Power they must call him their Supreme and Natural Liege-Lord and implead any one that Acts against him for violating the Allegiance which naturally and of right he ought to pay him But the question is not whether an Indictment for Treason against the King de Facto will run thus in his own Reign but whether it will run in the same form in the Reign of the King dde Jure after he has recovered his Crown Secondly Though it should run so in the Subsequent Reign of the King de Jure yet this would be no certain proof that the Law looks upon a King in Possession though an Usurper as our Natural Liege-Lord and our Allegiance as due to him naturally and of right For the Lawyers use to keep close to their usual forms in Indictments especially and retain in them many expressions as improper to be used in some particular Cases as these expressions are in the Case of a King de Facto and not de Jure But Thirdly It does not appear that an Indictment for Treason committed against Hen. 6. brought against the Person that committed it in Ed. 4. time would have run in the same form as if he had been King de Jure It does not appear because if there were any such Indictment to be found it would have been produced by those that urge this Argument but all that they alledge to prove Treason against a King de Facto is Baggot ' s Case and that rather proves the contrary viz that an Indictment under Ed. 4. for Treason committed against Hen. 6. would not run in the usual form as in the Case of a King de Jure An Indictment for a Trespass usually runs Contra pacem Domini Regis Coronam dignitatem suam and this form is also a part of an Indictment for Treason which is both Contra pacem contra ligeantiam Now 't is said expresly by Bagott ' s Council that an Indictment for a Trespass against Hen. 6. brought in Ed. 4. time would run thus l 9 E. 4. 71. Sup. a pf Contra paoem Hen. 6. nuper de Facto non de Jure c. and if so then by parity of Reason the same expression would be used in Indictments for Treason and if that expression be put in I think it will require that those of Natural Liege-Lord and Allegiance due naturally and of Right be left out otherwise the Indictments must run thus Contra Dominum Regem Hen. 6. nuper de Facto non de Jure Supremum naturalem Dominum suum or contra debitum fidei Legeantiae suae quod Domino Regi Hen. 6 nuper de Facto non de Jure naturaliter de Jure impendere debuit i. e. against his Supreme and Natural Liege-Lord Hen. 6. late King in deed but no in Right or against that Duty of Faith and Allegiance which he naturally and of Right ought to pay to Hen. 6. late King in Deed and not of Right These expressions I think do not very well suit together at least the addition of King de Facto and not do Jure does seem so to qualifie the rest that no Act can be made Trason in any such Indictment that is done against the King de Facto in behalf of the King de Jure to bring him to the Crown for then the Indictment must run thus A. B. Against his natural Allegiance due to Hen. 6. late King de Facto and not de Jure was aiding and assisting to our Sovereign Lord that now is Edw. 4. then King de Jure but not de Facto for the recovery of his Right This therefore may be a sufficient Answer to the Objection from the form of the Indictments for Treason to shew that they are no proof that our Allegiance is due to the King de Facto though he be not King de Jure But I pass on to the last point in the Plea of Bagott ' s Council That a Pardon granted by a King de Jure out of Possession is void and this may very well be admitted For a King de Jure out of Possession while his Subjects are not able to restore him cannot send over a Pardon of Felony Treason or the like to any purpose but only to have his own Authority exposed and his Loyal Subjects lose their Lives or Estates by endeavouring to maintain it For to have this Pardon take effect it must be pleaded in Court and there it cannot have its effect to save any Person whom the Usurper will have excuted besides that the Person pleading it would be in danger to be proceeded against as a Traytor for abetting the King de Jure's Authority against the Usurpors This may clear the meaning of that part of the Plea of Bagott ' s Council that a Pardon granted by a King de Jure out of Possession is void i. e. it cannot have its Effect and be pleaded and received in Court while the King de Jure is out of Possession But then it does not follow because he cannot execute his Royal Authority in the pardoning or punishing Treason while he is out of Possession that therefore there can be no Treason Committed against him while he is out of Possession or that it is Treason to act for him against the Usurper for though the King de Jure have not the Exercise of the Government yet he has a Right to it and the Subjects may thereupon be obliged in Conscience to bring him into the Possession of his Right when they are able and it may be Treason in them to fight against his Right for the Usurper though King in Possession To conclude therefore First It does not appear upon the view of the particular Points in the Plea of Bagott ' s