and Customs Yet nevertheless forasmuch as it is considered that the most part of the People is not sufficiently learned in the abovesaid Laws and Customs whereby the truth and right in this behalf of likelyhood may be hid and not clearly known to all the People and thereupon put in doubt and question And over this how that the a Mr. Ps. note Yet he that considers 39 H. 6. n. 8. to 33. and 1 E. 4. n. 8. to 40. will scarce believe this for a truth neither proved it so in his own case Court of Parliament is of such Authority and the People of this Land of such a nature and disposition as experience teacheth that manifestation and declaration of any truth and right made by the three Estates of this Realm assembled in Parliament and by Authority of the same maketh before all things most faith and certain quieting of Mens minds and removeth the occasion of doubts and seditious language Therefore at the request and by the Assent of the three Estates of this Realm and by the Authority of the same be it pronounced decreed and declared that our Sovereign Lord the King was and is the very undoubted King of this Realm of England as well by right of consanguinity and inheritance as by lawful Election Consecration and Coronation I do not observe that the Recognition was first drawn up and presented to King Richard at his Coronation by a party of his own Creatures taking upon themselves to Recognise and Elect Him their King in the name of the Three Estates of the Realm However afterwards it was not found difficult to bring the Three Estates in full Parliament to make this their own Act and not only to submit to King Richard as King de facto but to recognize Him to be King de jure Prynn's Remarks upon it in the Margin are sufficient to shew their Honesty and Sincerity in this proceeding how well qualified they approv'd themselves for an Infallible Judge of Controversies about the Right to the Crown by their base and servile Flattery in extolling the singular Vertues of that bloody Tyrant by their declaring Him the true and undoubted Heir of the Crown by their establishing a new andunheard of Right of Inheritance whereby it belong'd to an Hereditary King to be chosen by the Parliament and lastly after they had acted thus contrary to the Light and Conviction of their own Consciences pretending to an Incontestable Authority to quiet the Consciences of the Nation How they quieted their Consciences appears by the Sequel of the History when the Nation within two Years call'd in Hen. 7 th to depose this Tyrant upon his Oath to Marry the Daughter of Edw. the 4 th the Heir of the Crown and there we find the Parliament soon change their Note and prononnce the late True and Vndoubted Heir of the Crown a Traitor and Vsurper FINIS An Advertisement to the Reader in relation to the foregoing Discourse There are some passages in this discourse which may seem to allow too much to an Usurper in Possession viz That some degree of Submission may and ought to be paid to his Acts of Government that some of his Judicial Acts Grants c. ought in equity to be looked upon as valid and that some Acts against hi may be punished as Treason To prevents these passaes being mistaken or perverted I thought it proper to to add some farther explanation of them The Question touching the Subject's complyance under an Usunper in Possession supposes these two things 1. That the Usurper is got into the Throne and that he has seized the Power of the Nation into his Hands so that the Subjects who still adhere to their Loyalty and Allegiance are not an present able to make Head against him to remove him from the Throne and to restore their Lawful King to his Right 2. That whether the Loyal Party will or no the Government will from thenceforth proceed under the Name and as by the Authority of the Usurper till the Lawful Prince and his Party are in a condition to displace him i. e. The Usurper will Name his Council Judges and inferiour Magistrates Officers of his Court and his Army c. will call Parliaments make Laws levy Taxes grant Commissions and take upon him to execute all other Acts of Royal Authority and will have a Party to act under him in all Places of Trust and Power during his Usurpation Upon this ground therefore it will not be difficult to explain the abovementioned passages and to shew that they do not allow too much to an Usurper in Possession As First That some degree of Submission and Obedience may be paid to his Acts of Government i. e. Whilst the Loyal Party are not able to make head against him to deprive him of the Crown they may be allowed and obliged to pay a Submission and Obedience to those Acts of Government done by the Usurper which tend to the Publick Safety and Welfare and are not prejudicial to the Right and Interest of their Lawful King For this Submission and Obedience 1. Does not imply any Recognition of the least Right or Authority in the Usurper for the ground of it is not any such Authority but a prudent regard to their own Safety the Publick Good and their absent Prince's Interest involed in both whose Will therefore they must presume allowing nay requiring them to act thus as most for his Service in their present circumstances 2. It does not at all contribute to the Settlement of the Usurpation and the Confirmation of the Government in the Hands of the Usurper for the Government will proceed as by his Authority whether they will or no till they are in a condition to oppose it effectually and may be more settled if they should throw away their own Lives and ruine the Cause of their Lawful Prince by any rash and weak attempt 3. It does not dis-ingage them from imbracing all opportunities of acting any thing that may be really serviceable to their Lawful Prince's Interest and may make way for his recovery of his just Rights Secondly It is allowed in the Discourse That some Judicial Acts and Grants c. of an Usurper ought in Equity to be looked upon as valid viz. Such as are not to the prejudice of the Interest of the Lawful King or of the Publick This is grounded upon the same supposition that the Government will be carried on by the Usurper and his Adberents whether the Lawful Prince and his Party will or so and then it is for the Good of the Nation the Lawful Party and he Lawful Prince that Justice should be administred and the Order of Government preserved and consequently that the Sentences passed in Courts under the Usurper and his Commissions and Grants c. be looked upon as valid as far as they are not against the Right of the Lawful King and tend to the preservation of publick Justice and Order For the allowing this does not imply 1. An allowance of any Right or Authority in the Usurper for the Government may still be conceived to subsist and the Laws to stand in force by virtue of the Lawful King's Authority and consequently these Judicial Acts c. may be looked upon as useful by virtue of his presumed Will whereby they are ratified and confirmed 2. Neither does it justifie the Adherents of the Usuper in their joyning to act under him as the Instruments of his Usurped Power for this is Treason in them their swearing Allegiance to him taking Commissions from him and acting for his Interest against their Lawful Prince and yet some Acts done by them to preserve Publick Justice and Order may be looked upon as convenient not by virtue of any Legal Authority which they have but as Reason and Necessity requires that these Acts should have their effect Thirdly The Discourse That some Acts against an Usurper may be punished as Treason This also supposes the Government and Power of the Nation to be in the Usurper's Hands and that it is requisite and just that while it is so Murder Robery and such other Offences against Right and Order be punished though by the Usurper's Commission and Warrant The same therefore is to be granted as to any Acts within the Stat. 25 Edw. 3. which are committed under the Reign of an Usurper against the Order of Government and the Royal Authority considered in it self and not against the Usurper's Person or Government as such such are Clipping and Coining betraying any place of strength to any Foreign Prince invading the Nation not on the Lawful King's behalf c. Now these Acts may be allowed as punishable under an Usurper without implying an allowance of any Authority in him for they are punished by Virtue of the Lawful Prince's Authority and without implying that the inferiour Magistrates under him have any Legal or Just Commission any farther than as they may be conceived to have the Will and Consent of the absent Prince authorizing them to execute Justice upon such Criminals or at least ratifying the thing done thought without a Legal Commission This I thought proper to add for the farther explanation of these Passages to prevent their being mistaken or perverted I have nothing more but to desire that they may be considered as Concessions in relation to the Plea of Bagott's Council which is so much insisted upon for the Lawfulness of transferring Allegeance to a King de Facto and I have though it the fairest way of answering the Argument from that Plea not to reject it where it seems not to be unreasonable but to shew that the Lawyers might have some reasonable grounds to argue in that manner for the validity of Bagott's Patent and yet their Plea cannot be made use of to prove that Allegiance is due to a King in Possession if an Usurper FINIS ERRATA Pag. 9. l. 19. after those add that p. 33. l. 12. for was r. were p. 38. l. 7. for the r. that Ibid. l. 9. for he r. the. p. 41. l. 16. for thus r. this p. 46. l. 22. for routed r. outed Ibid. l. 24. for the r. this p. 47. l. 22. Marg. for Dit r. Vit. p. 49. l. 7 Marg. for Confident r. Considerat Ibid. l. 17. Marg. for 6. r. 9. Ibid l. 22. for use the r. use his p. 53. l. 8. after comprehend add both p. 154 l. 7. for noâ— r. noâ— p. 56. l. 28. for Mento r. Merito
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
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
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