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
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
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
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