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
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
in Possession but as obliging the Subjects in point of Conscience to stand by the King in Possession against the King de jure is unreasonable unjust and inhuman And then it is no Authority of Man though it were of the most lawful King and Parliament can oblige the Subjects to such a Law But to all this it may be said that it were indeed unjust thus to oblige the Subjects to transfer their Allegiance from the rightful King were it not that the Public Good and Peace of the Nation required it to be so that when an Usurper is once settled in the Possession of the Crown all that Bloodshed and Confusion may be prevented which would be the consequence of the Subjects attempting to dispossess the Vsurper and to restore the King de jure To this I answer First The King is worth ten thousand a 2 Sam. 18. 3. of his Subjects so that he is not to be kept out of his Right meerly for their ease and quiet Else they might as well save themselves the trouble and hazzard of fighting for the King in Possession and oblige him to decide his quarrel with the King de jure or any Foreign Prince by a Private Duel Secondly A great part of the Nation in an Vsurpation are such as have forfeited their lives by Treason and Rebellion by their deserting or their rising up against their lawful King Therefore no reason as to them at least that a Law should be made to set aside the Lawful Prince's Right for their ease and quiet to exclude him from a Possibility of recovering his Crown that they may freely enjoy the Fruits of their Treachery and Rebellion under the Usurper Thirdly But then such a Law if we look beyond the present time when the Usurper is newly got into Possession does not so much contribute to the Peace and Security as it does in all human prospect to the disturbance and ruin of the Nation For First It obliges the exiled Prince to endeavour to obtain Foreign Assistance for the recovery of his Crown and gives a just right to any Foreign Prince to make War upon the Usurper and the Nation in the exiled Prince's behalf as he is unjustly deprived of his Crown Now this puts the Nation in continual danger as long as the Usurpation lasts of being Conquered and brought under a Foreign Yoke and being made a prey to Mercenary Souldiers who mind nothing but Plunder and Rapine having no regard for a Country which is not their own Secondly It gives all encouragement to Ambitious Spirits to attempt upon the Crown when they find it by such a Statute as this made as it were the Prize of any one that can win it by Force and he that gets it by unjust violence is as secure as he that has the most lawful Title the Subjects being as much obliged to stand by him Thirdly It does not only keep out the Lawful King but also precludes his Heirs too from the Succession For there is no Usurper but after he has settled himself in the Throne makes it his next business to entail the Crown upon his Line and to leave his Son in Possession of it And the consequence of this is two Families as of York and Lancaster continually watching all opportunities to dethrone each other And the reading how much blood was spilt during the contest between those two Houses is enough to satisfy any Man how much such a Law contributes to the Peace of a Nation which both encourages any Usurper to seize upon the Crown and enables him both to maintain himself in Possession and to set up his Posterity after him and so to lay the Foundation of a certain War upon the Nation as often as either the Heirs of the Family of the lawful Prince are able to make a descent here with sufficient Force and to gain a Party here to joyn them or his own Family if they are routed are able to make a new attempt to repossess themselves of the Crown I shall add one Argument more against the Statute and the consequences which are drawn from it and that is by applying them to a particular instance Allegiance is due by this Statute to him only that is King in Possession and Treason lyes against him only Therefore if Cromwell had been made King we know it was almost come to a conclusion that he should take that Title upon him then these had been the consequences First That King Charles the 2 ds Party had been Rebels and Traitors if after that they had attempted to restore him to the Crown or given him any aid or comfort Secondly That they would have been obliged by vertue of their Allegiance to fight him to the death if he himself had attempted the recovery of his Right And all this notwithstanding the clear conviction of their Consciences that King Charles the 2 d was their Sole Rightful and Lawful King And Cromwell an Usurper Nay farther though Cromwell was not made King i e. did not assume the Title yet seeing he had the Exercise of the Regal Authority though under another Name the consequences in all equity and reason ought to be the same For the Law must be supposed not to regard the Name and Title but the Power and Authority and Office of a King as it is certain he had then the Nation were bound to pay him Allegiance and those that dyed for rising against him for King Charles's Interest were not Martyrs for their Loyalty but Traitors and Rebels for acting against their bounden Allegiance Neither can it be consistent with Common Sense or Honesty to urge upon the Consciences of Men the Letter of the Law against the reason and equity of it and to make the same thing Treason in one moment and the bounden Allegiance of the Subjects in the next upon the change of a Word Treason to be adherent to Cromwell while he had only the Supream Authority without the Name of King but their bounden Allegiance to adhere to him as soon as he had taken that Name upon him It will not now I hope be thought any great Presumption if upon these reasons I charge that Statute with injustice of which my Lord Bacon gives so a Dit H. 7. P. 1077. fair a Character and discovers in it not only the depth of prudence and foresight but justice also and magnanimity and a Spirit wonderfully Pious and Noble The Cunning and State Policy of it does easily appear but it is not so easie to discover any Piety or Justice in a Law that makes evil good and good evil I cannot parallel it to any other but that which he made in his first Parliament b Bac. p. 1003. That the Inheritance of the Crown should be rest remain and abide in the King c. This Act made him an Vsurper upon the rights of the House of York and the other confirmed him so This which put him in Possession of the Crown had created