lawful King is to be looked upon as in it self null and invalid And this I understand not of the Case of an intricate dispute about the Title to the Crown where the Subjects cannot discern who has the Right but of the case where a King whose Right to the Crown is clear and undoubted is excluded or deposed by an Usurper And I conceive the Statute as understood of this case null and invalid upon these Reasons 1st It implies a Contradiction that such a Person should be still the King de jure and yet the Subjects knowing him to be so should be obliged to pay their Allegiance to another For if he is a King de jure he has a Right and that Right is to somthing or other but there is nothing he can have a Right to as King but the Allegiance of the Nation that he should be their Governour and they his Subjects unless we will say he has a Right only to the material Crown and Scepter and not to that which they are only the Ensigns of the Government of the Nation And if he has a Right then the Subjects knowing him to have it must be under an Obligation answering to that Right 2 dly The Allegiance of the Subjects is proprium quarto modo omni soli semper to use my Lords Coke a Calvin's Case f. 12. Expression to the lawful and rightful King by the Fundamental Constitution of the Realm and therefore for the Reasons before laid down cannot be taken away from him by any Statute Law For as the constitution of the Realm vests the Right to the Crown iâ— him only so it must appropriate the Allegiance of the Subjects to him only as it makes him alone King so it must make the Nation subject to him alone unless he may be truly a King and yet none be under an obligation to be governed by him If I am a a Maiach â— 6. Father where is my Honour If I am a Master where is my Fear 3 dly The Allegiance of the Subjects and some parts of it especially are due to the lawful King only by the Law of Nature and therefore no Human Law can take the whole Allegiance of the Subjects or the indispensable parts of it away from him and transfer them to the Usurper The Law of Nature extends it self to all the Conditions and Relations of Men it considers them as Private Persons with relation to God and themselves only and there prescribes to them the Duties of Godliness and Sobriety It considers them as in a Family and there prescribes the Duties of Children to their Parents and Parents to their Children Husbands to their Wives and Wives to their Husbands Masters to their Servants and Servants to their Masters It considers them as in a Civil Society and there prescribes to Subjects their Duty to their Prince and to the Prince his Duty towards his Subjects The Law of Nature does not make one Man King and the rest his Subjects but when it once finds them made so whether by their own or any other Persons Act then it lays before them some Duties which they are to Practice whether the particular Laws of the Realm enjoyn them or not and such as no Human Authority can dispense with as long as they stand in that Relation Now these Duties on the Subjects part are signified by the Words Fidelity and Allegiance And so we find my Lord Coke says Calvin's Case f. 13. That Ligeance Faith and Obedience of the Subjects to their Sovereign was before any municipal or judicial Laws I st For that Government and Subjection were long before any municipal or judicial Laws 2ly For that it had been in vain to have prescribed Laws to any but to such as ought obedience Faith and Ligeance before in respect whereof they were bound to observe them And from this he draws this Consequence seeing then that Faith Obedience and Ligeance are due by the Law of Nature it followeth that the same cannot be changed or taken away It is therefore plain and undeniable that there are some Duties owing by Nature to that Person who is our lawful Prince by the Constitution of the Kingdom and these Duties at least as far as they can be performed for his real Service are due to him as long as he is supposed to continue our lawful Prince And upon this ground we may justly pronounce the Stat. 11 H. 7. null and invald for it supposes the excluded or deposed Prince to be still the rightful and lawful King and yet 1 st This Statute tranfers the whole and entire Allegiance of the Subjects from the rightful King to the Vsurper Now tho the Statute of the Realm may in some cases disengage the Subjects from doing some Offices to their King which otherwise their natural Duty would call upon them to perform yet no human Law can take away all their Duty from him without being directly contrary to the Law of Nature and consequently null and invalid 2 ly This Statute obliges the Subjects to deny their rightful King those parts of their Allegiance which are most indispensable and to act quite contrary to them There can be no part of the Subjects Duty more indispensable then to defend the lawful King's Person Crown and Dignity to maintain his Right and Title to the Crown who is to defend his Subjects Right to their Lives and Estates For thus they are to hazard their Lives in Battle against his Enemies and that not only in One Battle but also in a Second and Third and though in all they be defeated yet if they can they are obliged to raise New Forces to make head once more against the Enemy Neither is there any more reason why they should wholly give up their Princes cause when an Usurper has got into the Throne then there is that they should desert him upon his loosing the first Battle for then they are disabled at present to stand up against the Usurper and to meet him in the Field and yet that does not free them from their Obligation to Fight him again as soon as they have Forces enough and Opportunity to do it and if the Usurper become not only Master of the Field but the Throne too this is only a higher degree of Success and a greater Victory which puts the Subjects in a greater incapacity to assert the cause of their injured Prince but does not free them from their obligation to assert his just Right to the Crown when they are capable They are therefore still under an indispensable obligation to restore their rightful King to his Throne when they have sufficient Strength and a fair Opportunity presents it self to them But their Obligation to do this will farther be clear if we consider the Subjects in a double regard as 1 st Those that were truly Loyal and did not contribute to the deposing or exlcuding their rightful King and setting up the Usurper 2 ly Those that rebelled against their
rightful Prince and set up the Usurper in his stead The former are obliged to restore their lawful Prince to his Right when they have force enough and opportunity to do it because their Allegiance does not cease upon their King 's being out of Possession of his Throne but it is only under a Suspension as far as they are under an Incapacity of exerting it for his Service and revives again as soon as they find themselves in a capacity of acting But the others are obliged to it upon a double account First by Vertue of Allegiance Secondly by Vertue of that Law of Nature which requires every Man to make restitution for the Injuries he has done to any other and therefore obliges them that contributed to the deposing or excluding their rightful King to make him recompense for that Injury by their being as active in bringing him back into the Possession of his Crown If therefore to restore their rightful King be an indispensable Duty incumbent by the Law of Nature upon his Loyal and much more upon his Disloyal Subjects then the Stat. 11. H. 7. is null and invallid as contrary to Nature for it supposes the King out of Possession to have a Right and yet obliges the Subjects not to pay him his right when they are capable It supposes them that deposed or excluded him to have done him wrong and yet obliges them not to restore him to his Right nor to make him any Reparation for the Injury they have done him But if this be unjust to oblige his Subjects not to help him to the recovery of his Right it is not only so but Inhumane and Barbarous to oblige them by Vertue of their Allegiance to Fight against him in Defence of the Usurper and to oppose him to the Death if he attempt to recover his Crown without their Assistance For how can his Misfortune in the loss of his Crown while his Right to it stands as good as ever create such a change in regard of their Obligation to him that they should now be bound to Fight him to the Death for whom they were so lately obliged to hazard their Lives Is he still their lawful King and the King in Possession an Vsurper how can it then be consistent with the common Principles of Humanity to oblige them who were born his Subjects to Fight for his Enemy against him upon no other change of Circumstances but only his being unjustly deprived of his Crown This is contrary to the Law of Nature 1 st Because it obliges the Subjects to fight in an Vnjust against a Just and Righteous Cause against the Person that has the Right for him that has it not but is Guilty of the highest Injustice and Violence for him that has no Authority to commissionate the Subjects to act under him against him that is invested with that Authority 2 ly Because it makes the same thing just and unjust and the same Persons both Loyal Subjects and Rebels and Traytors in the very same Cause for consider it either in regard to those that deposed or excluded their King and set up an Usurper or to those that stood firm to their Allegiance It supposes the former to be Rebels and Traytors in deposing or excluding their King and yet makes them Loyal Subjects in standing by the Vsurper and opposing their lawful Kings return it supposes the latter to be Loyal Subjects for defending their King's Person and Crown and yet makes them Rebels for attempting to restore him to his Crown tho his Right be still the same and as good as ever To be short what is it that makes the Subjects that depose their King and set up an Usurper Rebels and Traytors in the very act of deposing him and siding with the Usurper Is it not their withdrawing from him that Allegiance which is due to him and giving it to another and what is it that makes the others Loyal Subjects but their adhering firm to their Allegiance And how then shall the one become Loyal Subjects by continuing in the same act of Treachery and Rebellion and others Rebels by continuing in the same Act of Loyalty And might not such a Law as well oblige a Man to fight against his own Father in Defence of an Adulterer that has turned him out of Doors and pretends to Lord it over his Family And this will still appear more unjust and unreasonable if we compare the King'S Case with the Case of his Subjects as to what Protection he is obliged to give them The King is obliged to maintain his Subjects in their Rights and Properties against any Invader and that not only while they are in Possession of them but also when another has disseized them by fraud or violence Then the King is obliged to relieve the injured Person to do him justice against the oppressor and to restore him again to his right by Law or by Force by Law in a Legal Tryal of the Cause and award of judgment by Force by ordering a Posse comitatus to Execute the Sentence of his Courts and to reinstate his Subjects in the Possession of their Rights Nay he is obliged to hazzard his own Sacred Person and Crown in a Case of necessity in Defence of his Subjects to engage himself in a War with a Foreign Prince or State for an injury done to his Merchants in their Trade and Commerce to Rescue his Subjects from the Oppression of a Powerful Faction at home or the Plunder and Rapine of an Army from abroad to Head their Armies and Fight their Battels himself in Person which we find looked upon in Scripture a 1 Sam. 8. 20. as a Principal part of the Kingly Office and not dispensed b 2 Sam. 183. 21. 17. with but out of regard rather to the Public Interest then the King 's Personal Ease or Safety And how unjust and inhuman would such a Law be taken to be which should enact that while the Subjects are in Possession of their Estates and Liberties the King should be obliged to Protect and Defend them against any Oppressor or Invader But if they were once Ejected Robbed Plundered or Enslaved and their Estates or Persons in the Possession of another that then the King should not be obliged to concern himself any farther for them but rather on the contrary to maintain the Oppressor or Invader in the Possession of what he has gotten by fraud or violence And if such a Law were unjust and inhumane in the Case of a Subject shall it be just and obligatory in the Case of a Prince Shall his Right be so precarious and his Subjects Rights so secured to them that he shall be obliged to restore them and they obliged to keep him out He obliged to Defend them against any Oppressor or Invader and they obliged to stand by an Vsurper against him All these Reasons shew that the Law as it is now urged not as indemnifying only those that act under the King
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
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