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
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
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