to have been looked upon as invalid without this confirmation but though they might have stood good without it yet that would not have been by vertue of any Authority in these Kings but upon account of the necessity of Government and the presumed consent of the Kings de Jure excluded from their Right It may be Objected that the Acts of Parliament made by Hen. 4. 5. 6. were not confirmed by the Parliament 1. Ed. 4. therefore it may be concluded that that Parliament looked upon the Statutes made by an Usurper and his Parliament as good and effectual without the Confirmation of a King de Jure I Answer There are some of their Acts of Parliament confirmed there viz. any Acts made by them for the founding any Abbeys Religious Houses c. And any made for the Town of Shrewsbury and though the rest of their Acts of Parliament might be looked upon as valid without confirmation of Ed. 4. yet their being looked upon as valid is not to be ascribed to any Authority in a King de Facto sufficient to make them so For then that Authority must have had the same effect in all their other Acts of Government their judicial Acts Grants Letters Patents c. as it had in the Statutes made in the Parliaments holden by them These instances from our Statutes and Records of Purliament may be sufficient to prove the contrary to what my Lord Coke gives for Law Viz. That Treason does not lye only against the King in Possession whether King de Jure or no I come therefore now to consider his proofs of his Assertion We have in his note upon the words Seignior le Roy in the Statute of Treasons first his main Assertion That by those words is meant the King in Possession only though he be de Facto and not de Jure and not the King out of Possession though de Jure and for the proof of this he refers us in the Margin to the Stat. 11. H. 7. c. 1. Secondly We have some other points of Law which he brings to Illustrate and Confirm his main position viz. That Treason against a King de Facto is punishable by the King de Jure when he comes to the Crown And That a Pardon granted by a King de Jure that is not also de Facto is void and for the proof of these he refers to the Year-Books of Law Cases 4 Ed. 4. 1. and 9 Ed. 4. 1. 2. The Stat. 11 H. 7. c. 1. which he refers to for his main position I have set down before as a distinct Argument from whence it is inferred that Allegiance is due to the King in Possession and therefore I shall consider it apart in its proper place and consider here my Lord Coke's Secondary Points That Treason against a King de Facto is punishable by the King de Jure when he comes to the Crown and a Pardon granted by a King de Jure out of Possession is void And they are rather to be considered first because if they are sufficient to prove that Trason lies against a King in Possession only they prove that it did so by the Common Law before the Statute of Hen. 7. and so overthrow all that has been alledged above to the contrary My Lord Coke's references for the proof of these points are to the 4 Ed. 4. 1. and 9 Ed. 4. 1 2. in the Year-Books Under the first I find nothing of this Nature and have some reason to think it is but one and the same with the latter but under the latter reference I find a Plea in the Case of one Bagot and to clear that Plea shall set down a short History of his Case This Bagott and one Shyrenden were x 7 E. 4. 29. 9 E. 4. 6. disseized of the place of Clerk of the Crown by one Ive and thereupon sue him Ive's Plea against Bagott is That he was an Alien born in Normandy and so could not hold a Place here being not the King's leige Subject Bagott brings a y 7 E. 4 31. 9 E. â— 7. Patent of Naturalization granted him by Hen. 6. to which Ive's Council object That Hen. 6. was only a King de Facto and not de Jure and that Ed. 4. the King de Jure had in his First Parliament declared what Grants of Hen. 4 5 6. Kings de Facto should be valid and had not there made any provision to ratify any such Grants as Bagott's Patent was therefore his Patent was null To this Bagott's Council Answer z 9 E. 4. 1. That notwithstanding that Act of Ed. 4. in his First Parliament Hen. 6. Letters Patents were good because Hen. 6. was King in Possession and it is convenient that the Realm have a King under whom the Laws shall be upheld and maintained Therefore though be were not King but only by Usurpation yet every judicial Act done by him touching the Royal jurisdiction shall be good and shall bind the King de Jure when he returns to his Crown They instance in Pardons Licenses of alienation in Mortmaine Grants of Wards Liveries c. They urge also That the King de Jure Ed. 4. shall have the advantage of all Forfeitures made to King Hen. 6. and for a Trespass committed in H. 6 ths time the Writ shall run contra pacem Henrici 6. nuper de Facto non de Jure c. And a Man shall be arraigned of Treason committed against Hen. 6. in compassing his Death They urge also that any Gifts or Grants made by King Henry that were not to the diminution of the Crown shall stand good c. The Council on the other side plead That any common Person desseized of his Right and returning again shall defeat all the mean Acts therefore a King de Jure returning invalidates all the Acts of the Usurper c. But they do not make any direct reply to the Arguments of Bagott's Council After that Bagott's Council urge at another hearing a 9 E. 4. 4. 2. That if Ed. 4. in King Hen. 6th time had granted a Charter of Pardon it would be void for every one that Grants a Charter of Pardon ought to be King de Facto This is all the plea of Council upon this point and all that I find of the Judges is First that Judge Billing says b 9 E. 4. 2. That to every King by reason of his Office it belongs to do Acts of Justice and Grace Justice in Executing the Laws Grace in granting Pardon to Felons and such a legitimation as this of Bagotts then that the Judges c 9 E. 4. 1 2. After they had conferred with the Judges of the Common Pleas give Judgement for Bagott It appears upon the view of this Account of the Proceeding That what my Lord Coke refers to here is nothing but the Argument of Bagott's Council That their Argument is mainly grounded upon the necessity of Government because there must be some King to
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-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
not amount to a consent For their cause of their not repealing it may be First Because the subsequent Kings since Henry the 7 th have not had any occasion to see the evil consequences of it by any general complyance of the Nation with an Usurper against their lawful King under colour of being obliged thereto by this Statute Secondly The Statute has been generally understood to do no more than Indemnifie those that fight under the King de Facto and this our Kings might not look upon as unjust or inexpedient and therefore might see no necessity of repealing the Statute But it cannot be conceived but that any lawful King who had been excluded or deposed by an Usurper and had seen that the Nation had looked upon themselves as obliged by this Act to stand by the Usurper against him would if ever he had come to the Crown have made it his business to declare it null and invalid Secondly This Statute has in effect been declared to be null and invalid by the subsequent lawful Kings and Parliaments I say it has been in effect declared null and invalid though not expresly repealed by the subsequent Kings and Parliaments and that in two ways First By their proceeding expresly contrary to the Letter of it Secondly Their laying a contrary Obligation on the Consciences of the Subjects First By their proceeding expresly contrary to the Letter of this Statute The Statute enacts That those that serve the King for the time being in his Wars shall be in no wise convict or attaint of High Treason by Act of Parliament or otherwise by any process of Law And that if any Act or Acts or other process of Law hereafter thereupon for the same happen to be made contrary to this Ordinance that then that Act or Acts or other Process of the Law whatsoever they shall be stand and be utterly void Now if notwithstanding this any Persons have for acting that for which this Statute Indemnifies them been convicted and attainted of High Treason by Process of Law and executed thereupon and this Conviction and Attaindor and their execution thereupon has been declared by Act of Parliament to be Lawful and Just and according to the Laws of the Realm It follows that the Authority whereby they were convicted attainted and executed and their attaindors confirmed in Parliament must be looked upon to declare this Statute null and invalid And yet we did a plain instance of this in the case of the Duke of Northumberlund c. in Q. Mary ' s time The Duke of Northumberland had been sent down with an Army by Order of Council and by a Warrant under the Great Seal in behalf of Queen Jane the then alone Proclaimed Queen against Queen Mary for this Treason he is afterwards tryed by his Peers attainted and executed and his attaindor confirmed in the next a 1 Mar. Sess 2. c. 16. Parliament and therein he and other Persons are declared to have been lawfully justly and according to the Laws of the Realm convicted or attainted and to have suffered the pains of Death according to their demerits And yet this could not be looked upon as according to Law if the Stat. 11 Hen. 7. were looked upon as valid Which will more clearly appear if we consider that the very Plea of the Duke of Northumberland seems to be grounded on this Statute His Plea consisted in two points which he proposed to the Court one whereof was b Dr. Burnet ' s Hist Reform p. 2. p. 248. ld Reflection on the 3 d. and 4 th Tomes of Mr. Varillas as p. 126. Though this was a point in Law that might have some colour in it yet it was far from confounding any for a Council or a Great Seal flowing from an Usurper is nothing so this Authorty could not justify him Whether a Man acting by the Authority of the Great Seal and the Order of the Privy Council could become thereby guilty of Treason To this the Court with the advice of the Judges made answer That the Great Seal of one that was not lawful Quen could give no Authority nor Indemnity to those that acted on such a Warrant Now if this Plea were legally over-ruled upon this Ground and he thereupon attainted and executed and his attaindor confirmed in Parliament as Just and Legal it plainly follows that the Judges and and his Peers which over-ruled his Plea and the Parliament which confirmed their proceedings do in effect declare the Statute 11 H 7. null and invalid and must be conceived either not to have though of it or if they did to have looked upon it either as temporary only for King Henry ' s Reign or as of no Force or Authority because tending to the disherison of the lawful Queen But it may be said Queen Jane was not in full Possession of the Crown being only Proclaimed Queen and not continuing in the Throne more then ten days I answer First She was Proclaimed Queen by the Lords of the Council and by the City and in most great Places of the Kingdom and had taken upon her the Exercise of the Government and had her Council and Great Seal c. And if this be not enough to make her Queen in Possession it is to be shewed what more was necessary to make her so and upon what Grounds especially when it appears that Queen Mary her self was no more then Proclaimed when the Duke of Northumberland c. was tryed attainted and executed by her Authority Neither was she so much as Proclaimed when he committed this Treason against her for immediately after she was Proclaimed by the Lords of the Council he before he received their Orders submitted and a Dr. Burnet's hist Reform P. 2. p. 239. Proclaimed her himself at Cambridge Secondly If this be sufficient to take off the Argument from the Proceedings against the Duke then this rather should be the Ground whereupon his Plea was over-ruled but it is plain that both his Plea and the Answer the Court made to it by the Advice of the Judges suppose Queen Jane to have been Queen in Possession and his Plea was not over-ruled because she was not in full Possession but because she was not lawful Queen and therefore her Great Seal could give no Authority nor Indemnity to those that acted by such a Warrant And if this Ground be good and legal as we see it was conceived to be by the Judges and allowed of by the Peers and the Parliament it plainly nulls King Henry's Statute and justifies the Attainting for Treason any Person that fights against a King de jure out of Possession though by a Warrant under the Broad Seal and an Order from the Council of an Vsurper in full Possession Secondly The Statute 11 H. 7. has been in effect declared null by the succeeding lawful Kings and Parliaments in as much as they have laid the contrary obligation upon the Consciences of the Subjects For if the succeeding Kings
and Parliaments have expressly made it High Treason to stand by any Usurper against the King de jure or his Heirs and lawful Successors whom the Usurper has deposed or excluded from the Crown if they have obliged the Subjects to Swear to maintain the King de jure and his lwful Heirs and Successors against any Vsurper who shall depose or exclude them Then herein they have obliged the Subjects to act contrary to the Statute of Hen. the 7 th which requires them to maintain and defend the Vsurper against the lawful King his Heirs and Successors Now that the Succeeding Kings and Parliaments since Henry the 7 th have done this will appear from clear and undenyable instances First They have expressly made it High Treason to stand by an Vsurper against the King or his Heirs and lawful Successors whom the Usurper has deposed or excluded This is done by Henry the 8. in the several Acts a Stat. 25. H. 8. c. 12. 28. H. 8. c. 7. 35. H. 8. c. 1. for the security of his Succession made in the 25 28 and 35 th Years of his Reign in each whereof after the Settlement of the Succession it is made Treason for any Persons to do any thing whereby either the King himself or his Heirs according to that Settlement may be disturbed or interrupted in the enjoyment or inheritance of the Crown and Treason in all that should abbet aid or maintain them And in the Act 28 H. 8. it is enacted that if any of the Kings Children or any to whom he should dispose the Crown by his Will should Vsarpe upon any who were to inherit the Crown before them they and all their abettors and maintainers should be adjudged High Traitors So also 1 Edw. the 6. it is made Treason for any to whom the Crown was limited by the Act 35 H. 8. to Vsurpe upon one another and Treason also in their Abettors Aiders and Maintainers I do not pretend to justifie the Proceedings of Hen. the 8 th and his Parliaments touching the Succession only this I may rightly infer from them that they without any regard to the Statute of Hen. the 7 th made it Treason to maintain any one in Possession of the Crown but those Persons who should succeed according to the limitations made by them and therefore did not leave the Subjects free to yield their Allegiance according to King Hen the 7 th' s Statute to every Person whatsoever that should get into Possession of the Crown Secondly They have obliged the Subjects to swear to maintain and defend the King and his lawful Heirs and Successors against any Usurper that should depose or exclude them So each Act for the Settlement of the Succession in King Henry the 8th's time had an Oath annexed to be taken by the Subjects for the observance and defence and maintenance of it I shall set down the first a Stat. 26. H. 8. c. 2. Oath from which the others vary but little only in that of the 35th H. 8. the Pope's Supremacy is abjured ye shall swear to bear faith truth and obedience alâ—nely to the King's Majesty and to his Heirs of his Body of Queen Ann begotten or to be begotten and further to the Heirs of our Sovereign Lord according to the limitation in the Statute made for surety of his Succession and not to any other within this Realm nor Foreign Authority or Potentate and that to your cunning wit and to the uttermost of your Power without guile fraud or other undue means ye shall observe keep maintain and defend the said Act of Succession and all the whole effects and contents thereof And this ye shall de against all manner of Persons of what Estate dignity degree or condition whatsoever they be And in no wise do or attempt nor to you Power suffer to be done or attempted directly or indirectly any thing to the let hindrance damage or derogation thereof by any manner of means or for any manner of pretence So help you God c. This Oath and others of the like form were annexed to the Acts about the Succession in King Henry the 8th's time to be taken by the Subjects and it is plain they laid an obligation upon their Consciences directly contrary to the Stat. 11. H. 7. They are obliged to pay their Allegiance to no other Person Native or Foreigner but the King and his Heirs according to those Acts And therefore cannot be at liberty to pay their Allegiance to every Person that gets into Possession of the Crown They are obliged with their utmost Wit and Power to maintain those Acts of Succession against all manner of Persons whatsoever and therefore cannot fight against the King de jure H. 8. or his Heirs according to those Acts in defence of any other Person though he may become the King for the time being They are to their Power not to suffer any thing to be done in derogation of those Acts and therefore not to suffer any Person in the Throne that gets into it contrary to them So that unless they can reconcile contradictions their obligation to these Acts is inconsistent with any obligation to King Henry the 7th's Statute And the same Argument to come nearer to our own time may be drawn from the Oaths of Supremacy and Allegiance enacted in Parliament by Queen a Stat. 1 Eliz. c. 1. 3 Jac. c. 4. Elizabeth and K. James whereby the Subjects are also sworn to bear Faith and true Allegiance to the King his Heirs and lawful Successors and him and them to defend to the utmost of their Power against V all Conspiracies and Attempts whatsoever which is inconsistent with their transferring their Allegiance to an Usurper and maintaining him in Possession of the Crown against the lawful King deposed or his Heir excluded by him But it may be said that our sworn Allegiance is such only as is due by the Law of the Land if therefore the Law transfers our Allegiance from the lawful King and his Heirs to a King in Possession then our Allegiance must be understood to be sworn to them with that reserve I answer 1 st The Oaths imposed by the Acts of Succession in H. the 8 th' s time do plainly contradict the Stat. 11 H. 7. and the Oaths of Supremacy and Allegiance made by Queen Elizabeth and King James must be understood to do so too being partly couched in the same words and the Oath of Supremacy drawn from the former Oath of Supremacy enacted by the Stat. 35. H. 8. and both equally intended for the Security of the lawful King and the Succession and therefore 2 ly When a subsequent Statute imposes an Oath contradictory to the Letter of a former Statute it must be interpreted virtually to repeal that former Statute So for instance the Stat. 28 H. 8. c. 7. obliges the Subjects to swear to maintain the Settlement of the Succession made by that Statute even against any of the King's
Children that shall Vsurp the Crown before their time how can this be understood with a reserve that if any of them should Vsurp and get into the Throne the Subjects then should be obliged to abett and maintain them 3. But 3 ly the Question is not so much whether the succeeding Kings and Parliaments have repealed the Statute 11 H. 7. as whether they have not looked upon it always as null and of no Authority and I think their passing Acts of Attaindor contrary to the Letter of it and making it Treason to stand by an Vsurper and obliging the Subjects to Swear to defend the lawful King and the Succession against all Persons whatsoever is a sufficient proof that our Kings and Parliaments ever since the 25 th of Hen. 8. have looked upon the Statute 11 H. 7. as of no Authority and in effect declared it to be null and invalid II. But granting that this Statute was made by a Legal Authority and has stood ever since unrepealed I proceed to shew in the second place that it is to be looked upon as in it self null and invalid in respect of the matter of it A Statute though made at first by a lawful Authority and not after repealed by any subsequent Parliament may yet be looked upon as null and invallid if the matter of it be impossible or unjust if it be repugnant to Common Sense or contrary to the Law of God and Nature So the Lord Chief Justice Coke observes Inflit. P. 2. p. 587. in his Commentary upon the Stat. de asportatis Religiosorum one branch of which Statute he says was declared by the Court of Common-Pleas to be void because impossible and inconvenient to be observed and quotes Bracton for the Properties of a Law Lex est sanctio justa jubens honesta prohibens contraria It may be therefore a sufficient proof of the nullity of this Statute that it is not as Bracton requires Sanctio justa jubens honesta prohibens contraria but rather as I shall proceed to shew a Statute establishing Iniquity by a Law For it either devests the lawful King of his Right to the Crown and gives it to the Usurper or it still reserves his right to him but yet notwithstanding orders the Subjects to obey and stand by the King in Possession tho an Usurper The first of these cannot fairly be pretended for if it gives away the Right of the lawful King then 1 st He ceases to be King de jure the lawful and rightful King of this Realm and this besides that it is contrary to what our Lawyers allow takes away the ground of this whole dispute the distinction between King de jure and the King de facto 2 ly He cannot then justly make War upon the Nation for the recovery of his Crown but must sit down quietly by his loss and is answerable for all the Blood that is shed in the War he makes if he attempt to restore himself by a Foreign Force for if his Right be tranferred he cannot then justly demand the Subjects Allegiance and what he cannot justly demand that he has no right to use force for the recovery of and therefore must be content to stay till the Usurper dye and then perhaps his Right may revive again unless the Usurper be so wise as to provide himself a Successor and leave him in Possession 3 ly It will follow if this Statute give away the Right of the lawful King to the Usurper that one King with his Parliament may make a Statute to alienate and transfer the Right to the Crown from those that are the lawful Kings by the Fundamental Constitution of the Realm to such as by the Fundamental Constitution are not the lawful Kings but Vsurpers Now this I conceive is not in the Power of any King and Parliament however Legal much less of such as Henry 7 th and his Parliament was We have a Fundamental Constitution whereby England is determined to be a Monarchy and that antecedently to any Statute Lan. This Constitution vests a Right in some certain Person in every Age who is by Vertue of the Right vested in him the lawful and rightful King of this Realm whether this Person be he next in Blood to the former King or another of the Royal Line to whom the Crown descends by Vertue of a Limitation of the Succession from the next in Blood to him for whether the one or the other of these is the rightful King he is so by Vertue of the Fundamental Constitution which vests the right to the Crown in him Now for any one King with a Parliament to make a Law that for the future not the next Heir of the Blood nor any other to whom the Succession is limited but any Person whatsoever that shall get into Possession of the Throne tho it be by deposing a rightful King regnant and usurping his Crown shall from thence forth become the rightful and lawful King and the right of the Prince that he has dispossess'd be devolved upon the Vsurper is effectually to subvert the Fundamental Constitution of the Realm and if it be in the Power of the King regnant and his Parliament to do this then it follows that any King with a Parliament may deprive the lawful Issue of his Brother and set up a Bastard of his own that they may exclude and disinherit the whole Royal Line and entail the Crown upon the King of France or any other Foreign Prince they may lay aside the whole right of Succession and make the Monarchy Elective that they may change the form of the Government into a Republick and make the Kings no more then Consuls or Dukes of Venice and vest the Supreme Authority in the Senate or People In short that England is no longer a Monarchy or Hereditary then the King regnant and his Parliament pleases And yet if these things were done by any King and Parliament I believe it would be looked upon as an Injury to the subsequent Kings or to the Royal Line and they would be justified if they would not allow any such Statute to have any force but protest against it as Illegal and of no Authority and yet all this might be done according to Law if the King and Parliament have a Power to alienate and transfer the Right of all the subsequent lawful Kings to any Vsurper that shall be strong enough to depose or exclude them But I needed not to have proved this which is supposed in the question viz. that this Statute does not give away the Right of the lawful King deposed or excluded but still leaves him King de jure and reserves to him a right to claim and recover his Crown only it obliges the Subjects notwithstanding to stand by the King in Possession though an Usurper I shall therefore proceed upon this Supposition and shew that this Statute as it requires the Subjects to stand by the Usurper in Possession against their rightful and
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
him much trouble already and was likely to create him more when Perkin Warbeck was up yet he was resolved to stand or fall by it and studied only how to secure himself in his unjust Possession and rather then depart from what he had done already to the disherison of one Family he was content to make a Law which effectually disinherits his own Children or any other Lawful King or Heir of the Crown if they are so unhappy as to have an Vsurper step before them into the Throne or dispossess them when they are in it Yet both these Statutes fully discover the Wisdom and Policy of the Legislator for they carry in them the fairest shew and colour of equity and justice but serve in reality to the contrary design What more just then that the Inheritance of the Crown should be rest remain and abide in the King if it were lawfully vested in him already and what more true and easie for a King lawfully possessed of the Crown to call to his remembrance then that his Subjects owe him Allegiance and by vertue of it are bound to fight for him against a Rebellion or Vsurpation and ought not to be attainted for it by any subsequent King or Parliament This in the Preamble of the Stat. 11. of Hen. 7. And nothing can be more agreeable to all Laws Reason and good Conscience if it be meant of the rightful King regnant But if it be meant as really it was by King Henry at least of the King for the time being as such whether rightful King or no It is Absolutely false within the Practice as well as Memory of King Henry 7. who himself had attainted Richard 3 d. the then King for the time being and those that fought for him in Bosworth Field and should not have forgot to repeal that Statute whereby they stood attainted when he remembred that it was against all Laws Reason and good Conscience to attaint any Man for Serving in the Wars under the King for the time being It appears therefore that this Law was not made bona fide and such a Law may ensnare and impose upon the Consciences of the Subjects but is not fit to direct or oblige them Unless we can conceive that his Saying he remembred it to be so for the time past when he knew it to be otherwise is enough to make it to be so for the future I have considered as fairly and impartially as I could the Grounds whereupon some now give it for Law that Allegiance is due only to a King in Possession I shall add one or two Arguments against this Position And First Allegiance is not due only to a King in Possession because England is an hereditary Monarchy where there is no Interregnum but the Right Heir of the Crown is actually King at the very moment when his Predecessor dyes And yet it may be a considerable time before he can take upon him the Exercise of the Government as suppose he be in a Foreign Country If therefore he be actully King before he can be in Possession of the Exercise of the Government then the Nation are his Subjects before he is King in Possession in the sense of this question and consequently he has a right to their Allegiance though not yet King in Possession But to this some would answer by a distinction of a twofold a Consident for the taking of the Oath of Allegiance 32. right ARight to the Possession of the Crown and a Right to the Allegiance of the Subjects The Right to the Possession of the Crown they would say descends to the Right Heir immediately upon his Predecessor's decease and in that Sense he is actually King But the Right to the Subjects Allegiance is annexed to the Possession of the Crown and therefore does not accrue to the Heir of the Crown till he is in Possession And for this distinction they produce some kind of Authority from the form of Expression in the Act of recognition b Bagott's Case 6. E. 4. p. 9. 10. of Edward the 4 ths Right to the Crown where he is declared to have been in right from the death of the Noble Prince his Father Richard Duke of York who was slain at the Battel of Wakefield Dec. 30. 1460. very just King of the Realm yet because he did not take upon him to use the said Right and Title to the said Realm till on the 4 th of March following and then entred into the Exercise of the Royal Estate c. and to the Reign and Government of the said Realm From thence is dated his being in lawful Possession of the same Realm with the Royal Power Preheminence Estate and Dignity belonging to the Crown thereof and his being lawfully Seized and Possessed of the Crown of England in his said Right and Title and from thenceforth to have to him and his Heirs all Mannors Castles Honours Services Gifts of Offices Prerogatives c. To this may be replyed First Other Parliaments express themselves in a manner inconsistent with this distinction So most fully the Parliament a Sess 2. c. 4. 1. Mar. By and immediately after whose Edw. 6ths Decease the Imperial Crown of this Realm with all Dignities Dominions Honours Preheminences Prerogatives Stiles Authorities and Jurisdictions to the same united annexed or belonging did not only descend remain and come unto our most dread Sovereign Lady the Queen's Majesty but also the same was then immediately and lawfully invested deemed and judged in Her Highness's most Royal Person by the due course of Inheritance and by the Laws and Statutes of the Realm Nevertheless the same her Highness's most lawful Possession was for a time disturbed and disquieted by the Traiterous Rebellion and Usurpation of the Lady Jane Dudley c. This is Prefaced in that Act as the Ground whereupon the Queen and her Parliament saw a necessity of confirming those Recognizances Bonds c. That bore date as in the First Year of the Reign of Queen Jane viz. Because though Queen Mary was not yet in Possession by the Lady Jane's Vsurpation yet all Authority and jurisdiction being invested in her Person any thing under the Name of Queen Jane wanted a just and lawful Authority I may add to this the Recognition of b 1 Jac. c. 1. King James 1 st where the Parliament declares that immediately upon the Dissolution and Decease of Queen Elizabeth the Imperial Crown of the Realm of England and all the Kingdoms Dominions and Rights belonging to the same did by inherent Birthright and lawful and undoubted Succession descend and come unto his most Excellent Majesty Secondly I have sufficiently proved above c Sup. p. that Treason lay always against our Kings even before they were in Possession And if so then a Right to the Allegiance of the Subjects is not a consequent of Possession but antecedent to it I may add to the Proofs brought above the resolution of all the Judges in King
be understood the King in Possession though he be King de Facta and not de Jure and not the King out of Possession though he be the King de Jure The Acts declared Treason in that Statute are To compass the Death of the King Queen or Prince To Ravish the Queen or the King 's Eldest Daughter or the Prince's Wife To Levy War against the King or to be adherent to his Enemies giving them aid or comfort To Counterfeit the Great or the Privy Seal or the King's Coin To kill the Chancellor Treasurer Judges c. in the Execution of their Office The sense therefore of my Lord Coke's Assertion is That these Acts are Treason when they are committed against a King in Possession whether he be King de Jure or no and not Treason when they are committed against a King out of Possession though he be King de Jure Before I examine the grounds of his Assertion I shall first state the point of Controversy The Question therefore is not Whether some of these Acts may not be punished as Treason under an Usurper if they are committed against the necessary Order of Government and not done for the restoring of the King de Jure to his Crown or promoting his Inrest For the Subiects are obliged to pay a Submission and Obedience to the Usurper as to all Acts of Government that are not destructive of the King de Jure's Rights and interest and therefore if herein they oppose or disturb the Government they may by the Law be adjudged Traytors and punished as such Thus therefore it may be Treason under an Usurper First To Counterfeit or Clip his Coin or to Counterfeit his Broad Seal or Privy Seal or to kill a Judge siting upon the Bench some these Offences touch not the Person or Interest of the Usurper but the Order of Government and as it is just that the Order of Government should proceed under an Usurper so it is just that these Acts against the Government should be punished as well as Robbery Murder and the like as Offences not against the Usurper but the Lawful King Secondly To Levy War against him or to be adherent to his Enemies or to compass his Death out of a private seditious Principle and not out of any regard to the Right and Interest of the Lawful King as suppose any Man should practice with a Forreign Prince to Invade the Nation not in the Lawful King's behalf or should betray any Fort or Castle or any part of the Country to him or the like for these also are Offences not so much against the Person and Interest of the Usurper as against the course of the Government and strike through the Person of the Usurper at the Person and Authority of the Lawful King and in that regard may be justly looked upon and punished as Treason So the Swearing falsly though by an Idol may be looked upon and punished as Perjury because it terminates upon the Majesty of the true God But all this may be granted and yet it does not follow that the Allegiance of the Subjects ought or may be paid to the King in Possession if he be an Usurper for still their Submission and Obedience to him is limited with a reserve to the Right and Interest of the Lawful King The Question therefore must be Whether it be Treason to act against the Usurper in Possession for the Right and Interest of the King de Jure out of Possession to be adherent to the King de Jure to give him and his Party Aid and Comfort and to Levy War against the Usurper for the restoring of the King de Jure to his Crown And whether it is not Treason to be adherent to the Usurper and to Fight for him against the King de Jure out of Possession This therefore must be that which my Lord Coke lays down for Law where he Asserts that Treason lies only against the King in Possession I shall proceed therefore to consider the grounds of his Assertion It is indeed true in Fact that the Acts declared to be Treason in the Statute 25 Edw. 3. will be adjuged and punished as Treason under every King in Possession whether he be King de Jure or no for though he be an Usurper yet while he is in the Throne the Laws Courts of Judicature and every thing else is made to favour his side as much as if he were the most Lawful and Rightful King His Party are held to be the Loyal Subjects in the Eye of the Law and the adverse Party Rebels and Traytors So the Laws may be fitly compared to the Banks cast up against the Sea which are made to keep out an Inundation but when once the Water is got over them they keep it in In like manner the Laws are made to prevent an Usurpation but when once an Usurper is got into the Throne then they are made to become a Fence to him to keep in Possession of it Now there is hardly any Monarchy wherein there have been more Usurpations then there have been in Ours and it ought not to be strange if in all these the Usurpers took upon them to act as Lawful Kings and Obedience was paid to them as such by the Major part of the Nation at least while they continued in the Throne and those that stood by them against the King de Jure whose Rights they had Usurped were looked upon as Faithful and Loyal Subjects and rewarded accordingly and those that rose up against them in behalf of their Rightful Kings were declared Traytors and Rebels and punished as such and so the whole course of the Government ran on their side They called Parliaments and then the Laws were made in favour of their Title they made the Judges and no wonder then if all the Laws as well as the Sat. 25. Edw. 3. were interpreted in their Favour and Treason lay in their own Courts against them only But it s being always thus in Fact is no iust Ground for any Man to declare it to be so in point of Right and to give it for Law that Treason is only against the King in Possession whether he be the King de Jure or an Usurper We may therefore take leave to examine whether there be any better Grounds for this Assertion It would seem a very odd Question for any to ask touching the Laws which are made in any setled Monarchy for the desence of the King's Person Crown and Dignity who is meant by the King in those Laws The Lawful and Rightful King of that Realm or any one that gets into the Possession of the Throne though he be not the Rightful King but an Usurper Common Sense would hardly allow such a Question to be put For the King de Jure and not an Usurper is Truly and Properly King and therefore if the Words of a Law are to be understood in their Natural and Proper Sense the Word King cannot be understood to
n. 11 12 seq in Dr. Bracly's Hist of the Succession p. 26. As first that they had all taken an Oath of Allegiance to King Hen. 6. then that the Crown was entailed upon the Heirs Males of Hen. 4. by Act of Parliament c. To which the Duke of York Answers That neither their Oaths nor the Act of entail were of any force or effect to the suppression of Truth and Right against him that is Right Inheritour of the same Corones c. And the Lords upon consideration of his Answer conclude and agree That his Title could not be defeated Now if by the Law and Custom of England Treason lay against the King in Possession only whether King de Jure or not and the Allegiance of the Nation were due to him only then it had been a sufficient Answer to the Duke's claim to tell him that though his Title were Good and the Right of Blood inherent in him yet at that time Hen. 6. was King in Possession to whom alone their Allegiance was due thereupon by the Law of the Land even though they due thereupon by the Law if the Land even though they had not taken an Oath to him and that they could not lay him aside and admit the Duke into the Possession of the Crown without incurring the Guilt and Penalty of High Treason This I say had been a more clear and effectual Answer to the Duke to debar him at least from giving King Henry the present Possessor any disturbance but neither Lords nor the King's Council seem to know any thing of this but urge only the Oaths they had taken as a ground of their Allegiance being due to King Henry and admit that even their Oaths were null and void as they tended to the suppression of the Right of the Heir to the Crown It may be objected That the Lords did not hereupon depose Hen. 6. but continued him in Possession for his life and declared the Duke the next Heir They did so but it is plain they did it not as of Right but by Vertue of the Duke's consenting and agreeing to it The express Words in the Records are r Rot. Parl. 39 H 6. n. 18. in Dr. Brady's Hist of the Sucess p. 27. For eschuying the great inconvenients that may ensue a mean was found to save the King's Honour and Estate and to appease the said Duke if he would viz. That the King should enjoy the Crown during life the Duke to be declared the true Heir and to possess it after his death c. Fourthly If Treason lay only against the King in Possession Whether King de Jure or no then the Law in other regards would look upon the King in Possession as having the Dignity and Authority of a King as well as it does in this point that it makes Treason to lye against him But we find the Law does not so regard the Kings in Possession when it considers them as Usurpers and not Kings de Jure As First The Law where it considers them as Usurpers does hardly vouchsafe them the Name of King So in the Statute 1 Ed. 4. above cited Hen. 4. whereever he is mentioned is called not by the Name of King Henry but f Year Book 9 Ed. 4. 9. Henry Earl of Derby And the same Act speaking of Hen. 5 6. styles them Henry late called King Henry 5. and Henry late called King Henry 6. And in that part of it where their judicial Acts and Grants an Confirmed they are called all along the late t Stat. 1. Ed. 4. c. 1. pretended Kings and Kings indeed and not in Right and their Reigns their pretensed Reigns And the Stat. 17 Ed. 4. * c. 7. made to annul the Parliament 49. H. 6. called by Hen. 6. when Ed. 4. was fled out of the Realm stiles that Parliament a pretensed Parliament unlawfully and by Usurped Power summoned by the Rebel and Enemy to our Sovereign Lord the King Hen. 6. late indeed and not of right King of England So also the Stature 11. Hen. 7. c. 6. though it was made by that very King who afterwards pretends so much to be due to the King in Possession where it speaks of Rich. 3. calls him only Richard Duke of Gloucester as if he had never worn the Crown And the Stat. 1. Mar. u Sess 2. c. 4. where it Confirms the Recognizances Bonds c. which were dated as made in the Reign of Queen Jane calls her only the Lady Jane Dudley Wise of Guilford Dudley Esq otherwise called the Lady Jane Grey and after wards w c. 16. where it Attaints her with her Husband and the Duke of Northumberland c. it names her with no more ceremony then barely placing her next to her Husand Guilford Dudley Esq and Jane his Wise Now these Statutes speaking thus of those our Kings whom they consider as Usurpers shews that our Law has no regard to an Usurper though King in Possession but looks upon him as no King And yet this is very well consistent with other Statutes giving these Usurpers the name of King where they are considered not with a regard to their Usurpotion but with regard to their having the Execution of the Kingly Office and to some necessary and beneficial Acts of Government done by them Secondly The Law does not look upon the Acts of Government done by a King in Possession an Usurper as valid and authoritative in themselves This is fully and clearly proved by the Statute 1. E. 4. c. 1 that part of it which is printed in the Statute Book the business whereof is To confirm the judicial Acts of Hen 4 5 6. and all Processes during their Reigns and several of their Grants and Letters Pattents c. And the Style wherein it confirms them which is repeated at the end of every particular head of Judicial Acts Processes Grants c. is by enacting That they shall be of the same force and vertue as if they had been made by any King lawfully Reigning in this Realm and obtaining the Crown of the same by a just Title This supposes that they looked upon them as not having in themselves the same force and vertue as if they had been made by lawful Kings and yet they ought to have had the same force and vertue if the Law makes the King in Possession King to all intents and purposes of Government while while he is in Possession Whether he be King de Jure or not The same is further proved from the Stat. 1 Mar. Sess 2. c. 4. the business whereof is to confirm the Recognizances Indentures Bonds Patents c. made with Queen Jane's Name in the date of them during her short Reign which it does by enacting That they shall be as good and effectual as if Queen Mary's Name were expressly contained in them I do not say that these Recognizances under Queen Jane and the Judicial Acts Processes c. of Hen. 4 5 6. ought
uphold and maintain the Laws and therefore any King's Acts of Government though he be an Usurper must be held valid That they themselves limit the validity of the Grants of a King de Facto that they be not to the diminution of the Crown That they do not argue from any Statute of the Realm That what they say is not directly Answered to or denied by the Council on the other side nor by any of the Judges but one of the Judges Billing seems to declare his Opinion upon the Reason of the thing to the same purpose and all the Judges with the advice of the Judges of the Common Pleas determine the Case in savour of Bagott This is the utmost that can be made of this Case and d Tit. Treason N. 10 Brooke in his grand Abridgment makes no more of it Nota says he Dicitur non negature quod de proditione factâ tempore H. 6. que fuit Usurper del Crown le party sera arraigne pour ceo tempore E. 4. vel bujusmodi pour compassant le mort de Roy H. 6. quod nota sic vide quod trespasse tempore unins Regis poet estre puny tempore alterius Regis comment que I un fuit Usurper He Observes that it is said i. e. by Bagotts Council and not denied i. e. by the Council against him or the Judges That Treason against H. 6. Compassing his Death may be punished by Ed. 4. or any other lawful King The reference that Brooke has in the Margin is 4 E. 4. i. e. but there is nothing there in the Year-Books of that nature and the very words make it appear that he quotes Bagotts Case and therefore it seems to be a mistake of the Press for 9 Ed. 4. 1 2. which Brooke after e N. 28. refers to in the same page for the same thing and I believe my Lord Coke Transcribing these quotations out of Brooke took them for two distinct quotations whereas really are one and the same And if this be the utmost this Case amounts to then first it is not Authority sufficient to make it Law that this was plèadèd by Council and not denied by the Judges or the adverse Party Secondly Neither if we grant the particular points in the Plea will it follow either that Treason by our Law lies only against the King in Possession or that our Allegiance is due to him only And this will appear by considering the particular points contained in the Plea As First That the Judicial Acts and Grants of a King de Facto shall stand good when the King de Jure recovers his Crown This they themselves limit to such Grants as are not to the diminution of the Crown And Equity and Reason allows that the Acts of Government done by an Usurper neither to the prejudice of the Community nor of the Lawful King's interest may and ought to be reputed valid after the Lawful King's return for those Acts not being against his Right and Interest and being necessary to the very being of the Government under the Usurper while he cannot be Deposed from his Usurped Power those Acts say the King de Jure himself is to be presumed to ratifie by his Consent and Allowance and therefore upon this presumption they become valid and Authoritative by vertue of his Authority and not the Usurpers So all Laws made by the Usurper in Parliament for the publick Good all Sentences passed in Courts all Commissions granted by him all the Actions of the Ministers of State and inferiour Magistratesacting under his Commission as far as the Reason of Government requires and they are no prejudice to the Rightful King ought to stand in full force even when the King de Jure comes to the Crown And upon this ground Bagott's Patent for Naturalization was looked upon as valid even against the Letter of the Statute 1 E. 4. c. 1. which Statute by Confirming some Grants of II. 4 5 6. might seem to anull all the rest which it did not Confirm and so the Council against Bagott urge it and yet Bagotts Patent was held good though not Conflrmed by that Statute which shews that it was held good not by vertue of any Written Law but because as Bagott's Council Plead the Reason of Government and common Equity requires that such Acts of an Usurper should stand good as tend not to the diminution of the Crown But then this is no proof that all other Judicial Acts and Grants whatsoever though tending directly to the prejudice of the Lawful King should be looked upon to Oblige him at his return or to bind the Consciences of his Subjects while he is out of Possession for though the King de Jure may be presumed to consent to and the Subjects are allowed to Obey the Usurper's other Acts of Government yet this cannot be extended to those Acts that strike at the Authority and Interest of the King de Jure himself Nor can we suppose that Bagott's Council Pleading here in Edw. 4 time and before his Judges would say that any of H. 6. Acts done plainly to the disherison of King Edward were to be looked upon as valid nor can we conceive that King Edward ' s Judges would have admitted such a Plea if the Council had made it This therefore may be enough to shew that the Plea of Bagott's Council may be approved of in this point and yet it is no good consequence that every Act of an Usurper is Authoritative or that the Subjects are obliged to pay Allegiance to him 2. The Second point in the Plea of Bagott's Council is That the King de Jure at his return to the Crown shall have the advantage of all Forfeitures for any Trespasses committed against a King de Facto and that he may Punish Treason committed against a King de Facto by any one that compassed the King de Facto ' s Death This also is very true if we restrain it to such Acts against the King de Facto as the Right and Interest of the King de Jure does not require or justifie the doing it For First There are many Offences which are only against the Order of the Government and the Peace of the Society or the Rights of some private Persons and not against the King de Facto's Person or Crown as Theft Murder Perjury and some kinds of Treason as Clipping and Coyning killing a Judge upon the Bench Counterfeiting the King's Seal adhering to a Foreign Enemy that makes War not upon the Usurper as such in the Lawful King's behalf but upon the Nation and so implicitely upon the Lawful King whose Interest would be ruined if a Foreigner should Conquer the Nation betraying any Fort or Castle or the like Now these Offences are justly punishable by the King de Jure himself when he comes to the Crown or by the inferiour Magistrates acting under the Usurper ' s Commission while the King de Jure is out of Possession they
are justly punishable by himself because they terminate upon his Authority and upon the interest which he has in the regular and orderly Prcceeding of the Government though he is excluded from the Administration of it They are punishable also by the inferiour Magistrates by vertue of his presumed Will Authorizing them to act for his and the Nation 's Interest though under an Usurper And upon this ground we find that Judge f Dr. Burnet's Life of Judge Hale p 36 c. Hale did not scruple to Try Felons under Oliver Cromwel though he scrupled to Try any Offenders against the State Secondly There may be some Acts against the very Person and Crown of the Usurper which may be done out of a private seditious Principle or for the interest not of the King de Jure but some other Person merely to disturb the Government or to set up a Second Usurper in the place of the First Now these Acts may be justly pnnished as Treason either by the Inferiour Magistrates under the Usurper or by the King de Jure when he comes to the Crown For First These Acts strike indirectly at the King de Jure ' s Person and Crown through the Usurper and therefore either himself may punish them as done against himself or the inferior Magistrates may punish them by virtue of his presumed Will and Consent Secondly The Necessity of Government requires that the Laws and Courts of Judicature stand by the King in Possession though an Usurper against any other Person pretending to the Crown but the Lawful King And therefore an attempt to kill or depose him to make way for another Usupation may be justly punished as Treason even by the King de Jure himself and his Consent may be presumed to authorize the inseriour Magistrates to do it during his Exile Thus therefore it might have been just for Edw. IV. to attaint of Treason any Person that had compassed the Death of King Hen. VI. or levyed War against him for any other end and purpose than to promote King Edward ' s Interest and to bring him to the Crown And so this second point of the plea of Bagott ' s Council may be allowed of But then it is no consequence that any Acts done against the Usurper in behalf of the King de Jure to bring him to the Crown may be justly punished either by the Usurper or by the inferiour Magistrates under him or much less by the King de Jure himself when he comes to the Crown Neither is it conceivable that Bagott ' s Council meant this by their plea that those who Acted against Hen. VI. to bring Ed. IV. to the Crown might be Attainted by Ed. IV. for Traytors and Rebels for fighting against Hen. VI. the King in Possession in King Edward's behalf this would have been a beld Plea in King Ed. IV's time and before his Judges and yet this must be their Plea to prove from it that Treason can be commited against only the King in Possession It may be Objected that the Attaindors of Pesons by a King de Facto for fightingagainst him in behalf of the King de Jure have been looked upon as valid by the Kings de Jure when they came to the Crown For instance Rich. 3. had Attainted those that came against him under Hen. 7. and his Parliament declare Richard to be an Usurper yet they thought not fit to let any of them whom he had Attainted sit in Parliament g Bac. Vit. Hen. 7. p. 1004. till their Attaindors were first taken off which is a confession that they looked upon their attainders as valid till they were repealed To this I Answer First Rich. 3. though he was an Usurper being not the First of the Blood of the House of York yet his Title to the Crown was good against Hen. 7. he being of the House of Lancaster and not the First of the House neither his own Mother being alive 2. But Secondly Granting that Hen. 7. and his Parliament looked upon Hen. 7. as King de Jure and Rich. 3. as an Usurper of the Crown as they stile him their thinking it proper to take off the attaindors of those whom Rich. 3. had attainted is no certain proof that they looked upon their attaindors as valid for though they had looked upon them as null in themselves yet they might think fit to Repeal them for the satisfaction of the Nation and the security of the Persons Attainted who might otherwise have been liable to be Execited upon these Attaindors if there should have been a turn So no question Ed. 4. looked upon the Proceedings of the Parliament 49 H. 6. Summoned by Hen. 6. when Ed. 4. in the ninth year of his Reign was fled out of his Realm wherein himself and all his adherents were Attainted as null and invalid else he would have Repealed those Proceedings in his next Parliament yet eight years after he thought fit to Repeal them h Stat. 17. Ed. 4. c. 7. for the surety of his Noble Person his Noble Issue and the inheritable Succession of the same and for the surety of all the Lords Noblemen and other his Servants and Subjects i. e. to secure them from any danger from the Attaindors in that Parliament if there ever should be a return of the Lancastrian Family Thirdly Granting that King H. 7. and his Parliament did look upon these Attaindors as valid what is the consequence viz. that they allowed it was Treason to fight Rich. 3. the King in Possession though an Usurper in behalf of Hen. 7. whom they conceived to be the King de Jure Then sure if they thought it was Treason to fight against Rich. 3. the King in Possession they could not look upon it as Treason to fight for him And yet the very same Parliament i Bac. Vit. H. 7. p. 1004. 1005. Attaints both Rich. 3. himself and all those that fought under him in Bosworth Field So that we see what good Law we are like to have if we believe every thing which may be given us for Law out of the Statute and Year-Books for then we may upon the Authority of the very same Parliament make it Treason on both sides to fight for Hen. 7. against Rich. 3. and to fight for Rich. 3. against Hen. 7. The former to fight against Rich. 3. that Parliament is conceived to allow to be Treason because they looked upon the Attainders of those whom Rich. 3. had Attainted for being in Arms against him as valid till they were Repealed and the latter to fight for Rich. 3. they declared to be Treason because they Attainted those that were in Arms under him against Hen. 7. Before I pass on to the last point of Bagott ' s Plea I may from this Second Part of it give an Answer to one of the most specious Arguments that is brought to prove that our Allegiance is due to the King de Facto though not de Jure The
Council that any thing can be alleged from that Plea to make out the Lord Chief Justice Coke ' s Gloss upon the Stat. 25 E. 3. C. 2. viz. That the Treasons in that Statute can be Committed only against the King in Possession whether King de Jure or no or to prove That the Allegiance of the Subjects is due to the King in Possession only whether King de Jure or no. 2 ly Though Bagott ' s Council had made such a Plea and the Court had allowed of it yet this is not enough to make it good Law especially when the very Statute of Edw. 3. and other Statutes and the Practice of the Realm even in Edw. 4 th's and after in Hen. 7 th' s and Queen Mary ' s time prove the contrary as was shewed above 3 dly Though there were Statutes and Customs for it viz. That a Man might be Guilty of Treason and punished as a Traytor for acting in behalf of his lawful and rightful King against an Usurper in Possession and not Guilty for acting in an Usurper ' s Cause against his lawful and rightful King out of Possesion yet such a Statute and Custom would be null and invalid as contrary to the Fundamental Constitution of the Realm and to the Law of God and Nature as will appear under the next head the Stat. 11 Hen. 7. c. 1. which I come now to consider This Statute is my Lord Coke ' s main proof of his assertion That Treason lies only against the King in Possession and may be urged as sufficient by it self to make it Law since that time though it had not been so either by Statute or Common Law before and it is also made a distinct Argument to prove directly That Allegiance is due to the King in Possession only The main of the Statute is in these Words The King our Sovereign Lord calling to his remembrance the Duty of Allegiance of his Subjects of this his Realm and that they by reason of the same are bound to serve their Prince and Sovereign Lord for the time being in his Wars for the Defence of him and the Land against every Rebellion Power and Might reared against him and that for the same Service what Fortune ever fall by chance in the same Battle against the Mind and Will of the Prince it is not reasonable but against all Laws Reason and Good Conscience that the said Subjects going with their Sovereign Lord in Wars any thing should loose or forfeit for doing their true Duty and Service of Allegiance It be therefore ordained enacted and established by the King our Sovereign Lord that from henceforth no manner of Person or Persons whatsoever he or they be that attend upon the King and Sovereign Lord of this Land for the time being in his Person and do him true and faithful Service of Allegiance in the same or be in other Places by his Commandment in the Wars within this Land or without that for the said Deed and true Duty of Allegiance he or they be in no wise Convict or Attaint of High Treason ne of other Offences for that Cause by Act of Parliament or otherwise by any Process of Law whereby he or any of them shall lose or forseit Life Lands c. but to be for that Deed and Service utterly discharged of any vexation trouble or loss provided always that no Person or Persons shall take any benefit or advantage by this Act which shall hereafter decline from his or their said Allegiance The Statute consists of two Parts the Preamble and the Body and upon the view of it we may observe 1 st That it is not enacted in the Body of the Statute that the Subjects shall be obliged to pay Allegiance to the King for the time being so that if what is enacted in the Body of a Statute only be Law then the Allegiance of the Subjects is not due by Virtue of this Statute to the King for the time being The direct intent of the Body of it is to indemnifie those that fight under the King in Possession and their being indemnified for fighting under him is no Argument that it is lawful for them to do it much less that it is their Duty for they may be Guilty in foro interno of Treason and Rebellion for fighting under the King in Possession against the King de Jure and yet it may not be unjust or improper to indemnifie them in foro externo by such a Statute 1 st Because many that fight under the King in Possession do it in the Simplicity of their Hearts 2 ly Because this would prevent any revengeful effusion of Blood by the King de Jure at his coming to the Crown All therefore that the Body of the Statute proves is that though by the Stat. 25 Edw. 3. it were Treason to fight for an Usurper against the King de Jure out of Possession yet he that fights for an Usurper against the King de Jure out of Possession is indemnified by this Statute and so he is not punishable as a Traytor though he has the Guilt of Treason upon his Conscience and if he may still be Guilty of Treason then still his Allegiance may be due to the King de Jure out of Possession so as to oblige him not to act any thing against him in behalf of the Usurper 2 ly We may observe upon the view of the Statute that the Preamble of it does not directly and positively declare that the Allegiance of the Subjects is due to the King for the time being but only obliquely supposes and insinuates it The King is said to call to his remembrance his Subjects Duty of Allegiance and that they by Virtue of it are bound to fight for the King for the time being c. This is not to declare it to be so by Virtue of the Authority of King and Parliament to interpret the former Laws about the Subjects Allegiance but to suppose it as a thing certainly fixed and determined by the Law already and so also it is obliquely insinuated in the Body of the Act that their fighting under a King de Facto is doing their true Duty and Service of Allegiance And if this be only supposed and that Supposition have no ground neither in the Fundamental Constitution of the Realm nor in any former Statute or Custom but these all do all of them clearly demonstrate the contrary as was shewed above then I think the Preamble of this Statute cannot be urged upon the Consciences of the Subjects as a Law obliging them to transfer their Allegiance from their lawful King to any Usurper getting into the Possession of the Throne and to Fight under the Usurper against their lawful King if he attempt to recover his Crown 3ly We may observe upon the view of this Statute that one thing laid down in the Preamble as the ground for the indemnifying part of the Act is expresly false viz. That it is not
de jure I answer this is plainly a different case and the ground of the difference lyes here that in all Controversies between Private Persons about a Title to an Estate there is a Court of Judicature provided to determine who has the Right Title but in a Competition of two Princes for the Crown there is no such Court of Judicature provided For where there is such a Court of Judicature there the very Reason of Government requires that any Person who is in Possession of an Estate tho it be by unjustly disseizing or excluding another who has the Right to it is to be looked upon as to the jus externum by every Subject of that Government as if he were the rightful Possessor till upon a Tryal in Court he be adjudged not to be so and if upon a Tryal he tho against Truth and Right by Perjury of Witnesses a corrupt Judgment or false Verdict be adjudged by the Court to be the rightful Possessor he is then still by the Subjects of that Government to be looked upon and treated as such till the other Person who is thus injured can have his remedy against him in a legal Way and recover his Estate by another Tryal Hence therefore it follows that the disseized or excluded Landlord is not any other way to disturb the others unjust Possession but by having recourse to the Law and the Tenants are to swear fealty to the Lord in Possession and to pay him their Rents and Services and can do no other Service to their rightful Landlord then by giving him their Assistance towards the recovery of his Right in a Legal way for their paying their Rents and Services to another cannot be an Injury to the rightful Landlord because as a Member of the Government he submits his Rights to the Legal Constitution and besides may recover Damages of the unjust Possessor for the profits of the Estate which he has enjoyed during the time he has been in Possession but it would be an Injury to the Tenants to pay their Rent twice over once to him to whom the Law constrains them to pay it and again to him to whom their Consciences tell them it should be paid of Right And the same would be the Case in a Competition of two Princes for the Crown if there were a Court of Judicature settled in the Kingdom to take Cognizance of their Claims and to determine the Controversy between them judicially and to oblige the Parties contending for the Crown to acquiesce in their Judgment and the Subjects to stand by him whose Right they determine it to be for then any King in Possession were to be looked upon and obeyed as King de jure till by a Sentence of this Court he were pronounced to be an Vsurper and another Prince declared to be the rightful King and the Prince deprived or excluded by the Sentence of this Court were to sit down and quit his Pretensions and the Subjects would be to be directed wholly by this Court and to swear Allegiance to that Person and to stand by him with their Lives and Fortunes to whom this high Court should adjudge the Right to the Crown But then if there be no such Court it will then be left to the Subjects to inform their own Consciences who it is in whom the Crown is invested deemed and judged to use the Expression of the Stat. 1 a Sess 2. c. 4. Mar. by the Law not any such Court and when they know it they are to follow the jus internum and to stand by him who has the Right tho a Tenant in the case of a Private Landlord is obliged to follow the jus externum and to be directed by the Courts of Judicature where he is to pay his Rents and Services and to swear fealty I need not take upon me to prove that there is no such Court settled in our Constitution It is not the Nobility or Council of the former King for their Proclaming of the New King is not a judicial decretory Sentence of his Right and Title but the first Act of their Allegiance to him presupposing his Right if it were otherwise Queen Jane had then been the lawful i. e. Legal Queen of England and not Queen Mary But we find it so far from that that the Lords of the Council were looked upon as Guilty of Treason in Proclaiming Queen Jane and adhering to her when Proclaimed Neither is it the three Estates assembled in Parliament for then 1st They should meet immediately upon the decease of any King to determin any dispute that might be about the Title to the Crown whereas their meeting depends upon the Writs of the new King to call them together 2 dly Their Acts of recognition should be first passed before any other but we find them as it may seem designedly placed after some others in the Parliaments 1 Mar. and 1 Eliz. Indeed a Parliament were a fit Court to determin such a controversie if it could be free and impartial upon an Vsurpation and were not under the awe of him that by the Power of the Sword lays the strongest claim to the Crown I shall shew how fit a Parliament may be to be set up for an infallible Judge of Controversies of this Nature by transcribing a part of the Act of Recognition of Ric. 3 d. Printed at large at the end of the a p. 712 713 714. exact abridgment of the Records We consider that you be the undoubted Heir of Richard Duke of York very Inheritor of the Crown and Dignity Royal and as in right King of England by way of inheritance We consider also your great b Mr. Pryn's note His pretended vertues and fitness to Reign Without one word of his desperate Treasons Regicides Murders Hypocrisie and other vices Wit Prudence Justice Princely Courage Wherefore these Premises duly by us considered we desiring effectually the Peace Tranquillity and Weal-public of this Land And having in your great Prudent Justice Princely Courage and Excellent Vertue singular confidence have chosen in all that in us is and by that our Writing Choose you High and Mighty Prince our King and Sovereign Lord c. To whom we know of certain it appertaineth of inheritance so to be chosen And hereupon we humbly desire pray and require your most Noble Grace that according to the Election of us the three Estates of your Land as by inheritance you will accept and take upon you the said Crown and Royal Dignity as to you of right belonging as well by inheritance as by lawful Election Albeit that the Right Title and Estate which our Sovereign Lord King Richard the 3 d. hath to and in the Crown and Royal Dignity of this Realm of England been just and lawful as Grounded upon the Laws of God and Nature and also upon the Ancient Laws and laudable Customs of this said Realm And also taken and reputed by all such Persons as been learned in the above said Laws
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
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