The Duty of Allegiance, Chapter 4

The Duty of Allegiance · Chapter 4

p. 33CHAP. IV.

Obedience to rightful Authority, not tied to actual Administration of Government.

HAving thus cleared the first Point, That Authority is to go by Human Right; I now procede to the second, viz. to show, That Obedience is due to Authority, and not merely to the actual Exercise thereof, or to Administration of Government.

The Duty of Subjects, he p. 26. 27. 28. 32. & 15. 16. 21.thinks, is only to submit to a Prince, when he actually Administers. If he doth not actually administer; Obedience, in his Notion, is not his Right; nor is paying that Obedience, to him who doth actually Govern, giving away his Right: Obedience and Submission being due to him only whilst he is in Possession of the Throne. And this is another main Point, which he still supposes, and builds on.

But as he who has the Right may appear, from what is already said, to have the Authority; I shall now show, That he who has the Authority, must have the Duty and Allegiance which the Commandments call for to the Authority; and that, whether he be in Place to exercise it, or no.

Indeed, when he cannot exercise his Authority, Subjects cannot obey or disobey an ejected Prince, in that Exercise. As for Instance, they cannot obey him in his due Proclamations, or legal Commands, when he can issue out none; nor in Courts and Officers, when they do not proceed in his Name, or act by any Commission from him, unless, according to the Opinion of some, for the Maintenance and Course of Justice, he may be thought and shown to derive some Authority to them, which I leave others to determine. But the main of Obedience, is keeping under Obedience, or owning the Authority of his Person, and our own Subjection and Obligation to him: And there is no Breach of Obedience, like to that of casting off all Obedience. To disobey him in any particular Act of exercising his Authority, is only ill, as it is an Infringement and Violation of the Authority of his Person; and to throw off all Obedience, is an utter Abolition and absolute Denial thereof. The former may be the Offence of a Subject; but the later, of one that owes no Subjection. When a Man only disobeys him in exercising his Authority, though he disobeys him in one thing, he may be ready to obey him in every other thing: But when he throws off his Authority, and Obedience it self, from that time he is for obeying him in nothing at all.

Though therefore, as he says, (p. 26.) there is no Duty Subjects owe to Princes, as Subjects, but to obey them; yet is there Obedience to those that cannot actually govern, and room enough for Subjects to disobey them: Not to disobey them in actual Government, but in what is worse than that. To act any thing hurtful or prejudicial to their Persons, Interests, or Authorities, is highly to disobey, if it be any part of due Obedience affectionately p. 34to serve and support them. And to throw off all Obedience, and turn Subject to another Person, is the hight of Disobedience; such disclaiming of all Allegiance and Subjection, being that which makes open Rebellion to be so much a more heinous Disobedience, than breaking of a single Law or Proclamation.

Now this Obedience, or keeping under Obedience, and being ready to pay it actually, as we can, is due to the Authority, and inseparably follows it; and so to him that has the Authority, whether he be in Possession, or Place to exercise it, or no.

This, I think, may sufficiently appear, from these following Considerations.

1. From the Nature of Authority; which, as I formerly observed, is to lay Obligation, and that upon the Consciences of Men. Authority is no Authority, unless it oblige; and what is Authority to oblige to, but Obedience? And it must needs be a very strange sort of Authority, which every one is free in Conscience to despise, and no body is bound to obey. So that, leave any Man Authority, and in the nature of things, you leave a due Obedience to it also.

2. From its being God's Authority. It is a plain Case, God's Authority must always have something Due, that is Obedience due to it. If you could suppose no Obedience due to God's Authority, you may suppose no Obedience due to God himself; for all the Obedience due to him, is upon the Account of his Authority: And therefore leave any Person vested in God's Authority, and there is no need of any Thing more, for Obedience is immediately his Due.

3. From the Commands requiring Obedience, which fix it to the Authority. Honour thy Father, be Subject to the Higher Powers, Obey Magistrates. He that has the Father's Authority, is without more ado the Father: And he that has the Higher Powers, or Prince's Authority, is the Prince; for it is the Regal Authority, that makes him King or Prince. And make him once the Father, or the Prince, as the Authority immediately doth; and these Precepts ask no more, for the Obedience they require.

Accordingly, in all Authorities, this Obedience is kept on payable and due, whether they are under the Exercise of the Authority, or no. What Exercise doth a Wife, or Family receive of an Husband's, or Father's, or Master's Authority, when he is beyond the Seas? which will put a stop to actual Government and Communication, as much between them, I suppose, as between a Prince and his Subjects. And yet all these, though they cannot obey their Relatives in the Exercise of their Authority, whilst there is, or can be no Exercise of it, are still bound to keep under their Obedience, and act in what they can for their Authority and Interests; and would shew themselves very Undutiful and Disobedient to them, should they, in their absence, act any Thing directly against their Authority, Persons, or Interests; especially should they go to disclaim and cast off their Authority over them, or go to transfer and fix that Authority in another, though thought by them a more deserving Person.

But as to these Precepts, he says, He is sure the only direction pag. 21.of Scripture, is to submit to those, who are in the actual Administration of Government. How is he sure of that? One Scripture bids Honour the Father, another Obey the foreign, i. e. Authority, or Higher Power; and so in other Authorities. And yet these Names of Father, Higher Power, Husband, Master, to whom they direct this Obedience, speak only Authority, not Exercise. And Authority, as I have shewn, may reside and remain in them, who for the present do not, or cannot exercise it: And, I think, he may be sure, and according to Scripture too, that the very Nature of Authority binds to Obedience; and that God's Authority will challenge it, without looking further to actual Exercise, or to p. 35any Thing else: And accordingly it has claimed a dutiful Regard to Persons in their worst Circumstances, as to Saul when on Mount Gilboab fled from the Philistines, and David when he left the Administration to save himself by Flight from Absalom, as I observed above, in case of the Amalakite's, and Shimei's Carriage towards them.

Indeed all Authority is given to be Exercised, and will be so, if Men will suffer those that have it to exercise it; and Obedience is due to that Exercise, and to the Exercisers thereof: And Obedience is called for in Scripture, to such Exercise of Authority, and to those that Exercise it, particularly by St. Paul, who design'd to make all Christians sensible, not only in general of their Obligation to Authority but particularly to the then present Administration of Authority, and to those who at that time Exercised it; the Obeying of whom the Iudaizers question'd. So that in Precepts about Authority, 'tis no wonder to find mention, or reference to Exercise of Authority, since all Authority is given to be Exercised, and always is so when it will be allowed; and is always to be Obeyed when 'tis Exercised: And the Publishers of these Precepts, had not only a design to teach Obedience to future Authority, but to those that then were, and were actually Exercising it in the World. But many times they bid them only to obey the Authority, without any mention of Exercise; and the Obedience to this Exercise, is because 'tis the Exercise of Authority. So Authority is the Ground and Reason of the Obedience; and then it will claim Obedience, whether a Man has a free Liberty to Exercise it, or is kept from it.

4. From the Reason of the Dueness of Obedience, to such Administration and Exercise. Obedience is not due to it, because it is Exercise of Government, but because it is Exercise of Authority in him that Governs. If he has no Authority, though he may Exercise the Acts of Government, yet he doth not exercise Authority; for if a Man has not Authority, he cannot Exercise it; if a Man has not Authority, he ought not to Exercise the Acts of Government; but if he has got Possession of external Strength into his Hands, he may Exercise the Acts of Government, though, for want of Authority to do it withal, he ought not. But in all those Acts, being not possessed of Authority, he must Act, I think, without Authority, and cannot Exercise it before he have got it; and when this Exercise of Government and Authority are thus separated, What Obedience is Rom. 13. 1.Rom 13:1due to it? The Scriptures plainly bid us be Subject to Authority. pag. 5.And all Conscience of Obedience, must be in regard to p. 15 34.God's Authority. And Allegiance, as the Author says, is due only to God's Authority; and therefore none can be due to him, who has not that Authority; as none is for that Reason, as he observes, to Thieves and Pyrates, when they have got Power over any Persons. So that let a Man assume the Place, and Exercise the Acts of Government; yet that claims no Obedience, if he has no Authority to govern: And whenever the Acts of Government are Obeyed, 'ts because of his Authority that doth those Acts; so that the Persons Authority, is the true Ground of all Obedience. And if it be only for the sake of Authority, that any Thing else must be Obeyed, it would be a Riddle indeed, if there should be none due to Authority it self; which would be to make that, which gives all claim to Obedience, to have no claim thereto.

5. From the Obedience due to the Authority of Governours in unauthoritative Acts; the Author, I am sure, will own that a King may retain his Authority, even when he acts Illegally; and that Subjects owe him Obedience, even under such illegal Actings; else there were no Passive Obedience due to King's breaking Laws. But now, to what Authority is this Obedience due, to Authority in the Exercise, or in these Acts of Government? No, in these p. 36actings against Law, he doth not Exercise his Authority, having no Commission to do thus, or to tye up any Man's Conscience, the effect of Authority, to do what he Illegally injoyns him, but acts without, and against it. To what Authority is it due then? For all Obedience must be due to some Authority; 'Tis due to that Authority in his Person, which he doth not Exercise by such Illegal acting. And this Inherent and Unexercised Authority claims Obedience to him, even at such time; that is, to keep under his Obedience, and not cast it off, and rebel against him.

And the same may be said, in case of all other Misuse of Authority; for few Mens Principles of Obedience are so loose, but they will own it to be still due to ill Kings and Governor, who abuse their Authority; and 'tis strange any Man should believe otherwise that believes the Scriptures. But now do not I see, why Authority may not have Obedience due it when it is not used, as well as when it is misused; For what binding Force should there be in misuse? To my mind nothing is ever the better for being misused: and if misuse can add nothing to it, nor lend it any Force whereby to hold the Conscience, I fancy it may bind as strongly to Obedience, when it cannot be used at all.

6. This confining Obedience to actual Exercise and Administration of Government, is to make actual Protection, or Administration the Condition of it. And this will make a Conditionality in the Duty of Relatives, a… Protection of Kings, and Obedience of Subjects are. One will be bound to obey, if the other doth protect, and so far, and so long as he doth actually protect; which he always doth most, whose Administration is justest and keeps closest to the Laws, which are the Cover, or Protection they seek and expect, who live under a limitted and legal Government. And this way according to their keeping, or degrees in keeping the Condition, there would be one Obedience due to a Protecting, and another, or sometimes none at all, to an Oppresive King; one Obedience to a King in his good Days, and another in his bad ones; and not one and the same, according to the Scripture Precepts, which neither make nor admit of such Distinctions to all, and at all times; and like would be the Consequence thereof, in the Duties of other Relations. The performance of one being the Condition of performing in the other; when one breaks, the Bond is broke on both, and no Tye left on either. Whereas, though the Persons are Relatives, yet in all these States, the Duties on each side are Absolute; which one is bound in Conscience to perform, whether the other do or no.

The Author says, (p. 42. 43.) Though Protection and Allegiance are not Relatives, yet Government (meaning actual Government) and Allegiance are such Relatives, as do se mut uo ponere & tollere, or infer or remove each other mutually. And to extend Allegiance beyond actual Administration of Government, is to preserve a Relative without its Correlate.

The Difference between Protection and actual Government is only this, That actual Government is wider, and takes in either actual protecting, or oppressing; whereas, Protecting, he there makes to be Administring justly, and by Laws, and opposes to Opressing. Now Allegiance is the act of the Subject, as actual Government and Protection are of the Prince. Allegiance is the Subject's act, only keeping his Duty; as Protection is of the King, keeping to his Duty. But actual Government, taking in both Protecting and Oppressing, is the act of the King, either keeping or breaking his Duty. Now, if Allegiance, which is only the Subject's keeping, must not be related to Protection, which is the King's keeping, but to actual Government, which is either his keeping or breaking his Duty; methinks these Relatives are ill match'd, and look as if they were not akin. And if Alleg…ance relate to any thing, since it is only the act of the Subject keeping, it should relate p. 37to Protection, which is the act of the King keeping his Duty. And if his other act of Government, or Oppressing, must have any Relative, it should be their Breach of Allegiance, which is to break with him, as he doth with them. For as Performance answers to Performance, so should Breach to Breach, I imagine, in Likeness and Relation.

But these Acts, on either side, are not Relatives, or Correlates, to one another, though the Persons are. The Acts are the Acts of their several Duties on both sides; and those Duties are absolute, which each must perform, without any regard to the other's Performance: Otherwise there is no Duty from a good Wife to a bad Husband, or from a good Child to a bad Parent; more than from a good Subject to an ill King. And yet, That such Duty there is towards them, is as certain a Rule in Morality and Religion, as that he mentions about Relata is in Logick. The Relation is between the Persons, not between the Acts and Offices; which are called Relative Duties, though in their Obliga…on they be absolute, only because they are Duties of Persons, that stand mutually related. And in the Persons, his Rule is true; Take away one Relative Person, and you break the Relation; and without its Correlate the Relative cannot remain.

But if the Prince cannot Govern, saith he, (p. 42.) the Subject cannot obey. True, he cannot obey actual Government, when he cannot have it; but he may keep under the Obedience of his Governor, and obey it as he can, as I shewed before, till the Governor's Authority is gone, or his Government comes to be actual again.

By all these Reasons, I think it may sufficiently appear, That the Obedience shewn before to be due to rightful Authority, is not tyed to the Exercise and Administration thereof; nor to follow Administration of Government, without Rightful Authority: But is the Due of the Authority, whether the Person having and claiming it, be in Place and Possession, to exercise his Authority, or no.

7. And for further Confirmation of all this, I shall, to all the foregoing Proofs, from the Nature and Reason of things, and Scriptures, in the Seventh place, add a Proof of the same, which I think will be a good Proof among all English men, in a Case of Allegiance required by Law▪ and that is, from our own Laws.

Now, That Obedience, in the Eye of our Law, is due to Rightful Authority i… a dispossessed King, is plain, because in the Eye of Law Subjects may criminally disobey him. If they ought him no Obedience, they could not disobey him, or deserve to suffer any thing at the hand of Law, for not paying Obedience where by Law they ought none: But what more common in Law than this, towards a dispossessed rightful▪ King? Witness the Censure of Law on the Undutifulness shown to King Charles I. when arraigned before the High Court of Justice, where he stood utterly dispossessed of all actual Admininistration; and on like Disobedience and breach of Allegiance against K. Charles II. during his Dispossession; and all the other forementioned Acts, declaring Treasons the hight of Disobedience, in Practices against dispossessed Rightful Kings; as has been observed in Case of Richard the Second, of Henry the Eighth's Heirs, Q. Mary, and others.

The same may be further evidenced, from other Declarations of Law, about the Dueness of Allegiance to such dispossessed Kings. Whilst King Charles II. was dispossessed, h… was faithfully adhered to, and served, by several of his Subjects, who, for this, were punished by the long Parliament, a… Delinquents: And this Adherence and Service, the Statute 13 & 14 Car. II. c. 25. declares, was according to their Duty and Allegiance. The Rule given about Allegiance, by the Judges, in the Case of Union, in Sir Francis Moor's Reports, (p. 798.) is, That if a King is expulsed by Force, and another usurp, nevertheless the Allegiance is not taken away, though the Law be taken away. This seems also the plain meaning of Allegiance following the p. 38King's Natural Person, as is declared, both in ††p. 798.the Case of Union, and in **p. 10. 11.Calvin's Case; which would be tyed to the Politick, and go with Possession, if it inseparably depended on actual Administration. All which, to mention no more, is the plain Signification of all the forementioned Attaindors, passed upon Men, either in Statutes, or in Courts of Justice, for acting against a dispossessed rightful King. For Treason is the highest Breach of Allegiance; and if the Law judges Men guilty of Treason against such a King, it certainly judges them to owe Allegiance to him. And this is still the Sense and Understanding of Publick Acts; so many of the **See the Act for a Poll towards reducing Ireland, passed 1 Guil. 1 May, 89. and the Act for Relief of their Majesties pr…t. Sub. in Irel. passed 1 Guil. Jan. 27. 89.Acts passed since this Revolution having declar'd the Irish then under K. James's Possession and actual Government or Administration, for all that, to owe their Obedience to, and, for Breach thereof, to be Rebels against, King William. And all this shows, That by our Laws, as well as by the Laws of God and Reason, Obedience or Allegiance is due to the Rightful Authority of a King out of Possession; and so is far from being tyed by our Law, more than it is by the Scripture and the Nature of things, to actual Administration.

But against this, (p. …3.) he objects the Opinion of some great Lawyers, for Allegiance being due by Law to a King de Facto. The Lawyers mentioned by him are the Lord Chief Justice Coke, who is followed in this point by the Lord Chief Justice Hale and the Lord Chief Justice Bridgeman; and the Allegations of Law, which my Lord Coke builds his Opinion on, are some Sayings in Baggot's Case, not the fullest to his Purpose: But what I chiefly observe, is not of the Judges, but only Allegations of the Council, as they who please may see in the Case it self (An. 9▪ Ed. 4. Term. Pas. Fol. 1. 2. 5.) and the Statute of 11 H. 7. c. 1. which declares Subjects bound by their Allegiance to serve their Sovereign for the time being, in his Wars, against every Might and Power reared against him; and indemnifies them for the same.

But how is this a Proof of Allegiance to a King de Facto? Doth the Statute say, they are bound to do this to the King de Facto? No; it only says, to the King for the time being. Do the Words, for the time being then, signifie the same as De Facto, in their ordinary and legal Signification? No; they are ordinarily used, both in Law and common Speech, to se… off those that have Right; as the Statutes, when there is no Dispute of the Right of the King, or of those that act under him, every where mention, the Lord Chancellor, Lord Treasurer, Lord High Admiral, or other great Officers, for the time being. And the Statute 1 Ed. 6. c. 12. speaking of King Edward and his Heirs and Successors Kings of this Realm, (unquestionably rightful Kings) calls them several times, Kings for the time being.

If the Signification of the Phrase will not do it, doth not the thing there said of this Service to the King for the time being (viz. that it is against all Laws, Reason, and good Conscience, to lose or forfeit any thing for the same) determine it to the King in Fact? No; but on the contrary, if they are true, they will determine that King in being, I conceive, to be the Rightful King. For suppose another to have the Right, and it must needs be very unrighteous to hinder him of it; and then he acts unrighteously, that serves the King in Fact, against the King in Right: And what is unrighteous, is against Reason and good Conscience; and 'tis neither against Reason nor good Conscience, That Men should suffer for unreasonable and unrighteous actings. For if Reason and good Conscience would have them suffer for any thing, it must be for these. Yea, and 'tis as much against Laws, as against either Reason or Conscience; p. 39there having been Laws enough, as I have noted in several Instances, for punishing and attainting Subjects, that acted against their Rightful though dispossessed Sovereigns; and of these Laws, several in King Henry's own Remembrance, some made against him by another, who thought he had the Right, and some made against them by himself, when he came to assert his own Right. And the Allegiance this Statute speaks of, is the Allegiance as it had stood in his Remembrance, as the Preface of it notes, and as the Author himself also (p. 62. 63.) observes from it: In all which time, and before, neither Law, Reason, nor good Conscience, indemnified paying this to wrong, but only to rightful Kings.

But mutual Attainders of each others Adherents, he says, (p. 59.) is no Proof what the Law of the Land is. What, not if the Law attaints? Must not Laws shew what the Law is? And if, as oft as the Law looks upon a Man to have had only Possession, it attaints those that served him; it is plain, That Law did not look upon mere Possession, without Right, to justifie that Service. If Possession in Law would have justified them in serving him, for such Service the Law would not have condemned them. And as for that Favour of Parliaments towards the Possessor, which is all, as he says, (ibid.) that such Parliamentary Attainders shew; that Favour to the Possessor, is favouring his Right, for opposing whereof, the other side may be attainted. But it would not go to attaint innocent Men for following Possession, if it owned Allegiance were due to mere Possession: For that were to do a Contradiction.

But whatever had been done in this kind before, Henry VII. he says, (p. 63.) was now convinced it was ill done, and provides, by this Statute, it shall be so no more. But the Statute doth not speak of this, as of a new Provision, but as of the Allegiance which the King called to his Remembrance, and which had all this Guard of Law, Reason, and good Conscience, aforetime. Declaring therein, as the Author remarks upon it, (p. 63.) what was so before, and not made so now merely by their Declaration; and so, I think, was not thus to guard those that served against the Right. For as there was Reason and Conscience, so likewise Law enough, if Statutes and judged Cases are Laws, both in time foregoing and time following, to punish them.

I add to this, if this Service, as bei…g a Service of the Wrong against the Right, is thus against Reason and good Conscience, though there had been no Express Law against it, but an Express Law for it, yet would it have vacated that Law; for can any human Law bind against good Conscience; or, authorize and bear Men out in unrighteous Actions? And t…us this Statute would do, if still owning another to have the Right; it should authorize the Subjects to serve in War, and assist the Possessor against him, coming to get his Right.

But (p. 65.) doth not Law limit Right? And may not a King limit his Right by his own Consent? Yes, and transfer it too if he will. But if the Law has still left him the Right, and he has not Consented in this La…, to part with his Right when dispossessed? Which is the reality of the Case, as (p. 37.) the learned Author, whom he considered on this Point, shewed, and as it is supposed to be in this present Dispute; which is for trying to give away Allegiance, admitting him still to have the legal Right. What then is to be said to a Statute authorizing Subjects to oppose him in seeking of his Right? If the King himself, as he supposes him to do in the Statute, on good Considerations consents to this, What Iniquity, (p. 65.) says he, is there in this Law? Yes, as it leaves such Dispossessed Prince still to have Right, and bids Men oppose him in it, there is Iniquity therein; as there would be in any Law, that should bid Men steal their Neighbour's Goods, or slay the Innocent. There is Iniquity in all Unrighteousness; and this Law would this way bid Men▪ p. 40oppose Right, which is to be Unrighteous. So that here, God's Law says, you shall not oppose any Man in seeking of his Right; and this Law would say you shall do it: And when any human Law bids us do that; I think, since God is above Men, it must needs be enough, as is shewed in the Doctor and Student, to vacate that Law, to say that God forbids it.

But if this Statute is meant only of the right King, What need of Indemnifying? None, whilst the right is in Possession. But that was made to cover them, as far as he could, against a turn of Times; which it would be the more like to do, especially in such Doubted and Controverted Titles, because on all Sides, in this Quarrel of the Two Houses, they had Cause enough to be weary of the way of Mutual Attaindors.

Thus much I thought fit to say here upon this Statute; which, since this Plea has been started, other Papers have more largely considered. And though the Author, whom he replies to in this Part of his Book, had no need, I think, to suppose the King for the time being in that Statute, to be a mere King in Fact: Yet any one that will peruse, what with great Labour and Skill he has laid together in that Book, will see enough to shew him how far the Law is from carrying Allegiance to a mere King in Fact.

Now these Sayings of Council in Baggot's Case, and the Statute of H. 7. being my Lord Coke's Grounds for taking Allegiance to be due to a King in Fact: the effect of what he alledges from the Three Lord Chief Justices, and Baggot's Case, to prove this Point, I think, when duly weighed, will only amount to this. That my Lord Coke, followed therein by Two eminent Lawyers, upon the Authority of a Saying of Council, and of some Words in a Statute, about Allegiance, not expresly mentioning a King in Fact, but according to their common use in Law, signifying one that has Right, and not admitting what the Statute affirms of them to be true, if meant of any other but the Right, were of Opinion that Allegiance is due to a King in Fact. Though, for further abatement of these Authorities, my Lord Coke says enough, I think, particularly in Calvin's Case, to declare Allegiance inseperable from the Right, whether Possessed or no. And, I think, my Lord Chief Justice Bridgeman, **Vid. Tryal of R…gicid.who Sentenced Men for Treason against the Right after he was D…spossessed, and my Lord Chief Justice Hale, ††Bishop of Salisb. Life of Iudge Hale. p. 23.who refused to sit on any under the late Usurpation, that were to be tryed for their Adherence to the Dispossessed rightful King, were plainly of the same Opinion. And if 'tis due to the Right, when Dispossessed, in their Opinion; it is not, as the Author thinks, du… only to actual Government. And if it is due to the Right out of Possession, since as he says also, Page 14.we cannot have Two Kings, or Two Allegiances, there can be none due to the Wrong. So this Opinion of these great Men, seems not to have been their fix'd and settled Opinion; for which, a Saying of Council, or such sound of some Words in a Statute, as I have mentioned, seems not to be the best Foundation.

But on the other side, That Allegiance is all the time due by Law to the Right, even when Dispossessed, and broke by those that act against him in Adherence to the King in Fact; yea, by the King in Fact himself, if he were a Subject before, appears from Numerous, both Acts of Parliament, and judged Cases; such as Calvin's Case, and the Case of Union, which make Allegiance to foll… the King's Natural Person; and from the Iudgment on the Duke of Northumberland, who gave this Plea of a King in Fact, and for the Purposes it is now urged from the Statute of H. 7. for his Acting under Queen Iane p. 41against Queen Mary; but was **Bishop of Salisb. Hist. Reform. p 2. p. 242. and Sir Rich. Baker in the R…ign of Q. Mary.told by the Court, That the Seal of an Usurping Queen was no good Warrant; and the Judgment was afterwards confirmed by ††Stat. 1. Mar. Sess. 2. c. 16.Act of Parliament. From the Iudgement on the R…gicides, for what they acted against King Charles 1. in his State of Dispossession, and the need of an Act of Oblivion, for what was done against his Son whilst-kept out of the Administration: From the Statute of 13, 14 Car▪ 2. before mentioned, declaring Allegiance all that while due to him; as another declared it due to Queen Mary, and the Regal Authority to be vested in her Person, during the time of Queen Iane's Usurpation. And as other Statutes declared it to be due to Henry the Eigh…h's right Heirs, whilst others Usurped upon them. And another Statute did to Richard the Second, during Henry the Fourth's Usurping his Throne. And as is declared in all the Statutes of Attaindor, upon the Kings in Fact and their Adherents, when the Kings in Right recovered their Thrones, as has been observed in the (Chap. 2.) foregoing Discourse. And as is declared, lastly, in the legal Oath of Allegiance, which Recognizes the King's Right, and Swears to bear and pay Allegiance to the Right, whilst he has Right to defend and pay it to.

And suppose the Statute of H. 7. had authorized Men to pay it to the Wrong; and these Statutes of King James the First, ab…t the Oath of Allegiance, make them Swear to pay it to the Right, Which would be the Law in this Case? If Two Statutes clash, and interfere, like as if Two Wills do, the later will be sure to be Stronger; and the other of Henry the Seventh was only a Law; but this later of King James, is both the Bond of a Law, and such as makes a Man bind himself further, and both promise and swear too. So that, instead of doing what that Law says he shall do; having as good a Saying of Law here, nay, a better, be…se a l…ter, … will rather think himself bound to do, not only what this Law says he shall, but also what he has both promised and most solemnly sworn he will do.

And whether all these Laws, and judge… Cases, are not enough to carry the Point of Law, in this Question of Allegiance to rightful Princes, against the Opinio… of the foresaid Lawyers, standing on such Foundations, I leave any rational Man to judge.

He takes notice of the Judgment on the D. of N…rthumberland, for acting under a Queen de Facto, viz. Q. Iane; which the Statute of H. 7. would have justified, ha… that been meant of a King in Fact: and argues, (p. 64.) it could not declare th… Statute of H. 7. null and void, as the Author of the Case of Allegiance to a King in Possession, against whom he there disputes, thought in effect it did. Which, if this Judgment doth not of it self, yet the contrary Obligations laid since by other Statutes, which that Author adds, as he observes likewise, will seem to do it. For if the Act of H. 8. about Succession, and the Oath of Allegiance, make the contrary to the Statute of H. 7. or Serving of the Rightful King, to take effect; that will not differ much from declaring his Statute null in effect, because it will leave it no effect. But though this Judgment should not be enough in Law to rep…l that Statute; yet, I fancy, in a Question of the Sens… thereof, especially in Words so lyable to be expounded to that sens…, which the Court declared in his Case, it must needs be allowed to be an Authenti…k Interpretation of it. For, I think, in expounding a Law, he will allow a Court of Justice, and especially the High Court of Parliament, to have more Authority than those Lawyers, though of so deservedly great name, whom he mentions.

And now, laying all these Authorities of Law before us, if we must presume what the Law is in this point, I think we have much more Reason to presume p. 42that is Law, which we hear from so many Statutes and judged Cases; than what we hear on the contrary from some particular Judges and great Lawyers. So, as far as I see, the Law, in this point, should be presumed to lye on the rightful King's side.

But Treason, he observes, (p. 58.) lyes by Law against the King that without Right is in Possession; and then Allegiance must be due to him. This may be true in such a King as Henry VI. of whom alone Baggot's Council affi…m it, who, for near Forty Years, was King without any opposite Claim; and then was so still, by express Consent of concern'd Parties, who had Authority to give to him, and agreed, That as he had been Rot. Parl. 39 H. 6. Nu. 20.hitherto, so he should still be King for his Life. But as to other mere Regnant Kings, against a right King that makes his Claim, I do not understand how in Law it can be Treason to act for the right King against them; when so many Laws and Statutes of Attaindor, and judged Cases have made it. Treason to act for them. For Treason, as well as Allegiance, the Author will own, can lye but one way, since we can have but one King. And as for the Statute of Treason, it speaks of that King, whose Succession the Law is careful to secure, making it Treason, as the Author of the aforesaid Case observed; (p. 8) to kill the King's eldest Son, to violate the Queen, the Prince's Wife, or the King's eldest Daughter. All which shew a care of the Lineal Successor, and so must be meant of the Lawful King, since the Law cannot be careful to secure the Succession to any other. It is pretended no otherwise to favour the Successor, than on account of Possession, for the necessity of actual Government under him, which is only for his own time. And as for Law looking on the Crown, as Hereditary still in his Children, as he fancies, (p. 56.) sure that is not the Hereditariness of Blood, or next akin, which is the Hereditariness of our Crown. And the Law cannot look upon the Crown, as what ought to go by Hereditariness of Blood, or lineal Succession, if it makes it due to another's Children, who perhaps are not at all of the Blood, or however, not the next in Blood, as the Three Henrys he mentions were not; whose Reigns were a real Interruption of the due Hereditariness of Succession, and who were none of them the true hereditary King.

I grant, Treason may be committed under them: As to conspire against the present Possessor to set up another Usurper, or to give away the Crown to a Foreigner, or other things, which the Law makes Treason. But that which makes these things Treason then, is not, as I conceive, being committed against them, (nay, Treasonable Acts may be Treason, as has been shewn, when committed, not only for them, but by them;) but being committed against the Authority of the rightful King. For his Authority is still in his Realm, though his Person be driven out; and the Faith of the Subjects is still due to him, and may be broken, as it is most highly in all Treason, which is the ground of all Attainders, and makes the necessity of O…livions and Acts of Grace, as I formerly observed. So all the time he is away, the Subjects being bound in their former Faith and Allegiance to him, they may break that Faith and Allegiance in the several ways of Treason; only he is not here to try and punish them. And the Possessor, having got all his external Power, must do that, if it is done at all; for 'tis external Power that punishes: But as he punishes by another's external Power, so for what was acted against another's Authority, not against his own. And I see no authoritative way of doing it; without a way can be found, which some have attempted, and I here discuss not, to derive Authority from the rightful King.

But the only Reason why any Things are made Treason by Law, says he, (p. 58.) is their being against the Order of Government, and Destructive to it. Which the same Things equally are under any King, p. 43whether in Fact, or in Right: But whatever be the End why they are made so, yet Being a Breach of the Faith of the King, must come in to make them so. For the Nature of all Treason is to be a Breach of Faith and Allegiance; and accordingly the Form of Indictment is, that such a Thing was done, Contra Debitum Fide… & Ligeantiae suae, against the Actors due Faith and Allegiance. And this Faith and Allegiance is the Due of a Person; not due to the Country, or to the Order of Government, but to the King. And accordingly in Cobledik… 's Case, the Judges rejected a Plea, as my Lord Coke notes (p. 9.) in Calvin's Case, for saying only the Ligeance of England, but admitted it when they added, and the Faith of the King. And therefore the King himself is not capable to commit Treason, because it is only a Breach of that Faith which is due to his own Person; so that the Treason lyes where the Faith and Allegiance doth, that is, against the rightful King's Person.

As to what he says, (p. 52, 53.) about Cognizance which is the right King, not lying before a private Subject; I grant it would not, if once a Court competent had judged of it. But where is that Court, that is of Authority competent, to sentence and give away a lawful King's Right? It seems plain in the Eye of the Law, That among us, a Parliament called by a Possessor without Right, cannot do it; because, after they have done what they can, the Law says he has Right, and will punish the private Subject, as has been shewed, notwithstanding the Warranty of their Judgment for acting against his Right. So there is no way that I see, but for every Subject to take the best Advice and Care he can, to know which is the Right, that he may not act against him; for though he would have no Cognizance, were it a Thing that lay before authorized Courts, or that the Competitors had brought into Court, and there decided, as H. 6. and the Duke of York did in Parliament; and though, where there is no Court competent to judge, he has no Cognizance to judge for others, yet he has to judge the be…t he can, and at his own Peril, for himself as every Man mu… do, I think, in this Case. Allegiance h… must pay to him, that has▪ …, as I have proved, and so must satisfy …imself, who has it, to answer the Law of Go… ▪ And as for the Law of the Land, to see… ▪ Protection from the Judgment of Court…, which are not legal Cou…ts, but only Cour… de Facto; or from legal Courts, if they▪ meddle with that, which is not under th… Cognizance, will fail those, that trust to shelter themselves thereby, as my Lord… Chief Justice Bridgman told aaTryal of the Regicides, p. … ▪ 145, 146. and his Speech to the G… Iury, p. 15.Cook…, when he pleaded that the High Court of Justice was a Court de Facto, in defence of his Acting under it.

But as to all this Dispute about Law, for Allegiance to the King in Fact against the King in Right, (p. 54. 65▪) he observes, That the Non-swearers would no… abide by the Decision of the Laws: Which may be true as to this particular of following a mere King in Fact against the legal Right, because the Laws of God, as well as of the Land, are their hindran… in this Case. But then, says he, Why do they insist upon-Lam? They insist on it▪ because they think it one good Argument, and so they have reason to think it still, for any Thing that I have yet seen offered from Law to the contrary. But they do not abide by it, or give up the Cause to stand or fall with it, because it is not the only good Argument; and other Hinderances from God's Laws they think are no less than that. And this learned Person knows very well, That any one Conscionable Hinderance is enough to keep a Man from doing a Thing; and the Lawfulness in some respect, whilst 'tis Unlawful in others, is not enough to warran… him in doing it. Bonum (says the R…le)▪ oritur ex integra Causa; malum ex quoli… D…fectu. Though, I think, as to th… painful Search, that has been made into p. 44the Point of Law, for Allegiance to a King de Facto, the Non-swearers did not begin it, but were driven to it: The Pleaders for the New Oath, pretending the Law in this Case to be for a King in Fa…t; which, upon Examination, they find to be a Mistake, and think the Plea from Law is on the other side.

And thus upon all Accounts, both of Scripture, and the Nature of Things, and of our own Laws, I think, it may seem sufficiently manifest, that as he that has the Right, has the Authority; so he that has the Authority, by the Laws both of God and Man, must have the Allegiance, though he cannot actually Govern, but is Forceibly kept out of his Throne.

And if the Dispossessed rightful King still keeps the Authority, and the Obedience of the Fifth Commandment is still due to him, because of that Authority; the leaving any ejected Prince to have the Right, and the Regnant or Providential King to be only King in Fact without Right, would leave all, that take a New Oath for transferring Allegiance, under as evident a Breach of that Commandment, as of the rest. So, upon the whole, I conclude this Plea of mere Possession without Right, leaves all the Non-swearers Difficulties against▪ the Oaths untouched. For, suppose any Man, to be still ones rightful King; and then what will hinder, but to bind our selves by a contrary Allegiance to oppose his Right, must be Unrighteous towards him; or to bind our selves thereby to act against his Authority, must be Undutifulness and Rebellion; and binding our selves to all this, against what we had promised, and assured by former Oaths, must be to forswear our selves. So that, when at the last Day, all that take such Oaths, come to be tryed by these Laws, how they have kept Just to the Rights, and Obedient to the Authority, and True to the Oaths they had made to a Dispossessed King: If they have no Exception to his Right, nor any Ground but this of de Facto to plead; to me it seems there is great Danger, lest all those Laws should condemn them. And however they they think this Plea, of Possession without Right, may bear them out before God, in paying this Allegiance, I think, 'tis visible no Possessed King trusts thereto in demanding it, either before God, or before the World; for we never yet had a Regnant King, that set up upon that Title. And in the present Revolution, 'tis well known to all, what Declarations the publick Acts have made of King William's and Queen Mary's legal Right and Title to their Father's Throne.