The case of allegiance to a king in possession

An Advertisement to the Reader, in relation to the foregoing Discourse.

There are some passages in this discourse, which may seem to allow too much to an Usurper in Possession; viz, That some degree of Sub∣mission may, and ought to be paid to his Acts of Government; that some of his Judicial Acts, Grants, &c. ought in equity to be looked upon as valid; and that some Acts against hi may be punished as Treason. To prevents these passaes being mistaken or perverted, I thought it proper to to add some farther explanation of them.

The Question touching the Subject's complyance under an Usun∣per in Possession, supposes these two things:

1. That the Usurper is got into the Throne, and that he has seized the Power of the Nation into his Hands; so that the Sub∣jects, who still adhere to their Loyalty and Allegiance, are not an present able to make Head against him to remove him from the Throne, and to restore their Lawful King to his Right.

2. That whether the Loyal Party will or no, the Government will from thenceforth proceed under the Name, and as by the Au∣thority of the Usurper, till the Lawful Prince, and his Party, are in a condition to displace him. i. e. The Usurper will Name his Council, Judges, and inferiour Magistrates, Officers of his Court, and his Army, &c. will call Parliaments, make Laws, levy Taxes, grant Commissions, and take upon him to execute all other Acts of Royal Authority; and will have a Party to act under him in all Places of Trust, and Power, during his Usurpation.

Upon this ground, therefore, it will not be difficult to explain the abovementioned passages, and to shew that they do not allow too much to an Usurper in Possession. As,

First, That some degree of Submission and Obedience may be paid to his Acts of Government, i. e. Whilst the Loyal Party are not able to make head against him, to deprive him of the Crown, they may be allowed and obliged to pay a Submission and Obedience to those Acts of Government done by the Usurper, which tend to the Pub∣lick Safety and Welfare, and are not prejudicial to the Right and In∣terest of their Lawful King. For this Submission and Obedience,

1. Does not imply any Recognition of the least Right or Autho∣rity in the Usurper; for the ground of it is not any such Authority, but a prudent regard to their own Safety, the Publick Good, and their ab∣sent Prince's Interest involed in both; whose Will therefore they must presume allowing, nay requiring them to act thus, as most for his Service in their present circumstances.

2. It does not at all contribute to the Settlement of the Usurpation, and the Confirmation of the Government in the Hands of the Usurper; for the Government will proceed, as by his Authority, whether they will or no, till they are in a condition to oppose it effectually; and may be more settled, if they should throw away their own Lives, and ruine the Cause of their Lawful Prince, by any rash and weak attempt.

3. It does not dis-ingage them from imbracing all opportunities of acting any thing, that may be really serviceable to their Law∣ful Prince's Interest, and may make way for his recovery of his just Rights.

Secondly, It is allowed in the Discourse, That some Judicial Acts, and Grants, &c. of an Usurper, ought in Equity to be looked upon as valid, viz. Such as are not to the prejudice of the Interest of the Lawful King, or of the Publick. This is grounded upon the same supposition, that the Government will be carried on by the Usurper and his Adberents, whether the Lawful Prince and his Party will or so; and then it is for the Good of the Nation, the Lawful Party, and he Lawful Prince, that Justice should be administred, and the Order of Government preserved, and consequently that the Sentences passed in Courts under the Usurper, and his Commissions, and Grants, &c. be looked upon as valid, as far as they are not against the Right of the Lawful King, and tend to the preservation of publick Justice and Order; For the allowing this does not imply.

1. An allowance of any Right or Authority in the Usurper; for the Government may still be conceived to subsist, and the Laws to stand in force, by virtue of the Lawful King's Authority; and consequent∣ly these Judicial Acts, &c. may be looked upon as useful, by vir∣tue of his presumed Will whereby they are ratified and confirmed.

2. Neither does it justifie the Adherents of the Usuper, in their joyning to act under him, as the Instruments of his Usurped Power; for this is Treason in them, their swearing Allegiance to him, taking Commissions from him, and acting for his Interest against their Lawful Prince; and yet some Acts done by them, to preserve Publick Justice and Order, may be looked upon as convenient, not by virtue of any Legal Authority which they have, but as Rea∣son and Necessity requires that these Acts should have their effect.

Thirdly, The Discourse, That some Acts against an Usurper may be punished as Treason: This also supposes the Government and Power of the Nation to be in the Usurper's Hands; and that it is requisite and just, that while it is so, Murder, Robery, and such other

Offences against Right and Order be punished, though by the Usurper's Commission and Warrant. The same therefore is to be granted, as to any Acts within the Stat. 25 Edw. 3. which are committed under the Reign of an Usurper, against the Order of Government, and the Royal Authority considered in it self, and not against the Usurper's Person or Government as such; such are Clipping and Coining, betraying any place of strength to any Fo∣reign Prince invading the Nation, not on the Lawful King's be∣half &c. Now these Acts may be allowed as punishable under an Usurper, without implying an allowance of any Authority in him; for they are punished by Virtue of the Lawful Prince's Authority, and without implying that the inferiour Magistrates under him have any Legal or Just Commission any farther, than as they may be conceived to have the Will and Consent of the absent Prince authorizing them to execute Justice upon such Criminals, or at least ratifying the thing done, thought without a Legal Com∣mission.

This I thought proper to add for the farther explanation of these Passages, to prevent their being mistaken or perverted. I have nothing more, but to desire that they may be considered as Con∣cessions in relation to the Plea of Bagott's Council, which is so much insisted upon for the Lawfulness of transferring Allegeance to a King de Facto; and I have though it the fairest way of answering the Argument from that Plea, not to reject it where it seems not to be unreasonable; but to shew that the Lawyers might have some rea∣sonable grounds to argue in that manner for the validity of Bagott's Patent; and yet their Plea cannot be made use of, to prove that Allegiance is due to a King in Possession, if an Usurper.

FINIS.