Axion That no man can serve 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 two Supreme Lords Matth. vi 24. Now by the Laws of this Land I owe and am bound to yield Allegiance to him who is in Possession of the Kingdom n. 2. whether he have rightful Possession or not and am excusable and free from punishment by the Law if I afford it for so the Law runs The King our Sovereign Lord 11 H. 7. c. 1. 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 with Him to enter and abide in service in Battle if case so require and that for the same Service what Fortune ever fall by chance in the same Battle against the Mind and Will of the Prince as in this Land sometime past hath been seen it is not reasonable but against all Laws Reason and good Conscience that the said Subjects going with their Sovereign Lord in Wars attending upon Him in Person or being in other places within this Land or without by His Commandment any thing should lose or forfeit for doing their true Duty and Service of Allegiance It be therefore ordained enacted and established by the King our Sovereign Lord by the advice and assent of the Lords Spiritual and Temporal and the Commons in this present Parliament Assembled and by Authority of the same 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 he or they be in no wise convice 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 forfeit Life Lands Tenements Rents Possessions Hereditaments Goods Chattels or any other things but to be for that Deed and Service utterly discharged of any Vexation Trouble or Loss Where Note 1st That this Service and Allegiance mentioned in this Statute is faithful Service and true Allegiance once and again and it is declared to be the duty of all Subjects 2dly That it is to be yielded to the King for the time being without enquiry whether he be the rightful King or no for it was agreeable to reason fo Estate saith the Lord Bacon History of the Reign of H. 7. p. 144. That the Subject should not enquire of the justness of the King's Title or Quarrel and it was agreeable to good Conscience That whatsoever the fortune of the War were the Subject should not suffer for his Obedience 3dly That this Service and Allegiance is to be yielded to the King for the time being against every Power and Might reared against Him. 4thly That through the whole Body of the Act he is called the Sovereign Lord of the Land their Sovereign Lord and so it seems we need not scruple the use of the said Title in our Prayers it being only that which the Law of the Land gives to every one that is King for the time being 5thly That this Statute hath continued unrepealed about Two hundred years and therefore hath been so long approved by the whole Nation and judged well consistent with the duty of Allegiance owing to their lawful Sovereign they therefore judged it not repugnant to their Oaths of Allegiance to their rightful Sovereign to bear true Allegiance and to do true and faithful Service of Allegiance to any other King for the time being who had got quiet possession of the Throne which is all that this Oath requireth of us Moreover all High Treason committed by a Native of the Land is an offence against his natural Allegiance n. 3. Cook 's Reports Par. 7. Calvin's Case p. 435. which appears from the Indictments of Treason which saith the Lord Cook are of all other things most curiously and certainly indited and penned for they run for committing this Crime contra debitum fidei ligeantiae suae quod praefato Domino Regi naturaliter de jure impendere debuit Against the duty of Faith and Allegiance which he naturally and of right ought to yield to his Lord the King or for committing this fact contra Dominum Regem supremum naturalem Dominum suum Against our Lord the King his supreme and natural Lord or contra naturalem ligeantiam Domino Regi debitam Against the natural Allegiance due to our Lord the King. Now the same Lord Chief Justice Cook in his descant on these words of the 25th of Edward the Third Instit Par. 3. ch 1. p. 7. Seignior le Roy used in that Statute concerning High Treason saith That this Act is to be understood of a King in possession of the Crown and Kingdom for if there be a King Regnant in possession althopugh he be Rex de facto non de jure yet he is Seignior le Roy within the purvien of this Statute and the other that hath right and is out of possession is not within this Act. Nay if Treason be committed against a King de facto non de jure and afterwards the King de jure cometh to the Crown he shall punish the Treason done to the King de facto and a Pardon by a King de jure that is not also King Pleas of the Crown p. 11. de facto is void The Lord Chief Justice Hales doth also say That a King de facto and not de jure is a King within this Act and a Treason against Him is punishable though the right Heir get the Crown And sitably to these declarations of these great Men I find in Bagot's Case Pasc 9. Ed. 4. argued in the Ninth year of Edward the Fourth that it is said That the King shall have the advantage of any Forfeiture made to Henry the Sixth c. and of Trespasses made in his time the Brief shall be contra pacem H. 6. nuper de facto non de jure against the peace of Henry the Sixth late King in Possession though not of Right c. and a Man shall be arraigned of Treason done to the said King Henry in compassing his Death and it is there added Qu' si cesty qu' est ore Roy in temps le Roy Henry ust fait Charter de Pardon c ' sera void a ore car chescun qu' ferra Charter de Pardon covient estre Roy en fait That if he who is now King had given a Charter of Pardon in the time of King Henry that Charter shall be void at present because it is necessary that every one who makes a Charter of Pardon should be actually King. Now hence 1. I inferr that we cannot reasonably except
continuance there during life for he cannot cease while he lives to be descended of the Blood-Royal of the Realm which immediately constitutes him in his natural Capacity nor to be King by Birth-right inherent he therefore only in such cases ceaseth to be King and our Allegiance to him only ceaseth to be due because he hath separated from himself that politick Capacity which was before apropriated to his natural Person by the Law Ibid. by virtue of the Lineal descent of that Person from the Blood-Royal whereupon Succession doth attend 2dly Ibid. It is agreed on all hands that we cannot have two Kings at once and therefore either the King Regnant in possession only or the King de jure out of possession only can be our legal King or he who is in the eye of our Law our Sovereign Lord the King and the only Supreme Governour of this Realm 3dly It appeareth by what hath been already said and by the determination of the Judges in Calvin's Case P. 438. P. 439. That Ligeance is due only to the King that the Ligeance or Faith of the Subject is proprium quarto modo tot the King omni soli semper it is due therefore to every one who is Seignior le Roy and so to a King Regnant in possession though he be only King de facto if the Law make him Seignior le Roy. It is due soli to him alone if he alone for the time being be our Sovereign Lord the King. It is due unto him semper as long as he continues the King Regnant in possession upon the same account 4thly A. 9. Edw. 4. Term. Pasch Observe that in Bagot's Case it is determined that le Roy Hen. fuist Roy en possession il covient qu' le Royalme eit un Roy South qu' les leges seront tenus maintein doque per c ' qu' il ne fuist eins forsque per usurpation unc ' chescun act judicial fait per luy qu' touche jurisdiction Royal sera bon licra le Roy de droit quand il fait regress King Henry the Sixth was King in possession and it is necessary that the Kingdom should have a King under whom the Laws should be held and maintained therefore be it that he was only in by usurpation yet every judicial Act done by him which toucheth the Royal jurisdiction shall be good and shall bind the rightful King when he returns And it is there added that le dit Roy H. ne fuit merement comme usurper car le corone fuist taile a luy per. Parliament The said King Henry was not meerly as an Vsurper because the Crown was entailed upon him by Act of Parliament as now it is upon King William If then il covient qu' le Royalme eit un Roy The Realm must always have a King under whom the Laws shall be held and maintained the King Regnant in possession being he alone under whom for the time being they can be held and maintained he only can be our Sovereign Lord the King for the time being If every Judicial act done by him which concerns the Royal Jurisdiction shall be good though it be always done under the Title and Authority of our Sovereign Lord the King then must he be our Sovereign Lord the King to all intents and purposes of Law for the time being then must the Laws made by him be good also though they run in the stile of our Sovereign Lord the King or our Lord the King. And if all this be true of a King Regnant or in possession though it should be granted that he held the Kingdom meerly by usurpation it must more certainly be true of one on whom the Kingdom is entailed by Act of Parliament as in our case it is and who is therefore not to be looked on as a meer Vsurper 5thly P. 434. Observe that in Calvin's Case it is determined that Protectio trahit subjectionem subjectio protectionem Protection requires Subjection and Subjection Protection Quia sicut subditus Regi tenetur ad Obedientiam ita Rex subdiot tenetur ad Protectionem P. 436 437. For as the Subject oweth to the King his true and faithful Ligeance and Obedience so the Sovereign is to govern and protect his Subjects that Power and Protection draweth Ligeance and that the Ligeance of the Subject is of as great extent and latitude as the Royal Power and Protection of the King that though the King in his natural Person is subject to Death P. 438. Infirmity c. yet in his politick Capacity he is esteem'd to be Immortal not subject to Death Infirmity c. Now I would not hence inferr with others that I owe a King no Subjection or Allegiance any longer than he doth actually protect me or that if he neglect his duty in protecting me in my Goods or Body or of protecting the Laws according to these wordds of Foretescue Rex ad tutelam legis Cap. 13. corporum bonorum erectus est I may neglect my duty of Allegiance to him But yet I think it reasonable hence to inferr affirmatively From the King Regnant in possession I for the time being do receive Protection therefore to him for the time being I do not owe Subjection Protection draws Allegiance therefore Protection from him draws Allegiance to him The Ligeanceof the Subject is of as great extent and latitude as is the Royal Power and Protection of the King therefore it must extend it self unto all times and places in which and where this Royal Power is exerted and this Protection is afforded to me Rom. xiij 1 4. St. Paul doth found the reason of our Subjection 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to the present Powers on this ground That they are unto us the Ministers of God for good or in the words of Christ that they are 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Benefactors Luk. xxij 25. to whom we therefore own Subjection on the score of gratitude as far as we with justice can afford it Since therefore saith the Reverend Bishop Sanderson De legum Oblig lec 5. §. 18. we owe it to the Supreme Powers even when they are usurped that we enjoy what is our own that we live safe from slaughter and from rapine yea that we live at all since without them we neither could have remedy or safe-guard against the Lusts the Furies or the Injuries of wicked Men 't is the most equitable thing and that which the Old Law of giving and receiving mutually doth require that for so many and great benefits we should make some return unto that Power which affords them And what is that Return he doth sufficiently explain in the ensuing words Profecto perfecto perversissimae mentis est 'T is certainly an indication of a most perverse mind to desire to live under the Patronage of his Government whom you will not obey and to refuse to be governed by him
against the using of those terms Our most Gracious Sovereign our Sovereign Lord and Lady King William and Queen Mary they being only the terms which our Law gives to every one that is in Possession of the Government yea say our great Lawyers terms which belong to the King in Possession alone though he be King de facto and not de jure 2ly If Treason committed against a King in Possession though de facto only by any of his native Subjects be an offence against his natural Allegiance due to him and against that duty of Faith and Allegiance which he naturally and of right ought to yield to him then is Faith and Allegiance both his Right to challenge and our Duty to yield to him and then he by requiring us to swear it requires us only to give him his Right and we by so doing shall only engage our selves to the performance of our Duty If it be his Right because he is a King Regnant in Possession then it is his Right no longer than he is in Possession and then the Oath can require it no longer then he is in Possession and then we have no just Ground to fear that the Oath of Allegiance to King James doth bind us now he is not in Possession or that the Oaths we take unto King William and Queen Mary can bind us any longer than they are in Possession this Oath can therefore do no real Injury to King James for if he be not in Possession he hath not by these Expositions of Seignior le Roy a Right to actual Allegiance If he become again the King Regnant in Possession the duty of bearing Faith and Allegiance to him immediately returns without taking any new Oath Again if the King that hath Right and is out of Possession is not within this Act and therefore cannot be the Seignior le Roy within the purvieu of this Statute and therefore not the King against whom Treason may be committed against this Act then can I not offend against my natural Allegiance or against any Duty of Faith and Allegiance which of right I ought to yield to him and then I do not so offend by taking of the Oath of Faith and true Allegiance to King William and Queen Mary and therefore I may take that Oath notwithstanding my former Promise upon Oath to bear Faith and true Allegiance to King James because by doing so I offend not against any Faith and Allegiance due to him Moreover if the King in Possession be the Seignior le Roy within the purvieu of this Act it must be Treason against him to compass or imagine his Death or to prepare by any Over-Act to depose him This being saith the Lord Coke Ibid. p. 12. a sufficient Over-Act to prove the compassing and imagination of the Death of the King for this upon the matter is to make the King a Subject and to dispose of his Kingly Office of Royal Government Then must it be High Treason against Him to Levy War against him in this Realm to be adherent to his Enemies within this Realm giving to them aid and comfort in this Realm or elsewhere for all these things are by that Act made Treason against the Seignior le Roy within the purvieu of this Statute This Statute therefore as it is expounded by the Lord Chief Justices Coke and Hales must oblige the Subjects of King William and Queen Mary not to assist King James against them that being Treason against the 25th of Edward the Third which they cannot be obliged to commit If King James should he come again to the Possession of the Crown might punish me for any of these treasonable Acts committed against King William and Queen Mary but could not punish me by the Eleventh of Henry the Seventh for any Duty of Allegiance or faithful Service paid to them as my Sovereign Lord and Lady then sure Allegiance and Faith will be due to them whilst in Possession and to them only for were it due to King James I might be punished for not performing it to him If lastly no Pardon now given by King James can save me from the guilt of Treason against King William and Queen Mary and that guilt only be contracted by offending against that Duty of Faith and Allegiance which of right I owe to them sure I cannot offend by want of Faith and Allegiance against him who cannot pardon me but against them only against whom I commit that Treason and therefore unto them alone Faith and Allegiance must of Right be due and so to them by Oath and Promise may be given As an Addition to n. 4. or a Consideration strengthening the former Argument let it be observed 1. Sand. de juram prael 7. §. 7. That it is agreed on all hands that a promisory Oath ceaseth to bind when the matter of the Oath ceaseth Thus if a Man swears to appear at such an Assizes if there be no Assizes kept there he cannot be bound to appear because impossibilium nulla est obligatio there is no obligation to impossibilities and of the matrimonal Vow St. Paul declareth That the Woman is bound by the Law whilst her Husband lives 1 Cor. vii 39. but if her Husband die she is at liberty to be married to whom she will because then the matter or objectof her Vow is removed Others deliver the Rule thus Ames Quum aufertur Ratio formalis juramenti juramentum cossat When the formal Reason of an Oath ceaseth the Obligation of the Oath must cease Thus if a Man swears Residence on a Living his Oath only binds him whilst he is Incumbent because he only took and only was obliged to take it for that very reason because he was Incumbent Now the formal Reason of the Fidelity and Allegiance promised to King James was this That he was our Sovereign Lord King James saith the Oath of Allegiance the Supreme Governour of this Realm saith that of Supremacy and therefore when he ceaseth in the sence and meaning of the Law to be our Sovereign Lord and the Supreme Governour of this Realm my Oath to yield Faith and Allegiance to him must cease to be obliging to me If when another is King Regnant in possession he is legally dead for that time his politick capacity being then separated from the natural Person of the King then must the Subjects of England be free from their Allegiance to him for that time for though Ligeance is due as was resolved in Calvin's Case Cook 's Reports p. 438. to the natural Person of the King and not to the politick Capacity only yet is it only due to the natural Person of the King when it is accompanied with his politick Capacity for otherwise he could not possibly divest himself of it by any the most formal or voluntary resignation of the Government whatsoever nor by any other Act whatsoever viz. the entrance into a Monastery out of his Dominions and the
Allegiance which I have promised by Oath to him cease though he hath the same right to it 2dly When we say a King out of Possession hath righ tto the Allegiance of his Subjects we mean not an immediate right but mediate i. e. our meaning is That first he hath right to Possession and actual Government and by that to Allegiance he therefore must be first in Possession before we can exert the Allegiance due to him Accordingly though Edward the Fourth is by Act of Parliament in the First Year of his eign declared to have been in Right See Bagot's Case 9 H. 4. Term Trin. from the Death of the Right Noble Prince Richard Duke of York very just King of the Realm of England yet because he only took upon him to use his Right and Title to the said Realm of England on the Fourth of March A. D. 1460. and entered only then into the Exercise of the Royal Estate Dignity Preheminence and Power of the same Crown and to the Governance of the said Realm of England by the amotion of Henry the Sixth till then King in Deed though not of Right therefore is he said by the Act of Parliament to have been only on the Fourth day of March in the lawful Possession of the same Realm with the Royal Power Preheminence Estate and Dignity belonging to the Crown thereof and then only to be lawfully seized and possessed of the Crown of England in his said Right and Title and of all Prerogatives belonging to it Now what is only thus of Right may be both promised and performed to another whilst this other is in Possession though he be not de jure so provided he be so according to the Course of Law or the accustomed Rights of giving and receiving Possession as is apparent in the Case of a Lord of a Manor who is thus in Possession of what is the Right of another who is by Fraud or corrupt Verdict or Judgment outed of his Right for the Homage due of Right to the true owner is here by Law as occasion offers it self to be sworn to the unjust Possessor Nay we read of divers Acts of Parliament continuing the Name and Honour of a King to him who by their own Confession had not the just Title and only proclaiming him who had the right Title Heir apparent to the Crown as in the very Case of * In ipsa autem vigilia capta fuit conclusio differentiae hujusmodi viz. Quod Dux Filii sui Edvardus Comes Marchiae ac Edmundus Comes Rutlandiae qui ambo discretionis annos attigerant jurarent ipsi Regi fidelitatem quodque ipsum recognoscerent eorum Regem quamdiu ageret in humanis id enim Parliamentum ipsum jam decreverat addendo de ipsius Regis consensu quod quamprimum Rex ille in fata discesserit licebit dicto Duci suisque Haeredibus coronam Angliae vendicare possidere Hist Croyl Ed. Oxon. p. 550. Richard Duke of York and Henry the Sixth and in the Case of †Theobaldus Cantuariensis Utrosque demum ad concordiam emollivit in tantum quod Rex Juvenem Ducem in filium susceperit adoptivum juramenti attestatione Regni sui constituit Haeredem Regi tamen honorem debitum fidemque dum viveret Dux ipse promiserat se conservaturum Ibid p. 451. Vide Dunelm continuat p. 282. King Stephen and Henry Duke of Normandy Not to mention the Treaty of Peace made afterwards for the avoiding the shedding of Christian Blood ‖ Daniel 's Hist pag. 91. That Henry the First being invested with the Crown by the Act of the Kingdom should enjoy the same during his Life though the just Title was in Robert. This Assertion n. 17. Obj. 3. That actual Possession makes a Sovereign Lord the King for the time being destroys all Hereditary Successions in which the Heir is the power in being without farther Act done by him or passed by the People or others and without actual Possession Since it is certain that no person can now claim by a Paternal Authority uninterrupted from the beginning Answ 't is certain that all Kingdoms are now Hereditary by virtue of their own Consent and Compact or by their own Establishment that the Crown shall be continued in such a Line it therefore is Hereditary because they have consented and agreed it should be so If then all Parties concerned have consented also to a Law that a King in quiet Possession of this Government shall be looked upon for th etime being as the Heir that is shall be to all intents and purposes as much our Sovereign Lord the King as if he were so Cook 's Instit par 3. c. 1. p. 7. This Law can bear no Contradiction to such an Hereditary Succession but only be a wise Provision that in the interruptions of the Regular Succession Justice should never fail there being by the Law always a King in whose name the Laws are to be maintained and executed and therefore they who have the least acquaintance with our History must know that tho' our Kings de facto were more numerous before the Union of the two Houses than those de jure yet are they equally placed in the Catalogue of the Hereditary Kings of England and Allegiance was sworn to them by their subjects without any Scruple as well as to the Kings de jure 2dly That the Heir is of Right the Power without farther Act done by him than claiming of the Crown may be granted but that he is actually the Power in Being whilst he is uncapable by being out of Possession to exercise any Act belonging to the Supreme Power is denied For we find throughout the whole History of the Kings of England Vide Knighton Chron. l. 2 c. 5 8. That they who had the Right by Proximity of Blood but wanted Possession See the whole Pedegree of them in Bagot's Case 9 Ed. 4. Term. Trin. were never owned as Kings and Queens of England as is visible in the Case of Robert the Eldest Son of the Conqueror of Maud the Empress of Germany Prince Arthur and Elenor his Sister and of all the Issue of Lionel Duke of Clarence who by the Judgment of the High Court of Parliament in the Eighth of Richard the Second were declared Heirs Apparent to the Crown in case King Richard should die without Issue as he did On the other hand they who were Kings de facto and not of Right as unquestionably were King Stephen and King John Ed 4. 1º c. 1. and as Henry IV V and VI. by Act of Parliament were declared to be were always reckoned as true Kings of England and Allegiance was sworn and paid to them as such An Inferior Magistrate is not to be obeyed or owned as our Superior in opposition to a Superior Magistrate's Command n. 18. Obj. 4. because in such things he hath no lawful Call Warrant or Commission and for the same
reason a King de facto is not to be owned or obeyed as our Superior in opposition to a King de jure because he cannot be supposed to have a lawful Call or Warrant to Exercise the Kingly Government If an Inferior Magistrate hath a Law to warrant his Commands Answ he is to obeyed even against the verbal commands of his Superior without law Now a King de facto in quiet Possession hath a Law to warrant his Acting as our Sovereign Lord the King and requiring our Faith and true Allegiance ot him for the time being he therefore is to be owned and obeyed as having a legal Call to the Government for the time being Secondly To give a satisfactory Answer to this and many Objections of the like nature it will be proper to consider what a Call or a Commission to be the Governor of any Nation doth import and for the Resolution of this Enquiry let it be noted 1. That God doth not now as in the Case of Saul and David by himself appoint and nominate the Person who shall sway the Sceptre in any Nation of the World. We see by plain Experience God doth not interpose in this extraordinary manner in the Election or Constitution of Superiors The Roman Emperors had no such Appointment but were Elected by the roman Armies or chosen and confirmed by the Senate whence it must follow That an immediate Appointment or Designation of the Person by God cannot be necessary to render any Prince God's Ordinance 2. By virtue of God's general Appointment or Ordinance that all Nations shall have some Government placed over them no Individual Person can claim a Right to be the Higher Power in any Nation moe than Others nor are the People tied to yield Subjection by it to this Man rather than to that As then the former Designation was more so this is less than reasonably can be required to make a Man the Individual Person who is God's Civil Ordinance in reference to such a Nation 3. It cannot be said of any Person or Family at present in the World That he or it claimeth or holdeth the Throne in any Nation by a Right of Fatherhood or Primogeniture derived from Adam I know no Prince on Earth who thus pretendeth to derive his Pedigree and am perswaded that if any hath the Vanity to make such an Extravagant pretence he cannot thus make out his Title It remains therefore 4. That Government be conveyed to this or that Individual Person or Family by Compact or Consent and Choice of the Persons governed that such a Person or Family shall Exercise the Government over such a Nation it therefore must be that Choice Consent or Contract of the Persons to be governed which renders any person the Ordinance of God to such a Nation that is it must be granted that all the present Governors of any Nation become God's Ordinance to them by the Consent of the Community Where therefore any person is invested with the Supemacy by them to whom God hath committed the Choice of a Superior or by their consent to have such Persons for their Superiors there is the Ordinance of God. And if they do admit that person to the Government who by Constitutions and antecedent Compacts hath a right to be so he is to them the Ordinance of God de jure If in this Choice they deviate substantially from these Constitutions he only is the Ordinance of God de facto but yet he truly is the Ordinance of God because he is so by the only means which God hath left for the Investing any Individual Person with that Office. Hence do we find throughout the History of our Kings that the Election of or else a Compact with the People hath generally been looked upon as a thing proper either to satisfie the People or to strengthen their Title to the Crown thus v. g. Of the Conqueror Dunelm p. 195. Hoved. par 1. p. 258. Simeon Dunelmensis and Hoveden inform us That Foedus pepigit he made a Covenant with his People and at his Coronation took an Oath to defend the Holy Church f God and the Rectors of the same to govern the Vniversal People Subject to him justly to establish equal Laws and see them duly executed Daniel p. 36. William the Second held the Possession of the Crown of England by the Will of the Kingdom Ibid. p. 52. the Succession in Right of Primogeniture being none of his * Dan. p. 61. Rich. Hugust p. 310. Henry the First was invested in the Crown by the Act of the Kingdom concilio Communi Baronum Regni Angliae saith the King. King Stephen declares himself to be chosen King †Assensu populi Cleri in Regem electum Malmesb. Hist Nov. l. 1. f. 101. b. Rich. Hugust p. 314. by the consent of the People and the clergy as he had good reason to do having no title at all saith Daniel but as one of the Blood by meer Election advanced to the Crown p. 69. King John received the Crown by way of Election as being chosen by the States saith Daniel The Succession of Edward the Second saith 1 Pag. 127. Non tam jure haereditario quam unanimi assensu procerum Magnatum Ed. Franc. 1602. P 95. Walsingham was not so much by Right of Inheritance as by the unanimous Assent of the peers and Great Men. Edward the Third was Elected 2 Dan. p. 217. Cui electioni consensit populus universus id p. 126. with the Vniversal consent of the People upon his Fathers Resignation Edward the Fourth on his entrance on the Government makes a solemn declaration 3 TRussel p. 179. of his Right to the Crown of England challenging it to belong to him by a double Right The first as Son and Heir to Richard Duke of York the Rightful Heir of the same The second as Elected by Authority of Parliament upon King Henry 's forfeit thereof And Henry the Seventh to all his other Titles by 4 Lord Bac. Hist of H. 7. p. 12. Marriage Conquest and from the House of Lancaster adds that of the Authority of Parliament This Principle makes Authority and Supreme Power inseparable from Actual Regency n. 19. Obj. 5. or Command investing him with the Supreme Power who hath it for the time being and making him incapable of being the Higher Power who is out of Possession whilst he so continues which seems clear contrary to the decision of the Holy Scriptures for though all Israel chose Absalom to be their King 2 Sam. xix 10. and anointed him over them though he had for the time the Kingdom in possession and David fled out of the Land leaving no Governor behind him yet the Power was in David he was even then the Supreme Governor and Higher Power to whom Subjection was due 2 Sam. xx 2. 2 Chr. xxij 12. So he was also when all Israel followed Sheba And though Athaliah possessed the
Extremities Towns are reduced to the Jurisdiction of those to whom they were sworn not to submit but to destroy and upon their Surrender the must swear Allegiance to another Master and to destroy those whom before they were bound to preserve if they afterwards be re-taken by their former Prince he cannot look upon them as Traitors or Revolters for he could neither expect Allegiance from them when it was impossible for them to give it or the refusal of Allegiance to the Conqueror when it was impossible they should refuse it without being put to the Sword. The Reasons which justifie such particular places justifie a more universal such as are whole Kingdoms which are made out of such particular places and are subject to the same Fate and necessity of War to the same Confusions and Revolutions of Government and so to the same opposite Allegiance This therefore can be only such a Law of Nature as binds under such circumstances and ceaseth when those circumstances cease viz. When Power of Protecting Governing and Preserving cease without my fault and I can have them only from another upon condition of Allegiance 3dly Let us considerately peruse the Grounds of natural Allegiance n. 14. or the Foundations upon which according to the learned it relies and they perhaps may somewhat contribute unto our satisfaction in this case The foundation of legal Allegiance is the natural Law of Fidelity which obligeth us to be true unto our Promises and Oaths and this the Objection grants may cease The grounds of natural Allegiance are by our Judges in that famous Case of Calvin declared to be two 1. Protection and Government and from this Ground it is demonstratively evident that my natural Allegiance must cease to be actually due to him who cannot govern and protect me and must be due to him who actually doth so 2dly The Necessity of Government and the Profit of it for the preserving the Society of Man 't is necessary because the Prince cannot attain the ends of Government unless his Subjects yield him due Obedience 't is profitable because Peace is preserved and Justice hath its due uninterrupted Current whilst the King who protects and governs finds Obedience from his Subjects Now both these Grounds as hath been shewn in Bagot's Case and from the Reverend Bishop Sanderson require Obedience to the King in Possession for the time being for if there be a necessity when we have lost our Governor de jure and he is out of Possession that we should still have Government and we cannot have it but from the King de facto there must be a necessity that we should yield Obedience or Allegiance to him for they are words of the same import and used indifferently for the same thing in the Old Statute of Allegiance the Old Oath being commonly called saith the Act for the abrogation of it P. 188. The Oath of Allegiance or Obedience Peace also is preserved and Justice hath its Course under the King in Possession and cannot have its Course under him who is out of Possession 3dly Case of Engag P. 109. Bishop Sanderson saith That Allegiance is a Duty that every Subject by the Law of Nature owes to his Country and consequently to the Supreme Power thereof for the same Law which we may call the Law of Nature at least in a large acceptation which inclineth particular Men to grow into one Civil Body of a Common-wealth must necessarily withal imprint a Sense and tacite acknowledgment of such a Duty of Allegiance in every inferior Member of the Body to the Sovereign Power by which the Common-wealth is governed as is necessary for the preservation of the whole Body It therefore say I must imprint an acknowledgment of such a Duty of Allegiance in every inferior Member of the Body to the King de facto in full Possession of the Government because he is Caput communicatis and is for the time being that Sovereign Power by which the Common-wealth is governed And this he elsewhere proveth in our very case by this cogent Argument Whatsoever is to be done for any end Lect. 5. de leg §. 19. is so far to be done as it seems necessary and profitable for the obtaining of that end but the end of Civil Government and of the Obedience due to it is the safety and tranquillity of humane Society and therefore every Subject is bound to obey the Commands of him who de facto is Supreme Governor as far as the safety and tranquillity of that Society requires that Obedience Now three things are necessary for preserving of humane Society 1. Defence of our Country against Foreign force and the attempts of her Enemies Add And by parity of Reason against those who would create Seditions in her bowels for surely they are opposite to the safety and tranquillity of the Society 2dly The administration of Justice by which Rewards and Punishments may duly be administred as by Law established 3dly The care of Trade and Merchandice for in these three things the welfare of Manking doth so much consist that without them all things must run to ruin all places will be filled with Rapines Murthers Frauds and Injuries The Lives and Fortunes of the most innocent Subjects will become a prey to the Lust of the more powerful the only remedy against which Evils is That good Subjects remember that it is their duty to obey their Commands and Laws in all things which relate unto the publick safety by whose Sword and Authority they are defended from the injuries of wicked Men. I know he concludes with this exception That we must so yield Obedience to the Invasor §. 20. as not to violate the Right of the Lawful Heir or do any thing to his prejudice Which exception shall be considered in the following Head. 4thly Allegiance may be grounded on that Law of Justice which enjoins us to give every one his right But then according to our Laws according to that Old Rule Protection doth require Allegiance according to those known Principles That there must be always a Government under which the Laws may be preserved and Justice executed and where there is a Government there must be Obedience I say according to these Rules Allegiance for the time being must be the Right of the King in possession for the time being Moreover in many things which are in general enjoined by the Law of Nature humane Laws determine both of the exercise and measures of them for instance Thou shalt not steal Thou shalt not defraud another of his Right are Laws of Nature but yet the Law of Man determines what shall be esteemed stealing and what defrauding others of their Right Thou shalt not kill is another Law of Nature but yet the Law of Man determines when I may kill without committing Murther and when not so in like manner the Law of Nature requires Allegiance to my Sovereign but for any thing I can see to the contrary
Kingdom of Judah six years Joash was the true King and so the Power ordained of God. 1. This Assertion meddles not with the Right to Answ but only with the Exercise of the Supreme Authority Now it is plain to Common sence and experience that a King out of Possession whilst he so continues cannot do any thing belonging to the Higher Power to do nor is he such an Higher Power as St. Paul represents for he doth not actually bear the Sword of Justice he doth not watch continually for that very thing he makes no Judges or Justices of Peace there are none Commissionated by him for the punishment of evil-doers or for the praise of them that do well He cannot be a terror unto evil works or a Rewarder of the good done in that Kingdom in which he hath lost all Power So that if it be necessary that we should always have a King under whom Justice should be executed and the Laws be maintained and he that is out of Possession for the time being cannot be that King it plainly seems to follow that for the said time he cannto be the Minister of God to us for Good intended by St. Paul. Again it is as plain that the King in quiet possession for the time being actually doth or may perform all these particulars and so in reference to them all may be the Minister of God to us for Good And why then may he not be deem'd the Ordinance of God for the time being Or why may not those Laws which make him the Supreme Power and the Executor of these Offices for the time being be also said to render him the Ordinance of God for the time being The Instances produced from the Old Testament have nothing in them parallel to our case Answ 2 or opponte to our Hypothesis as will be evident if we consider that the Possession pleaded for as being that which creates a Right to our Allegiance for the time being and renders any Prince the Ordinance of God for the said time is 1. Full and quiet Possession of Kingly Government without the Contest of any opposite prince in the said Nation for he who is not King can never be our Sovereign Lord the King. 2dly Possession given and received by the usual method viz. The Consent of all the Representatives of the People Governed and the Coronation of the Person Governing with the usual engagements to the Governed Which Coronation how unnecessary soever it may be to a Prince who hath an Hereditary Title to the Crown must necessarily be needful to make a King who is not so by Birth-right our Sovereign Lord the King for the time being For want of these two things though Oliver had engrossed the whole Government yet was he still a meer Vsurper and no legal Governor and therefore no Allegiance could by our Laws be due unto him he being no King much less a King chosen by the House of Lords and Crowned in the usual manner And by the enjoyment of these things it was that King Stephen John and the three Henrys though deficient in Title by Birth-right were notwithstanding in their respective times our Kings and so the Odinance of God for the said time This being premised the impertinency of all the instances produced will easily appear For 1. As for Absalom he never had any qiet possession of the Kingdom nor did ever David flee out of the Land for when the Battel was fought he was in Mahanaim a City of Refuge and a Sacerdotal City He had with him an Army of his own Subjects able to cope with Absalom besides those who in reality were for David though they pretended to follow Absalom 2dly Sheba was never Anointed or placed on the Throne he never had Possession or any deliberate Consent of the ten Tribes for he was presently pursued 2 Sam. xx 14. not only by the Men of Judah but of Israel also 3dly That Athaliah ever ruled by the consent and approbation of the People of Judah is not evident from the Sacred Records perhaps she did it only by meer force and violence 2 Chr. xxij 9. xxiij 3. because the house of Ahaziah had no power to keep still the Kingdom or because they knew of noen of the Seed-Royal that survived Moreover in all these instances there was an express Law or Declaration of the Will of God against all these pretenders For Absalom and Sheba rebelled against that David whom the Lord had expresly chosen to seed Jacob his Chosen Ps lxxviij 71. and Israel his Inheritance Athaliah was excluded by that Declaration Promise Oath of God whereby he had engaged that David's Kingdom should be established for ever Ps lxxxix 33 34 35. 2 Sam. vij 16. and that there should not want a man to sit upon his Throne Whence having found a Son of Ahaziah the Priests and People with one voice cry out The King's Son shall Reign 2 Chr. xxiij 3 as the Lord hath said of the Sons of David Now though 't is granted that no man can be God's Ordinance against his own immediate and express Appointment of another individual person so to be this hinders not but where there is a Law to make it so where the same ways are used which convey a good Title and where the exercise of the Government is conveyed by them whom God hath intrusted with the designation of the Individual Governor that Governor may exercise the Supreme Power for the time being even when the Right is in another or may at least be deemed God's Ordinance in so doing For whereas it is said that Civil Magistracy is by the Law of Nature Obj. but he that is only King de facto and so is King in prejudice to and violation of anothers Right cannot be a Magistrate by the Law of Nature but against it and so his exercise of that Authority is contrary to the Law of Nature I Answer Repl. that Magistracy is only by the Law of Nature because some government is so not because this Individual Governor is so If therefore Government may equally proceed under a King de facto as de jure they may be equally by the Law of Nature because those Acts of Government viz. the punishing Offenders the protecting of the Innocent and whatsoever else is of the Law of Nature because essential to Government which is so may equally be performed by both For a Conclusion of this Answer and this Section with it it may deserve to be considered That in these and all other cases of such Popular Elections and Revolts left on Record in the Old Testament we find not any person punished afterwards as Rebels for siding with the opposite Party against their Rightful King None that followed Adonijah and proclaimed him King none of the ten Tribes who Anointed Absalom or followed after Sheba none who submitted to Athaliah To which add a like Observation out of Daniel's History In the Life of Hen. 3. p.
upon his Sovereign for becoming his Minister the same hath a Soreign Magistrate upon God for being his Minister but can any one be Deputed or Commissionated by God to take away another Man 's Right or wrongfully to detain it 5thly By this Assertion no King de facto or in quiet possession can be an unjust Possessor or an unlawful occupant of the Throne for he that is so in as to be God's Ordinance i. e. Commissionated and Deputed by him to be the Higher Power must needs be rightly in and Authorized to execute the Government These n. 9. I confess seem to be great Absurdities at the first view Answ and such as plainly shock the whole Foundation of our Argument but yet I hope their force may be sufficiently abated by these Considerations following 1. That some of these Arguments seem with an equal strength to prove that wicked Kings are not and cannot be the Higher Powers or the Ordinance of God as that Kings in possession without Right can never be so 2. That it is plain to common Sense and the Experience of Men that a King out of Possession whilst he is so exerciseth none of the Characters and Offices ascribed by St. Paul to the Higher Powers and that the King de facto doth or may exercise them all 3. That he who in our Case is King Regnant in Poessession is not to be deemed an Vsurper in the Law Sence and Acceptation of the Word 4. That by the difference which must be put betwixt him and a meer Vsurper all the forementioned Objections may be solved And First Some of these Arguments seem with an equal strength to prove what most undoubtedly is false viz. That Princes acting wrongfully and injuriously towards their Subjects cannot be the Higher Powers for it is certain they can derive no power from God but for the good of Man. They can have no Commission Title or Authority from him to hurt the Innocent to pervert Judgment or to do Evil to his People they therefore do exert this Power without due Title or Commission from God they usurp upon the Rights of other Men for every Subject has a right to Justice every innocent person to Protection from suffering hurt or violence They cannot be Commissionated or Deputed by God to do these things for then they must have Authority from God to do them and so they must be rightly done And yet even in these Cases we must suffer patiently and be thus subject for Conscience towards God and cannot forcibly resist them without the peril of Damnation which we only can incurr because we do resist the Higher Powers They therefore in these Actions are at once the Power and the Abusers of the Power yea the Vsurpers of a Power which belongs not to them and therefore even of the Power of Pilate to condemn the blessed Jesus our Lord speaks thus Thou couldst have no Power over me Joh. xix 11. unless it were given thee from above And when Peter drew his Sword in the defence of his Innocence against men Commissionated by an Illegal High Priest he saith unto him Mat. xxvi 52. Put up thy Sword into its place for all that take the Sword shall perish by it Moreover if Subjection signifies active Subjection to their Administration of the Government if it require our Arms Purse Counsels Prayers 't is certain this cannot lawfully be afforded to strengthen and assist them in these Evil Actions but that in all these Cases we may both Counsel and pray against their Wickedness and though we may not even then lift up our hands against them we may hold them down Secondly n. 17. In Answer to the Fifth Objection in the Second Section I have proved that it is plain to common Sence that a King out of Possession whilst he is so cannot do any thing belonging to the Higher Powers to do and that a King de facto in Possession may perform all things of that Nature Thirdly I add That King William and Queen Mary being King and Queen by the consent of the Nobility and Commons the Representatives of the Kingdom cannot be looked upon as meer Vsurpers for the Reason given in Bagot's Case concerning Henry the Sixth That he was not to be deemed an Vsurper because the Crown had been entailed on him by Act of Parliament Which may be proved Secondly From the nature of a meer Usurper or Possessor Gre. p. 295. viz. That he is one who is in the place of Power without any Call Consent or Constitution of the People or that he is one that is in meerly by his own Act Whereas King William and Queen Mary are not in the place of Power meerly by their own Acts but by the Call Consent and Constitution of the Nobility and People Thirdly From the Nature and the Essentials of Government For what doth constitute it but the Subjection of the governed Party or the Resignation of themselves their wills abilities or powers to the Rule and Arbitration of some other What Title hath any Conqueror to another Man's Subjects without this Or what King now in Being can claim a Right unto his Kingdom upon any other Title What are the motives to Government but the preservation of Peace and Order and the prevention of Injuries and Wrongs When then there is after mature deliberation had such an actual Designation of the whole Community there is Government conveyed in that very way in which it always was since paternal Government ceased communicated and in which alone it can be properly conveyed And so there is no Usurpation of it in respect of him who thus receives it whatever irregularities may be in their Actions who do thus conferr it Lastly I add That by due observation of the difference which must be put betwixt Usurpers and our present King and Queen and the two Observations made all the forementioned Objections may be solved For First As we compared them before with the Case of a King injurious to his Subjects and found them almost as strong against his being the Higher Power so let us again compare them with the Case of a King injurious to his fellow King injustly Invading and so entirely Conquering his Dominions and seizing on them for himself Did not the beginning of this Action constitute him an injurious Person when he takes upon him the Government thus got doth he not take away another Man 's Right and must he not then wrongfully detain it is not the person thus wrongfully Excluded King de jure may he not justly wage War for the Recovery of his Right but yet do not all Persons own that 't is not only lawful but even necessary for the People after such Conquest to consent to take the Conqueror for their Governor to yield Allegiance to him and that by doing so they render him the Higher Power and the Ordinance of God And yet all the forementioned Objections are as strong against him as any other