are in the same sense reciprocally bound to defend the Honour and Dignity of the Sovereign it may be understood likewise from the Feudal Laws whereby the Vassal was obliged to a Military defence of his Lord and from the Municipal Laws of this Kingdom also which oblige all the Subjects that are capable to take up Arms for the King when need shall require This therefore was the Defence to which capable Persons were sworn in that abrogated Oath and others were obliged to give him that assistance which they were able everyone to the utmost of his Power in his respective Capacity as the express Words of the Oath do require Thus have I given a brief Account of the several Forms of swearing Allegiance which have been successively required of all the Subjects of this Kingdom and upon the whole I think it sufficiently appears that the Laws have been always Uniform and constant in obliging the Subjects to an Allegiance that requires not a peaceable Subjection only but also an actual assistance of our Sovereign to the utmost of our Power against all Persons and all Attempts whatsoever without any exception And this is lastly included in the Obligation of Natural Allegiance also which is not so called meerly because the Persons obliged by it are such as have their natural Birth within the King's Dominions For Persons born without the Realm may be his natural Subjects as are the Children of Embassadors born beyond Sea and the Children of Aliens born within the Kingdom are not therefore Natural Subjects of the King So that the meer Circumstance of Birth does not entitle any one to the Priviledges of a Natural Subject nor consequently bind him to all the Duties of Natural Allegiance But it is therefore called Natural in our Laws because as great Lawyers have affirm'd it is founded upon the Law of Nature which gives the Sovereign Power a Right to the Allegiance of every one who is born under the Jurisdiction of it As every Son is born a Subject to his Parents and is by the Law of Nature obliged to honour and obey assist and support them So also is he born a Member of the Body Politick and by consequence a Subject to the Soveraign of it and accordingly by the same eternal Law is bound to pay all Faithful Service and Obedience to him when he is in a Capacity to perform them By the Law of Nature here I mean that light of reason which is given us by the Author of Nature to direct us in all our actions and this light when it is sufficiently attended to and not darkned with Passions will clearly shew us how we should demean our selves in the several capacities and relations we stand in As it shews us what Obedience and Fidelity a Servant owes to his Master a Wife to her Husband and a Son to his Father so it plainly directs us what Duties every Member of a Civil Community owes to the Supreme Governor of it and that this Law of Nature directs us to pay the highest degree of Allegiance to him viz. an active assistance to the utmost of our power is evident both from reason and from the common consent and practice of almost all civilized Mankind the two only ways of demonstrating any Law of Nature And first it seems evident from these following reasons 1. Because such assistance is absolutely necessary to preserve the head of the Community and consequently the whole Body also for to every Political Body a Sovereign Head is so Essential as that it cannot possibly exist without it And therefore since the natural reason of all Men does dictate the necessity of entering into Societies it must likewise teach them the necessity of contributing their actual assistance for the preservation of those Societies and consequently of that Sovereign power which is Essenâ—ial to the very Being of them 2. Because every Subject has received actual Protection and in effect his very Life and Being from the Sovereign Power For not only Property and all the Blessings of it but the Conservation of even Life it self are derived from Civil Government and therefore both Justice and Gratitude do oblige us to do all we can to preserve the Being and the Rights of that Sovereign Power from which we derive our own Our Parents are the Instruments of our natural Production and for that reason we are ever obliged â—o honour and support them though they prove never so unnatural to us because it will be always true that we have received our Being from them and the Obligation of that benefit will last as long as our lives Such is our Obligation to the Sovereign Power We have received our Lives and Properties from it and it will be always true that we owe them to it and therefore though it become never so Tyrannical still the Obligation of obeying and assisting it will remain Our gratitude must continue as long as we enjoy the benefit and civil oppression can no more abâ—olve Subjects from their Allegiance than Domestick Cruelty can discharge Children from the Duty of Obedience 3. It may be proved also from the Obligations of Equity and Justice which are certainly founded in the Law of Nature Now the grand Fundamental Rules of Justice are these That we do to others as we would be done to our selves and that we give to every one his due and by both these equitable Rules all Subjects are bound to assist and support their Sovereigns By the former because every Subject does expect an actual Protection of his Person and Property from the Sovereign power and that when he is disabled from contributing his assistance to support it and therefore he is bound in Equity to give the like assistance to his Sovereign in times of necessity and even when he cannot actually exert his Power for the protection of his Subjects It is also due by the latter because the Sovereign has a Right to such assistance of his Subjects I will not here say by the Law of Nature for that is the thing which I am proving but by the positive Civil Laws of this Kingdom The Law of Nature requires that every Man should enjoy his Rights and that is truly a Man's Right which is such by a Politick Law and therefore since the Kings of England by the Political Laws of this Kingdom have a Right to the actual assistance of their Subjects to deny it them is a violation not only of those Laws but even of the Law of Nature also But 4. There is yet a higher reason for it which respects the Author of all Sovereignty For even the Light of Nature doth teach us that an infinite Being made the World and that he still governs it that from Him all lawful Dominion is derived and that Kings are his Ministers and Vicegerents And hence it is obvious to infer that every Subject is bound not only to submit but also to support and defend them because it is every Mans
A Discourse concerning the Signification of Allegiance as it is to be understood in the New Oath of Allegiance Qui Perjurii immunis esse cupit c. He who desires to preserve himself from Perjury ought diligently to weigh every Word of the Oath which he is to take and the Sense and Force of them that if it ought not to be kept it may not be taken if it be lawful to be taken it may be kept without fraud and dissimulation Sand. De Juram Oblig Prael 6. Sect. 7. THE Words of the Oath are these 1 A. B. do sincerely promise and swear that I will be faithful and bear true Allegiance to their Majesties King William and Queen Mary So help me God. In this compendious Form of Swearing It is said there is great Ambiguity which lies principally in the doubtful signification of the Words Faithful and True Allegiance which may import either 1. That kind of Fidelity and Obedience which Captives may promise to their Conquerors or oppressed Subjects to Usurpers and oblige them only to a quiet and peaceable submission while they are under their Power and does not debar them from assisting their Lawful Sovereign in the Recovery of his Crown or 2. All that Fidelity and Allegiance which was formerly sworn to the Kings of England whereby their Subjects were obliged to defend their Crown and Dignity against all Persons whatsoever not reserving any Branch of their Allegiance as Due to any other It is upon this Distinction that two different Interpretations of the Oath are grounded and the highest construction is this I A. B. am sincerely resolv'd to adhere faithfully to King William and Queen Mary to perform all the Duties of Allegiance and Subjection unto them alone and to defend their Crown and Dignity with my Life and Fortune to the uttermost of my power against all Persons whatsoever And the lowest construction is to this effect Whereas W. and M. are actually in possession of the Regal Power so long as they continue in the full possession of it I do swear that I will pay them that Obedience and Submission which may be lawfully paid to an Actual Sovereign not engaging hereby to uphold them in the possession of the Throne against the K. de Jure nor debarring my self from exerting my sworn Allegiance to him upon any emergent opportunity for the recovery of his Right I am not certain that this last Clause of assisting the K. de Jure is the Sense of them who have taken the Oath with a Declaration of living peaceably under the present Government yet there is this reason to believe that it is because if any thing can be inferr'd from an Explanatory Declaration more ambiguous and obscure than the Oath explain'd we may reasonably infer from thence That the Declarers thought the Oath in the higher Sense unlawful because directly contradictory to their former Obligations to K. J. But if those are still in force then they are still obliged to an actual assistance of him and then their Declaration must be understood in such a sense as shall not exclude it In short if their former Oath be obligatory then they are obliged to assist K. J. If it is not then the present Possessors are undoubtedly our Lawful Sovereigns and we are consequently obliged to pray that they may have Victory over all their Enemies and if this be our duty it is a manifest Sin not to contribute our Actual Assistance in our respective Stations for the obtaining of it Wherefore chuse they which they will either that their former Oaths are obligatory or not the One or the Other of the Kings they are bound to assist and therefore they cannot be presum'd to bind themselves by Oath to a sinful Neutrality which is plainly contradictory to their former Oath and if that be extinguish'd to their manifest Duty to the present Possessors But nevertheless because what seems so improbable may yet be possibly true that they intended to bind themselves only to an exact Neutrality it shall be shewn in the ensuing Discourse That the true Notion of Allegiance is absolutely inconsistent with it To return therefore to the two former Interpretations of the Oath it is manifest that they are contradictory to each other By the former we are obliged to pay all our Allegiance to W. and M. By the latter not All but an Allegiance qualified and limited in the one to uphold them to the uttermost of our power in their Crown and Dignity in the other we profess we will not be obliged to do it In the one we engage to defend them against all Persons whatsoever and in the other a Power is reserv'd to assist K. J. against them And if there be any that take the Oath in a middle sense of Neutrality it is evident from the very Term of Neutrality that it is plainly contradictory to the first construction also These several Interpretations therefore being contradictory to each other it is certain the Swearer cannot be obliged unto more than one nor is it to be imagin'd that the Imposors intended either to oblige us to contradictory and impossible Duties or to leave us at liberty to chuse in which of those contradictory senses we will be obliged For this Oath is exacted by a Law and a Law is nothing else but the declared will of the Legislator Now if a Law should be so fram'd on purpose by the Legislator as to be fairly capable of two contradictory constructions and to leave the Subject to his choice in which he will obey it it is manifestly no Law at all because it does not contain the determinate declar'd Will of the Legislator and the Subject being allowed to take either part of the Contradiction is not determin'd as by a Law he always is to any Act of Obedience And if this be true in all Laws much more will it hold in those by which Promissory Oaths are established for a Promise equally capable of contradictory senses is indeed no Promise And it is nor to be supposed that our Legislators intended to frame a Promissory Oath that should contain no Promise at all and to make a Law for the most solemn mockery of God that can be imagined It is therefore presum'd That the Imposers of this Oath intended to oblige us to one determinate meaning of it and that those Words by which they chose to declare their Intention cannot be reasonably so interpreted as to declare the quite contrary also and then it must be granted that one of these Constructions is both intended and sufficiently expressed in the Oath and that no doubt is the sense in which we are obliged both to take and keep it We are therefore now to enquire whether of these Constructions is the intended and declar'd meaning of the Imposers And here there appears at first view an invincible prejudice against the lower Construction of the Oath viz. that this Oath being undeniably intended for the security of the
Heir But in case of Treason which is the highest breach of Fealty after Legal Conviction of the Traytor the Fee is for ever forfeited and all his Lands and Tenements are absolutely at the King's disposal And though a Statute was made 25 Ed. III. to determine what was precisely Treason yet this was only declarative of what was truly Treason by the Feudal Laws which were then a part of the Common Law of England And hence it appears how necessary it is for the understanding of the true meaning of Faith and Allegiance to enquire into the nature of Fealty whence the Subjects are called Fideles Ligii Regis and from which all our Oaths of Fidelity and Allegiance derive their Birth and Original 7. As the word Allegiance was appropriated to express the Obligation of a Liege Vassal to his Sovereign so was it also at length enlarged to comprehend all the duties of Fidelity and Subjection which not only they who hold Lands in Fee but also every individual Subject of this Realm was bound to pay unto the King. Thus Zouch out of Duarenus The Fidelity which is due to the Sovereign is by the Feudists called Ligeance and as many as live within his Dominions are stiled Liege-men who are bound to the Sovereign not only by reason of their Estates but also in respect of their Persons and his Protection of them The reason then why all the Subjects of this Realm are called the King's Liege-men is because their persons being under his Jurisdiction and Protection they are therefore bound to pay due Fealty and Allegiance to him This universal Allegiance of all the natural Subjects of this Realm is by the Lord Coke distinguished 1. Into natural Ligeance which is so called because it is originally due by Nature and Birthright And 2. Legal Ligeance so called because the Municipal Laws of this Realm prescribe the Form and Order of it and this says he is that which the Law requires upon Oath at the Leet This Oath of Allegiance in his Institutes he says expresly is the same with Homagium Ligeum which he thus defines in Calvin's Case Quod soli Regi debetur sine servitio and opposes it to Homagium Feudale which hath it's original by Tenure And to this Sir Henry Spelman seems to agree who tells us That Liege or Sovereign Homage is due only to the King in right of Sovereignty And they both differ herein from the Feudists who define Homage to be Sponsionem fidelitatis propter Tenuram and from our ancient Lawyers who do intimate that Liege Homage was made unto private Persons also 8. The word Ligeance is yet further in our Laws and Lawyers enlarged to denote the duty not of natural Subjects only but also of Denisons and Aliens Thus we are informed likewise in Calvin's Case that besides natural Ligeance there is also Ligeantia acquisita which is due by acquisition or Denization and Ligeantia Localis and that is when an Alien who is in amity cometh into England because he is then within the King's Protection he does therefore owe a Local Allegiance to him 9. Lastly Allegiance is sometimes taken in a signification yet more general and extensive to express the mutual and reciprocal Obligation between the Liege Sovereign and his Subjects whereby the Sovereign is bound to the Protection and just Government of his Subjects and they again to pay due Fidelity and Subjection to their Sovereign And thus it is defined in general by Skene in his Book De Expositione Verborum who is herein followed by the Lord Coke and Sir Henry Spelman also It appears then in how great a Latitude the word Allegiance is taken and how variously it has been applied to express different Obligations to different Persons The various significations of it as far as I can observe may be reduced to these six First It anciently denoted the Service and Fidelity that any Vassal owed to the Lord of the Fee. Secondly It was confin'd to express the duty of a Liege Vassal to the Sovereign Lord. Thirdly It was then enlarged to comprehend the whole duty of every natural Subject to his natural Sovereign Fourthly It sometimes signifies that Oath of Fidelity which the Law requires of every Subject and is therefore call'd Legal Ligeance Fifthly It is said to express the Obligation of a Foreigner as of a Denison and of an Alien while he is in the Realm And lastly It is applied to express the reciprocal Obligations that are between a Liege Sovereign and his Subjects As for this last signification of Allegiance we have already consider'd it where we discoursed of the Prerogatives of the Sovereign Lords for here we are to consider the duty of Allegiance as it relates to Subjects only and there would be nothing more absurd than to say That when Subjects swear Allegiance to their King they do swear that he also shall discharge the Obligations of a Liege Sovereign towards them So likewise when Allegiance is applied to Aliens the very nature of the thing does shew that it must signifie only those branches of the duty of Allegiance which an Alien is bound to while he is in England viz. conformity to the Laws and an obligation not to attempt any thing against the King while he is within his Protection So also when it is applied to a Denison who is made free of the Kingdom but not entitled to all the Liberties and Priviledges of a Natural Subject it can then signifie only those duties of Allegiance which a Denison is obliged to whatsoever they are For as the Duties of Allegiance are diversified by the different qualities of Natural Subjects and a Clerk a Soldier and Artificer are not bound to the same particular acts of Allegiance so likewise the different degres of Allegiance must be determin'd by the different degrees of subjection and therefore a Natural Subject who enjoys all the Liberties and Priviledges of the Kingdom and owes the highest degree of subjection must be in reason obliged to a higher degree of Allegiance than a Denison who though he be to some intents incorporated into this Kingdom is yet the natural Subject of another Sovereign and he again is obliged to more than an Alien who is only a Subject in Transitu and enjoys nothing but Protection from Injury But we have now nothing to do with Allegiance as it is applied to Foreigners Allegiance in the Oath before us is required and imposed upon all the Natural Subjects of this Realm and therefore it must be that which is due from Natural Subjects and not such as is due from Foreigners We are bound to honour God and the King and Subordinate Magistrates our Spiritual Rulers our Parents all our Superiors and in some sense all our Inferiors Honour is due to all these but in different kinds and degrees according to the nature of the Duty as it is applied by different Persons to different Objects Now
it would be a gross absurdity when we are commanded to honour God or the King to interpret it of such a degree of honour as is due to a Parish Priest a Constable or a Beggar because honour is due respectively to every one of these So it is equally absurd when Allegiance is universally required of all the Natural Subjects because the word is sometimes taken in a lower sense when it is referr'd to Aliens to argue from thence that the Law which requires Allegiance from all Natural Subjects requires no more than an Alien is bound to To argue thus is at once to do violence to common sense and Language for as no one that understands either can imagine that the Precept which enjoyns Sons to honour their Parents requires less than filial Duty and Obedience though the word honour often signifies less so neither can it be reasonably imagin'd that Allegiance in the Oath imposed does signifie less than all that Fidelity and Obedience which a Natural Subject owes to his Natural Sovereign though the word as it relates to Aliens may sometimes signifie less But however if Allegiance must needs be understood in that sense as if by the force of that word we were obliged to no more than what even an Alien may swear to perform yet it is to be consider'd that even the Local Allegiance which an Alien owes to the King in whose Dominions he is does at the least oblige him not to attempt against his Crown and Dignity as long as he resides in those Dominions Whereas he who conceives his Oath to K. J. to be still Obligatory must consequently think himself obliged to attempt the dethroning of the K. de facto and cannot therefore swear even a Local Allegiance to him It remains then to consider the other Applications of the word Allegiance which are all reducible to these two that Allegiance which was requir'd of those who held Lands in Fee and that which is required of all the Subjects in general which is also distinguished into Legal and Natural Allegiance And these several kinds of Allegiance are not thus distinguished because they import different Duties but in respect of the different Grounds from whence their Obligation is derived For I shall produce undeniable proofs that they do all concur in obliging us to the same Duties and that which I undertake to evince is this That Allegiance in those several acceptations does import not only that Obedience and Submission which may be lawfully paid to an Usurper with a Reservation of Fidelity to the lawful King which is the sense of the lowest nor yet a meer peaceable Neutrality which may make a middle construction but that it always imports an Obligation to defend our Sovereign's Crown and Dignity to the utmost of our power against all Persons whatsoever without any exception and never to give any assistance or support to any of his Enemies against him as the first and highest Construction of the Oath explains it And first for the better understanding the Obligation of Feudal Allegiance it is requisite to enquire into that Fidelity which every Vassal was bound to pay unto his Lord. And there can be nothing more evident than that it obliged him not only to abstinence from all Injuries but also to an active and vigorous assistance of him This is abundantly evident from the Feudal Books annexed to the body of the Civil Law out of which I shall produce some demonstrative proofs to evince it At the Investiture of a Fee the Vassal was to swear Fidelity in this form Ego Titius juro super haec sancta Dei Evangelia quod ab hâc horâ in antâ—a usque ad ultimum diem vitae ero fidelis tibi Cato Domino meo contra omnem hominem exceptô Imperatore vel Rege And there follows in the Law an Explanation of the Oath to this Effect I swear that I will never be in Counsel or aid against the Life Person or Hâ—nour of you my Lord and if any such design shall come to my knowledge I will discover it to you as 〈◊〉 as may be and be ready to assist you to the utmost of my power and if you shall chance to be unjustly deprived of any thing I will aid you to recover it and if you make a just Offensive War upon any One I will be ready upon due Summons with all my might to assist you These were the particularities which by the Feudal Law were contain'd in the Oath of Fealty In another place it is expresly provided that the Vassal should give his Counsel and assistance to his Lord for the preservation of his Life and Honour his Fortresses and Possessions because says that Law It is not sufficient to abstain from Injuries unless actual good Service were performed also Another proof hereof may be deduced from the Obligation of a Vassal to assist his Lord in his Wars Hotoman observes That in the Feudal Laws Vassals are commonly called Soldiers and that anciently none but such were capable of Lands in Fee because the greatest part of their Feudal Services were purely Military Accordingly it is declared in those Laws That the Vassal was bound to assist his Lord in his Offensive Wars if he knew them to be just or if he only doubted of the justice of them but if the War was manifestly unjust even then he was bound to assist him in his necessary Defence but not also in the unjust Invasion of others And lastly If the Vassal upon due Summons refused to give his assistance if he deserted his Lord in the time of Battle if he did not discover all Designs against his Life Honour and Estate that came to his knowledge and much more if he did any thing that tended to the destruction or disherison of his Lord there were express provisions that in such and other Cases he should forfeit his Tenure for his Treachery and Ingratitude It is necessary here to observe That the same Obligations of a Vassal to his Lord which were required by the Imperial Feudal Law were also admitted and exacted by the Common Law of England It is evident from Glanville That the Vassal was bound to assist his Lord in his Wars and if he held of more than one to fight in his Person with his Capital Lord even against his other Lords in case he were so required Every one knows that there were anciently several Tenures among us which were purely Military and though Tenures upon condition of Services purely Civil were also introduced such as Soccage and others yet even in these the Vassals were obliged to perform Homage and swear Fidelity to their Lords And from that ancient form of Homage which we have in the Statute Book and in Bracton Fleta and Littleton it is evident that the Vassal was not only obliged to a Negative Fidelity which consists in abstaining from Injury but also to positive services and assistance of him The form runs
thus I become your Man from this day forward of Life and Limb and unto you shall be true and faithful and bear you Faith for the Tenements that I claim to hold of you saving the Faith which I owe unto our Sovereign Lord the King. The Lord Coke in his Institutes gives us this Exposition of it Foial and Loâ—al which are words equivalent to faithful and true Allegiance in the Oath before us these words are of great extent for they extend to the observation of the Lord's Counsel in whatsoever is honest and profitable Omnis homo debet fidem Domino suo de vitâ membris suis terrenô honorê observatione consilii sui per honestum utile Comprehended in these words Foial and Loyal I become your Man of Life and Limb. Therefore he must never be armed against or opposite to his Lord but both his Life and Member must be ready for the lawful Defence of his Lord. And this is sufficient to shew that by the Feudal Law as it is received in England every Vassal is obliged to an active Fidelity and Assistance of his Lord. Where fore 2. If this was the Obligation of every Vassal to his Lord is it possible for Men of sense to imagine that a lower degree of Fidelity was due to a Sovereign Lord who had a double right to the Service of his Vassals a property in their Estates and a Jurisdiction over their Persons Has the Law ordain'd that the Servant shall be above his Master and the Subject above his Sovereign Has it provided for the safety of an inferior Lord and left the Sovereign defenceless Given the one a right to the utmost service of his Vassal and obliged the other to be content with a peaceable Indifferency and a cold Neutrality Or lastly Can it be supposed that Sovereign Princes who enacted or introduced these Laws did intend that their own Subjects should have such a Superiority above themselves in the Fidelity of their Vassals This surely must be necessarily false as it is plainly irrational And to shew that it is so it will be sufficient to observe 1. That in the Homage and Oaths of Fealty made by Vassals to inferior Lords the Sovereign Lord was expresly excepted Spelman and others tell us That Frederick Barbarossa made a Law that the Emperor should be expresly excepted in all Oaths of Fidelity and that this Law was universally received in all Nations And that it was here observed in England is evident from the form of Homage here inserted and the ancient Oath of Fealty in Fleta But also 2. By the same Feudal Laws the Liege Vassals of the Sovereign were expresly obliged to assist and defend him against all Persons whatsoever without any exception This is evident from the very definition of Liege Homage in Skene and of a Liege Tenure in the Feudists and from the common Form of Liege Homage here in England which was made to the King in these Words I become your man for the Fees and Tenements which I hold of you and will bear you Faith of your Lise and Limbs your Body Chattels and Terrene Honour against all Mortals whatsoever As for those who held in Feudo-ligio that is immediately of the King it is undeniable that they were bound for their Fee to assist the King in his Wars and it is no less certain that Vassals of Inferior Lords who held but mediately of the Crown were also bound to the same assistance of their Sovereign To this purpose a Passage out of Willelmus Nubrigensis is cited by Du-Fresne Regi Anglorum tanquam principali Domino hominium cum Ligeantia i. e. solenni cautione standi cum eo pro eo contra omnes homines So Glanvile informs us That a Vassal at the Command of the Prince was bound to fight against his own immediate Lord. And lastly that Statute of the Conqueror does expresly prove it wherein he commands All Earls Barons Knights Serjeants and all the Free-men of the whole Kingdom to be always well provided with Horse and Arms to serve him as often as need shall require according as they are bound by their Lands and Tenements and as he had appointed them to do by the common Council of the Kingdom and for that consideration had given them Lands in Fee for ever Hitherto therefore it appears that Ligeance in its Original signification implied an obligation to assist the Sovereign against all his Enemies without exception And since all our Oaths of Allegiance are manifestly derived from the Feudal Oaths it must needs be probable that the Ligeance universally required of all the Subjects is not much different from the Feudal to which it owes its original And this universal Allegiance I shall first consider in General and endeavour to shew the Obligation of it out of our Laws and Lawyers Secondly I shall consider it as it is stiled Legal And Thirdly Natural Allegiance 1. I am to consider the obligation of Universal Allegiance in general Hotoman observes that there are two kinds of Fidelity the one perform'd by Vassals and the other by Citizens or Subjects And for this he cites a Law of the Emperor Frederick to this effect Let our Vassals swear Fealty to us as Vassals and all others as Citizens from sixteen years to seventy And in his Disputations he proves from several Forms of Oaths of Fidelity exacted by several Princes of all their Subjects that they do oblige to the same Duties with those required of Vassals and the Forms he there produces do particularly oblige to an active Fidelity and Assistance of the Sovereign against all men living Agreeably in this Kingdom as all the Subjects are therefore called Liegemen beccause they are bound unto their King as Vassals to their Lord so the Oaths they were required to take and the Allegiance they were bound to pay unto the King are the same in substance with the Feudal Oaths and Obligations of a Vassal to his Liege Lord and Sovereign The late Interpreter of the Law-terms tells us That Ligeancy is most commonly used for that Duty which every good Subject owes to his Leige Lord the King. And says after Cowel That it is thus defined in the Great Customary of Normandy That it is an Obligation upon all Vassals to take part with their Liege Lord against all men living to serve him with their Persons Assistance and Advice to do him no Injury nor in any thing to support his Adversaries against him So that hence it is obvious That this Interpreter took the Allegiance of a Vassal and every good Subject to be exactly the same and thought this to be a good Definition of it which is as absolutely inconsistent with a pure Neutrality or a Reservation of an higher degree of Allegiance to another as Words can express The same Learned Interpreter has yet added out of the Lord Coke another
more modern Explication of it viz That it is the true and faithful Obedience of the Subject to his Sovereign But neither will this import a meer Neutrality or only a peaceable Conformity to the Laws if we will take the sense of the Author from his own Account of the Duties of Allegiance He gives us this Definition in Calvin's Case But in the same Case he positively asserts That all the Subjects of this Realm are bound by their Allegiance to discover and oppose all Treasons against the King to assist him in his Wars and even to spend their Blood in his Defence He gives the same Description in his Institutes also but he had before explain'd what was signified by Faithful and Loyal which according to him do imply positive Duties of actual Support and Assistance So that by True and Faithful Obedience in this Definition must be understood all those positive Duties of Fidelity and Obedience which every Subject owes his Sovereign by virtue of his Allegiance And what those are may be clearly understood from the known Laws of the Land which do plainly intimate and inform us to what Duties true Allegiance does bind us I shall here out of many produce but two Passages only and the first shall be out of the Act of Recognition 1â— Jac. 1. c. 1. Wherein both the Hâ—usâ—s do unto His Maiesty most humbly and faithfully submit and oblige themselves their Heirs and Posterity for ever until the last drop of their Blood be spent and do beseech His Maiesty to accept of the same at the first fruits of this High Court of Parliament of their Loyalty and Faith to His Majesty and his Royal Progeny and Posterity for ever By Loyalty here is meant nothing but Allegiance to which it is equivalent and hence we may observe first That the Parliament here obliged themselves to the utmost possible assistance and defence of his Majesty without any Conditions and Reserves even until the last drop of their Blood was spent Secondly They call this Obligation the first Fruits of their Faith and Allegiance and therefore certainly contained in them And Thirdly As far as a Law can do it they oblige not themselves only but their Heirs and Posterity for ever and that not to the King then in being only but to his Royal Progeny also and Posterity for ever The other Passage is 11 H. 7. c. 18. Where it is plainly and expresly declared That every Subject by the Duty of his Allegiance is bound to serve and assist his Prince and Sovereign Lord at all Seasons when need shall require and in particular against his Rebels and Enemies for the Suppressing and subduing of them This is so express and authentick a Declaration of the true Duty of Allegiance that no Art nor Sophistry can possibly evade it And upon this Statute among others did K. Charles the Martyr justifie his Commissions of Array in his Proclamation against Levying Forces and in another for setting up his Standard he required all his Subjects on the North-side of Trent upon their Allegiance to repair to his Royal Standard at Nottingham for his just and necessary defence So that this is not an obsolete and antiquated Notion of Allegiance but such as our Laws both ancient and modern have ever exacted such as the Sages of the Law have often inculcated such as our Kings have always claimed and their Loyal Subjects have yielded them in their necessity I shall only observe further That it seems to be a Maxim universally received by all the Feudists and Lawyers Quod nemo potest esse Ligius du 〈…〉 um or as Cowel after Skene expresses it That Ligeancy is such a Duty or Fealty as no man may bear to more than one Lord. And this Rule is founded on that Aphorism of even Truth it self No man can serve two Masters that is two absolute and independent Masters at once For if one be subordinate to the other then both may be served faithfully in a due subordination and thus the same person may be a Vassal to an Inferior and a Capital Lord to a Subject and a Sovereign But Ligeance being now constantly taken for the Obligation of Fidelity to a Sovereign Lord against all men living it would be a very gross contradiction to say that the same person may be the Liegeman of two Sovereign Princes at once because it is impossible he should adhere to both against all men living and this will be yet more absurd if the two Sovereigns be in open hostility and mutually endeavouring to destroy each other for then adherâ—nce to the one must necessarily be Treason against the other and the Liegeman will be bound to assist to oppose to defend and to destroy them both The reason of that Maxim therefore is very evident And hence it appears how absurd it is to make Allegiance signifie Neutrality whereby the Subject becomes the Liegeman of two Sovereign Princes or to speak properly of neither or else to signifie Fidelity to one King with a Reserve of assisting anothen King to destroy him But the Law has no where obliged us to such cross and contradictory Obligations And as for those subtle Distinctions between a higher and lower kind of Allegiance an Allegiance due to a King de facto and another at the same time to a King de jure an a solute and a conditioaate an active and an unactive a reserving and an unreserving Allegiance I may say concerning them as Judge Jenkins did of Acts of Parliament without the Kings Assent That no man can shew any Syllable L 〈…〉 er or Line to au horize them in the Books of the Law or Printed Acts of Parliament in any Age in this Land. For since it is not yet done I presume that that it cannot and it is another Maxim in the interpretation of all Laws Civil and Divine ubi Lex non distinguit ibi non disiirguendum est Such is the nature of that Allegiance in general which is universally due from all the Subjects and this is next to be considered as it is stil'd Legal Ligeanc 〈…〉 and this doth not import as the Word seems to intimate an Allegiance bounded and circumscribed by Law but it is therefore so called because the Law requires it of every Subject upon Oath and has prescribed the Form and manner of it Though Allegiance be universally due by all Laws Civil Natural and Divine yet the security of the Sovereign Power being of such vast importance to the preservation of Peace and Justice and even to the very Being of Law and Political Society as that they cannot possibly subssst without it the wisdom of the Law has thought it necessary to tie all those Obligations faster by the sacred bond of a Religious Oath and to assure the fidelity of the Subjects to their Sovereign by making God himself the Guarantee and Surety of it And hence it is that in all Ages such Oaths of true Allegiance have been
duty to support that Government which God himself has established over him 2. It is evident also from the universal practice and consent of almost all Nations This might be evinced from an Induction of particulars But I think it will not be denied by any that where-ever Civil Government has been established and in what from soever it has been always thought the Duty of every good Citizen or Subject to adhere to the Sovereign power of his Country against all his Enemies and even to adventure his own life for the preservation of it And hence it is that there is hardly any Government in the World wherein every individual Person that is capable of bearing Arms is not obliged upon some great occasions personally to assist the Sovereign Power and hazard his life in its defence And this is a manifest Indication that the Duties of Allegiance were first taught Men by the Light of Nature since the universal exacting of them can be ascribed to nothing else but such an universal Principle Wherefore Dr. Sanderson had reason to affirm That the Bond of Allegiance doth not arise Originally from the Oath of Allegiance but it is so intrinsecal proper and essential a Duty and as it were fundamental to the relation of a Subject quà talis as that the very name of a Subject doth after a sort import it insomuch that it hath thereupon gained in common Usage of Speech the stile of Natural Allegiance Whence he affirms these Inferences will follow 1 That the Bond of Allegiance whether sworn or not sworn is in the nature of it perpetual and indispensable 2. That it is so inseparable from the relation of a Subject that tho' the exercise of it may be for some time suspended by a prevailing force yet it cannot be so absolutely removed but that it still remaineth virtually in the Subject and obligeth to an actual exercise of it upon all fit occasions 3. That no Subject of England that hath either by taking the Oaths of Supremacy and Allegiance acknowledged or otherwise believeth that the Sovereign Power to whom his Natural Allegiance is due is the King his Heirs and lawful Successors can without sinning against his Conscience enter into any Covenant Promise or Engagement or do any other Act whatsoever whereby either to transfer his Allegiance to any other Party to whom it is not of Right due or to incapacitate himself to perform it to his lawful Sovereign when it may appear serviceable to him And what was asserted by this great Casuist is for the substance of it deliver'd by the great Oracle of the Law who in the aforementioned Case reports that these Positions were debated and resolved on by all the Judges First That the Ligeance of the Subject is due by the Law of Nature Secondly That the Law of Nature is part of the Law of England Thirdly That the Law of Nature was long before any Municipal Law. Fourthly That it is immutable It appears says he by demonstrative reason that Ligeance of the Subject to the Sovereign was before any Municipal or Judicial Laws First For that Government and Subjection were long before any Municipal Laws Secondly It had been in vain to have prescribed Laws to any but to such as owed Ligeance before frustr à enim feruntur leges nisi subditis obedientibus Seeing then that Ligeance is due by the Law of Nature it follows that the same cannot be altered or taken away For albeit Municipal Laws have in several times and places imposed several punishments for Breach of the Law of Nature yet the Law of Nature it self never was nor could be changed and this says he appears plainly and plentifully in our Law-Books And afterwards he argues thus upon the same Principle Whatsoever is due only by Law and Constitution of Man may be alter'd but naturally the Ligeance of the Subject to the Sovereign cannot be alter'd therefore it is not due only by the Law and Constitution of Man. And again Whatsoever is due by the Law of Nature cannot be altered but Allegiance is due by the Law of Nature therefore it cannot be alter'd Thus far that famous Lawyer and thus far have I consider'd the signification of Allegiance as it is founded in the Laws and explained by Lawyers I am further to consider it as a word of vulgar signification also and as it is taken and understood by the Generality of the People of this Nation For all the Subjects of this Kingdom being obliged by Law and immemorial Custom to swear Allegiance to their Sovereign it is not credible they should be ignorant of the true meaning of it Those Law terms in which few are concern'd are by few understood but such as are of universal concernment must of necessity be also universally understood Who knows not the meaning of Parliament Jury Assizes that is of any understanding The word Allegiance is of more near and universal concernment to all Men it is therefore presum'd that no Subject can be ignorant of it The Oaths themselves which the Subjects have ever been enured to have sufficiently taught them the Duties intended by it That they must pay due Obedience to the King that they must never assist his Enemies that they must uphold his Crown and sometimes adventure even their Lives and Fortunes in his Service Thus much Nature it self does teach them as it teaches Children to discharge the same Duties towards Parents But there is no need of proving a thing to be that which it is Most certain it is that all Men of tolerable understanding even among the common People do know that all these Duties are included in true Allegiance Ask any Man of common sense whether he who has sworn true Faith and Allegiance to K. W. does not violate his Oath if at any time he assist K. J. to dethrone him Whether he is not bound to be faithful to him against all his Enemies To discover all the designs of K. J. against him that shall come to his knowledge And when it is in his power and necessity requires it to contribute his actual Assistance also to oppose his Recovery of the Crown I make no Question but he will answer that his Allegiance binds him to all this and that he is plainly perjur'd if he does not perform it The Understandings of the common People as they are not capable of those Subtilties which men of Learning are enur'd to so are they seldom perverted with those nice and sophistical Distinctions by which men of Subtilty perplex things plain and easie in themselves A Mechanick and a Peasant apprehend what Motion is and what is Perjury as well as the acutest Philosopher or the deepest Divine and they know what Allegiance and Faithfulness imply as well as the ablest Lawyer and if you go about to blunder their understandings with Distinctions and Objections they are but where they we 〈…〉 and will still clearly apprehend what they understood before And if
his Enemies But this Objection will be of no force if it be considered 1. That Allegiance binds in general to the defence of the King's Crown and Person which implies many other positive Dutieâ—-besides Military Assistance as Aids of Money and Advice Discovery of Conspiracies and the like Now if the Laws which have obliged Subjects in general do exempt Ecclesiasticks from the Military Duties of Allegiance then there is an express exception of them as to those Duties and this very Exception does shew that they are obliged to all the other Duties of Allegiance which are as absolutely inconsistent with a peaceable Neutrality as the Military Assistance can possibly be But 2. Though the Laws have ordinarily exempted Clergy-men from taking up Arms in the Defence of their Sovereign yet it was never doubted but that in Cases of extream necessity when the Life of the Prince is in imminent danger and there are no other Persons to defend it and it is in the power of a Churchman to save it though with the hazard of his own that in such an Exigency he is bound by his Allegiance to a Personal and Military assistance of him and therefore it is still true that all the Subjects are bound by their Allegiance to a Military defence of their Soveraign when necessity shall require it And yet further 3. Though Spiritual Persons are not ordinarily obliged to defend their Soveraign with secular Arms yet their Allegiance binds them to do it with Arms more prevalent and efficasious viz. Prayers and Intercessions with God for their safety and Victory over all their Enemies Thus Zouch tells us out of the Grand Customary of Normandy That Bishops and other Ecclesiastical Persons who held Lands granted in Frank Almoine or in puram perpetuam Eleemosynam are bound to no other Service but to pray for the Prince and intercede with God for his safety This is a Branch of Allegiance most especially incumbent upon them who wait at the Altar less than this cannot in reason be required of them and a greater and more beneficial Service cannot possibly be perform'd by any one And it was never yet heard that a Church-man could with a good Conscience swear Allegiance to a Prince and yet could not pray that he might have Victory over all his Enemies This is a branch of Allegiance which our Church has expresly required of us in her Liturgy nay it has been taught us by the Catholick Church of all Ages wherein Prayers have been constantly made for Peace and Safety for Prosperity and Victory not unto Christian Emperors only but even to the most Cruel Persecutors of Christianity And if this be the duty peculiarly of Churchmen then it is their duty undoubtedly in their Stations to contribute all other actual Assistance also and if this be a necessary branch of Allegiance then it is evident that we cannot swear Allegiance with a design of Neutrality or a reserve of Allegiance to K. J. for then we should be obliged to pray reciprocally backward and forward that J. may vanquish W. and W. vanquish J. and that both may have Victory over all their Enemies when they are irreconcilable Enemies to each other Wherefore to conclude this Point If it be true as I have endeavoured to prove that Faith and true Allegiance in the Construction of the Law and the common Sense and Understanding of the People do signifie such an Allegiance as is expressed in the highest Construction of the Oath it is evident that this Construction is the true declared meaning of it For the declared meaning must be expressed in Words and Words must be understood according to the known the usual and genuine Signification of them and if Men will take a liberty of imposing a quite different sense upon them at their pleasure there is an end of all Promises and Oaths of all Faith and Commerce among Mankind and then I know not why in the present Oath W. may not signifie J. and Allegiance Rebellion Hitherto I have been proving that the Reason and Intention of the Oath and the words themselves in which it is expressed do necessarily oblige us to the highest Construction of it And where there is a manifest concurrence of both these in the Interpretation of an Oath than there is nothing wanting to induce a Moral certainty of the true meaning of it But because the Intention of the Imposer may be searched into by other means besides the naked force of the Words as by probable Conjectures grounded upon Circumstances and their other Impositions and Proceedings which have some relation to the Matter of the Oath I will proceed to shew that even these also do afford reasonable grounds to perswade the Sense I have here asserted to be the true meaning of it But here there are two Cautions to be premised First That when the words of the Law do according to the Vulgar Customary or legal Acceptation of them evidently express the Intention of the Lawgiver then the Enquiry into the same Intention by Circumstances and Appendages is of no importance for the Words are the first and principal Sign of the Intention and when they do clearly represent it the Conscience of the Subject is obliged to the very Words otherwise it is impossible we should be ascertain'd of the meaning of any Law if no words how clear soever can express it and so to make a Law would be a thing impracticable because the Will of the Lawgiver could not possibly be expressed Therefore Secondly The Words of the Law being the best and surest means of expressing the Intention unless clear and manifest Evidence can be produced to shew that the Intention of the Lawgiver is quite different from what the natural sense of the words does import the genuine Signification of them is always to be adhered to So says the Civil-Law expresly non aliter a significatione verborum ejus recedi quà m cùm manifestum aliud ipsum sensisse and the necessity of this Rule is evident for if it were allowed to recede from the words but upon manifest Evidence of a different Intention every one might wrest the Law as he pleased and the Law would not be the measure of Duty but the Subjects Arbitrary Glosses on it Supposing therefore not granting that the words of the Oath do not clearly represent the Intention of the Legislators proceed we now to enquire into the true meaning of it from Circumstances and other Actions of the Imposers And 1. I consider that the Parliament in the Act declaring the Rights and Liberties of the Subject and settling the Succession of the Crown have imposed this and no other Oath upon their Military Officers and Soldiers And it seems very absurd to imagine that they should intend to oblige them only to a peaceable Neutrality or leave it lawful for them notwithstanding the Oath to assist K. J. against themselves But if on the contrary it be reasonable