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
King de jure out of Possession can be to no intents and purposes the Minister of God to us for good and the King de facto may be so to all the said intents and purposes then may he also be the Higher Power and the Ordinance of God for the time being In a word the Lord Chief Justice Coke expresly saith Instit par 3. p. 7. That by the Law there is always a King in whose name the Laws are to be maintained and executed otherwise Justice should fail and if so then by the Law the King Regnant must be our King there being no other in whose name the Laws can be maintained and executed and the failure of Justice be prevented And if he be the Higher Power he must also be that Ordinance of God for the time being to which we owe the Duties mentioned in the Objection 3dly As for the first of these Duties An active execution and observation of all the lawful Commands of the King Regnant for the time being it admits no real Ground of Scruple for lawful Commands may lawfully be obeyed The Contribution of Taxes to his support and maintenance is by St. Paul declared to be due 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 for this very cause that he attends continually upon the Government and therefore due to him that doth so Our Assistance to promote the welfare of the Government we are under by our Prayers and Counsels seems plainly to be our duty by virtue of that Command which God gave to his own People and the continuance of the Reason of it Seek the peace of the City Jer. xxix 7. whither I have caused you to be carried away Captives and pray unto the Lord for it for in the peace thereof you shall have peace and of that Apostolical Injunction That prayers 1 Tim. ij 1 2. and supplications intercessions and giving of thanks be made for all that are in Authority or eminent Place As for our endeavours to keep them in their Station by our Arms it only can be so far our duty as it is lawful so to do Nor do I find St. Paul inculcating it as any part of our Subjection to the Higher Powers nor doth our Law since the Cessation of the Tenure of Knights Service require it personally of all Subjects At least we of the Clergy cannot be concerned in it because we by so many Statutes are exempted from bearing Arms. And lastly as for bearing Faith and true Allegiance you see our Law doth plainly and expresly make it due unto a King de facto And so I cannot fee why all these Duties may not as far as we can be concerned in them be paid to such a King for the time being It is damnation to resist the Power ordained of God in favour of any other person n. 12. Obj. 3. but can it be damnation to resist him who is only King de facto in favour of a King de jure if 2o then what just War can be made for the Recovery of his Right or why did Jehoiada not only depose but even cause Athaliah to be murthered for the sake of Joash 1. The word which we translate Damnation Answ in the Original is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is Judgment Now by our Law Treason may be committed against a King de facto and that is punishable by the Judgment of Death and if this Treason be an offence against the natural Allegiance due to the King de facto as all Treasons are and I do thus offend by levying War against the King for the time being in this Realm by being adherent to his Enemies or giving Aid unto them I must be guilty of it by doing this in favour of a King de jure It therefore may be judgment to resist the King de facto in favour of the King de jure i. e. it may be an Offence which by the Law will render me obnoxious to judgment If the King de jure at his return to exercise the Government may punish me for any Treasonable action done against the King de facto and consequently for resisting such a King in favour of himself it must be an Offence deserving Judgment according to our Law thus to resist the King de facto in favour of the King de jure Nor doth it follow hence that the King de jure can make no just War for the Recovery of his Right for this he may do by the Assistance of his Allies by Foreign Aids or by those Subjects who have still adhered to him or will repair unto him only they cannot do it who have received Protection and lived for a time in quiet subjection to another Government If therefore Men will act up to their principle That their Allegiance is still due to King James they must immediately go out of the Realm and repair thither where they alone can pay it to him If they think it unlawful to own any Allegiance due to King William they must expect no Protection seek for no Justice from him pay no Taxes to him for if they repair to him as the Avenger of any evil done to them or as the Minister of Justice if they pay him any Taxes they thereby virtually own him as the Higher Power seeing these things are only due unto him and can be expected from him because he is the Higher Power and you are his Subjects To the Case of Athaliah I have Answered before §. 2. n. 17. and shall now only add That if she obtained any consent from the People it was by reason of their ignorance that she had any Competitor or that any of the Sons of Ahaziah were alive and that she could not have the Throne of Judah whilst any of the Seed-Royal lived by reason of God's manifest declaration to the contrary and therefore when the King's Son was discovered the Priests the Levites and the Chief of Israel do presently cry out 2 Chr. xxiij 3. Behold the King's Son shall Reign as the Lord hath said of the house of David Here therefore was the immediate Declaration the Promise and the Oath of God against her which whosoever in our case can shew will make this instance pertinent Moreover she who gained consent only on supposition that there was none of that Seed of David left of whom God had expresly said That they should sit upon the Throne could only be supposed to have their consent so long as no such Seed appeared The Power is the Minister of God n. 13. Obj. 4. or one commissionated and Deputed by him for the same dependance that a Subordinate Magistrate hath upon his Sovereign for becoming his Minister the same hath a Sovereign Prince 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 That the Supreme Magistrate is Commissionated by God to be his Minister Answ as well as the Inferior Officer
Fundamentals of this Government he may not have forfeited it And Fourthly Whether he may not have done it by actually subjecting part of it to a foreign Power and both it and himself to Papal and French Power Again on the part of King William he must know Whether he had not a just cause of War and if he had Whether that do not create a right to the thing gained by it Whether King James by disbanding his Army and withdrawing his Person did not virtually yield him the Throne And must not the Decision of these things if it be necessary to be made by every Soul in order to the paying that Obedience to the Higher Powers he stands obliged to yield them for Conscience sake cast many honest Souls into great Mazes and under insuperable difficulties And must it not then be very reasonable to conceive that God hath given them some way more easie And fitted to their mean capacities for satisfaction in this case and what can that more likely be than this of yielding actual Obedience to him whom they find in actual Possession of the Government whilst they enjoy the benefit of his Protection and of his Government Thirdly God saith the Apostle hath called us to Peace n. 7. 1 Cor. vii 15. i. e. to peace even with Pagans and to a peaceful Deportment in our conjugal and oeconomical Relations for unto that he in that Paragraph seems more immediately to referr 1 Pet. ij 12. And the Apostle requires the Christian to yield Subjection to the present Powers that by this good Behaviour their Adversaries might be convinced of the peaceable Deportment of Christians and how free their Religion was from causing any disturbance to the Government Now if Christianity did indeed enjoin them to yield this peaceable Subjection to the Powers then reigning and having full Possession of the Government without a scrupulous enquiry into the justness of their Titles they must be then obliged to live peaceably under all Governments and give disturbance unto none but if it did enjoin them first exactly to enquire and satisfie themselves of the validity of every Princes Title and refuse Subjection as ost as they found reason to dispute the Justice of it it might then often happen that all of them might be obliged to disturb the Government and the Jewish Converts at that very time who scrupled the Title of any Heathen Ruler over them might lie under continual Temptations to Disobedience and Tumults Again even in our present Case if we can bring our selves to this perswasion That Allegiance is due to a King in Possession for the time being we may not only pray for all that are in Authority 1 Tim. ij 2. that under them we may live peaceable and quiet Lives in all holy Conversation and Godliness but we shall actually do so But if after the Wisdom of the Nation in the most solemn Assembly hath conferred the Government on such a Person and given him the Title of our Sovereign Lord the King and put him in full Possession of the Crown every private person may still not only Question whether they ought to own him as such but even deny him their Allegiance and maintain that by an immutable Law of Nature they stand bound to give it to another it is in vain to pray we may live peaceable and quiet lives under his Government to hope for any Settlement of such a Government or any peaceable subsistence of it since we conceive our selves indispensably obliged to promote and to abett all struglings to disturb and overturn it But against this Discourse it may be urged n. 8. Obj. That Allegiance is a Duty we owe unto a lawful Sovereign not only by virtue of our Oath which is stiled legal Obedience but by virtue of the Law of Nature Now though our legal Obedience may cease as being that which only is imposed on us by Law and so may be removed by such a Law as rendereth it impracticable or transferrs it to another yet our natural Allegiance must be immutable because the Obligations of the Law of Nature are so To strengthen this Objection let it be considered out of the famous Judgment given in Calvin's Case First P. 440. That our Ligeance is due to our natural Leige Sovereign descended of the blood Royal of the Kings of this Realm Secondly Ibid. That by the Law of Nature is the Faith Ligeance and Obedience of the Subject due to his Sovereign or Superiour because Magistracy is of Nature for whatsoever is necessary and profitable for the preservation of the Society of Man is due by the Law of Nature but so is Magistracy Seeing as Tully saith Sine imperio nec domus ulla nec civitas nec gens nec hominum universum genus stare nec ipse denique mundus potest Without Government no House City Nation nor the whole Race of Mankind could stand Thirdly Ibid. That seeing Faith Obedience and Ligeance are due by the Law of Nature it followeth that the same cannot be changed or taken away Fourthly P. 441. That when a Man is out of the Kings legal Protection as a Man Out-law'd a Man attainted with a Premunire he is not out of his natural Protection but notwithstanding any Statute the King may protect and pardon him And so in like manner it seems reasonable to distinguish betwixt legal and natural Obedience or Allegiance and to affirm That by these Statutes and Judgments we seem to be absolved indeed from our legal but cannot by them be absolved from our natural Allegiance I think I have made the Objection as strong as the most scrupulous person would propound it and if I can really tender a clear and satisfactory Answer to it I hope my foregoing Argument will hold good even in the judgment of the most impartial I therefore Answer n. 9. Repl. 1. That what is granted seems to yield Advantage enough to us viz. That legal Allegiance may cease to be due to a King de jure and may be due to a King de facto though natural Allegiance cannot this last is due Antecedently to all Laws Promises and Oaths whereas legal Allegiance is that which we by Law do swear and promise Natural Allegiance is due to our natural Liege Lord descended of the Royal Blood of the Kings of this Realm Legal is that which the Laws exact to the King for the time being though he should not be thus our natural Lord. Natural Allegiance is due because he to whom I owe it is rightful King. Legal because he is King Regnant and actually affords me that protection which calls for Subjection This is undoubtedly mutable the other is esteem'd immutable Well then supposing but not granting what this Objection doth suppose That King William were King only de facto no natural Allegiance can be due to him but only legal and mutable that therefore only is required by the Law imposing this Oath and that
Duty of Allegiance promised and sworn doth differ from it before those Engagements The Substance and Effect thereof is due by the Law of Nature the Form and Addition of the Oath is of humane Provision So that legal Allegiance contains the Natural and adds the confirmation of an Oath unto it Where then the legal Obedience is suspended and ceaseth for a time the natural Obedience must much more cease to be exerted Again the Allegiance which all Subjects owe unto their Sovereign is natural or that which is required of them by the Law of Nature whether they live under an absolute or mix'd Monarchy under a Government which in no case allows them to resist to take up Arms against the Sovereign or under such Governments as that of Poland that of the King of the Romans See Bodin 1.2 de Republ c. 5. Grot. de jure belli annot ad l. 1. c. 4. Sect. 14. Sleid. Comment l. 8. p. 195. See Sect. 3. Numb 4. and of Arragon and that of the Emperor over the Princes of the Empire where if they violated their Oaths if they did not preserve their Laws and Liberties their very Contract was Their Promise of Allegiance should go sor nothing the Inhabitants of the Kingdom should not be bound to shew them any Obedience but they should be impowered to resist them sine Rebellionis aut infidelitatis crimine without the guilt of Rebellion or breach of Faith. Whence it is plainly evident that all natural Allegiance is not immutable and indispensable Thirdly To this Objection I answer by Explanation n. 11. and Distinction of a natural Right or a Right grounded on the Law of Nature and by Application of these things to the present Subject 1. The Law of Nature is that which the Dictate of Reason from Principles known and approved from their own evidence obligeth me to judge sit to be done or lest undone by reason of that Moral honesty or turpitude which is apparent in the Action 2. Nature may be esteemed to dictate any thing either directively as a thing consentaneous to the Laws of Reason sit and agreeable to natural Principles as perhaps Kingly Government in opposition to Aristocracy or Democracy or else Preceptively as necessary to be done or be omitted by virtue of some evidence which clearly shews the Equity or Turpitude of the performance or omission of it 3. Of these Laws of Nature some are Principles and those either general as that what is good is to be chosen what evil is to be avoided that I am to do or avoid any thing out of respect unto some good or evil to my Soul or Body That which I judge to be fit due and meet by the Laws of Humanity and Justice to be done to me in the like cases I must do to others that the publick Good is to be preferr'd before my private Good of the same kind Or secondly relating to Particulars viz. That I ought to do good to all as far as I can do it without Spiritual or great Temporal damage to my self 2dly That I am to do no hurt or damage to any innocent person if I can avoid it 3dly That I am to be true to my Word and faithful to my Promise especially when I have for the more assurance of another confirmed it with an Oath 4thly That I ought to do my best endeavour that he who hath deserved well of me should receive well from me And against these Laws of Nature God himself cannot dispense i. e. he cannot grant liberty to any one to act against the Tenor of these Laws even in those circumstances in which they would have otherwise been obliging and therefore they are truly called immutable and are the same in all who are endowed with the exercise of Common Reason Some are Conclusions resulting from these Principles and they do only bind as we may clearly see the natural connexion of them with these Principles and when no Laws of a more strict connexion with them intervene to hinder their obliging force 4. Some Laws of Nature continually do oblige under all circumstances and so their Obligation never ceaseth as the Laws forbidding the hatred of God and Idolatry Others oblige only under such circumstances as Thou shalt not kill viz. except when it is necessary for thy own preservation and desence Thou shalt not take away what is thy Brothers viz. unless extream necessity compel thee to it In these latter there must be a comparison of Duties and of Circumstances that we may know the better when they are to us Laws of Nature and when not Now to apply these things It seemeth hard to say n. 12. that by any dictate of Common Reason clear by its own native Light or any first Principle of Nature we in these circumstances are still obliged to yield natural Allegiance to King James and cannot without violating these Common Principles of clearest Reason afford it to King William and Queen Mary for then that great Assembly of the Nation those Reverend Bishops and that numerous Clergy which believe they may and therefore actually have done the contrary and either have obliged or exhorted others so to do must sin against the clearest light of Common Reason which sure we cannot charitably think or say then must this Law of Henry the Seventh which hath so long obtained and all those Judgments which have been made so solemnly by the great Sages of the Law have been Laws made and Judgments given and Sentences pronounced against the clearest light of Nature Then thirdly all persons of other Nations who in like cases have done the like in Swedeland Portugal and Germany and other places and all those learned Persons who in their Writings have expresly or by just consequence allow'd the transferring of our Allegiance in these circumstances must both have acted themselves and authorized others to act in contradiction to the plain light of humane Reason which yet seems a plain contradiction to that property of a true Law of Nature that it is the same in all who are endowed with the exercise of Common Reason 2dly n. 13. When it is said that Allegiance from the Subject is due by the Law of Nature to his Soverign this is none of those Laws of Nature which oblige under all Circumstances For when I am subdued by the Power of another who hath conquered me and hath my life at his mercy no Man doubts but that I may engage for preservation of my life that I will not be active against him that gives it That is that I will no further bear Allegiance to my former Sovereign When a Nation or part of it is subdued by a Conqueror without visible hopes of recovering Freedom they may swear Allegiance to the Conqueror Upon Frontiers saith the Seasonable Discourse P. 47. all Men are most strictly obliged to the destruction one of another according to their several Allegiances yet it happeneth daily that by Sieges and other