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
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
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