Axion That no man can serve 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 two Supreme Lords Matth. vi 24. Now by the Laws of this Land I owe and am bound to yield Allegiance to him who is in Possession of the Kingdom n. 2. whether he have rightful Possession or not and am excusable and free from punishment by the Law if I afford it for so the Law runs The King our Sovereign Lord 11 H. 7. c. 1. calling to his remembrance the Duty of Allegiance of his Subjects of this his Realm and that they by reason of the same are bound to serve their Prince and Sovereign Lord for the time being in his Wars for the defence of him and the Land against Every Rebellion Power and Might reared against HIm and with Him to enter and abide in service in Battle if case so require and that for the same Service what Fortune ever fall by chance in the same Battle against the Mind and Will of the Prince as in this Land sometime past hath been seen it is not reasonable but against all Laws Reason and good Conscience that the said Subjects going with their Sovereign Lord in Wars attending upon Him in Person or being in other places within this Land or without by His Commandment any thing should lose or forfeit for doing their true Duty and Service of Allegiance It be therefore ordained enacted and established by the King our Sovereign Lord by the advice and assent of the Lords Spiritual and Temporal and the Commons in this present Parliament Assembled and by Authority of the same that from henceforth no manner of person or persons whatsoever he or they be that attend upon the King and Sovereign Lord of this Land for the time being in his Person and do Him true and faithful Service of Allegiance he or they be in no wise convice or attaint of High Treason ne of other Offences for that cause by Act of Parliament or otherwise by any Process of Law whereby he or any of them shall lose or forfeit Life Lands Tenements Rents Possessions Hereditaments Goods Chattels or any other things but to be for that Deed and Service utterly discharged of any Vexation Trouble or Loss Where Note 1st That this Service and Allegiance mentioned in this Statute is faithful Service and true Allegiance once and again and it is declared to be the duty of all Subjects 2dly That it is to be yielded to the King for the time being without enquiry whether he be the rightful King or no for it was agreeable to reason fo Estate saith the Lord Bacon History of the Reign of H. 7. p. 144. That the Subject should not enquire of the justness of the King's Title or Quarrel and it was agreeable to good Conscience That whatsoever the fortune of the War were the Subject should not suffer for his Obedience 3dly That this Service and Allegiance is to be yielded to the King for the time being against every Power and Might reared against Him. 4thly That through the whole Body of the Act he is called the Sovereign Lord of the Land their Sovereign Lord and so it seems we need not scruple the use of the said Title in our Prayers it being only that which the Law of the Land gives to every one that is King for the time being 5thly That this Statute hath continued unrepealed about Two hundred years and therefore hath been so long approved by the whole Nation and judged well consistent with the duty of Allegiance owing to their lawful Sovereign they therefore judged it not repugnant to their Oaths of Allegiance to their rightful Sovereign to bear true Allegiance and to do true and faithful Service of Allegiance to any other King for the time being who had got quiet possession of the Throne which is all that this Oath requireth of us Moreover all High Treason committed by a Native of the Land is an offence against his natural Allegiance n. 3. Cook 's Reports Par. 7. Calvin's Case p. 435. which appears from the Indictments of Treason which saith the Lord Cook are of all other things most curiously and certainly indited and penned for they run for committing this Crime contra debitum fidei ligeantiae suae quod praefato Domino Regi naturaliter de jure impendere debuit Against the duty of Faith and Allegiance which he naturally and of right ought to yield to his Lord the King or for committing this fact contra Dominum Regem supremum naturalem Dominum suum Against our Lord the King his supreme and natural Lord or contra naturalem ligeantiam Domino Regi debitam Against the natural Allegiance due to our Lord the King. Now the same Lord Chief Justice Cook in his descant on these words of the 25th of Edward the Third Instit Par. 3. ch 1. p. 7. Seignior le Roy used in that Statute concerning High Treason saith That this Act is to be understood of a King in possession of the Crown and Kingdom for if there be a King Regnant in possession althopugh he be Rex de facto non de jure yet he is Seignior le Roy within the purvien of this Statute and the other that hath right and is out of possession is not within this Act. Nay if Treason be committed against a King de facto non de jure and afterwards the King de jure cometh to the Crown he shall punish the Treason done to the King de facto and a Pardon by a King de jure that is not also King Pleas of the Crown p. 11. de facto is void The Lord Chief Justice Hales doth also say That a King de facto and not de jure is a King within this Act and a Treason against Him is punishable though the right Heir get the Crown And sitably to these declarations of these great Men I find in Bagot's Case Pasc 9. Ed. 4. argued in the Ninth year of Edward the Fourth that it is said That the King shall have the advantage of any Forfeiture made to Henry the Sixth c. and of Trespasses made in his time the Brief shall be contra pacem H. 6. nuper de facto non de jure against the peace of Henry the Sixth late King in Possession though not of Right c. and a Man shall be arraigned of Treason done to the said King Henry in compassing his Death and it is there added Qu' si cesty qu' est ore Roy in temps le Roy Henry ust fait Charter de Pardon c ' sera void a ore car chescun qu' ferra Charter de Pardon covient estre Roy en fait That if he who is now King had given a Charter of Pardon in the time of King Henry that Charter shall be void at present because it is necessary that every one who makes a Charter of Pardon should be actually King. Now hence 1. I inferr that we cannot reasonably except
continuance there during life for he cannot cease while he lives to be descended of the Blood-Royal of the Realm which immediately constitutes him in his natural Capacity nor to be King by Birth-right inherent he therefore only in such cases ceaseth to be King and our Allegiance to him only ceaseth to be due because he hath separated from himself that politick Capacity which was before apropriated to his natural Person by the Law Ibid. by virtue of the Lineal descent of that Person from the Blood-Royal whereupon Succession doth attend 2dly Ibid. It is agreed on all hands that we cannot have two Kings at once and therefore either the King Regnant in possession only or the King de jure out of possession only can be our legal King or he who is in the eye of our Law our Sovereign Lord the King and the only Supreme Governour of this Realm 3dly It appeareth by what hath been already said and by the determination of the Judges in Calvin's Case P. 438. P. 439. That Ligeance is due only to the King that the Ligeance or Faith of the Subject is proprium quarto modo tot the King omni soli semper it is due therefore to every one who is Seignior le Roy and so to a King Regnant in possession though he be only King de facto if the Law make him Seignior le Roy. It is due soli to him alone if he alone for the time being be our Sovereign Lord the King. It is due unto him semper as long as he continues the King Regnant in possession upon the same account 4thly A. 9. Edw. 4. Term. Pasch Observe that in Bagot's Case it is determined that le Roy Hen. fuist Roy en possession il covient qu' le Royalme eit un Roy South qu' les leges seront tenus maintein doque per c ' qu' il ne fuist eins forsque per usurpation unc ' chescun act judicial fait per luy qu' touche jurisdiction Royal sera bon licra le Roy de droit quand il fait regress King Henry the Sixth was King in possession and it is necessary that the Kingdom should have a King under whom the Laws should be held and maintained therefore be it that he was only in by usurpation yet every judicial Act done by him which toucheth the Royal jurisdiction shall be good and shall bind the rightful King when he returns And it is there added that le dit Roy H. ne fuit merement comme usurper car le corone fuist taile a luy per. Parliament The said King Henry was not meerly as an Vsurper because the Crown was entailed upon him by Act of Parliament as now it is upon King William If then il covient qu' le Royalme eit un Roy The Realm must always have a King under whom the Laws shall be held and maintained the King Regnant in possession being he alone under whom for the time being they can be held and maintained he only can be our Sovereign Lord the King for the time being If every Judicial act done by him which concerns the Royal Jurisdiction shall be good though it be always done under the Title and Authority of our Sovereign Lord the King then must he be our Sovereign Lord the King to all intents and purposes of Law for the time being then must the Laws made by him be good also though they run in the stile of our Sovereign Lord the King or our Lord the King. And if all this be true of a King Regnant or in possession though it should be granted that he held the Kingdom meerly by usurpation it must more certainly be true of one on whom the Kingdom is entailed by Act of Parliament as in our case it is and who is therefore not to be looked on as a meer Vsurper 5thly P. 434. Observe that in Calvin's Case it is determined that Protectio trahit subjectionem subjectio protectionem Protection requires Subjection and Subjection Protection Quia sicut subditus Regi tenetur ad Obedientiam ita Rex subdiot tenetur ad Protectionem P. 436 437. For as the Subject oweth to the King his true and faithful Ligeance and Obedience so the Sovereign is to govern and protect his Subjects that Power and Protection draweth Ligeance and that the Ligeance of the Subject is of as great extent and latitude as the Royal Power and Protection of the King that though the King in his natural Person is subject to Death P. 438. Infirmity c. yet in his politick Capacity he is esteem'd to be Immortal not subject to Death Infirmity c. Now I would not hence inferr with others that I owe a King no Subjection or Allegiance any longer than he doth actually protect me or that if he neglect his duty in protecting me in my Goods or Body or of protecting the Laws according to these wordds of Foretescue Rex ad tutelam legis Cap. 13. corporum bonorum erectus est I may neglect my duty of Allegiance to him But yet I think it reasonable hence to inferr affirmatively From the King Regnant in possession I for the time being do receive Protection therefore to him for the time being I do not owe Subjection Protection draws Allegiance therefore Protection from him draws Allegiance to him The Ligeanceof the Subject is of as great extent and latitude as is the Royal Power and Protection of the King therefore it must extend it self unto all times and places in which and where this Royal Power is exerted and this Protection is afforded to me Rom. xiij 1 4. St. Paul doth found the reason of our Subjection 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to the present Powers on this ground That they are unto us the Ministers of God for good or in the words of Christ that they are 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Benefactors Luk. xxij 25. to whom we therefore own Subjection on the score of gratitude as far as we with justice can afford it Since therefore saith the Reverend Bishop Sanderson De legum Oblig lec 5. §. 18. we owe it to the Supreme Powers even when they are usurped that we enjoy what is our own that we live safe from slaughter and from rapine yea that we live at all since without them we neither could have remedy or safe-guard against the Lusts the Furies or the Injuries of wicked Men 't is the most equitable thing and that which the Old Law of giving and receiving mutually doth require that for so many and great benefits we should make some return unto that Power which affords them And what is that Return he doth sufficiently explain in the ensuing words Profecto perfecto perversissimae mentis est 'T is certainly an indication of a most perverse mind to desire to live under the Patronage of his Government whom you will not obey and to refuse to be governed by him
reason a King de facto is not to be owned or obeyed as our Superior in opposition to a King de jure because he cannot be supposed to have a lawful Call or Warrant to Exercise the Kingly Government If an Inferior Magistrate hath a Law to warrant his Commands Answ he is to obeyed even against the verbal commands of his Superior without law Now a King de facto in quiet Possession hath a Law to warrant his Acting as our Sovereign Lord the King and requiring our Faith and true Allegiance ot him for the time being he therefore is to be owned and obeyed as having a legal Call to the Government for the time being Secondly To give a satisfactory Answer to this and many Objections of the like nature it will be proper to consider what a Call or a Commission to be the Governor of any Nation doth import and for the Resolution of this Enquiry let it be noted 1. That God doth not now as in the Case of Saul and David by himself appoint and nominate the Person who shall sway the Sceptre in any Nation of the World. We see by plain Experience God doth not interpose in this extraordinary manner in the Election or Constitution of Superiors The Roman Emperors had no such Appointment but were Elected by the roman Armies or chosen and confirmed by the Senate whence it must follow That an immediate Appointment or Designation of the Person by God cannot be necessary to render any Prince God's Ordinance 2. By virtue of God's general Appointment or Ordinance that all Nations shall have some Government placed over them no Individual Person can claim a Right to be the Higher Power in any Nation moe than Others nor are the People tied to yield Subjection by it to this Man rather than to that As then the former Designation was more so this is less than reasonably can be required to make a Man the Individual Person who is God's Civil Ordinance in reference to such a Nation 3. It cannot be said of any Person or Family at present in the World That he or it claimeth or holdeth the Throne in any Nation by a Right of Fatherhood or Primogeniture derived from Adam I know no Prince on Earth who thus pretendeth to derive his Pedigree and am perswaded that if any hath the Vanity to make such an Extravagant pretence he cannot thus make out his Title It remains therefore 4. That Government be conveyed to this or that Individual Person or Family by Compact or Consent and Choice of the Persons governed that such a Person or Family shall Exercise the Government over such a Nation it therefore must be that Choice Consent or Contract of the Persons to be governed which renders any person the Ordinance of God to such a Nation that is it must be granted that all the present Governors of any Nation become God's Ordinance to them by the Consent of the Community Where therefore any person is invested with the Supemacy by them to whom God hath committed the Choice of a Superior or by their consent to have such Persons for their Superiors there is the Ordinance of God. And if they do admit that person to the Government who by Constitutions and antecedent Compacts hath a right to be so he is to them the Ordinance of God de jure If in this Choice they deviate substantially from these Constitutions he only is the Ordinance of God de facto but yet he truly is the Ordinance of God because he is so by the only means which God hath left for the Investing any Individual Person with that Office. Hence do we find throughout the History of our Kings that the Election of or else a Compact with the People hath generally been looked upon as a thing proper either to satisfie the People or to strengthen their Title to the Crown thus v. g. Of the Conqueror Dunelm p. 195. Hoved. par 1. p. 258. Simeon Dunelmensis and Hoveden inform us That Foedus pepigit he made a Covenant with his People and at his Coronation took an Oath to defend the Holy Church f God and the Rectors of the same to govern the Vniversal People Subject to him justly to establish equal Laws and see them duly executed Daniel p. 36. William the Second held the Possession of the Crown of England by the Will of the Kingdom Ibid. p. 52. the Succession in Right of Primogeniture being none of his * Dan. p. 61. Rich. Hugust p. 310. Henry the First was invested in the Crown by the Act of the Kingdom concilio Communi Baronum Regni Angliae saith the King. King Stephen declares himself to be chosen King †Assensu populi Cleri in Regem electum Malmesb. Hist Nov. l. 1. f. 101. b. Rich. Hugust p. 314. by the consent of the People and the clergy as he had good reason to do having no title at all saith Daniel but as one of the Blood by meer Election advanced to the Crown p. 69. King John received the Crown by way of Election as being chosen by the States saith Daniel The Succession of Edward the Second saith 1 Pag. 127. Non tam jure haereditario quam unanimi assensu procerum Magnatum Ed. Franc. 1602. P 95. Walsingham was not so much by Right of Inheritance as by the unanimous Assent of the peers and Great Men. Edward the Third was Elected 2 Dan. p. 217. Cui electioni consensit populus universus id p. 126. with the Vniversal consent of the People upon his Fathers Resignation Edward the Fourth on his entrance on the Government makes a solemn declaration 3 TRussel p. 179. of his Right to the Crown of England challenging it to belong to him by a double Right The first as Son and Heir to Richard Duke of York the Rightful Heir of the same The second as Elected by Authority of Parliament upon King Henry 's forfeit thereof And Henry the Seventh to all his other Titles by 4 Lord Bac. Hist of H. 7. p. 12. Marriage Conquest and from the House of Lancaster adds that of the Authority of Parliament This Principle makes Authority and Supreme Power inseparable from Actual Regency n. 19. Obj. 5. or Command investing him with the Supreme Power who hath it for the time being and making him incapable of being the Higher Power who is out of Possession whilst he so continues which seems clear contrary to the decision of the Holy Scriptures for though all Israel chose Absalom to be their King 2 Sam. xix 10. and anointed him over them though he had for the time the Kingdom in possession and David fled out of the Land leaving no Governor behind him yet the Power was in David he was even then the Supreme Governor and Higher Power to whom Subjection was due 2 Sam. xx 2. 2 Chr. xxij 12. So he was also when all Israel followed Sheba And though Athaliah possessed the