present Possessors against the dispossessed if that Construction be admitted though it be never so well observ'd it can be no security at all unto them If it be not intended for their security it is a vain and insignificant Oath but if it be intended for any thing it is certainly designed to secure them from the greatest I may say the only danger they are in and that is from the attempts of K. J. But after all if we affix this Sense upon the Oath that great and wise security amounts only to this That we will submit to the Power of the present Possessors as long as there is no help but a Halter for it but as soon as ever it becomes safe and prudent to attempt it we will then with all our might endeavour to dethrone them and restore the lawful King to his Crown and Dignity in short that we will â—â—t attempt to destroy K. W. till we have 〈…〉 bable hopes to effect it And can it be imagin'd 〈◊〉 so great and wise a Body as is the Parliament of England should after great labour and strugling in its Birth produce a thing so Iudicrous Will K. W Will any K. upon Earth be content with such Security as this Will he not rather look upon it as an open Declaration of Rebellion against him Is this to swear True Faith and Allegiance to him Namely to submit till we can prudently rebel against him Was there ever any such Oath exacted from Subjects since the beginning of Government In short if this be the Sense of the Oath as none but Mad men would have enacted it so it is fit to be propos'd to Mad-men only to take it for it is certain none else will contrive or execute any attempts against him without hopes of success And yet this must be the Sense of those who take it with a reserve of their old Allegiance to K. J. for by that Allegiance they are obliged to assist him in the recovery of his Crown to the utmost of their power whensoever their assistance may be useful and serviceable to his Cause But to swear Allegiance in this sense is plainly to swear nothing at all 't is only the Phantom of an Allegiance and will not only deceive but destroy them that were intended to be secured by it Here therefore I may appeal to the common sense of all men whether that can be presum'd to be the meaning of the Oath which does directly contradict the whole End and Intention of it and whether it be not a thing incredible that the King Lords and Commons should enact an Oath to secure the present Government and in the same Oath allow the Takers leave to attempt the destruction of it and whether lastly I had not reason to affirm that this is an invincible prejudice against that Construction and may not now have leave to add that it is a plain demonstration against it And the same reasoning will in some measure hold against a Neutrality also because that also does defeat the Provision intended in this Oath for the security of K. W. The only difference is That the former Construction does permit the Swearers to be still Enemies to the Government But this leaves it without any Friends to support it The one does in effect arm the Subjects to destroy it and the other leaves it naked and defenceless to be destroyed by them Both are highly pernicious to the present Governors and absolutely inconsistent with the prime and immediate Intention of the Oath to secure them Perhaps it will be said that a peaceable Neutrality were it sworn and observ'd by all the Subjects would infallibly secure the Possessors against all Attempts to dethrone them and that however if such Attempts be made since the greatest part of the Subjects do think themselves obliged by the Oath to an Active Assissistance the Possessors will be effectually secured by it But 1. The Imposers knew well enough that there were great numbers that would neither swear nor observe a Neutrality but would actually assist the dispossessed K. against them and that therefore in such a dangerous Conjuncture a bare Neutrality of all the Subjects could be no tolerable Security against them And 2. If they intended to oblige the Subject only to an exact Neutrality it was a gross Prevarication so to frame the Oath on purpose that in the Opinion of most Men it might import an Obligation contradictory to it And besides if that alone were the precise Intention of the Imposers then the Government will be secured not by the Oath it self but by a false Construction of it Wherefore this single Consideration of the chief End and Intention of the Oath does clearly evince the first and highest Construction to be the true meaning of it And that it is so I will further endeavour to prove by all the Medium's by which the meaning of an Oath is capable of being proved and those are only these two the Words which the Imposers have made choice of to declare their meaning and their intention otherwise sufficiently expressed by Circumstances and other Actions which may serve as a Comment upon the Oath and may ascertain us of the meaning of it And 1. I consider the signification of the Words faithful and true Allegiance which contain all the promissory part of the Oath and have occasioned all the different Constructions of it It is certain that Words generally speaking have their signification only from the Institution of Men and those that are vulgarly used and understood in any Language from the common consent of the People of that Language and those that are understood only by a few such as are called Terms of Art from the Professors of the several Arts and Sciences The Words faithful and true Allegiance may be consider'd in both respects as they are vulgarly taken and understood by the generality of the People of this Nation and as they are Law-terms which are to be understood according to the Sense of Lawyers And first I will consider what is the signification of those Words according to the Laws and Lawyers 1. I observe that the Lord Coke in Calvin's Case does affirm that Faith and Allegiance have only one signification and there he produces several Instances to shew that Esse ad Fidem Regis signifies only to be in the Ligeance of the King accordingly the same Oaths are sometimes called Oaths of Fidelity and sometimes Oaths of Allegiance without any distinction And Sir Henry Spelman in his Glossary defines Fidelity to be Fidei obsequii servitii ligamen which is neither more nor less than Allegiance So that even in this short Oath there is still a Word too much since Faith and Allegiance do signifie the same thing and express the same Duties of Subjection 2. The Subjects of England may in two respects be stiled Fideles Regis First as they are Members of the Body Politick and are therefore obliged to pay the K. that Fidelity
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
all men would act with the same plainness and sincerity if they would be true to their own sense and apprehensions aud not disguise them with Artifice and Subtilty there would possibly have been no need of the present Enquiry nor of proving that Faith and Allegiance are not capable of contradictory senses that they signifie the same Duties now which always they have done that when they are sworn to one Sovereign they are incommuninicable at the same time to any other that we must not bind our selves to contradictory Obligations and cannot possibly be faithful to K. W. against all his Enemies and to K. J. against all his Enemies also And now I hope it appears That the Words Faith and true Allegiance in the Oath do not signifie meer Submission and Obedience only but also faithful Service and actual Assistance of our Sovereign against all his Enemies True it is that the Oaths of Allegiance are in the Law sometimes called Oaths of Obedience But Obedience then does import the whole Duty of a Subject to his Sovereign and not precisely a peaceable conformity to the Laws abstracting from all the other Duties of a Subject And this I think may be proved from these Reasons First Because Obedience in its utmost Latitude does comprehend the Duties of Fidelity and Assistance also For every act of Duty is an act of Obedience and therefore if actual assistance be a Duty to discharge it is Obedience Secondly The same Oath is more often called the Oath of Fidelity and the Oath of Allegiance And therefore if Fidelity and Allegiance do as I have shewn imply more than peaceable submission and conformity to the Laws it will not follow that it does not imply so much because the same Oath is sometimes expressed by another word Thirdly Peaceable Submission and Obedience to the Laws do amount to no more than such a Local Allegiance as is due from Aliens and I am pretty certain that the Laws require something more of natural English Subjects by virtue of their Allegiance than they do from Germans and Italians while they are in the Kingdom This confounding of Allegiance and precise Obedience to the lawful Commands of a Sovereign de facto is a very common and obvious Mistake Thus the Author of the Pastoral Letter brings this Argument to prove the lawfulness of taking this Oath in Question If it is lawful to obey the King it is lawful to promise to do it and if so it also is lawful to swear it therefore it is lawful to take the Oath of Allegiance Which is just such an Argument as this If it be lawful to bow before the King it is lawful to pay Divine Adoration to him and if so it is also lawful to swear that I will pay Divine Worship to him For as Religious Worship implies a great deal more than Civil so does Allegiance contain more than precise Obedience I may lawfully obey a Highway-man and I may lawfully swear it but I suppose it will not follow thence that I may lawfully swear to be faithful and bear true Allegiance to him It was lawful to swear Obedience to Cromwel in all lawful things but I think there were few even in that Age of Usurpations that were so hardy as to assert the lawfulness of swearing Allegiance to that Unnatural Usurper Dr. Sanderson proves that it may be our duty to obey the Laws of an Usurper not out of any regard to his Authority which he says is none at all but upon other considerations yet he is absolutely against swearing Allegiance to Usurpers Both he and all the Conscientious Divines of that Age could easily distinguish Allegiance from Obeying and so may any one that is not absolutely resolved against it The Pastoral Author adds indeed That Allegiance in our present acceptation is Obedience according to Law Which is true if Obedience be taken in its utmost latitude but then it will include an Obligation to assist K. W. against all his Enemies and in this sense they who refuse the Oath will I presume refuse also to obey him It has been objected further That whereas the actual Assistance of the King against all Attempts whatsoever was inserted either expresly or in words equivalent in all the former Oaths of Allegiance but in the present Oath it is wholly omitted and therefore it may reasonably be presum'd That where less is expressed less is required and that if the Imposers had intended such actual Assistance they would probably in plain words have required it What the Reasons were of making this and other Alterations in the new Oath of Allegiance as I have no means of knowing so neither is it of any moment to enquire To the Objection proposed it will suffice to answer That the Duty of actual Assistance against all men living is sufficiently expressed in it For in the Oath we are required to swear true Allegiance and that does vi termini import such an Obligation and as no particular Duties of Allegiance are expressed in the Oath so neither are any excepted and therefore we are obliged to all the Duties of it and what those are may be understood from the Laws and the common acceptation of the Word it self which as I have shewn has always signified an adherence to the Liege Lord against all men living And if the bare omission of particularizing this Duty is an argument that it was not intended then was no particular Duty intended for there is none expressed and so the result will be that when we swear Allegiance we take God's Name in vain and swear to nothing at all And this is the Answer which the Feudists have long since given to the Objection Cujacius says That the Clause of defending the Life and Dignity of the Lord and if there be any thing else which is wont to be expressed in such Oaths it seems to be contained in the general Promise of Fidelity Molinaeus tells us That a certain Form is not required but it may suffice to swear in general words as for instance I swear the Fealty of a Vassal or I do Homage under an Oath of Fealty neither is it necessary particularly to express the Heads of Fidelity for that is well enough understood by a tacit reference to those Duties which are required by the Feudal Law and Custom And he adds it may be also answered That Particular Duties are not therefore expressed in those Oaths because it is absolutely necessary but only for the clearer understanding of them But there is one Objection more which must be considered viz. That this is an Oath imposed upon Clergy-men as well as others and that since the Laws have ever exempted them from Military Services it is certain their Allegiance doth not bind them to it and therefore the Allegiance required in the Oath is not such as I have hitherto asserted because it does not universally bind the Subjects to an Active Military assistance of the Sovereign against all
to believe that they intended to oblige their Soldiers to an active assistance of K. William against all his Enemies then of necessity according to the Intention of the Imposers the very words of the Oath do oblige them to it And if so I cannot comprehend why the same words should not oblige all others also in their respective Capacities to the like assistance Or why the Legislators should intend the Oath to be taken by different Persons in contradictory Senses and bind one to be a Neuter another to be Active for the Government and allow a Third to be active against it 2. It is certain that the Present Government has exacted of all Clergy-men an actual assistance of it as great at least as that which is required of Soldiers even against K. J. For they are obliged under great Penalties to insert K. W. in the Liturgy and to pray that he may have Victory over all his Enemies among whom his greatest and most implacable Enemy the Enemy that is actually endeavouring to wrest his Crown and dignity from him must needs be comprehended And thus to pray is the greatest assistance to the one and opposition to the other that can be imagined And hence it seems natural to infer that they who have exacted this would not afterwards Enact an Oath to oblige them to a meer Neutrality or leave them a reserve of their old Allegiance to K. J. What reason can there be possible assign'd for this that they who were antecedently bound to more should be afterwards sworn to less or that our Present Governours should oblige Clergymen to pray against all their Enemies and then allow them to assist those Enemies or discharge them from assisting the Government against them 3. Though every breach of Allegiance is not punished as Treason by the Law yet all Treason is certainly a violation of Allegiance therefore whatsovere is branded or punished as Treason by the Lawgivers and Imposers of this Oath is very probably intended to be forbidden by it Whether this Inference be not reasonable I appeal to the common Sense of all Men or whether any thing can be more natural than to conclude that the Lawgivers intended in this Oath of Allegiance to prevent what they design'd to punish as a violation of it and to bind the Subjects to Fidelity not only for Wrath but also for Conscience sake But it is notorious to all Men that the Imposers of this Oath have treated the Assisters of K. J. as guilty of High Treason that Bills have been proposed for the forfeiture of their Estates and Tryal of their Persons that they have imprisoned many upon suspicion of siding with K. J. and actually Arraigned others for dispersing his Proclamations And have lately Condemn'd and hang'd one for saying he rais'd Men to assist him And therefore we cannot but conclude that they who punished such assistance as a breach of Allegiance did design when they obliged us to swear Allegiance to debar us from it Thus it is evident the assistance of K. J. is forbid in the Oath and it will be further evident that so is a Neutrality also if it be considered that there is no doubt but even the not discovering of any designs of K. J. against the Crown and Dignity of K. W. that should come to our knowledg would be punished by the same Authority as an Offence contrary to our due Allegiance to him And therefore since such a discovery is plainly inconsistent with an exact Neutrality it is obvious to infer that a Neutrality which in the Judgment of our Law-givers is against our due Allegiance is forbidden by them in the Oath of Allegiance 4. Lastly The highest Construction of the Oath seems to be most agreeable to all the Principles and Proceedings of the Imposers This might be demonstrated by many particulars but most especially from the very Instrument of Government wherein this Oath had its Birth There they first declare That K. J. had abdicated the Government and that the Throne was thereby vacant then they confer the Royal Dignity upon W. and M. as King and Queen of England and then annex the present Oath of Allegiance to be sworn unto them So that if we take all together we may probably conclude that they intended a full absolute and unreserved Allegiance to them By their first Declaration it appears to be their Intention that no Allegiance should be paid to K. J. for to No King No Allegiance is due By the second That all our Allegiance should be paid to W. and M. for there being no other Sovereign according to this Declaration it must be all due unto them alone And the new Oath being then immediately added is it not rational to interpret it in Congruity to those Declarations which do manifestly discover it to be the Intention of the Imposers that all our Allegiance should be paid to the present Princes without any reservation of the same Duty to K. J who according to that Instrument has no more Right than the Cham of Tartary to it And I presume it will not be denied That the Intention of the Oath is the same in the Law as it was in the Declaration But to this it is replied That though it be true that in the Judgment of the Imposers all our Allegiance is due to K. W. and none at all to K. J yet if it be consider'd that when the Form of the Oath was under Debate the word Rightful was struck out upon exception made that many scrupulous Persons would thereupon refuse to take it and so the Form was passed without it This may be well taken for a sufficient Indication that it was the Intention of the Imposers that we should swear Allegiance to the K. and Q. only as such de facto and consequently that they did not intend to oblige us to such a high degree of Allegiance as is due to a K. de Jure and therefore that it is not necessary to take the Oath in the highest Construction of it This seems to be the most considerable reason that is urged for the abatement of the old sense of Allegiance and I hope to give a satisfactory Answer to it And I Answer 1. That though the deliberate omission of the word Rightful does necessarily infer that we are not obliged in this Oath to a Recognition of the right to the Crown yet it does not infer that we are not obliged to pay as high a degree of Allegiance as to any Rightful King whatsoever That omission is an argument that the word King in the Oath does not necessarily signifie a King de jure but it is no argument that true Allegiance does not signifie true Allegiance that is an Obligation to adhere to the King against all his Enemies For there was uo Debate that we know of about the Sense of the word Allegiance neither is there any Intimation given that they design'd to restrain it to a lower signification though it was plainly
necessary to do it if they intended to alter the commonly received meaning of it Wherefore as the striking out the word Rightful would not have proved that they did not intend to oblige us to an active assistance of K. W. against all Men living if those words had been expresly inserted in the Oath so neither will it prove that the same Duty is not now required of us if the word Allegiance do as I have proved vi termini import it and that as fully as if it had been in express words required in it 2. That an abatement of Allegiance is not necessarily inferr'd in that omission does appear from hence because it might be the Judgment of the Imposers that a plenary and unreserved Allegiance was due by the Laws of this Kingdom even to a K. de facto as much as if he were K. de jure also and if that were their opinion then we have a rational and easie account of that Omission viz. that since the highest Allegiance was thought due to a King de facto it was not necessary to create scruples by insisting on the word Rightful since the work of the Law might be as effectually done without it and the present Governors secured by obliging the Subjects to swear Allegiance to them And that this was probably the true reason of that Omission must needs be granted if it be consider'd how that opinion is become almost universal and has been publickly countenanced and asserted not only in so many Licens'd Pamphlets but by our Lawyers and Judges and even by our Law-givers themselves However it clearly shews that the Omission of the word Rightful does not manifestly prove their Intention to oblige us to a lower degree of Allegiance And the rule of the Law is here to be applied that we must not recede from the Customary signification of the words of the Oath when there is no manifest Necessity for it Further If it be objected That many Members of both Houses of Parliament have declared that the Oath was intended only to oblige us to live peaceably under the Government I answer That those words seem more ambiguous than the words of the Oath that the utmost extent of them may reach to a full and unreserved Allegiance that probably there are not many that will say that they did not intend to debar us from paying any Allegiance to K. J. and if they should there are more who will declare the contrary and that lastly the Declaration of those Members is no authentical Interpretation for when the Assembly of Parliament is ended they are not to be consider'd as Law-givers but as private Persons and they have no more Authority to interpret Statutes than they have to make them And lastly If it be yet further objected That the Government not opposing the Declarations which have been publickly made by many That they took the Oath in no other Sense but that of a peaceable Submission does imply a tacit approbation of it The answer is obvious That the not opposing those Declarations does not amount to the approving of them as the Sense of the Imposers but only to a connivence at them for some Politick end and design And in short no Man will say That not opposing is approving or that the Government does always allow of that which it does not punish And thus have I somewhat more largely than at first I intended explained the Nature of Allegiance and asserted the highest Construction of the Oath to be the genuine meaning of it And I hope it will be allowed that this discourse has sufficiently evinced if not the certainty of that Construction yet at least the uncertainty of the other Interpretations of it And then if any one after all that has been here offered shall remain doubtful about the true Sense of the Oath I shall only put him in mind of that necessary Caution of Dr. Sanderson That when the meaning of an Oath is dubious great care must be used that we do not indulge our corrupt Affections too much or assume to our selves a loose and licentious way of interpreting that we may the more easily evade the Obligation of the Oath and that we do not for our proper Interest and advantage affix any other sense upon the Oath or any part of it than that which any other pious and prudent person who being unconcerned in the Business is of a freer Judgment would easily gather out of the words themselves and that for two Reasons First For fear of giving scandal to others lest any other weaker Person being encouraged by our example should think the same thing lawful for him which he sees practised by us though he be ignorant of those Subtilties by which alone we discharge our selves from Perjury And Secondly In respect of our selves viz. for fear of Perjury The Guilt of which abominable Crime we do undoubtedly bring upon our Souls if that more favourable Interptation which emboldned us to take the Oath should chance to deceive us And this Reason is grounded upon that general Rule which requires us in things doubtful to chuse the safer side But it is much safer to refuse the Oath propounded when the Words according to the common and obvious sense do seem to contain any thing unlawful in it self than by a loose Interpretation so to mollifie them to our purpose as that we may the more safely take it Forasmuch as it is manifest that such an Oath may be refused but not that it may be taken without any either fear or danger of Perjury Thus that excellent Casuist And in another place where he expresly propounds the Case of an ambiguous Oath his Resolution is That a pious and prudent Person should absolutely refuse it and that before an Oath can be rightly taken it is expedient that there be a clear Agreement amongst all Parties concerned the Imposers and the Takers about the meaning of it Whether this be not honest and conscientious Divinity I leave every man to judge and whether they who have taken the Oath in the lower interpretation have acted according to these or better measures they themselves are the only Judges If they have herein acted with sincerity and their own hearts do not condemn them then they may have confidence towards God but we should all remember that God is greater than our hearts and knoweth all things and that they who swear deceitfully or change when they have sworn to their own hurt shall never unless they repent abide in the Tabernacle of the Lord nor ascend into his Holy Place FINIS Spel. in vâ—r Fideles Feudum est benevola libera rei immobilis aequipollentis concessio cum translatione utilis Dominii proprietatè retentâ sub exhibitione servitiorum honestorum Feud Declaratio ante lib. Feud Disp de Feud c. 7. Gloss in ver Ligium lib. 2. c. 35. fol. 79. l. 9. c. 1. l. 3. c. 16. Inst jur Ang. l. 2. tit 2.
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
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