Selected quad for the lemma: master_n
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A36485
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A discourse concerning the signification of allegiance, as it is to be understood in the new oath of allegiance
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Downes, Theophilus, d. 1726.
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1689
(1689)
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Wing D2082; ESTC R1366
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36,235
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28
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thus I become your Man from this day forward of Life and Limb and unto you shall be true and faithful and bear you Faith for the Tenements that I claim to hold of you saving the Faith which I owe unto our Sovereign Lord the King. The Lord Coke in his Institutes gives us this Exposition of it Foial and Loâ—al which are words equivalent to faithful and true Allegiance in the Oath before us these words are of great extent for they extend to the observation of the Lord's Counsel in whatsoever is honest and profitable Omnis homo debet fidem Domino suo de vitâ membris suis terrenô honorê observatione consilii sui per honestum utile Comprehended in these words Foial and Loyal I become your Man of Life and Limb. Therefore he must never be armed against or opposite to his Lord but both his Life and Member must be ready for the lawful Defence of his Lord. And this is sufficient to shew that by the Feudal Law as it is received in England every Vassal is obliged to an active Fidelity and Assistance of his Lord. Where fore 2. If this was the Obligation of every Vassal to his Lord is it possible for Men of sense to imagine that a lower degree of Fidelity was due to a Sovereign Lord who had a double right to the Service of his Vassals a property in their Estates and a Jurisdiction over their Persons Has the Law ordain'd that the Servant shall be above his Master and the Subject above his Sovereign Has it provided for the safety of an inferior Lord and left the Sovereign defenceless Given the one a right to the utmost service of his Vassal and obliged the other to be content with a peaceable Indifferency and a cold Neutrality Or lastly Can it be supposed that Sovereign Princes who enacted or introduced these Laws did intend that their own Subjects should have such a Superiority above themselves in the Fidelity of their Vassals This surely must be necessarily false as it is plainly irrational And to shew that it is so it will be sufficient to observe 1. That in the Homage and Oaths of Fealty made by Vassals to inferior Lords the Sovereign Lord was expresly excepted Spelman and others tell us That Frederick Barbarossa made a Law that the Emperor should be expresly excepted in all Oaths of Fidelity and that this Law was universally received in all Nations And that it was here observed in England is evident from the form of Homage here inserted and the ancient Oath of Fealty in Fleta But also 2. By the same Feudal Laws the Liege Vassals of the Sovereign were expresly obliged to assist and defend him against all Persons whatsoever without any exception This is evident from the very definition of Liege Homage in Skene and of a Liege Tenure in the Feudists and from the common Form of Liege Homage here in England which was made to the King in these Words I become your man for the Fees and Tenements which I hold of you and will bear you Faith of your Lise and Limbs your Body Chattels and Terrene Honour against all Mortals whatsoever As for those who held in Feudo-ligio that is immediately of the King it is undeniable that they were bound for their Fee to assist the King in his Wars and it is no less certain that Vassals of Inferior Lords who held but mediately of the Crown were also bound to the same assistance of their Sovereign To this purpose a Passage out of Willelmus Nubrigensis is cited by Du-Fresne Regi Anglorum tanquam principali Domino hominium cum Ligeantia i. e. solenni cautione standi cum eo pro eo contra omnes homines So Glanvile informs us That a Vassal at the Command of the Prince was bound to fight against his own immediate Lord. And lastly that Statute of the Conqueror does expresly prove it wherein he commands All Earls Barons Knights Serjeants and all the Free-men of the whole Kingdom to be always well provided with Horse and Arms to serve him as often as need shall require according as they are bound by their Lands and Tenements and as he had appointed them to do by the common Council of the Kingdom and for that consideration had given them Lands in Fee for ever Hitherto therefore it appears that Ligeance in its Original signification implied an obligation to assist the Sovereign against all his Enemies without exception And since all our Oaths of Allegiance are manifestly derived from the Feudal Oaths it must needs be probable that the Ligeance universally required of all the Subjects is not much different from the Feudal to which it owes its original And this universal Allegiance I shall first consider in General and endeavour to shew the Obligation of it out of our Laws and Lawyers Secondly I shall consider it as it is stiled Legal And Thirdly Natural Allegiance 1. I am to consider the obligation of Universal Allegiance in general Hotoman observes that there are two kinds of Fidelity the one perform'd by Vassals and the other by Citizens or Subjects And for this he cites a Law of the Emperor Frederick to this effect Let our Vassals swear Fealty to us as Vassals and all others as Citizens from sixteen years to seventy And in his Disputations he proves from several Forms of Oaths of Fidelity exacted by several Princes of all their Subjects that they do oblige to the same Duties with those required of Vassals and the Forms he there produces do particularly oblige to an active Fidelity and Assistance of the Sovereign against all men living Agreeably in this Kingdom as all the Subjects are therefore called Liegemen beccause they are bound unto their King as Vassals to their Lord so the Oaths they were required to take and the Allegiance they were bound to pay unto the King are the same in substance with the Feudal Oaths and Obligations of a Vassal to his Liege Lord and Sovereign The late Interpreter of the Law-terms tells us That Ligeancy is most commonly used for that Duty which every good Subject owes to his Leige Lord the King. And says after Cowel That it is thus defined in the Great Customary of Normandy That it is an Obligation upon all Vassals to take part with their Liege Lord against all men living to serve him with their Persons Assistance and Advice to do him no Injury nor in any thing to support his Adversaries against him So that hence it is obvious That this Interpreter took the Allegiance of a Vassal and every good Subject to be exactly the same and thought this to be a good Definition of it which is as absolutely inconsistent with a pure Neutrality or a Reservation of an higher degree of Allegiance to another as Words can express The same Learned Interpreter has yet added out of the Lord Coke another
more modern Explication of it viz That it is the true and faithful Obedience of the Subject to his Sovereign But neither will this import a meer Neutrality or only a peaceable Conformity to the Laws if we will take the sense of the Author from his own Account of the Duties of Allegiance He gives us this Definition in Calvin's Case But in the same Case he positively asserts That all the Subjects of this Realm are bound by their Allegiance to discover and oppose all Treasons against the King to assist him in his Wars and even to spend their Blood in his Defence He gives the same Description in his Institutes also but he had before explain'd what was signified by Faithful and Loyal which according to him do imply positive Duties of actual Support and Assistance So that by True and Faithful Obedience in this Definition must be understood all those positive Duties of Fidelity and Obedience which every Subject owes his Sovereign by virtue of his Allegiance And what those are may be clearly understood from the known Laws of the Land which do plainly intimate and inform us to what Duties true Allegiance does bind us I shall here out of many produce but two Passages only and the first shall be out of the Act of Recognition 1â— Jac. 1. c. 1. Wherein both the Hâ—usâ—s do unto His Maiesty most humbly and faithfully submit and oblige themselves their Heirs and Posterity for ever until the last drop of their Blood be spent and do beseech His Maiesty to accept of the same at the first fruits of this High Court of Parliament of their Loyalty and Faith to His Majesty and his Royal Progeny and Posterity for ever By Loyalty here is meant nothing but Allegiance to which it is equivalent and hence we may observe first That the Parliament here obliged themselves to the utmost possible assistance and defence of his Majesty without any Conditions and Reserves even until the last drop of their Blood was spent Secondly They call this Obligation the first Fruits of their Faith and Allegiance and therefore certainly contained in them And Thirdly As far as a Law can do it they oblige not themselves only but their Heirs and Posterity for ever and that not to the King then in being only but to his Royal Progeny also and Posterity for ever The other Passage is 11 H. 7. c. 18. Where it is plainly and expresly declared That every Subject by the Duty of his Allegiance is bound to serve and assist his Prince and Sovereign Lord at all Seasons when need shall require and in particular against his Rebels and Enemies for the Suppressing and subduing of them This is so express and authentick a Declaration of the true Duty of Allegiance that no Art nor Sophistry can possibly evade it And upon this Statute among others did K. Charles the Martyr justifie his Commissions of Array in his Proclamation against Levying Forces and in another for setting up his Standard he required all his Subjects on the North-side of Trent upon their Allegiance to repair to his Royal Standard at Nottingham for his just and necessary defence So that this is not an obsolete and antiquated Notion of Allegiance but such as our Laws both ancient and modern have ever exacted such as the Sages of the Law have often inculcated such as our Kings have always claimed and their Loyal Subjects have yielded them in their necessity I shall only observe further That it seems to be a Maxim universally received by all the Feudists and Lawyers Quod nemo potest esse Ligius du 〈…〉 um or as Cowel after Skene expresses it That Ligeancy is such a Duty or Fealty as no man may bear to more than one Lord. And this Rule is founded on that Aphorism of even Truth it self No man can serve two Masters that is two absolute and independent Masters at once For if one be subordinate to the other then both may be served faithfully in a due subordination and thus the same person may be a Vassal to an Inferior and a Capital Lord to a Subject and a Sovereign But Ligeance being now constantly taken for the Obligation of Fidelity to a Sovereign Lord against all men living it would be a very gross contradiction to say that the same person may be the Liegeman of two Sovereign Princes at once because it is impossible he should adhere to both against all men living and this will be yet more absurd if the two Sovereigns be in open hostility and mutually endeavouring to destroy each other for then adherâ—nce to the one must necessarily be Treason against the other and the Liegeman will be bound to assist to oppose to defend and to destroy them both The reason of that Maxim therefore is very evident And hence it appears how absurd it is to make Allegiance signifie Neutrality whereby the Subject becomes the Liegeman of two Sovereign Princes or to speak properly of neither or else to signifie Fidelity to one King with a Reserve of assisting anothen King to destroy him But the Law has no where obliged us to such cross and contradictory Obligations And as for those subtle Distinctions between a higher and lower kind of Allegiance an Allegiance due to a King de facto and another at the same time to a King de jure an a solute and a conditioaate an active and an unactive a reserving and an unreserving Allegiance I may say concerning them as Judge Jenkins did of Acts of Parliament without the Kings Assent That no man can shew any Syllable L 〈…〉 er or Line to au horize them in the Books of the Law or Printed Acts of Parliament in any Age in this Land. For since it is not yet done I presume that that it cannot and it is another Maxim in the interpretation of all Laws Civil and Divine ubi Lex non distinguit ibi non disiirguendum est Such is the nature of that Allegiance in general which is universally due from all the Subjects and this is next to be considered as it is stil'd Legal Ligeanc 〈…〉 and this doth not import as the Word seems to intimate an Allegiance bounded and circumscribed by Law but it is therefore so called because the Law requires it of every Subject upon Oath and has prescribed the Form and manner of it Though Allegiance be universally due by all Laws Civil Natural and Divine yet the security of the Sovereign Power being of such vast importance to the preservation of Peace and Justice and even to the very Being of Law and Political Society as that they cannot possibly subssst without it the wisdom of the Law has thought it necessary to tie all those Obligations faster by the sacred bond of a Religious Oath and to assure the fidelity of the Subjects to their Sovereign by making God himself the Guarantee and Surety of it And hence it is that in all Ages such Oaths of true Allegiance have been