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SOVEREIGNTY IN THE CROWN - Joyce Lee Malcom, The Struggle for Sovereignty: Seventeenth-Century English Political Tracts, vol. 2 [1999]

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The Struggle for Sovereignty: Seventeenth-Century English Political Tracts, 2 vols, ed. Joyce Lee Malcolm (Indianapolis: Liberty Fund, 1999). Vol. 2.

Part of: The Struggle for Sovereignty: Seventeenth-Century English Political Tracts, 2 Vols.

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


SOVEREIGNTY IN THE CROWN

To protect the regime against rebellion, the king, royalists, and the church attempted to legislate conformity to royalist civil war philosophy, a philosophy that damned all resistance to the king or his servants and recognized no distinction between the king and his office. Strangely, given the marked failure of oaths to enforce the royalists’ own loyalty and conformity to Interregnum regimes, they relied upon the same technique to impose their thought-control and purge dissidents. The resulting oaths were included in all sorts of legislation. To ensure that only right-thinking individuals—that is, no supporters of the “good old cause,” Presbyterians, other dissenters, or Catholics—served as municipal officials, Parliament imposed loyalty oaths. In addition to the customary oaths of allegiance and supremacy, the 1661 Corporation Act required a declaration that the Solemn League and Covenant of 1644 was unlawful and “against the known laws and liberties of the kingdom,” a new oath that proclaimed it “not lawfull upon any pretence whatsoever to take Arms against the King,” and finally, denunciation of “that Traiterous Position of taking Arms by His Authority against His Person or against those that are commissioned by Him.”14 Parliament’s faith in oaths had its limits however, and the two houses agreed that even if someone were willing to take all these oaths, he could be sacked by special commissioners if they deemed him dangerous to public safety. The Militia Act of 1662 obliged all officers to swear to the same principles as those in the Corporation Act.15 These oaths reappeared in the 1662 Uniformity Act, which obliged all clergymen, college fellows, tutors, and schoolmasters to pledge not only “unfeigned assent and consent to all and every thing” in the Book of Common Prayer but to take the nonresistance oath imposed upon town officials and militia officers.16 Three years later the Five Mile Act barred nonconformist ministers from approaching within five miles of their former parishes unless they swore to all oaths in the Uniformity Act and one more. The ministers had to vow never to “endeavour any alteration of government either in Church or State.”17 The pledge not to alter the church harked back to Archbishop Laud’s controversial canons of 1640 which imposed an oath upon clergy not to “consent to alter the government of this Church . . . as it stands now established.”18 That oath said nothing about the secular government, nor, to my knowledge, did any other. It thus became a requirement of office to deny the legitimacy of any resistance to the king or his officials and to reject the ancient distinction, seized upon by the Long Parliament, between the king and his office. For clergy and teachers there was also a pledge not to alter either church or state.

In February 1675 the bishops suggested that an oath similar to that in the Five Mile Act be imposed upon members of Parliament and other officeholders. The king concurred, and in April a bill was duly introduced in the Lords to require members of Parliament and other officeholders to swear it was unlawful “on any pretence whatsoever” to take arms against the king or to endeavor “any alteration in the government of church or state as it is by law established.” Had this “nonresisting” test bill become law it would have frozen every detail of church and state government as they then stood and deprived Parliament of its most important function. Such was the obsession with the danger of armies, however, that there were suspicions the bill was meant to justify a standing army.

Shaftesbury led the spirited opposition to the bill in the House of Lords. A deservedly famous tract, “A Letter from a Person of Quality to His Friend in the Country,” probably penned by him, provides a blow-by-blow account of the stormy debate that raged for almost seventeen days, the Lords often sitting until nine at night, sometimes until midnight, with the king himself in attendance. The bill’s supporters managed to win approval for all its clauses although in one instance by a single vote. This crucial legislation would have become law had not the fierce struggle between the two houses over jurisdiction in Shirley v. Fagg led to the prorogation of Parliament. Indeed, that jurisdictional dispute may have been exacerbated for just that purpose.

[14. ]The Corporation Act, 1661, 13 Car. II, st. II, c. 1.

[15. ]The Militia Act, 1662, 14 Car. II, c. 3.

[16. ]An Act for the Uniformity of Public Prayers, 1662, 14 Car. II, c. 4.

[17. ]The Five Mile Act, 1664, 7 Car. II, c. 2.

[18. ]See Archbishop Laud’s Canons of 1640, in Kenyon, Stuart Constitution, 152.