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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.

Editor: Joyce Lee Malcom

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

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Revolution and Allegiance

Gilbert Burnet, Measures of Submission to the Supream Authority

[Gilbert Burnet, 1643-1715]

ENQUIRY

Into the Measures of

SUBMISSION

TO THE

SUPREAM AUTHORITY:

And of the Grounds upon which it may be Lawful or necessary for Subjects, to defend their Religion, Lives and Liberties.

Gilbert Burnet was an extraordinary individual. He was a bishop, an active politician, a prolific pamphleteer, and a historian. His tract, reprinted here, played a key role in smoothing the way for William and Mary to ascend the throne of England.

Burnet was born in Edinburgh. His father was an attorney and free thinker who criticized bishops but nevertheless refused to take the Presbyterian Covenant. Consequently he contrived to live as quietly as possible until the Restoration. He was then made one of the Lords of the Session. Gilbert was broadly educated and attended Aberdeen University where, to please his father, he studied to become a clergyman. He entered the Scots church while it was under Presbyterian control, although episcopacy was restored soon after. Burnet had a religious tolerance rare for his era. Indeed, both Anglicans and Presbyterians would later become annoyed at his moderation. During a visit to the English universities Burnet joined the Royal Society. On his return to Scotland he accepted a living at Saltoun in East Lothian, which he held until 1669 when he became professor of divinity at Glasgow. He was actively involved in public affairs and on familiar and surprisingly frank terms with both Charles II and James. For a time he was one of Charles’s chaplains. In 1671 he was named bishop of Edinburgh.

Burnet later settled in England where he defended the first Catholic victim of the popish plot scare. During the exclusion crisis he tried to moderate between the parties. Yet he was a close friend to leading Whigs. In 1683 his two dearest friends, Essex and Russell, were both implicated in the Rye House Plot and executed. Despite the personal dangers, Burnet attended Russell on the scaffold and appeared for the defence at Algernon Sidney’s trial. After these deaths heprudently left England. He returned in 1684, only to be stripped of some posts because of a vehement anti-Catholic sermon he gave. At James’s accession Burnet again left for the Continent. There he witnessed the terrible religious frenzy caused in France by the king’s abrupt revocation of the Edict of Nantes, which had protected the civil liberties of French Protestants. He also visited Calvinist Geneva and corresponded with Lutherans. Finally he accepted an invitation from William of Orange and Mary to reside at the Hague, where he became a confidant of them both.

Burnet was deeply involved in William’s plans to invade England and personally accompanied that expedition. It was he who translated William’s declaration into English. In preparation for the campaign he had thousands of copies of the remarkable tract, reprinted below, prepared in Holland to be distributed upon their arrival. Dubbed the most radical piece Burnet ever wrote, this call to arms succinctly summarizes its author’s view of the nature of civil society, supreme power, the duty of self-preservation, and the limits on divine delegation of power, all with a decidedly Whig slant. In it Burnet remarks: “In all the disputes between Power and Liberty, Power must always be proved, but Liberty proves itself.” The tract appeared in at least six separate editions and in addition was reprinted in collections of tracts published in 1688 and 1689.

With the accession of William and Mary honors were heaped upon Burnet. It was he who preached the sermon at the coronation of William and Mary. He was named bishop of Salisbury. Burnet personally attended William at his deathbed. He lived to advise Queen Anne and died in 1715.

This Enquiry cannot be Regularly made, but by taking in the first place, a true and full view of the nature of Civil Society, and more particularly of the nature of Supream power, whether it is lodged in one or more persons?

I. It is certain, that the Law of Nature has put no difference or subordination among Men, except it be that of Children to Parents, or Wives to their Husbands; so that with Relation to the Law of Nature; all Men are born free: and this Liberty must still be supposed entire, unless so far as it is limited by Contracts, Provisions and Laws. For a Man can either bind himself to be a Servant, or sell himself to be a Slave, by which he becomes in the power of another, only so far as it was provided by the Contract: since all that Liberty which was not expresly given away, remains still entire: so that the plea for Liberty always proves itself, unless it appears that it is given up or limited by any special agreement.

II. It is no less certain, that as the light of nature has planted in all men a natural principle of the love of Life, and of a desire to preserve it; so the common principles of all religion agree in this, that God having set us in this World, we are bound to preserve that being, which he has given us, by all just and lawful ways. Now this duty of Self-preservation, is exerted in Instances of two sorts; the one are, in the resisting of Violent Aggressors; the other are the taking of just revenges of those, who have invaded us so secretly, that we could not prevent them, and so Violently that we could not resist them: in which cases the principle of self-preservation warrants us, both to recover what is our own, with just damages, and also to put such unjust persons out of a Capacity of doing the like Injuries any more, either to ourselves, or to any others. Now in these instances of self-preservation, this difference is to be observed; that the first cannot be limited, by any slow forms, since a pressing danger requires a vigorous repulse: and cannot admit of delays; whereas the second, of taking revenges, or reparations, is not of such hast, but that it may be brought under rules and forms.

III. The true and Original Notion of Civil Society and Government is, that it is a Compromise made by such a body of Men, by which they resign up the right of demanding reparations, either in the way of Justice, against one another, or in the way of War, against their neighbours; to such a single person, or to such a body of Men as they think fit to trust with this. And in the management of this Civil Society, great distinction is to be made; between the power of making Laws for the Regulating the Conduct of it, and the power of Executing those Laws. The Supream Authority must still be supposed to be lodged with those who have the Legislative Power reserved to them; but not with those who have only the Executive; which is plainly a Trust, when it is separated from the Legislative Power; and all Trusts, by their nature import, that those to whom they are given, are accountable, even though that it should not be expresly specified in the words of the Trust itself.

IV. It cannot be supposed, by the principles of Natural Religion, that God has Authorised any one Form of Government, any other way than as the general Rules of Order, and of Justice, oblige all Men not to subvert Constitutions, nor disturb the peace of Mankind, or invade those Rights with which the Law may have vested some persons; for it is certain, that as private Contracts lodge or translate private Rights; so the Publick Laws can likewise lodge such Rights, Prerogatives and Revenues, in those, under whose Protection they put themselves, and in such a manner that they may come to have as good a Title to these, as any private Person can have to his Property: so that it becomes an Act of high Injustice and Violence, to Invade these: which is so far a greater sin than any such actions would be, against a private Person, as the publick Peace and Order is preferrable to all private Considerations whatsoever. So that in truth, the principles of Natural Religion, given those that are in Authority, no power at all, but they do only secure them in the possession of that which is theirs by Law. And as no Considerations of Religion can bind me to pay another more than I indeed owe him, but do only bind me more strictly to pay what I owe; so the Considerations of Religion do indeed bring Subjects under stricter Obligations, to pay all due Allegiance and Submission to their Princes, but they do not at all extend that Allegiance further than the Law carries it. And though a Man has no divine right to his property, but has acquired it by human means, such as succession, or industry, yet he has a security for the enjoyment of it, from a Divine right; so though Princes have no immediate warrants from Heaven, either for their Original Titles, or for the extent of them, yet they are secured in the possession of them by the Principles and Rules of Natural Religion.

V. It is to be Considered, that as a private person, can bind himself to another Man’s service, by different degrees, either as an Ordinary servant for wages, or as one appropriat for a longer time as an Apprentice, or by a total giving himself up to another, as in the case of Slavery: in all which cases the General name of Master may be equally used, yet the degrees of his power, are to be judged by the nature of the Contract; so likewise bodies of Men can give themselves up in different degrees, to the Conduct of others: and therefore though all those may carry the same name of King, yet every one’s power is to be taken from the measures of that Authority which is lodged in him, and not from any general Speculations founded on some Equivocal terms, such a King, Sovereign, or Supream.

VI. It is certain, that God, as the Creator and Governour of the World, may set up whom he will, to rule over other men: But this declaration of his will, must be made evident by Prophets, or other Extraordinary Men sent of him, who have some manifest proofs of the Divine Authority that is committed to them, on such occasions, and upon such persons declaring the will of God, in favour of any others, that Declaration is to be submitted to, and obeyed. But this pretence of a divine Delegation, can be carried no further than to those who are thus expresly marked out, and is unjustly claimed by those who can prove no such Declaration to have been ever made in favour of them, or their families. Nor does it appear reasonable to conclude from their being in posession, that it is the will of God that it should be so, this justifies all Usurpers, when they are successful.

VII. The measures of Power, and by consequence of Obedience, must be taken from the express Laws of any State, or body of Men, from the Oaths that they swear, or from Immemorial Prescription, and a long Possession, which both give a Title, and in a long tract of time make a bad one become good, since Prescription when it passes the memory of Man, and is not disputed by any other Pretender, gives by the common sense of all Men a just and good Title. So upon the whole matter, the degrees of all Civil Authority, are to be taken either from express Laws, immemorial Customs, or from particular Oaths, which the Subjects swear to their Princes: this being still to be laid down for a Principle, that in all the disputes between Power and Liberty, Power must always be proved, but Liberty proves itself; the one being founded only upon positive Law, and the other upon the Law of Nature.

VIII. If from the general Principles of Human Society, and Natural Religion, we carry this matter to be examined by the Scriptures, it is clear that all the passages that are in the Old Testament, are not to be made use of in this matter, of neither side. For as the Land of Canaan, was given to the Jews by an immediate grant from Heaven, so God reserved still this to himself, and to the Declarations that he should make from time to time, either by his Prophets, or by the Answers that came from the Cloud of Glory that was between the Cherubims, to set up Judges or Kings over them, and to pull them down again as he thought fit. Here was an express Delegation made by God, and therefore all that was done in that Dispensation, either for or against Princes, is not to be made use of in any other State, that is founded on another bottom and Constitution, and all the expressions in the Old Testament relating to Kings, since they belong to persons that were immediately designed by God, are without any sort of reason applied to those, who can pretend to no such designation, neither for themselves nor for their Ancestors.

IX. As for the New Testament, it is plain, that there are no rules given in it, neither for the forms of Government in general, nor for the degrees of any one form in particular, but the general Rules of Justice, Order and Peace, being established in it upon higher motives, and more binding considerations, than ever they were in any other Religion whatsoever, we are most strictly bound by it, to observe the Constitution in which we are; and it is plain, that the Rules set us in the Gospel, can be carried no further. It is indeed clear from the New Testament, that the Christian Religion as such, gives us no grounds to defend or propagate it by force. It is a Doctrine of the Cross, and of Faith, and Patience under it: and if by the order of Divine Providence, and of any Constitution of Government, under which we are born, we are brought under sufferings, for our professing of it, we may indeed retire and fly out of any such Country, if we can; but if that is denied us, we must then according to this Religion, submit to those sufferings under which we may be brought, considering that God will be glorified by us in so doing, and that he will both support us under our sufferings, and gloriously reward us for them.

This was the state of the Christian Religion, during the three first Centuries, under Heathen Emperors, and a Constitution in which Paganism was established by Law. But if by the Laws of Government, the Christian Religion, or any form of it, is become a part of the Subject’s Property, it then falls under another consideration, not as it is a Religion, but as it is become one of the principal rights of the Subjects, to believe and profess it: and then we must judge of the Invasions made on that, as we do of any other Invasion, that is made on our other Rights.

X. All the passages in the New Testament that relate to Civil Government, are to be Expounded as they were truly meant, in opposition to that false Notion of the Jews, who believed themselves to be so immediately under the Divine Authority, that they could not become the Subjects of any other Power; particularly of one that was not of their Nation, or of their Religion: therefore they thought, they could not be under the Roman Yoke, nor bound to pay Tribute to Cesar, but judged that they were only subject out of fear, by reason of the force that lay on them, but not for Conscience’ sake: and so in all their dispersion, both at Rome and elsewhere, they thought they were God’s Freemen, and made use of this pretended liberty as a cloak of maliciousness. In opposition to all which, since in a course of many years, they had asked the protection of the Roman Yoke, and were come under their Authority, our Saviour ordered them to continue in that, by his saying, Render to Cesar that which is Cesar’s; and both St. Paul in his Epistle to the Romans, and St. Peter in his General Epistle, have very positively condemned that pernicious maxim; but without any formal Declarations made of the Rules or Measures of Government. And since both the People and Senate of Rome had acknowledged the power that Augustus had indeed violently Usurped, it became Legal when it was thus submitted to, and confirmed both the Senate and People: and it was established in his Family by a long Prescription, when those Epistles were writ: so that upon the whole matter, all that is in the New Testament upon this subject, imports no more, but that all Christians are bound to acquiesce in the Government, and submit to it, according to the Constitution that is settled by Law.

XI. We are then at last brought to the Constitution of our English Government: so that no General Considerations from speculations about Soveraign Power, nor from any passages either of the Old and New Testament, ought to determin us in this matter; which must be fixed from the Laws and Regulations that have been made among us. It is then certain, that with Relation to the Executive part of the Government, the Law has lodged that singly in the King; so that the whole Administration of it is in him: but the Legislative Power is lodged between the King and the Two Houses of Parliament; so that the power of making and repealing Laws, is not singly in the King, but only so far as the Two Houses concur with him. It is also clear, that the King has such a determined extent of Prerogative, beyond which he has no Authority: as for instance, if he levies mony of his people, without a Law impowering him to it, he goes beyond the limits of his Power, and asks that to which he has no right: so that there lies no obligation on the Subject to grant it. And if any in his Name use Violence for the obtaining it, they are to be looked on as so many Robbers, that Invade our Property, and they being Violent aggressours, the Principle of self-preservation seems here to take place, and to warrant as Violent a resistance.

XII. There is nothing more evident, than that England is a free Nation, that has its Liberties and Properties reserved to it, by many positive and express Laws. If then we have a right to our Property, we must likewise be supposed to have a right to preserve it: for those Rights are by the Law secured against the Invasions of the Prerogative, and by consequence we must have a right to preserve them against those Invasions. It is also evidently declared by our Law, that all Orders and Warrants, that are issued out in opposition to them, are null of themselves; and by consequence, any that pretend to have Commissions from the King, for those ends, are to be considered as if they had none at all: since those Commissions being void of themselves, are indeed no Commissions in the Construction of the Law; and therefore those who act in vertue of them, are still to be considered, as private persons who come to invade and disturb us. It is also to be observed, that there are some Points that are justly disputable and doubtful, and others that are so manifest, that it is plain that any Objections that can be made to them, are rather forced pretences, than so much as plausible colours. It is true, if the Case is doubtful, the Interest of the Publick Peace and Order, ought to carry it; but the Case is quite different when the Invasions that are made upon Liberty and Property, are plain and visible to all that consider them.

XIII. The main and great difficulty here, is, that tho our Government does indeed assert the Liberty of the Subject, yet there are many express Laws made, that lodge the Militia singly in the King, that make it plainly unlawful upon any pretence whatsoever to take Armes against the King, or any Commissioned by him. And these Laws have been put in the form of an Oath, which all that have born any Employment either in Church or State have sworn; and therefore those Laws, for the assuring our Liberties, do indeed bind the King’s Conscience, and may affect his Ministers; yet since it is a Maxim of our Law, that the King can do no wrong, these cannot be carried so far as to justify our taking Armes against him, be the transgressions of Law ever so many and so manifest. And since this has been the constant Doctrine of the Church of England, it will be a very heavy Imputation on us, if it appears, that tho we held those Opinions, as long as the Court and the Crown have favoured us, yet as soon as the Court turns against us, we change our principles.

XIV. Here is the true Difficulty of this whole Matter, and therefore it ought to be exactly considered: First, All general Words, how large soever, are still supposed to have a tacit exception, and reserve in them, if the Matter seems to require it. Children are commanded to obey their Parents in all things: Wives are declared by the Scripture, to be subject to their Husbands in all things, as the Church is unto Christ. And yet how comprehensive soever these words may seem to be, there is still a reserve to be understood in them; and tho by our Form of Marriage, the Parties swear to one another till Death them do part, yet few doubt but that this Bond is dissolved by Adultery, tho it is not named; for odious things ought not to be suspected, and therefore not named upon such occasions: But when they fall out, they carry still their own force with them. 2. When there seems to be a Contradiction between two Articles in the Constitution, we ought to examine which of the two is the most Evident, and the most Important, and so we ought to fix upon it, and then we must give such an accommodating sense to that which seems to contradict it, that so we may reconcile those together. Here then are two seeming Contradictions in our Constitution: The one is the Publick Liberty of the Nation; the other is the Renouncing of all Resistance, in case that we’re invaded. It is plain, that our Liberty is only a thing that we enjoy at the King’s Discretion, and during his Pleasure, if the other against all Resistance is to be understood according to the utmost extent of the Words. Therefore since the chief Design of our whole Law, and of all the several Rules of our Constitution, is to secure and maintain our Liberty, we ought to lay that down for a Conclusion, that it is both the most plain and the most Important of the two: And therefore the other Articles against Resistance ought to be so softened, as that it do not destroy this. 3. Since it is by a Law that Resistance is condemned, we ought to understand it in such a sense as that it does not destroy all other Laws: And therefore the intent of this Law, must only relate to the Executive Power, which is in the King, and not to the Legislative, in which we cannot suppose that our Legislators, who made that Law, intended to give up that, which we plainly see they resolved still to preserve entire, according to the Ancient Constitution. So then, the not resisting the King, can only be applied to the Executive Power, that so upon no pretence of ill Administrations in the Execution of the Law, it should be lawful to resist him; but this cannot with any reason be extended to an Invasion of the Legislative Power, or to a total Subversion of the Government. For it being plain, that the Law did not design to lodge that Power in the King, it is also plain that it did not intend to secure him in it, in case he should set about it. 4. The Law mentioning the King, or those Commissionated by him, shews plainly, that it only designed to secure the King in the Executive Power: for the Word Commission necessarily imports this, since if it is not according to Law, it is no Commission; and by Consequence, those who act in Vertue of it, are not Commissionated by the King in the Sense of the Law. The King likewise Imports a Prince clothed by Law with the Regal Prerogative; but if he goes to Subvert the whole Foundation of the Government, he Subverts that by which he himself has his Power, and by consequence he annuls his own Power; and then he ceases to be King, having endeavoured to destroy that, upon which his own Authority is founded.

XV. It is acknowledged by the greatest Assertors of Monarchichal Power, that in some Cases a King may fall from his Power, and in other Cases that he may fall from the Exercise of it. His Deserting his People, his going about to enslave, or sell them to any other, or a furious going about to destroy them, are in the opinion of the most Monarchical Lawyers, such Abuses, that they naturally divest those that are guilty of them, of their whole Authority. Infancy or Frenzy do also put them under the Guardianship of others. All the Crowned Heads of Europe have, at least secretly, approved of the putting the late King of Portugal under a Guardianship, and the keeping him still Prisoner for a few Acts of Rage, that had been fatal to a very few Persons: And even our Court gave the first countenance to it, though of all others the late King had the most reason to have done it at least last of all; since it justified a younger Brother’s supplanting the Elder; yet the Evidence of the thing carried it even against Interest. Therefore if a King goes about to subvert the Government, and to overturn the whole Constitution, he by this must be supposed either to fall from his Power, or at least from the Exercise of it, so far as that he ought to be put under Guardians; and according to the Case of Portugal, the next Heir falls naturally to be their Guardian.

XVI. The next thing to be considered, is to see in Fact whether the Foundations of this Government have been struck at, and whether those Errors, that have been perhaps committed, are only such Maleversations, as ought to be imputed only to Human Frailty, and to the Ignorance, Inadvertencies, or Passions to which all Princes may be subject, as well as other men. But this will best appear if we consider what are the Fundamental Points of our Government, and the chief Securities that we have for our Liberties.

The Authority of the Law is indeed all in one Word, so that if the King pretends to a Power to Dispense with Laws, there is nothing left, upon which the Subject can depend; and yet as if Dispensing Power were not enough, if Laws are wholly suspended for all time coming, this is plainly a Repealing of them, when likewise the men, in whose hands the Administration of Justice is put by Law, such as Judges and Sherriffs, are allowed to tread all Laws under foot, even those that Infer an Incapacity on themselves if they violate them; this is such a breaking of the whole Constitution, that we can no more have the Administration of Justice, so that it is really a Dissolution of the Government; since all Trials, Sentences, and the Executions of them, are become so many unlawful Acts, that are null and void of themselves.

The next thing in our Constitution, which secures to us our Laws and Liberties, is a free and Lawful Parliament. Now not to mention the breach of the Law of Triennial Parliaments, it being above three years since we had a Session that enacted any Law; Methods have been taken, and are daily a taking, that render this Impossible. Parliaments ought to be chosen with an entire Liberty, and without either Force or Preingagements;1 whereas if all men are required beforehand to enter into Engagements how they will Vote if they are chosen themselves, or how they will give their Voices in the Electing of others? This is plainly such a preparation to a Parliament, as would indeed make it no Parliament, but a Cabal, if one were chosen, after all that Corruption of Persons, who had preingaged themselves; and after the Threatening and Turning out of all persons out of Imployments who had refused to do it; and if there are such daily Regulations made in the Towns, that it is plain those who manage them intend at last to put such a number of men in the Corporations as will certainly chuse the persons who are recommended to them. But above all, if there are such a number of Sherriffs and Mayors made, over England, by whom the Elections must be conducted and returned, who are now under an Incapacity by Law, and so are no Legal Officers, and by consequence those Elections that pass under their Authority are null and void: If, I say, it is clear that things are brought to this, then the Government is dissolved, because it is impossible to have a Free and Legal Parliament in this state of things. If then both the Authority of the Law, and the Constitution of the Parliament are struck at and dissolved, here is a plain Subversion of the whole Government. But if we enter next into the particular Branches of the Government, we will find the like Disorder among them all.

The Protestant Religion, and the Church of England, make a great Article of our Government, the latter being secured not only of old by Magna Charta, but by many special Laws made of late; and there are particular Laws made in K. Charles the First, and the late King’s time, securing them from all Commissions that the King can raise for Judging or Censuring them: if then in opposition to this, a Court so condemned is erected, which proceeds to Judge and Censure the Clergy, and even to disseise them of their Freeholds, without so much as the form of a Trial, tho this is the most indispensable Law of all those that secures the Property of England; and if the King pretends that he can require the Clergy to publish all his Arbitrary Declarations, and in particular one that strikes at their whole settlement,2 and has ordered Process to be begun against all that disobeyed this illegal warrant, and has treated so great a number of the Bishops as Criminals, only for representing to him the reasons of their not obeying him; if likewise the King is not satisfied to profess his own Religion openly, tho even that is contrary to Law, but has sent Ambassadors to Rome, and received Nuntios from thence, which is plainly Treason by Law; if likewise many Popish Churches and Chappels have been publickly opened; if several Colledges of Jesuits have been set up in divers parts of the Nation, and one of the Order has been made Privy Counsellor, and a principal Minister of State; and if Papists, and even those who turn to that Religion, tho declared Traitors by Law, are brought into all the chief Imployments, both Military and Civil; then it is plain, That all the Rights of the Church of England, and the whole establishment of the Protestant Religion are struck at, and designed to be overturned; since all these things, as they are notoriously Illegal, so they evidently demonstrate, that the great design of them all, is the rooting out of this Pestilent Heresie, in their style, I mean the Protestant Religion.

In the next place, If in the whole course of Justice, it is visible, that there is a constant practising upon the Judges, that they are turned out upon their varying from the Intentions of the Court, and if men of no Reputation nor Abilities are put in their places; if an Army is kept up in time of peace, and men who withdraw from that illegal Service are hanged up as Criminals, without any colour of Law, which by consequence are so many Murders; and if the Souldiery are connived at and encouraged in the most enormous Crimes, that so they may be thereby prepared to commit greater ones, and from single rapes and murders proceed to a rape upon all our Liberties and a destruction of the Nation: if, I say, all these things are true in fact, then it is plain, that there is such a dissolution of the Government made, that there is not any one part of it left sound and entire. And if all these things are done now, it is easy to imagine what may be expected, when Arbitrary Power that spares no man, and Popery that spares no Heretick, are finally established. Then we may look for nothing but Gabelles, Tailles, Impositions, Benevolences, and all sorts of Illegal Taxes, as from the other we may expect Burnings, Massacres and Inquisitions. In what is doing, in Scotland we may gather what is to be expected in England; where if the King has over and over again declared, that he is vested with an Absolute Power, to which all are bound to Obey without Reserve, and has upon that annulled almost all Acts of Parliament that passed in K. James the First’s minority, though they were ratified by himself when he came to be of Age, and were confirmed by all the subsequent Kings, not excepting the present.3 We must then conclude from thence, what is resolved on here in England, and what will be put in execution as soon as it is thought that the Times can bear it. When likewise the whole Settlement of Ireland is shaken, and the Army that was raised, and is maintained by Taxes, that were given for an Army of English Protestants, to secure them from a new Massacre by the Irish Papists, is now all filled with Irish Papists, as well as almost all the other Imployments; it is plain, That not only all the British Protestants inhabiting that Island, are in daily danger of being butchered a second time, but that the Crown of England is in danger of losing that Island, it being now put wholly into the hands and power of the Native Irish, who as they formerly offered themselves up sometimes to the Crown of Spain, sometimes to the Pope, and once to the Duke of Lorrain, so they are perhaps at this present treating with another Court for the Sale and Surrender of the Island, and for the Massacre of the English in it.

If thus all the several Branches of our Constitution are dissolved, it might be at least expected, that one part should be left entire, and that is the Regal Dignity; and yet even that is prostituted, when we see a young Child put in, the reversion of it, and pretended to be the Prince of Wales; concerning whose being born of the Queen, there appear to be not only no certain proofs, but there are all the presumptions that can possibly be imagined to the contrary. No proofs were ever given either to the Princess of Denmark, or to any other Protestant Ladies, in whom we ought to repose any Confidence that the Queen was ever with Child; that whole matter being managed with so much mysteriousness, that there were violent and publick Suspicions of it before the Birth. But the whole Contrivance of the Birth, the sending away the Princess of Denmark, the sudden shortening of the Reckoning, the Queen’s sudden going to S. James’s, her no less sudden pretended delivery; the hurrying the Child into another Room, without shewing it to those present, and without their hearing it cry; and the mysterious conduct of all since that time; no satisfaction being given to the Princess of Denmark upon her Return from the Bath, nor to any other Protestant Ladies; of the Queen’s having been really brought to Bed. These are all such evident Indications of a base Imposture, in this matter, that as the Nation has the justest reason in the World to doubt of it, so they have all possible reason, to be at no quiet till they see a Legal and Free Parliament assembled; which may impartially, and without either Fear or Corruption, examine that whole matter.

If all these matters are true in fact, then I suppose no man will doubt, that the whole Foundations of this Government, and all the most sacred parts of it, are overturned. And as to the truth of all these Suppositions, that is left to every Englishman’s Judgment and Sense.

finis.

John Wildman, Some Remarks upon Government

A. B. and N. T.

[John Wildman, 1624-1693]

Some REMARKS upon

GOVERNMENT,

And particularly upon the ESTABLISHMENT

Of the English MONARCHY

Relating to this present Juncture.

In Two LETTERS,

Written by, and to a Member of the Great

CONVENTION, holden at Westminster the 22d. of January, 1688/9.

This important Whig tract has only recently been attributed to John Wildman, a republican pamphleteer, a successful land speculator, and, until 1688, an unsuccessful plotter.

Wildman practiced law and at some point served in Parliament’s army although possibly not until 1649. He came to prominence in 1647 along with the Levellers as a spokesman for a democratic republic during the New Model Army’s debates at Putney. He was especially intrigued by constitutions, and his biographer claims that his “The Case of the Army” in 1647, which was broadened into the second “Agreement of the People,” was the first democratic constitution known to the modern world. Wildman abandoned the Levellers in 1649.

As a republican he was hostile to the Protectorate. Wildman was imprisoned by Cromwell in 1655 for plotting his overthrow and released in 1656, perhaps on condition he become an informer. Wildman was more interested in constitutional than religious issues and during the Interregnum married a Roman Catholic. He was also something of an opportunist and made a small fortune as a land manager and property speculator during the 1650s. His seizure of Windsor Castle in 1659 from supporters of General John Lambert stood him in good stead at the Restoration. Nevertheless, in 1661 he was rounded up with other republicans and put in prison where he languished until 1667. In 1683 his involvement with the Whigs led to another arrest, thistime in the wake of the Rye House Plot. He was released in 1684 when no evidence was found against him. He then went from the proverbial frying pan into the fire, serving as James, Duke of Monmouth’s, chief agent in England and falling under suspicion of complicity in Monmouth’s ill-fated rebellion of 1685. Wildman fled abroad and by 1688 had found his way to The Hague where he became one of William’s chief propagandists. He accompanied the prince to Torbay. Wildman was subsequently elected to the Convention Parliament where he was one of the most active members and was named to the committee that drafted the Declaration of Rights and to 63 other committees.

“Some Remarks upon Government” appeared in a single edition in January 1689 amid a flurry of pamphlets offering advice to the Convention. Of these, Mark Goldie found it the most substantial of four anonymous pamphlets that constituted a commonwealth Whig manifesto. These did not dwell upon the usual concerns of popery, allegiance, or the succession. Instead “Some Remarks upon Government,” for example, discusses the origins of government, the flaws in the English constitution, and the importance of change in such areas as the electoral system, revenue, and the appointment of judges. The impact of the recommendations would have been to strengthen the powers of Parliament. This essay has been called the only Harringtonian contribution to the Revolution debate.

SIR,

YOU have been highly Obliging in the frequent Accounts you sent me of Affairs, in this Great and Extraordinary Revolution. I was once very diffident, and could scarcely conceive that the States of Holland, or Prince of Orange, could have attempted so Expensive, and so Hazardous an Undertaking out of pure Generosity, meerly for our Sakes, and for the Re-establishment of our Laws and Religion, which did both equally Labour under the Pressures of an Ill Administration, and seemed to draw towards their last Periods. I knew the States had the Character of preferring their own, before any other Interest whatsoever, and the Prince had the Reputation of setting a due Value upon That which creates and proportions the Value of all things else. The Enterprize I lookt upon, as very Expensive in its Methods, and Uncertain in its Accomplishment, which made me prone to believe that something more lay coucht in this Vast Undertaking, than was exprest in the Prince’s Declaration; But since His arrival and coming to London, I perceive He has, upon all Occasions, carried Himself with that wonderful Modesty, with such an unparalelled Care and Tenderness of our Laws, Liberties, and Religion, and adheres so Resolutely to every Particular in His Declaration, that I cannot but esteem these to be His Noblest Trophies: And that which crowns those Successes which have crowned His Generous and Pious Undertakings. His persisting to referr all to the Impartial Decisions of a Free Parliament, to Do and Establish such Matters, either in His, their Own, or the King’s behalf, as they shall think fit, even then, when Honor and Power spread their Perswasives before Him to do otherwise, is so great a Thing that it exceeds all His other Glories, and strikes the Beholders with nothing less than Amazement. I do more rejoice than wonder at the Unanimous Concurrence which has hitherto been maintained between the Lords and Commons Assembled in Councel, and indeed in the Wishes & Desires of all the People in General. It is what this Juncture does highly require, and what the Prince’s Conduct does Oblige. We arevery busie here in the Countrey in Electing Members for the Great Convention which is to sit in January, and I think the Lot will fall on me to serve for my Neighbouring Borough. You know I was never fond of Business or Trouble, and truly Age seems now to have signed my Writ of Ease. I also always cherisht some Cynical Notions, which made me very much slight and disregard the Honours and Flatulencies of a giddy World: But the thoughts of being one of the Great Planters of a Government which shall last for Ages, and perhaps till Time has run out its last Minutes, is no Ordinary thing. This thought alone has envigorated my Age and baffled my Philosophy, so that you may expect to see me in London about the 22d. of January next; and in the mean time, if you will favour me with your Thoughts and Opinion of Affairs, and what Understanding Men do think will, or ought to be the Issue and Consequence of this great Revolution, you will very considerably add to the many Kindnesses conferred upon

SIR,
Your assured Friend and humble Servant

A. B.

The Answer.

Yours (though it bore an early Date, yet) came not to my hands till last Friday. I am very glad that my slender Services have proved upon any account acceptable to you. I never thought myself qualified to pry into the Recesses of Government, or the privacies of a King. What I acquainted you with, was little more than what was publickly discoursed of in Coffee-Houses: But indeed such was the Management of Affairs during our late King’s1 Supremacy, That his most private Councels proved generally the next day’s Table-talk, for as they were shallow, so was the bottom of them discoverable to every common Eye. The Prince has perhaps with more Courage than Caution, and a greater Zeal for the Protestant Interest, than Care of His own particular Concerns, undertaken mighty Things for us, and run such Risques in the Accomplishing of them, which Story can scarcely paralell. But what the sequel of this will be, I must leave to Astrology. ’Tis true, the people seem to be Unanimous to a wonder, and yet there are a Sett of Men in this Nation whom nothing will satisfie but to Lord it over their Brethren. These do still labour under some Discomposures, and although, in no respect disobliged, yet fearing they may receive a Crush in this great Turn, do by their Sourness and Discontent rather assist and further their fate, than anticipate and prevent it. The Protestant Dissenters are not esteemed, by Computations which have been formerly made, to amount to more than a 25th part of the Nation, the Church of England receiving all the rest. This I do believe to be true, if the Church of England be taken in the most large and comprehensive Sense, by including all such as frequent the publick Service: But if we might suppose them in the same Circumstances that Dissenters were in, at the time of this Computation made, under the Frowns of the Court, and the power of the Laws, which like so many Billows, beat in against them; if thus we might be admitted to view them in Reverse, I do believe their Numbers would not exceed, or Scarcely equal those of the Dissenting party. There are but very few in the Nation would undergo Fines and Imprisonment for the sake of the Surplice or Common-Prayer. The prevailing Opinion now in England is, Latitudinarian: Most Men are so far improved in their Judgements, as to believe, that Heaven is not entailed upon any particular Opinion, and that either an Episcopal, or Presbyterial way of Worship, together with a due observation of the Rules of Morality, may serve well enough to carry them to Heaven, the only Biass which enclines them to the one side or the other, being the Laws. Be Subject to the Higher Powers, not for Wrath,but Conscience, sways the Scale and gives the casting Vote in such Things as are thought indifferent. This is it which crowds the Church, otherwise the Sarsnet Hood and Lawn Sleeves might be as destitute of Votaries, as the Long Cloak and Collar Band.

Which way the succeeding Government will lean, I dare not determine, but it is more than probable, That Episcopacy, in that strictness in which it has of late Years been exercised, owed its Continuance, as well as Originally its Being, to the King: His power and His purse, has been liberally imployed in favour of the Church, and they as plentifully requited His Kindness, by their Doctrines of Jure Divino-ship, and Passive Obedience. So long as the King continued thus their Servant, He was in all Causes Civil and Ecclesiastical, their Supreme Head and Governour: But when the King became of another Interest, and they themselves were likely to be squeezed by the pressures of their own Weighty Doctrines, then the Case was immediately altered and Plowden’s Hogs could be no longer Trespassers.2 They instantly changed their Note, and rang their Bells backward, for they were all on fire, and likely to be reduced to their original Dust in a moment. Fears of Popery was first the pretence of their dissatisfactions. This was very plausible, and seemed once to give them an interest in the people. But surely now these Dangers are Removed; the Protestant Interest is likely to settle upon firm Foundations, and the Prince seems well affected to their way of Worship, and signalizes His Approbations by Communicating with them according to the Rights and Ceremonies of the Church, and yet they seem dissatisfied, and are still apprehensive of Danger.

What then can be the reason that this bright Hemisphere should thus be wrapt up in Clouds and Darkness? It must needs be this, That they have lost, or are likely to lose the King and Court’s good Service employed in all or most of the former Parliaments so freely in their behalf. This in truth was the chief Pillar of their Church: That which first built, and afterwards supported it. Though the Prince does sufficiently approve of this Establishment in His Own Judgment, yet He is resolved to call a Free Parliament, being the purport of His Declaration, backt with many subsequent Promises and Assurances in which the People shall have freedom to Elect such Persons as are for the True Interest of the Nation, and not for the upholding a particular Interest or Faction. There shall be no Elections either forced by Power, or bribed by Treats; No false Returns, no Committee of Affections to determine according to the Court or Church of England Interest; No Parliamentary Pensions, nor Treats with Guineas laid under their Plates to seduce them from their honest Principles and the Interest of their Country. The Prince abhors such irregularities. He desires such an Assembly may meet, as may truly represent the People, to Enact and Establish such Laws and such a Government as may secure their Religion, Liberties and Properties, with the best advantage and security to the Nation that can be proposed. And although the Church of England is hereby left destitute of that unfair and irregular advantage it firmly had from the King’s power and assistance, yet I doubt not but this and succeeding Parliaments will Enact such an Establishment in the Church, as may very well agree with the honest desires of the more moderate and pious Church-men.

What the Civil Government will be, is more difficult to guess at, but I can tell you what it has been, and wherein it seems defective and requires some touches of your Legislative Skill to help it out. This I am confident of, That if the Consultations of this great Councel does but produce what the Necessities of the People, and the Conveniencies which a well-setled State does require, the Alterations will be very considerable. ’Tis true, there is a Notion generally received by the Nobility and Gentry of England that a Mixt Monarchy (just such a one as ours is, and no other) must needs be the best of Governments, and that amongst all others, none could boast of those advantages as that of England. This fancy is so rivetted in the minds of the People (spread abroad and preacht up, only to keep the people in peace, and from endeavouring an Alteration, which could not be effected without the Inconveniencies of the Sword) that I do believe All things will again settle upon its old Basis, and the Government be rebuilt with all its irregularities. However, because I understand you are in election to be one of Those, from whom succeeding Ages must derive their Happiness or Misery, I will make use of the Liberty you have given me, to express my Sentiments in this mighty Affair, in order to which I will in the first place acquaint you with my Notions of Government in general, and afterwards will descend to Particulars; And to our present Case as it now lies:

Government is a Power whereby a Community of Men are kept in Order, and disposed to act comformably to their Natures, and to the common advantage of the whole Body Politick. This Power is sometimes placed in one single Person, and then it is Monarchy: Sometimes in a select number of the Chiefs, when it assumes the name of Aristocracy; And sometimes in the whole Body of the People, which is called Democracy. But of these three Primatives, there are several Derivatives, Compounds, and Variations.

The first, Magestracy, I do allow to be grounded in Nature, and the first Magistrate to be a Genarcha, or Patriarch, who ruled over Families of his own Extraction, and Citties of his natural Generation. It was in this sense that the Fifth Commandment was given; and it was from hence that Men grew up into Citties, Kingdoms, and Empires, and therefore the Laws to regulate them ought to be such as are apt and fit to govern Families, for the preservation of their Peace, Liberties and Properties, not to bind them to perpetual Slavery and Vassalage. So also, the Submissions due from the People to the Supream Power, are in their nature filial, not servile, as proceeding rather from Love and Gratitude, for protection given, than for fear of the Rod hanging over their Backs, which ought to be exercised only to prevent a common Inconveniency. But this Patriarchal Government, continues no longer than the Patriarch holds a power over his Family, to punish such offences in particular persons, as might otherwise (if allowed of) obstruct the common Interest; and to protect the whole Body and every individual in their natural and acquired Rights, both from Domestick and Forreign Invaders. For when the natural power of one or more in Conjunction shall exceed that of the Patriarch, or Father of the Family, this sort of Government is so far dissolved, that if they please and find it convenient, they may reassume their natural Freedom, or again engage in the same Family, by Pact or promise, or else leave it, and by compact with others, submit to what Laws or Measures of Living together in a Community they think fit. He that will make the natural Magistrate more Sacred than this, may at last commit Idolatry, and fall down to worship.

But this is not the State of any Nation or People now under Heaven: We are all shufled and blended together, so that we stand not Originally associated to any Magistrate out of natural Duty, but out of mutual fear of each other, which to avoid, produced, these civil Compacts, by which the World is now Governed. Thus being seperated from our Families, each Man has a right by nature to defend himself, which supposes his primary Allegeance now due to himself. He has farther an equal right with all others to all things necessary for sustentation, & an absolute right in his own person; & having thus a mutuum jus in both, he is fitted for mutual Compact with others. ’Tis certain that Nature, though She did provide for Mankind in its tender helpless and unexperienced years, a natural Governour and Protector, yet being withdrawn from that Power and Subjection, it falls into a state of War, which was the Condition of the World in those Times, which Historians call Heroical: When Nimrod obtained the Character of the stoutest Hunter, and Hercules travelled to tame Monsters and Usurpers.

The Patriarchal Government being at an end, and the People being now left in a state of War, occasioned by the Universal Right that every man had to every thing, the Government that succeeded was accordingly Martial and Warlike, and their Governours were rather Generals than Kings, and like them, Arbitrary and Unlimited. In this state the Chief Magistrate was properly and Originally called Tyrannus; but Lust, Ambition, and Avarice being the usual attendants of absolute power, did too far prevail, to the prejudice of those in Subjection, that both the Person and Title of such Governours in time became odious and contemptible. It was for this reason that Plutarch in his life of Timoleon, affirms that over a Tyrant, every man is a Judge, and may be an Executioner; and Plato in his Commonwealth, delineates a Tyrant amongst his Subjects by a Woolf amongst the Flock, placed there rather to devour than preserve them.

But the World soon grew weary of this Course of Life, and by experience found that Compact was more apt for the Coalition of Societies than mere Power; which is the cause, That in the more civilized and cultivated parts of the Earth, this sort of Government is very rare and unusual, unless sent by the Supreme Power of Heaven and Earth for the punishment of a People for some Sins committed, that thereby they may be compelled like the mute Fish in the Gospel, to bring their Penny unto Caesar, and after pay their Lives for Contribution. And it is observable that it prevails principally, and is no where else willingly allowed of, but where Idolatry and Invincible Ignorance are the National Sins.

This Tyranical Government, or State of War, being found uneasie in many places, and more intollerable than the Patriarchal Government in which they were first engaged, and also finding that there is now no Father of the Country, in a natural Sense. The People as becoming Orphans, choose One or More to be their Guardian, which in several Countries goes under several Denominations. Thus the People are in a state of Pupillage, and as a Miner cannot make a Contract to his prejudice, so we may conclude, that the People may meliorate their Condition by Compact, but cannot make it worse; and therefore it may with much more reason be allowed, that such Concessions which are made by them, and which infringe or derogate from their natural Rights should be void, than that what a Prince grants to his People out of his Prerogative (though for their better Government and well Being, for which alone Prerogative was first given and intended) should be null and of no validity, which some Precedents in our present Establishment seem to countenance and abet. Thus all Governments in the same degrees that they differ from Patriarchal and Tyrannical must derive their Originals from Compact, and the Governour must necessarily derive his Power from and by, the mutual Consent of the People he governs; unless God does himself immediately appoint a Magistrate, and even then the People have usually confirmed, as in the case of Saul. I. Sam. 10. So of David, I Sam. 16. 2 Sam. 2.

I cannot but with Grotius believe, that Salus populi est Suprema Lex. Nor did Junius Brutus err in affirming that, Imperii finis unicus est populi Utilitas.3 But on the contrary to imagine the People to be made for their King, and that a Million of Souls should be Born Slaves and Vassals to the Lust and Tyranny of one Man, who by nature is no more than their fellow Creature, made of the same mold, and standing upon the same level with themselves, is nonsense and directly contradictory to the true notion of Government itself. In all States and Kingdoms whose Government is by Compact, the King cannot be supposed to be anything more than an Officer, elected and appointed by the People to preserve the Government, and therefore the People must necessarily be supposed to have still a Reserve of Power in extraordinary Exigences above the King. Quicquid efficit Tale est magis tale. Their Concessions cannot extend farther than for their own preservation, and when that ceases, the Grant determines Our General and Original Rights cannot totally be swallowed up by any Compact that can be made to settle Liberty and Property, neither is all that was Natural now made Civil; wherefore that old Law was but old Reason. Quod populus postremum jubet id ratum esto.4 Upon this Account the People in notorious cases, do themselves become the Accuser, Judge, and Executioner; it being but reason that in such Cases they should be allowed this priviledge; for as every man is the best Judge of his own health, and how such and such Meats and Medicines assists and helps the health and vigor of his Body; so in the Body Politick, the People must be Judge how this or that Governour or Law agrees with their Constitution, and Contributes to their Health, Peace, and Welfare. In the 17th. of Deut. And the 14th. v. God leaves the Election of a King absolutely to the People, and puts it into their choice whether they will have a King or not, and whosoever they pleased to set over them (provided he were chosen from among their Brethren) should be their King. Thus before David’s Inauguration, The People made a league with him, 2 Sam. 5. 3. v. And by this they restrained and bound him up as they thought fit. And he who in any settled legal Government, arrogates to himself any other Supremacy over all or any part of this Brethren, other than what is immediately appointed by God, or claimed from the People, breaks those Bonds and Limits which they have set; and is as Civilians distinguish, Tyrannus exercitio, though not Titulo.

A Supream, Absolute, and Arbitrary Power, is essentially necessary in all Governments whatsoever, whether Monarchial, Aristocratical, or Democratical, in respect of which, these three distinct Species differ no otherwise than as a Guinea from twenty Shillings, or forty Sixpences, which put together are equivalent one to the other. Thus the Supream Acts of all Governments are the same, for no State can go higher (nor ought to descend lower) than 1st to be able to redress a grievance, by making or repealing a Law. 2ly to have the power of War and Peace, 3ly. to judge of Life and Death, and 4ly to fix all Appeals in itself. So also if a mixture be made of these three Governments, yet it makes no change as to the product of a Supream Act; for they who limit one another, are yet Copartners and do the same thing together which one alone doth Legislatively. And as the prudence and foresight of the first Founders of these various Constitutions, saw any advantage or inconveniency peculiar to the people, place, or time they lived in, so they accordingly made various and suitable provisions and Laws, to assist the Good and to divert the Evil. Upon this account there are few Governments but have some things woven into their Constitution peculiar to themselves. In Poland where the Monarchy is Elective, and the Prince bound to observe the Laws, any Gentleman may safely and freely accuse his Prince. In Arragon the Chief Justice has a Tribunition power. In Venice the Duke stirs not out of the City without leave, and is made so much greater than any of the rest, only to allay the growth of Ambition in any one besides. In the form of Transactions, Most do follow the Plurality of Sufferage, but in several ways: In the Senate of Venice in many Cases there must be a Concurrence of three parts of four. In the Conclave of Rome at the Election of the Pope, two parts of three must concur: In the Consistory the Pope alone carries it against all the Council or Cardinals. In the Convention in Poland, Potior est Conditio Negantis, One Negative hinders all proceedings in the most important Affairs. In Holland the States General of the Provinces have but seven Votes in all, and these obliging according to the Plurality of Sufferage, but the number of States sent to manage the Interest of their single and Provincial Votes are unlimitted; and as the respective Provinces please to Delegate; wherefore their Votes may be more properly termed local than personal; but with us in England Votes are merely personal; for as we represent not Provinces or Places distinctly Supream, but mixed together; so the odd Vote carries all; by which it may happen that one man may make or destroy the best Law that ever was. From these particulars you may collect the varieties that are in Government, instituted according to the different Notions of the first Founders, and the Circumstances and Temper of the People Governed.

Monarchy vested with the most absolute powers that either Concession or Conquest can create I esteem the best of Governments, but that only happens when it represents God more in his Justice than Singularity; and when Mercy is the Ornament as well as Power the supporters of his Throne. In such a Government under a Prince whose Goodness and Wisdom runs in equal paralells with his power and greatness, the people are happy and secure, whilst their Neighbours live in fear and subjection, His Councils are private, and the Execution of them sudden, without which no great enterprise can be successful. To such a King is applicable the Answer which was made to this Question upon Pasquill in Rome, Quid est Prerogativa Regis: The Reply being in optimo Rege nihil nimis, in Malo Omne Nimium.5 But to take a view of this Government in its dark side, under a Child, Fool, or vitious Prince, nothing carries such an aspect of Horror and Misery to the poor Wretches who live under it: Wherefore if we consider that the generality of Men, when let loose to their natural, or rather corrupted Inclinations, are much more apt to lean towards Tyranny and Oppression, than to such Methods as may promote their People’s Happiness, I think this sort of Government by no means desirable. It does at the best but keep the State which is directed by it, in a fluctuating and unsetled condition. It sometimes in the Reign of a Warlike and Ambitious Prince, like the Sea in a Storm, rowls in with rage, and Fury upon a Neighbouring Shoar, and again under the Tuition of another who is of a weak and pusillanimous spirit, it moulders and gives way to the loss of all its former Acquisitions, so that the Ballance of the Kingdom is never at a stand, the Scale moving sometimes upwards, and anon down again, and the People consequently kept in a rowling, unsetled condition, poor, miserable, and uneasie.

Aristocracy is composed by a select number of the Chiefs of the People to Govern the Rest, and stands like a Moderatour between the Excesses of Kingly and Popular Power: But this Mixture often produces Monsters, and as the greatest Storms are formed in the Middle Religion, so the Bloodiest Commotions are raised in this State, though most Temperate.

Democracy does properly and naturally reduce all to equality, and most carefully consults the People’s Liberty and Property, but with-all, it obliges every Man to hold his Neighbour’s hand, and when it falls, it does with great difficulty recover its feet again. ’Tis true, that Monarchies are more Quick and Expeditious in their Attempts, but Common-Wealths, as they are more slow, so they are more sure, and in regard that their Councils are more publick, so are they generally more Honest and justifiable. Common-wealths are not like Monarchies, subject to the inconveniencies of Evil Council or Corruption where the Prince’s personal folly or ambition, the Commands of an Imperious Wife, or the Flatteries of a Fawning Courtezan, may in a minute overthrow a People and Kingdom. We have found it by sad Experience, practised at home, where a Chambermaid has prevailed with her Mistress, and she again by a Kiss or Smile with the Monarch; and we also owe all our present Discomposures to the Directions of a Zealous Priest,6 managed by the Mediation of a Commanding Queen.7 We are also sufficiently sensible of the great Unhappiness that befalls a people living under a Monarchy, in having their Prince of a Religion different from themselves. But this Inconvenience can never befall a Common-wealth, it being impossible to change, alter, or introduce any new Religion by such a Government, but such as the greater part of the people embrace and are willing to receive. But in Monarchies the King being but one person, may in that respect be more easily and probably seduced, both to his own and his people’s irreparable Injury.

The Eastern Countries which lie under the Course of the Sun, as Persia, Turky, Africa, Peru, and Mexico, are most disposed to Monarchies, in which latter Quarter of the World the people are better Governed by the Spaniard, who are by fits in the Excesses of Kindness and Cruelty, than by the Dutch, whose Government is of a more even Temper. But in Europe and nearer the Pole, the people are disposed more to Republicks, tempered by fundamental Laws. Nec totam servitutem pati possunt nec, totam Libertatem.8 Sir William Temple, whose insight in the Constitutions of States and Kingdoms, may deservedly give him a decisive Vote, tells us, That Monarchies do indeed seem most Natural, but Common-Wealths the more Artificial sorts of Government,9 which was but a modest way of giving his suffrage for the last, for Art always corrects the defects of Nature, and pollishes it up to a greater Lustre: But when all is done, we find it experimentally true, that all Governments like all sublunary things besides, have their Defects. Nature in every part is sick, and therefore can find rest in no posture. Human Laws grow out of Vices, which gives to every Government a tincture of Corruption.

That the Government of England was originally and always under the same constitution that now, or of late it did appear to be, I cannot conceive, though Sir Edward Coke, and some others, do seem with much earnestness to contend for it. I am of opinion, that like Epicurus his World, it is grown by Chance and Time to what it now is or lately was, by various Concussions and Confluence of People, Interest, Factions, and Laws, like so many Attoms of different shapes and disposures, springing from meer Accident in several Ages; for where there are Men, there will be also Interests, which creates Factions and Parties, and these, as they prevail, or are supprest, produce Laws for or against them, which so far alters the former Government, as new Laws are introduced in the room and place of Government, as new Laws are introduced in the room and place of old ones which were thought fit to be Repealed and Abrogated.

Although some Governments seem to be built upon firmer and more unalterable Foundations than others, yet there is none but ought to adapt itself to the Circumstances and Disposition of the People Governed, and as these do daily change, so ought the Government to shift and tack with them, that it may the better fit with the Necessities and changing Circumstance of those for whom it was first instituted.

That Property is founded in Dominion, I look upon to be a most undeniable Truth, for Naturally in the same degree that a Man has a Right and possession in a thing, he must necessarily have the Power and Dominion over it; To argue or defend the contrary, is as great an absurdity in Nature, as to say the Fire must be hot, and yet not burn such Combustibles as are cast into it. It is upon this account that the Grand Seignior10 is so Despotick in his Government, for by the Constitutions of that State all Lands are in the Crown, none hold longer than during pleasure, or for Life, and then their Lands revert to him that gave them. For the same reason, in the days of England’s Ignorance and Poverty, when Arts and Learning were strangers to the Land, and the people were scarcely removed from their primitive estate of Nature and War, when every man had a universal Right to all things, and no man could by a peculiar property pretend to a Possession longer than his Sword and Bow could maintain it; Then I say were our Governours like Generals, absolute and unlimitted. ’Tis true indeed, we have some dark shadows of Laws and Councils, then in use, which our Governours thought fit, as they saw occasion to make use of; and we also find the People sometimes dissatisfied, treating their Magistrate with much Roughness and ill Usage upon his Male Administration; yet this does not all argue that their Governours were limitted and bound up by Laws, as now they are. These things are all practiced in France, Turky, and the most Arbitrary Monarchies in the World. Without Laws and Methods, such as these, one Man is not able to govern Millions, and therefore Moses, who under God, was Absolute and Arbitrary, was necessitated to appoint certain Rules and Methods, and to admit of others into the Government with him, as Assistants, by their Councel and Advice, the Work being too great for one Man to discharge. It was from the King’s absolute Property in the Lands of England (which in those Times none could pretend to but by and through him who held the Sword) as well as from his power over the Laws that our old Tenures sprung of Knight-service, Sergeantry, Escuage, Socage, Villenage, &c. Then were all Tenures, servile, and all Persons held mediately or immediately from the King, which our Law-Books tell us, we still do; but there was a vast difference between our then, and present Holdings, the first being by actual Services paid; these now being only Nominal and Titular. To hold in Socage, is by the service of the Plow, (as almost all persons are said to do). The Tenant was in old times actually bound to Plow the Lord’s Lands, in consideration of which Service, he granted to his Plow-man, instead of Wages, to hold another piece of Land to his own proper use; but now, though the Tenure does nominally remain, yet the Service is absolute; every Man being now become, by the circular motions of Chance or Providence, his own Lord, and his own Plow-man. His Property and Possession makes him the Lord over those Glebes which his Necessity (derived from his Ancestor Adam’s Transgression) makes him Till.

Those Governments which succeeded the Patriarchal, were all Military; all people being then left by Nature in a state of War; but some Countries ripening into Prudence and Knowledge sooner than others, they also sooner betook themselves to Compact, and to such Methods of living, as might be for their Common Advantage. Amongst these, England was none of the earliest Reformers, but continued long after Greece and Rome, in that Natural state that the first Fathers of Families left it: and there was reason for it in respect it was an Island, and (in those Times, when Navigation was in a great degree a stranger to the World) not so apt for Commerce or Correspondence with other Countries which were more civilized; they had then no Government but what conduced to War, and no other King but a General. Caesar in his Commentaries, tells us, that he found the Brittains, poor, ignorant, and destitute of Laws; but he also gives them the Character of a People disposed to War, Brittannos in Bellopromptos & in Armis expertes. All things (as in the state of Nature) were in Common, even to their Wives and Children: But the Romans having given them a taste of the sweetness and advantage of Government, they soon after began (as Tacitus in his Annals acquaints us) to make Application to their General, to protect and defend them, by his Power and Strength, in the peaceable enjoyment of certain proportions and allotments of Land, against all Invaders; In lieu of which Protection to them and their Heirs, they promise and swear to him and his Heirs, certain Services, together with Homage and Fealty. With this Notion of Tacitus, Bede seems to concur in the 4th. Book of his History, where he says, That Generals and Kings were amongst the Brittains as Terms Univocal, for Kings were always out to Battle in times of War, and in Peace, exercised the Legislative power at home. And Ammianus in his 15th. Book, is more plain and positive, for he tells us, That Brittanni nulla separati fruebantur possessione, nisi Principis concessu & potestate defendatur.11

From hence it may be reasonably allowed, that England was first Governed by an absolute Power, not from the Election of the People, nor by Conquest, but from the Temper, Disposition, and Circumstances of that Age of the World in which most Countries lay under the same sort of Government, and more especially by their Ignorance of better methods, which continued longer in Islands by reason of the difficulty of Commerce, than in Continents where a Correspondence was then more easily maintained. It is undoubtedly from this bottom, that the People of England are still supposed to hold all their Lands mediately or immediately from the King, and ’tis perhaps from hence that so many Commons and Wasts still remain uninclosed, and that Waifs, Strays, Wrecks, and Wasts, and all other things, in which no man can lay a particular propriety, are reputed to be in the Crown.

Upon these reasons I conclude, that the property of all the Lands here in England being originally in no particular person, must necessarily (as the Law still is in such Cases) rest in the King, and those that held from or by his power, neither had or could have any right against that power by which they held, but only against others that were in a level with themselves.

How many these Landed Men Originally were, or what seperate proportions were alloted to them, whether the quantity of a County, Hundred, or Tything, or whether their Allotments were according to the largness of their respective Families, or their Prince’s favour, I cannot say. But these Proprietors were probably the Pares Regni, or such as afterwards, by the growth of Laws and the removal of Ignorance, became by a settled and uncontroulable right, the Peers and Nobles of the Land; and having by their Prince’s permissive favour long enjoyed their Dignities and Possessions, they at last wrought them up to an Establishment by Law, insomuch that what was held before ad voluntatem Domini, is now made hereditary, performing only some small Services and Acknowlegments to their King or General, some wherof were payable in times of War, as Knight Service, Escuage, petty Serjeanty, and grand Serjeanty, others in times of Peace, such were Burgage, Villenage, Socage, Homage, and Fealty.12

Thus did a part of the People first twist themselves into a real Property in part of the Lands of the Kingdom, and as the Prince proved kind and liberal, so did the numbers of these Proprietors increase, and their Properties grew more strong and indefeasable, and so consequently their Power and Dominions; but the Prince on the other hand grows proportionably poorer and weaker, Both resembling a Boat which rises and falls with the flowing Element that bears it up. After this manner the Lords grew daily richer and stronger, till they had in a great measure, by their acquisitions striped the Crown of its chiefest Embellishments, and invested themselves in much the better share of the Lands of England. And their Power grew with their Property to that degree, that they who were Originally but Servants to the Prince, became now Masters of the Nation. This, King John to his sorrow, was sufficiently sensible of in his Barons’ War; and it was from the Power of the Nobility alone that King Henry the Seventh did receive his Chaplet as well as Crown. He was a wise Prince, and from hence took an occasion of Jealousy, that the same Powers which raised and placed him in the Throne, might pull him down again and lay his Glories in the Dust. To prevent therefore all Dangers which might arise from their growing Greatness, he first procures a Statute to be Enacted against Retainers, that the number of the Followers and Attendants of Noblemen might be retrenched, for they did so far indulge the Vanity of a large Retinue in those times, that their respective Trains were sufficient for a Soveraign Prince’s Guard. In the next place he procures the Statute of Fines to pass both Houses; whereby the Nobility got a power (which by the Common Law had not) to cut off Entails, and thereby to sell their Estates to the best Purchaser. Before this Statute, an Estate in a Nobleman’s hand, might in some respect be said to be in Mortmain, for by the Intail it was so bound up in the Family, that it grew almost irremoveable; and thus having a power to purchase but not to sell, their Possessions, and consequently their Power grew daily greater, without a possibility of Diminution. But these Entails, as they were injurious to Trade and Industry, so by their Consequences they were dangerous to Regal Authority, and therefore this Device was contrived to prevent both these Inconveniencies: and it did indeed prove very effectual in divesting the Nobility both of their Property and Power, but at the same time it opened a Door to the Commonalty, and gave them free access to that Property and Dominion which the Nobility did by degrees part with. Nor did they neglect to improve this advantage they had got by Diligence, Industry and Frugality, for in process of Time they wound themselves into the better share of those Possessions which were first derived from the King to his Nobles, and from them thus to the Commons of the Nation.

The Effect and Consequence of these Acquisitions, made by the Commonalty, were discovered and feared by King James, but not felt till the Reign of King Charles the First, who by an imprudent Contest with This Superior Power, was first deprived of his Crown, and afterwards of his Life. The yearly Rents of England (besides the accrewing benefit of Trade, which is altogether in the hands of the Commonalty) amounts to 14 Millions per annum. Of this the King and Nobility both together hold not above one Million at the most, the King’s Revenue being principally made up by the Excise and Customs, not by the Rents of Crown Lands; so that there remains 13 Shares of 14 of the Lands of England, and consequently a proportionable share of the Power in the Commons. But the Constitutions of our Government, as it now stands, placing the Dominion in the King, whilst the Property is in the People, does in this commit a sort of Violence upon Nature, in seperating thus the Soul from the Body, the Power from the Possession. This it is which causes these frequent Distempers and Convulsions in the Body Politick; for Power is a sort of Volatile Spirit which cannot subsist without a proper Vehicle to give it a Body, and this must be Possession, from which if it be once separated, it immediately evaporates and disappears.

Having hitherto traced the Government of England in its Originals and Procedures, I will farther take the liberty to advert some Particulars as they seem now to stand in its present Constitution; and in the first place, I cannot think it so happy and well composed a Government, and so aptly suited to the present condition of the People, as most Men endeavour to represent it, for it seems in its Frame and Nature to be sett to Factious Interests and Dissentions, and thus it has been ever since the disunion between Property and Power; the Court and Country Interests are no new nor unknown Terms to us, and have been managed and upheld by their respective Votaries (though in some Kings’ Reigns with greater Spirit and Animosity than in others) ever since, and for some time before the Barons’ Wars.13 The people have got the Possession, and the King is entrusted with a power and prerogative over it, or at least with so much, as may prove prejudicial to it. This Naturally creates Fears and Jealousies, least at any time the Prince by his power, should invade their Properties and abridge their Liberties, upon which account his Prerogative is the White they level at, esteeming it rather their Terror than their Security for which it was at first given and intended; and therefore when the people find an opportunity, either by their Prince’s weakness, folly, or other unhappy circumstances, they have usually made breaches upon this Bulwark of the Crown, and by such Sallies and Incursions have got ground and advantage towards the farther securing of those Liberties and Properties they with so much Diligence and Reason endeavoured to provide for. So on the other side is the Prince jealous of his people, and is always fearful that they should snatch this Rod which he holds over their Backs out of his hand; and to obviate this Evil, he is not without his Counter-designs also, and therefore spares neither Money nor Power in the Elections of Parliaments and Juries, to obtain such persons to be returned, as for a Mess of Porridge will sell their Birth-right, and by advancing his Prerogative and lengthening his Scourge, are willing to ruine and undo their Country. And so it generally falls out, that when this power happens to fall into the management of an haughty daring Spirit, it breaks in upon the people, and endeavours to get again by Force, what his Ancestors had given away by Flattery. Thus there is always a Tide of Ebb or Flow, the Scales rarely or never standing even between the King and his People; and indeed the Constitution of our Government is such, that Murmuring and Dissentions do naturally spring from it: the Ground is disposed to produce such Weeds, we are always engaged in a sort of Civil War, and in this respect continue still in the same state in which Nature left us. An House divided against itself cannot stand; every Man has enough to do to defend his own from Domestick Invaders, and whilst this Root of Division is suffered to grow at Home, it’s impossible to do anything that’s Great abroad; every Design is poisoned with a Jealousie in its Cradle, and it is enough to make the people suspect it a Snake (though the Skin and Flowers in which it lies be never so plausible and pleasing) if the King does but hand it to them. From hence it is that our Government always tottered, twice fell down, and now lies in its primitive undigested Chaos, and he must be a greater Architect, than Perhaps our Nation can afford, to warrant its standing above three ordinary Reigns, if it be rebuilt upon its old Foundations. An Expedient to prevent this Inconvenience, will be a proper Subject for this Great Convention.

Another thing not well consistent with the Policy and Government of England, is the exceeding largeness of the Revenue of the Crown. In France indeed it is six times greater, that King being reputed to have 12 Millions, and the King of England but two: But we see the miserable Effects of it, in the extreme Poverty and Vassallage of his people. ’Tis true, the Kings of England once had more, for they had in effect all, but then the people were but one remove from the state of Nature, and the possessions are now got into the hands of the people, which they will be loath to part from, so that the Case is much altered. Whatsoever the Government of Heaven may be, yet on Earth in one State there cannot be two Equals, One must submit and the other must Govern, or else there will be a constant War; and while the King has so great a Revenue as to be able to maintain a Standing Army, there still remains so much of this Equality as will promote and maintain such Differences as ought by no means to be allowed of in a well constituted Government. But moreover, the people by the present Constitution, are Sharers with the Prince in the Supreme and Legislative Power in Parliament, and ’tis by them that Grievances must be redrest. It ought therefore in every Well-Constituted Government to be provided for, that this Supreme and Legislative Power may frequently, if not always, be in a capacity to Enact and Order such things as tend to the People’s Benefit and Security; but in this, our Government is defective, it being in the Prince’s power (as our Lawyers have generally determined) to keep off Parliaments as long as he pleases. And how is this defect remedied? Only by another, which on the other side they subject the Prince to, which is, by keeping him poor, that so his poverty may necessitate him to call frequent Parliaments. Thus by a mutual lameness or infirmity on both sides, the Prince and People are become equal Matches, Both Cripples, not able to go forward in any great Enterprizes abroad, but to lie struggling with each other at home. King Henry the Fifth, had but £.56,000 per annum, and Queen Elizabeth’s whole Revenue was but £.160,000. But some kind Parliaments (and such they usually are to excess, upon the first accession of a King to the Throne) either bribed by Smiles, or flattered by Hopes of private Gain, have thought fit to fetter the Nation by advancing the Revenue to about two Millions per annum; so that now there is little hopes of meeting with those advantages and opportunities of tacking their Grievances to a Money Bill, which formerly they use to do; though in truth, even then the State was in a dangerous condition, that could not have a Remedy at hand upon every Disturbance and Malady which should happen. This I think may not improperly be esteemed a thing worthy of Your Thoughts to find a proper Expedient to redress it.

Another Particular which I take to be one of the greatest Solecisms in Government imaginable is where the most Absolute and Supreme power is yet without a Power to Remedy and Redress the People’s Grievances: Thus it has been for many years adjudged to be by the Interpreters of our Laws and Government, the Judges. And to illustrate this by an Instance. Suppose the people are agrieved, and want a Law to set them Right; The King has no power to make it of himself, and till he thinks fit to call a Parliament, the people must still continue subject to their Government. But perhaps the King’s Interest (which is unhappily divided from the people’s) forbids this Expedient; What shall be done? Why then let them stay and be ruined, till the King wants Money, which as the present Establishment is, will never be. But suppose a Parliament is called, and they in their proceedings happen to fret upon the King’s Prerogative, a Favourite evil Councellor, or some other Interest that the King has a mind to promote and protect, though never so opposite to that of the Nation’s, why then their Supreme and Legislative power is not worth a Rush, for the King, though he has no absolute power himself, yet has a power above this, to destroy it by a Dissolution or Prorogation when he pleases, and so like the Cat in the Manger, can neither eat Hay himself, nor suffer the Horse to eat to whom it belongs. This seems contrary to all the Rules of Art and Nature, and more Unintelligible than the Doctrine of the Trinity, or Transubstantiation, for here the Supreme power is subject to an Inferior, and the King who is Minor Universis, yet is also Major and Superior to them; That Power which was given for the Protection of the People is their Destroyer, and the great and weighty Affairs of the Nation becomes subject to the passions and humours of a single Person. This I think I may safely affirm, That all Governments are built upon wrong bottoms, where there is not a Supreme and Absolute Power, which may without Controll, and upon any sudden Occasion or Emergency, alter, create, or repeal such Laws as shall be thought by them necessary for the People’s Good.

Another thing that has been very incongruous and disagreeable in our Establishment is, That the Election of the Judges, and consequently the pronouncing of the Law, should be in the King’s Power. If indeed he were a Third Person unconcerned in point of Interest, this Method would be more tolerable; but being One that so often sets up an Interest different from that of his People, and is subject to be seduced by the evil Councels of a Confessor, Miss or Favourite, and the People’s Rights hanging wholly upon the Lips of these twelve men in Scarlet, it is most fit they should be chosen by Them who are chiefly concerned, and for whose benefit and protection both the King and Laws were first made and intended, otherwise that very Prerogative, which was given to the King only for the better enabling him to act for the benefit of the People, may be (and often is) set up against them. It is contrary to all Rule, that in any Controversie a Man should be Judge in his own Case; But he in effect is so who has power to make or unmake the Judge at pleasure: nor can this defect be well remedied by granting their Commissions quam diu se bene gesserint.14 This will only oblige a greater care in the first choice, that they may be such as in their Principles will stand firm to the King’s Interest. The Honour and Income of a Judge to one that knows not how other ways to live is a violent Provocative; it is a sort of lawful Bribery upon him to pursue his Maker and Destroyer’s Commands though against all the Rules of Justice and Equity; self Preservation is his Warrant, binds him to a Compliance, and makes him think it more allowable to break his Oath than to destroy his Honour and the Interest of a young Favourite who makes hay with great diligence whilst his Sun shines.

I have often wondered at the unjust Censures of some in saying that our late King so often and so notoriously broke his word and promises to his People in not Governing them according to Law. For Instances, they urge His Dispensing with Statutes, and his hard Usage of the Gentlemen in Maudlin Colledge,15 in both which I conceive he committed no breach of his Word or Promises if they be taken strictly and in a literal sense. This I think may easily be granted if it be considered, That the present Laws and Constitutions of England are such as do undoubtedly give the King a Power to make the Judge, and to the Judge a power to pronounce the Law. What he does judicially affirm is Law, and becomes from thenceforth the strongest Precedent, the last Judgement being always esteemed the surest and best Rule to go by. Now the King in both these transactions neither made or turned out any Judges but in such methods that former Judges had pronounced Lawful, nor did he do afterwards any thing either in the case of Maudlin Colledge or the Dispensing Power, but with the Opinion and Concurrence of his Judges being the Method that our Establishment and Laws in such Cases does direct.

There is also a great Cry against the late Judges, for giving their Opinions, and pronouncing Judgments contrary to the Laws of the Land, and no other Fate must be their reward, but that of Tresilian and Belknap.16 It does, I must confess, seem very reasonable, that Men, who by their Honour, Oaths and Rewards, were bound indistinguishably to administer Justice, should smart for those Delinquencies by which so many Hundreds have been ruined and undone. But in the first place, let me know how a Judge can give his opinion contrary to Law, whose very Opinion judicially given, by the Constitutions of our Government, is Law itself, and shall be deemed a stronger Precedent in the point, than any other formerly given. And Secondly, If Judges must suffer for giving Sentence contrary to former Judgments, there is scarcely a Term passes even in the best of Times, but there are Offences committed by them of this kind. How ordinary is it for a Judge to give his Opinion in common Cases contrary to his Brethren on the same Bench, and for one Court to reverse the Judgments of another? And how full are the Law Books of Judgments and Opinions directly contrary to each other? The Law is not Mathematically demonstrable, it is a Science which depends upon the Judgment and Opinion only of those that are Learned therein, which we often find various and uncertain. Is not a Judge Sworn to act and determine according to his Opinion only, and who can pretend a power to direct and rectifie it, or to judge whether the Sentence given, was not according to his real judgment, since none can know his heart and thoughts but God. And suppose it could be proved by Demonstration, that his Sentence or Opinion was not Law, this may proceed as well from his want of Knowledge as Honesty, and what Law is there to punish a Judge’s ignorance or mistake? ’Tis hard that Men should be deemed guilty of a Transgression where there is no Law, or condemned to punishment where there is no Transgression. No, no, Though our King was misguided, and our Judges were corrupt, yet it is not at their doors, we must lay our Misfortunes but to the weakness of our Government, which gives a Loose to these Inconveniencies, and which pitts the Justice of the Nation upon the Frailties of a single Man in so Arbitrary a manner. Opportunity makes a Thief, and these Meshes in the Government, tempts the Ministers thereof to slip through sometimes when a Bait lies on the other side to invite them to it. It is from this Root that all our late Miscarriages sprung; We suffered much, and yet it was all but little, if compared to that which was likely to befall us, had not Providence snatcht us by a Miracle from the Jaws of Misery; and as it has delivered us from the Evil Administration of Law, so in some things I wish it would rescue us from the Law itself, and so far change it, that for the future it may be no more subject to such Shams and Delusions, nor in a capacity thus to become an Accessory to its own Death.

It seems farther very incongruous, That where Government is made up of two different Interests as here it is, the absolute power of Peace and War should be only in the King, whilst the power of maintaining it, continues in the People: For if the King should be led aside by a private Interest, and should refuse to make War in a time when perhaps the Safety and Honour of the Nation did wholly depend upon it; What a condition must the People then be in? Put the case, that before this our late but seasonable Deliverance, the King, in whom this Power did reside, should have opened the Gates of the Kingdom, our Harbours and Strengths (which are to protect us from Forreign Invaders) to a French, or Irish Army; Who durst lift a hand to stop this inundation of Tyranny, without incurring the penalty of a Traitor: Nay they must farther be called Friends and Allies, even whilst they pillage our Houses, and hold their Knives to our Throats. This Branch of our Laws serves to cover the Landing of a Foreign Power, and so long to cherish and keep it warm, till like the Serpent in the Fable, it at last stings the improvident Benefactor to death.

Another thing which highly requires Your Regulation, is the Elections for Parliament. ’Tis a great Blemish to our Government, that such whose Place gives them the Title of Founders of our Laws, and Preservers of our Liberties; and whose Reputation for Principles of Honour, Honesty & Prudence should be beyond assault or censure, must yet be exposed to a Necessity of doing such things as are really mean and scandalous as well as expensive, before they can get into a Capacity of doing their Country service: for if such things be not done, some Pensioner from Court bids higher, jostles him out and gets thereby into a Power to put to Sale both the Laws and Liberties of his Country which he is willing to barter for the hopes of some Court Preferment, and the Euge of his great Master. In old times no person had an Electing Vote in the Shire, who had not a Freehold of 40 s. per Ann. but I could easily demonstrate 40 s then, to be Equivalent in value to £.40 now, for by the discovery of the Western World, Gold and Silver is to that degree increased. Now if the number of Electors were reduced to those only having Freeholds of £.40 per An. these lavish Expences would certainly cease, and the Electors, though fewer in number, would be less apt to be led aside by such low and indirect means. There are also great irregularities in the Corporations and Burroughs Electing as well as in the Electors. I can see no reason why Cornwall a poor and barren County should return 43 Members for Parliament, and yet Cheshire together with the City of Chester should return in all but 3, and why old Sarum which has but 2 Houses, and those under the Commands of one Landlord, should send 2 Representatives to Parliament, whilst many other Towns which might deserve the Title and Priviledges of Cities send no Representatives at all. I can scarcely think a Parliament thus Constituted can truly and fairly represent the People, the Majority and Richest of them being by such inequallities excluded from an Electing Vote. The same inconvenience springs from the Constitutions of the Boroughs which Elect, not by vertue of their Wealth, Dignity, or Number of Inhabitants, but by the Burrough Houses in which they live, These only, (which perhaps are the most inconsiderable part of the Burrough) having in them the Electing power exclusive of the rest. This Qualification makes such Houses sell better to a purchaser than any others in the Town, and it is customary for Gentlemen who are desirous of a Seat in Parliament, to lay out their Mony in such Bargains, and though it costs them dear, yet if it be possible, they will be Landlords of a sufficient number of these Borough Houses, (in the purchase whereof some Friend’s Name is mostly made use of in Trust) that thereby they may Command an Election either for themselves or their Assigns at pleasure. What is this less than buying of Votes with Money? A Crime which has been always lookt upon with a severe brow, and yet Licensed by this old Usage. Nor can I discern why this Electing-power should be thus fixt to the Freehold in being, restrained to a small and inconsiderable number of Houses, as if Wood and Stone had a Rational faculty, and must be made use of to build and repair the Government.

The Methods of Electing in these Boroughs are various, Titles to Elect are also different, and very often dubious and uncertain. This necessitates double Elections, and countenances false Returns, which are often made ill use of; for the King having a power to nominate the Sheriff, and he to make a Return, it may happen that the true and rightful Members shall continue Petitioners only, whilst such as came in by unjust Returns, pass an Act to give the King Money for the maintainance of a Standing Army. This Artifice was of much use in the last Parliament at Westminster, and became so notorious from the great Number of Petitioners, that a Gentleman being asked, whether the House of Commons sate that day in the Parliament; No, (replied he) It stood in the Lobby.

It is Customary in the Borough of Limmington in Hampshire, to Elect by the Ballot. The manner is to give to every Electing Burgess (their number being limitted and known) a different Coloured Ball for every Competitor, each Colour being respectively appropriated to the several Competitors: As suppose there should be three Candidates, each Elector has three several Balls given him, which he so manages as to keep only that in his hand, which by its Colour belongs to the person he intends to chuse; this being inclosed in his hand, he puts it into a close Box made for that purpose, leaving no possibility to any one to detect what coloured Ball he put into it. Thus each having put in his Ball according to his Vote, the Balls of one Colour are separated from those of another colour, and so according to the Majority of Balls of one Colour, the Return is made. This Method I know to be of great advantage where it is made use of; It prevents Animosities and Distaste, and very much assists that freedom which ought to be in Elections. No man in this way need fear the disobliging of his Landlord, Customer, or Benefactor; for it can by no means be discovered how he gave his Vote, if he will but keep his own counsel. If this or some such Device were appointed to be made use of in every Borough over all the Kingdom, I am perswaded it would abundantly answer expectation, in the many Advantages which would attend it. And perhaps it would be of equal Benefit in all other Elections, as well as in those, for Members of Parliament, if the Government were so disposed as to fill up all Vacancies, whether in Church or State, by the plurality of Votes appointed to elect. And I am apt to believe that succeeding Ages may reduce it into a Law, that Privy Councellors shall be chosen by the Lords, Judges by the Gentlemen at the Bar, Bishops by their Dean and Chapters, Ministers by their Parishioners, Fellows and Masters of Colledges by the Graduates of the same Colledge, Sheriffs by the Gentry of the County, Officers of Trust in the State and in the Army by the Parliament, the Parliament by Freeholders of £.40 per annum, and all by the Ballott.

’Tis much easier (I know) to find Faults than to mend them; and I could mention many other things of the same nature, the Redress whereof, I hope will be thought of in this great Convention, before They proceed to dispose of the Crown. ’Tis an easier matter for a People to make ten Kings, than to unmake One, and to deck a Crown with the highest Prerogatives, than to deprive it, when they are Confered, of the least of them. If the Crown be given again with the same Qualifications that Other Heads wore it, It will then be exalted above the People’s reach, without some such assisting Miracle as was lately shewn in favour of them. Now, to reform its Redundancies is natural, easie, and prudent, the Government being escheated to the People by the King’s deserting it; But to offer at any such Attempts afterwards, will be both unkind and imprudent, and will signifie no more than the chatterings of a parcel of Magpies about an Owl in her Majesty.

Some Men have espoused an odd and unwarrantable Notion, that the King’s Desertion of the Government amounts to a Demise, or Civil Death. If this be so, the next Heir ought immediately to be Proclaimed, and must Inherit the Crown with the same inseperable Prerogatives that heretofore belonged to it, and all Laws or Acts of Parliament made to limit and abridge them, (if Lawyers speak truth) are void and null. But if the Departure of the King amounts to such a desertion as dissolves the Government, then the Power must necessarily revert and vest in the People, who may Erect a new One, either according to the old Modell, if they like it so well, or any other that they like and approve of better.

Were such a mighty Thing to be determined by my single Vote, the Government should be Monarchy, and this Monarchy should be Absolute and Arbitrary, and the Prince17 should be my King. ’Tis He alone who is The Man in Christendom in respect of Courage and an innate Disposition to delight in the Happiness of his People, with whom I could freely and securely intrust my All. But the Honour I have for Him, runs not to His Posterity, for as a good Man may notwithstanding, get a Profligate Son, so I should be loath to Repose such a Trust at a venture in the hands of any one whom I do not know. You have a great Work to do, and ’tis from Your Councels, that after Ages must date their Happiness or Misery, and it therefore Obliges Your most Serious Thoughts.

I hope, Sir, you will excuse the Liberties I have taken, in giving you so large a Diversion from better Notions of your own, which I know are of an higher flight and swifter wing than what I can pretend to: Mine I do not impose, but submit, as becomes,

SIR,
Your Obliged humble Servant

N.T.

Samuel Masters, The Case of Allegiance in Our Present Circumstances

[Samuel Masters, 1646?-1693]

THE

CASE

ALLEGIANCE

IN OUR

Present Circumstances

CONSIDER’D.

In a LETTER from a Minister in the City, to a Minister in the Country.

Rom. 4.22. Happy is he that condemneth not himself in that thing which he alloweth.

LONDON.

Printed for Ric. Chiswell at the Rose and Crown in St. Paul’s Church Yard. MDCLXXXIX.

This tract in the form of a letter has been attributed to the clergyman Samuel Masters. It was among the first of some eighty tracts on the crucial issue of allegiance that were published in the year of the Glorious Revolution.

Samuel Masters, a gentleman’s son, was born in Salisbury the year Charles I surrendered. He attended Wadham College, Oxford, and was a fellow of Exeter College. His career as a minister began when he was appointed preacher at Stanton Harcourt and South Ley in Oxfordshire. He later became prebendary of Saint Paul’s and Lichfield, chaplain to the earl of Radnor, and preacher to the hospital and precinct of Bridewell near London. Although the earl of Radnor’s son, Francis, was a Tory member of the Convention Parliament, Masters seems to have been a moderate Whig in his sympathies.

“The Case of Allegiance” was licensed on 21 March before the Convention Parliament agreed that all holders of civil and ecclesiasticaloffice must take a new oath of allegiance to William and Mary by 1 August. The tract provides an excellent review of the Whig theory of English government at that significant point. What the author considers widely accepted errors about the subject’s obligation to his king are discussed as well as the limits on loyalty oaths. Masters argues strongly for the propriety of switching allegiance from James II to William and Mary. He points to the contractual nature of the coronation oath and insists allegiance is sworn to the office of king, not to the person of the monarch.

The tract appeared in two variations. A reply, also anonymous, entitled “Reflections upon a Late Book, Entitled, The Case of Allegiance Considered, . . .” appeared in May. “The Case of Allegiance” was reprinted in State Tracts, a collection of important pamphlets published in 1692-93.

The Case of Allegiance Consider’d.

Reverend Sir,

You having thought fit to consult my Judgement about the lawfulness of transferring our Allegiance from the late to the present KING; I shall not mispend time in blaming the ill choice of so incompetent a Casuist, for so important a Case; but according to the Laws of that Friendship which have been for some time observed between us, I shall endeavour to approve my readiness, if not my ability in serving you.

I must not dissent from you, in professing a very tender and awful regard of Conscience, whose Authority I acknowledg to be sacred and inviolable, and in the neglect of which I expect no peace in my own mind, nor any confidence toward God: and I think it necessary to add, That we ought to take as much care to inform our Consciences, as to follow them; that we provide them all possible helps and advantages; that we place Truths in the fairest light, and view them with a steddy unprejudiced Eye: And we who are Ministers are more especially concerned to do so, who being appointed Guides, not only to ourselves, but also to others, must beware of the double guilt of misleading our Flock, by going ourselves astray before them.

You may believe me, Sir, as far as I can know myself, that I have no Antimonarchical Principles, or secret disgust to the Person of the late King, to alienate my mind from him: Neither am I conscious of any angry resentments of former Suffereings, or of any discontent with my present Station, or of any ambitious design, or hope of a future advancement, to bend my Inclinations to a concurrence with the present Revolution; for I solemnly protest, That if the late KING would have thought fit to continue his Government over us, though with many tolerable Inconveniences to the Publick, and though with any intolerable Prejudices to my private Interest, I would never have retracted my Reverence and Submission to his Authority, nor have desisted to intercede with Heaven for blessings on his Person and Government. Whatever change therefore it made on my mind, it did not, I assure you, proceed from any design or choice of my own, but was necessarily induced from a change without, and from those new Circumstances into which the late King unexpectedly cast us.

It is indeed very difficult, as you complain, to determine the present Case with a satisfactory clearness and certitude, because it is complicated of a great variety of things, some of which are foreign to our faculty, and which for the most part require a great niceness of thought to apprehend and distinguish them; because also we are yet scarce got out of the amazement into which so great a Revolution hath surprized us, and must have time to recollect and compose our thoughts, ere we can consider so exactly, or deliberate so steddily as such an Affair deserves; but chiefly because we have of late years imbibed some false Maxims and Notions, which unhappily intangle our Consciences, and prejudice our minds against that truth, which it is now become our interest to discover and acknowledg; and have had those Notions inculcated upon us with so much force and importunity, that through a slavish fear of those who have been a long time practising upon us, we have almost lost our liberty of thinking freely, and judging impartially of these matters. Yet these difficulties are not insuperable to an honest inquisitive mind; they may indeed prompt us to excuse candidly the Errors of others, and to seek more earnestly for Wisdom, to him that hath promised to give it to those that lack, without upbraiding; but should rather animate than discourage our industry in the researches of a Truth wherein our Consciences are so much concerned.

These things being premised, I will now set close to my Work; and upon a general view of the Design before me, I find it necessary for me to do these three things.

1. To discover and remove some false Principles about Government and Obedience, whence the obscurities and difficulties in the present Case do chiefly arise.

2. To resolve the chief difficulties in the Case propounded.

3. To prove that Resolution to be consistent with all the Obligations that can affect a good Conscience.

1. It will be necessary in the first place to detect and discard those false principles of Government and Obedience which have been in this last Age too earnestly obtruded, and too easily entertained among us; and which are as a false biass on our minds to mislead their Considerations, and betray them into Error.

And if we find such Principles do rather inslave than oblige our Consciences, and are as inconsistent with Truth, as they are with the present Revolution, we must take the honest courage, to break off those bands, and assert our Liberty. Of this kind are chiefly these three.

1. That a Monarchical form of Government, and the appropriation of it to a particular Person or Family, is jure Divino, or by a Divine Right. How boldly this Principle hath been asserted by some men, you and I cannot be ignorant; upon which so great a stress hath been laid, that to alter the Government in the State, hath been thought as lewd an impiety as to alter either of the Holy Sacraments in the Church; to divert the Succession, as unlawful as to pervert the very Course of Nature; and to oppose a King, though in the most illegal extravagancies, or barbarous outrages, to be no less than fighting against God. If indeed such a Divine Right did appear, it must be acknowledged indisputable and inviolable, whatever sad consequences attend it; but upon examination we shall find that God hath nowhere instituted such a Right, but some men have with too bold a fraud, made use of his Name to advance and support their unreasonable pretensions. If by such a Divine Right, no more were intended than God’s permission and allowance, it would have no Opponents; for we know of no Law that doth forbid a Monarchical form of Government, or exclude any particular person or family from the Administration of it: But then the pretence so interpreted, will not be sufficient to render an alteration in the Government or Succession, a sin against God, as the assertors of this notion have sometimes pretended. They therefore who plead this Argument, must be thought to assert, That God hath by some Law or Constitution appointed Monarchy to be the specific form of Civil Government; and that the Crown should be entailed on such particular persons succeeding in the same Family, whereby the one cannot be changed, or the other debared without transgressing a Divine Institution. This being a matter of great importance, and of common continual concernment to mankind, we may reasonably expect, that if God hath made any such Law, it is somewhere promulged to the World with sufficient evidence and certainty; but though many have been for some years most sollicitously seeking after it, yet they are not agreed among themselves in the discovery, nor can direct us where we may certainly meet with it. I know but of two sort of Laws which God hath given to mankind, Either Moral, impressed on the human Nature; or Positive, revealed in the Holy Scriptures; but the jus divinum in dispute is a stranger to both. God hath indeed by both, instituted Government, or Civil Authority for the welfare and security of men in their Civil Societies; He hath also commanded, that Superiors govern justly and mercifully, and that Inferiors honour them with duty and submission. But I nowhere find that God hath commanded all nations, or ours in particular, to be under that form of Government, which in contradistinction to other forms is called Monarchy; or under some particular Person and Family in contradistinction to all others. The Law of Nature doth indeed erect a Monarchy in Families, over those who are naturally descended from him that is to Govern; but there being not the same natural reason in our Civil Societies, there is not the same Law of Nature to prescribe the same Government: And if some plead a likeness, or analogie between them, That can serve only for a rhetoricalillustration, but not for any Logical proof, such as the present case requires. From the Holy Scriptures we learn that God did once institute a Monarchy for the people of Israel, and appointed particularly that David should be their King, and also intailed the Crown upon his Posterity; but as God had particular Reasons for that institution, respecting the Messiah, so we have no Reason to think that God intended by that institution, to oblige any other Nation but the Jews only. In the New Testament we find Civil government supposed, and the moral Duties to be discharged both by superiors and inferiors, described and inforced, beyond what they are in any other institutions; but we nowhere find Christ and his Apostles prescribing the particular form of Civil Government, or preferring Monarchy, or condemning an Aristocratic or Democratic state; and much less determining the particular persons or families on whom the Regal Dignity shall descend. Some indeed have inferred from St. Paul’s assertions, Rom. 13.1. that the particular forms of Government, and the particular persons which administer it, are by a Divine Institution; but however they countenance this mistake from our English translation, which says, There is no power but of God, the powers that are, are ordained of God; yet the Text is incapable of such a sense, if we read and render it exactly according to the Original.

St. Paul’s words are Ὀυ γὰρ ἔστιν ἐξουσία εἰ μὴ ὑπὸ θεοῦ, αἱ δὲ οὖσαι ἐξουσίαι ὑπὸ τοῦ θεοῦ τεταγμέναι εἰσὶν, which in an exact Translation would run thus; There is no Authority, if not of God; and the Authorities which are (of God’s Institution) are ordered under God. The plain Doctrine of which Text can be only this, That no man can have an Authority over other men, who are his Fellow-creatures, except it be derived to him from God, who is the Lord of all, and that whatever Power is derived to any Superiors over Inferiors, it must be subordinated to God, from whom it was derived. And as the Apostle doth infer from the former Assertion, That Every soul should be subjectto, and not resist, this Authority, even for Conscience-sake, because derived from God; so he infers from the latter, That the Superior, who useth this Authority, must administer it as the Minister of God, for the good of men, in protecting Virtue, and discouraging Vice, because his Authority is subordinated to God, the Supreme and Absolute Lord of all Mankind.

And that the Apostle doth speak of Authority according to its general nature and institution, and not the particular persons by whom, or forms in which it was then exercised, is evident from the excellent properties and ends of this Authority which he enumerates; which do belong indeed to that Authority which God hath instituted, but cannot certainly be ascribed to the Government of Nero the present, and the worst of Emperors. And to make this more plain and unquestionable, it may be observed, that as Saint Paul, speaking of Authority in the general, calls it ἡ τοῦ θεοῦ διαταγὴ the Ordinance of God; so Saint Peter speaking of the persons by whom this Authority is administered, calls them ἡ ἀνθρωπίνη κτίσις, the Ordinance of man, whether it be the King, as supreme, or inferior Magistrates commissioned by him.

After all, I am ready to acknowledg, that the Law of God doth secure Princes, yea, and the meanest of their Subjects in the quiet possession of those Rights which they have justly acquired; but the Rights themselves are not founded on a Divine but Human Constitution; for though the Law of God doth prohibit us to defraud a private person of any part of his just possessions, yet we do not think that any Law of God did antecedently entitle him to such a posession, or doth necessarily intail it on his Family; but that his Right is grounded on the Laws and Constitutions of the Country in which he lives. So, though Kings have the Law of God to maintain and protect them in the use of that Authority to which they have a just Right; yet that Right is not to be measured by any Law of God, but the Constitutions of the Realm, and may be acquired or alienated without committing any sin against God, as they who assert a Jus Divinum would pretend.

2. Another false principle to be dismissed, is a wide mistake of the Nature of that Government under which we live, which asserts the English Monarchy to be absolute and unlimited, at least that in its Original and Essential Constitution it is so, and cannot be otherwise. We cannot but reflect on the ill design, or ill conduct of some who in their Discourses on this Subject, have transcribed out of their common places all the great things which any Princes have asserted to themselves, or have been ascribed to them by ambitious flatterers, or have been acquired by them in overreaching Compacts, or by a violent force; and have without any restriction or exception, applied them to the Monarch of our Island, as if there could be but one sort of Government in the world, or that ours did eminently include all the Prerogatives that can be conceived in speculation, or can be found to be ascribed to any King or Emperor in any Part, or Age of the World.

Upon this Principle they have exalted the English Monarch into as Absolute and Arbitrary a Sovereign, as any Emperour of Rome or Constantinople; they make his Will the sole spring of our Government, from which it is originally derived, and into which it must be ultimately resolved: they allow to an English Parliament no more power than to give some inauthoritative Advice, which the King may use or neglect as he thinks fit. They think a Coronation Oath, whatever it may be with respect to God, yet with respect to the People, is only a customary Ceremony, or insignificant Formality. They suppose all legal limitations of the Government to be but the King’s arbitrary and temporary Condescentions, which he may retract without doing any Injury to the People; and, in a word, that all our Laws are entirely dependent on His Pleasure for their Being, Continuance, and Influence; but his Will is in all Cases unaccountable and irresistible. Such Maxims as these quite alter the Frame of our EnglishGovernment, raise up our King into a Tyrant, and depress his Subjects into Slaves, and serve only to render the King odious, and his People miserable; and therefore, as no wise Man can forbear wishing that they may not be true, so upon enquiry we shall find that they have been advanced either by the Fondness of some, who frame Schemes of Government in their own imagination; or by the Ignorance of others, who are deceived with the sound of the aequivocal Name of King, or by the Craft of those who make a Trade of advancing the Prerogative, in order to their own Advancement. Indeed if the preceding Principle had proved true, That Monarchy is a Divine Institution, it would be necessary for us to grant, that no other Form of Government could be mixed with it, or That be restrained by any Limitations, because it cannot be lawful for Man to adulterate or infringe the Ordinance of God: But seeing the Jus Divinum doth not appear, we have reason to suppose that our English Government is built on the Topical Constitutions of this Countrey, and may differ from the Government of other Countreys, as much as our Tempers, Interests, and Circumstances do. For, if the Supreme Governor of the World hath not thought fit to prescribe One Form of Government to be everywhere observed, he hath permitted to every Nation a Liberty of framing to themselves such a Constitution as may be most useful and agreeable; and as it is inconceivable that all Nations should conspire in the same Platform of Governments; so it is most unreasonable to seek in Judea, Italy, or France, for the Measures or Properties of the English Government, which was made, and is therefore to be found only at Home, and should be described rather from its own Laws and Constitutions, than any fine Notions we can conceive of what it might or should be. And if we contemplate the Government itself, we may easily discover what its essential Forms and Properties are; for surely a Government that hath been publickly transacted through so many Ages, and hath made so great a Figure in the world, cannot remain an imperceptible Secret, or an unintelligible Mystery; and I cannot forbear suspecting those, who disguise it with so many Uncertainties and Obscurities, that they design to mislead us into a mistake of that which they will not allow us to understand. A little skill in our English History will suffice to inform us, That the Saxons and English, from whom this Nation is chiefly descended, did first introduce the Form of our English Government, and that it was the same they had been inured to in Germany; where, as Tacitus observes, Regibus nec infinita aut libera potestas: Kings had not an Absolute or Unlimited Power. And from the ancient Records of those early Times we are assured, That the Consent of the People in a Convention or Parliament, did always concur to the making of Laws; and also their Consent in a Jury of Peers was always admitted in the Execution of Them: Whence the People of England have been always acknowledged to be Free-men. And though we read that the Saxons were subdued by the Danes, yet we find not that their Government was changed, but that, after a short Interruption, the Government and Country returned entirely into the Hands of the Saxons. The Duke of Normandy, whom we call the Conqueror, was such only with respect to Harold, who usurped the Crown, but not with respect to the Kingdom, which he claimed as Successor to King Edward, to whom he was related, by whom he was adopted, and from whom he had received a solemn Promise of the next Reversion; and accordingly we find, that though he made some external Changes in the Government, yet he made no essential Alteration in the Form of it; and the same kind of Government hath been transmitted by succeeding Kings to the present Age, with some accidental Improvements, as our Ancestors grew wiser by Experience, or the Necessities and Interests of the Nation did require. Now, inasmuch as our English Government was at first transplanted out of another Countrey, and hath been ripened into a Perfection by several degrees through a long tract of Time, it would be very fanciful to suppose one solemn time when the Original Compact between the King and People was first made, or to ask after a Book in which it is in a certain Form recorded; that Compact being nothing else than a tacit Agreement between the King and Subjects to observe such common Usages and Practices, as by an immemorial Prescription are become the Common-Law of our Government. And to understand these, so far as our present Case requires, there is no necessity that we should read over all the Records in the Tower, or all the Volumes of our English History, there being several ancient Forms and Customs among us, which fall under easie Observation, that are sufficient to inform us of the Nature of our English Government. For when at a Coronation we see a King presented to the People, and their Consent solemnly asked and given, what can we reasonably infer from thence, but that anciently Kings were advanced to their Thrones by the Consent and Agreement of the People? When we hear the King solemnly Promise and Swear to maintain to the People their Rights and Liberties, to conserve the Laws, and cause them to be observed; must we not conclude from thence, that there are Rights and Liberties reserved to the People; that the Will of the King is limited by the Law of the Realm: and that he is bound by His Oath to conserve the Laws, as we are by Ours to observe them? When we are taught to call the King our Leige-Sovereign, and ourselves his Leige-Subjects; do not those Terms import, that he is bound to protect Us in All our Rights, as we are bound to obey Him in All his Laws? When we read in the Preamble of every Statute, That it is enacted not only by the Authority of the King’s most Excellent Majesty, but also by the Authority of the Lords Spiritual and Temporal, and of the Commons assembled in Parliament; is it not very evident from hence, that the Parliament hath a share in the Legislative Power, which is an eminent Branch of the Supreme Authority in this Kingdom? From these, and other such easie Observations, any impartial unprejudiced person will certainly conclude, that our English Government, according to its Essential Constitution, is a mixture of Three Forms of Government; for he observes a Monarchy in the King, an Aristocracy in the Peers, and a Democracy in the Commons; all which share in that Part of the Sovereignty which consists in making Laws. And though our Government be called a Monarchy, because That Kind is predominant in the Constitution, according to the known Rule, That the Denomination is to be taken from the Excelling Part, the King having not only a share in the Nomothetick Power, but also the whole Executive Power committed to Him; yet we cannot but conclude, from the foregoing Observations, That our Monarchy is not Absolute and Unlimited; that the Law is the stated Rule and Measure of our Government; and that the Law cannot be made, altered, or annulled, by the sole Pleasure of the King: but as it is the first determinate Rule by which the King is to Govern, and the People to Obey, so it is to be made or changed only by the Consent of Both in a Parliament. I might confirm all this, by transcribing out of Books several Testimonies which occur in the Declarations of Parliaments, in the Writings of Judges, and others Learned in the Law: but as these would make a Letter too tedious, so they are unnecessary to an unprejudiced Considerer, and by others would be suspected of partiality to the People of whom they are a part. I shall therefore only add the Testimony of King Charles the I. who of all men had most reason to study, understand, and assert the Rights of the English Monarchy. He freely declares, in his Answer to the Nineteen Propositions,1 p. 96, “That there being Three Kinds of Government among Men, Absolute Monarchy, Aristocracy, and Democracy; and all these having their particular Conveniences and Inconveniences: the Experience and Wisdom of our Ancestors hath so moulded This out of a mixture of These, as to give to this Kingdom (as far as Human Prudence can provide) the Conveniences of all Three, without the Inconveniences of any One.” He also, in the same Answer, affirms, “That in this Kingdom the Laws are jointly made by a King, by a House of Peers, and by a House of Commons.” He likewise affirms in his Declaration from Newmarket,2 “That the Law is the Measure of his Power.” And in another Declaration to the Ministers and Freeholders of the County of York,3 he acknowledgeth, “That his Prerogatives are built upon the Law of the Land.”

From these and other such Passages which frequently occur in the Writings of the King, who so earnestly disputed for the Rights of the Crown, we may be abundantly convinced that the English Monarchy is not unmixt, or unlimited; and cannot therefore enough admire the lewd presumption of others, who have dared to attempt a change in our English Government, who prefer the extremes of Tyranny and Slavery to the just temperament of our English Constitution; who have laboured to tempt our Kings into an affectation of absolute and arbitrary Power, and have miserably overlayed the Consciences of their Fellow-subjects with a boundless unlimited dread of a boundless unlimited Power.

3. There are also great mistakes about the measures of our Obedience and Submission, which are necessary to be removed before our Consciences can make a free and impartial determination of the Case before us. We have been told it often, and with great earnestness, that we are bound in Conscience to yield an active Obedience to the King in all cases not countermanded by God, and to resist him in no case whatsoever. If indeed the two foregoing Errors had stood the proof, this would have followed by necessary consequence: for if a Monarch be jure Divino, he must be absolute; and if he be so, there is no case, not excepted by God, in which we must not obey him, and none at all in which we may resist him; but then we may make this advantage from the connexion which these Errors have one to another, That if one of them be refuted, the rest must necessarily fall with it: and if according to the English Principles premised, our Government be founded on the Constitutions of this Country, and according to those Constitutions be mixt and limited, then there may be some cases in which it may be lawful for us not to obey the King, and not unlawful to resist him.

For though it may be true, that we are bound to obey actively whatever is commanded by the Legislative Power of the Kingdom, and is not repugnant to any Law of God; yet we cannot assert so much with respect to the King only, because he having not the whole Legislative Power, an Act of his private Will is destitute of that Authority which can derive an obligation upon Conscience: although therefore a King may require things not inconsistent with the Law of God, yet if they are beyond that Authority which the Constitutions of England have assigned to him, his Subjects are not bound in conscience to obey those Commands; and though in some cases they may comply by a voluntary Concession, yet they are obliged to condemn and withstand such proceedings if they increase so far as to threaten a fatal subversion of the Government. But how can we defend ourselves against any exorbitant Acts of the King’s private Will, if disarmed and fettered by the Doctrines of passive Obedience and Nonresistance? what may not a King do, and a People suffer, if no defence may be used? I do not here forget to consider what submission God hath required to that Supreme Authority which he hath instituted, or what honour and reverence we are to pay to those Governors who sustain and administer it; nor how impatient men ordinarily are of the yoak of Government, and how apt to inlarge their liberty into licentiousness; nor how pernicious disorder and confusion must needs be to any Society; and therefore I use the utmost Caution I can to steer aright amidst the Rocks on the one hand, and the Sands on the other, that I may not make shipwrack of a good Conscience. I therefore premise and sincerely acknowledg, as I have learned from St. Paul, that Every soul must be subject to theSupreme Authority which God hath instituted, and that if he resist, he is worthy of condemnation: and according to St. Jude, that we must not despise dominions, or speak evil of dignities; and that those untameable Spirits which are impatient of Government, are like wild Beasts made to be destroyed. I have also learned from St. Peter, to submit to every ordinance of men for the Lord’s sake, whether to the King as supreme, or to Governors sent by him, so as not to disobey or resist them in the use of that Authority which the Constitutions of the Kingdom have assigned to them. I have from the same Apostle learned farther to be subject with all fear, not only to the good and gentle, but also to the froward: so that if a King in the administration of his Government should be too sparing in his Rewards, and over severe in his Justice; if too hard to be pleased, and as hard to be propitiated, I must be contented; if he injure me in my private interests, I must rather submit than oppose a private to a publick good; or if the publick Affairs of the Kingdom sustain any detriment or mischief from his Male-administration, yet if it be such as will consist with the being of the Government and the Safety of the People, it should rather be born patiently, than redressed by a violent opposition. I acknowledge also that in all cases not certain and notorious, the Subject ought to presume the Right to be rather on his Prince’s side than on his own; and never to think any oppressions intolerable till they are evidently such, or to call for a violent redress, till they appear otherwise irremediable, I must acknowledge also that I can see no Right the Subject hath from the Law of God or Man, to use any other resistance against a King than what is defensive, or to proceed judicially against him, or to inflict any punishment on his Person for any defaults of Government, because there can be no Authority in our Kingdom superior to that with which the King is invested. Yet after all these concessions it must be confessed that the Regal Power being in its Constitution limited, and in its Exercise liable to be abused, there may such cases happen wherein defensive resistance may be not only lawful, but a necessary Duty. And if we may not lie for God, much less may we do it in flattery to any Man; and if Subjects may not be defrauded of their Estates, no more should they be of their Liberties, to prevent their abuse of them. Wherefore to speak out plainly, and honestly in a case wherein Conscience is so much concerned, I must add, that we are not bound in Conscience to yield Passive Obedience to the King any farther than that Regal Authority extends, which the Constitutions of this Kingdom have invested him with; and that those Constitutions do not impower him to treat his Subjects according to his own private Will, but according to the publick rule of the Law; and by consequence, whatever grievance is without or contrary to Law, the Subject is not bound in Conscience to bear it, with respect to the King who had no authority to impose it, though he may be sometimes, with respect to the publick Peace; and if Officers be appointed by the King to oppress his Subjects contrary to Law, their Commissions being illegal, must be without authority: and therefore the Subject is not bound in Conscience to submit to them, but may resist their injust assaults, if he cannot otherwise evade them, and do not disturb the Publick Peace by the defence of his private Interests. And if we may suppose a case so sad, as that a King through ill counsel or some strong temptation should be changed from a Father into the Enemy of his Country; and should with an immoveable obstinancy ingage himself in such illegal designs, as plainly and inevitably tend to the Subversion of the Government and the Destruction of the People; his Subjects in such unhappy circumstances will be excusable before God, if they use so much defensive resistance as he hath made necessary for preserving the Government and themselves. For if in Nature a People is presupposed to Government, and Rulers are intended by God for the welfare of a People, and not a People for the pleasure of their Rulers, it will be most reasonable to infer, that when the End and the Means become inconsistent, the End should be preferred, and those Means prevented or rejected, which would destroy the End they should promote.

But these things are so easily anticipated by the common sense and reason of mankind, that there needs no long discourse about them; and they are indeed too irksom to an ingenuous mind to dwell long upon them: and though our extraordinary case at present hath made it necessary to say so much, yet I hope a like case will never happen again, to give occasion to Subjects to consider so minutely, the limits of the Regal Power, and of their own submission.

2. Having now rescued our Consciences from the prejudices of the foregoing Errors, we may be capable of making an impartial judgment of the case propounded, Whether we can with a good Conscience transfer our Allegiance from the late to the present King? Allegiance in its primary general sense signifies, being obliged or bound; in its political sense it imports that kind of relation which refers a Subject to his Prince, and by consequence it connotes the duties which result from that relation. And taking the word in its fullest latitude, there will arise these two difficulties to be distinctly resolved.

1. Whether our Consciences are discharged from Allegiance to the late King?

2. Whether we can with a good Conscience transfer our Allegiance to the present King, though not the immediate Heir of the Crown?

1. In resolving the former enquiry it will be necessary to premise, that our Allegiance to James the Second was not to his Person absolutely, but respectively, as he sustained the Character of King; and therefore as we owed no Allegiance to him before he was King, so neither can we owe him any now, if he cease to be so; and I think it too plain to need any proof, that it is possible that a person may cease to be King, though he still survive; and that a relation ceaseth when one of its Terms is lost. If therefore it appears, That James the Second doth cease to be our King, though he be still alive, our Allegiance to him will be sufficiently discharged; and that he doth cease to be our King, may, I suppose, be evinced from the following Considerations.

1. If James the Second did with an immoveable obstinacy ingage himself in such illegal and pernicious designs as were notoriously subversive of the Government, and destructive of the People, he did thereby cease de jure to be our King, and our Allegiance to him is by consequence discharged. The Title of King includes both an Office to be discharged, and an Estate to be injoyed, but the latter is an appendant to the former; when therefore he ceaseth to govern and protect his People according to the Laws of this Kingdom, his Right must so far cease to that Power, Dignity, or Revenue, which were assigned to him for that end, except we can imagine some things to have a moral power of subsisting, when the reason of them is gone. And as the Office of the King is directed by the publick rule of the Law, so the right which any person can have to the Regal Estate, must be founded on the Constitutions of the Realm; and these Constitutions must either invest him with an absolute Right irrespective to his Office, and then he would be an absolute Monarch, which is before disproved; or else it must be a conditional Right, respecting the Office he is to discharge, and then the Right in Equity must cease, upon the nonperformance of the condition. Supposing also that a Person’s Right to the Real Estate be founded on the Civil Constitutions of our Government, if he will set himself to subvert those Constitutions, he cannot thereby but Undermine and Destroy his own Right which was superstructed on them. And if he obstinately refuse to discharge the Regal Office according to the proper fixt rule of the Law, though he still usurp the title of King, yet he is become quite another thing, such as our English Constitutions assign no Authority to, and to which we are not supposed to owe any Allegiance, and which we cannot recognize without becoming Accessaries to the most illegal practices, and deriving on ourselves the heinous guilt of contributing to the ruine of the Government and our Selves.

And as such a determination of the Case is most consonant to reason, so it is most agreeable to the antient principles and practices of England. By a Law made in King Edward the Confessor’s time, it is declared, That if a King doth not perform his Office, he shall not retain so much as the name of a King. We read also that Sigebert King of the West-Saxons, being incorrigibly Proud and Wicked, he was, in the beginning of the second year of his Reign, by the Nobles, and the People of the whole Kingdom assembled together, upon mature deliberation, and by unanimous consent of them, all driven out of his Kingdom.

Thus also King John having broken his Coronation-Oath, and endeavoured by many ways to inslave both the Church and the Realm, after many applications, and a defensive War waged by the Barons against him, it was at last agreed, that if he did again return to his former wicked Courses, the Barons should be forever released from all Allegiance to him; and when he afterward relapsed into the same courses, they in a general Assembly with the approbation of all the Realm, adjudged him unworthy to be King.

We find also that King Edward the Second for following Evil Counsel, and refusing to hearken to good counsel, for his pride and arrogance, for breaking his Coronation Oath, for wasting his Kingdom, and being found incorrigible and past all hopes of amendment, was by advice and assent of all the Prelates, Earles and Barons, and of the whole communitie of the Kingdom deposed from the Government. I shall add only one instance more of King Richard the Second, to whom his Parliament sent Messengers to declare to him, among other things, that they find in an antient Statute, and it hath been done in fact not long ago, that if the King through any evil counsel, or foolish contumacy, or out of Scorn, or some petulant wilfulness, or any other irregular way shall alienate himself from his people, and shall refuse to be governed and guided by the Laws of the Realm, and the Statutes, and laudable Ordinances thereof, together with the wholsome advice of the Lords and great Men of his Realm, but persisting headstrong in his own mad counsels,shall petulantly prosecute his own private humour, that then it shall be lawfull for them with the common assent and consent of the people of the Realm, to depose that same King from his Regal Throne, and to set up some other of the Royal Family in his place.

These Testimonies which I met with in a late Pamphlet, and which I am assured from an able hand to be faithfully recited, and of an unsuspected credit, I have abridged and transcribed, to confirm that truth on which the Argument is built, that according to our English Constitutions, a person may forfeit his Regal Rights, and cease de jure to be King; and that according to the antient Statutes and irreprovable Usages of this Country, the Nobles and Commons of England may remove such a person from the Government, when necessary to prevent a general ruine otherwise inevitable. Now that the Late King had brought matters to so great an extremity, as is in the Argument supposed, is evident from many instances so recent and notorious, that it was lately acknowledged by all of us in the lowdest Complaints. We saw him attempting to subvert our Parliaments, by corrupting their Elections with the meanest arts, and using his power to pervert or frustrate their counsels. We heard those high strains in which he claimed an absolute and arbitrary Power, our Laws were trampled on in illegal dispensations, and the most partial Execution; Some were disseised of their Freehold without a trial, and levies of Mony were made without and against Law; Our Religion and Church, which are the best of all those interests which are secured to us by a legal Establishment, were so boldly threatened and attacked, that we seemed to enjoy them but precariously, and to be in danger of seeing them speedily ravished from us. And when we consider that the late King was instigated and conducted in these exorbitant courses by the Jesuits and the French King who have long since convinced the World, that they dare to perpetrate any mischief or wickedness that will advance their glory, and promote their interests: When also we consider that he proceeded in these courses with so obstinate a resolution, that when his Peers indeavoured to reclaim him by advice, they only thereby lost his favour and all their Preferments; and when some of his Bishops petitioned him in the humblest manner, they were answered only with fury and imprisonment. When lastly, we consider how far he had advanced in this way, that we already began to despair, and our Enemies to triumph; and if our Glorious Deliverer had not timely intervened, we might have been, in a few months, past all hopes of Recovery; We may surely upon these considerations be allowed to conclude, That England could not be in more danger, or any Prince lie under juster exceptions, or a people be more disobliged from their Allegiance. There are some who say, that if the League with France, the Imposture of a young Prince, the Murder of the Earl of Essex, &c. were clearly proved, they should not be able to contain themselves from renouncing all Allegiance to him; But though these may perchance be proved in due time, yet if they never are, there is certainly enough and too much besides to satisfy any reasonable Man.

2. If James the Second deserted the Kingdom without any necessity but what he induced on himself, and if he made no provision for the administration of the Government in his absence, but by taking away the publick Seals and cancelling the Writs of Parliament, designed to obstruct all regular proceedings; and if also he hath put himself into the hands of the French King the greatest Enemy of our Religion and Country,4without whom he cannot return to us, and with whom he cannot return without apparent ruine to his Kingdom, he doth thereby cease de facto to be our King, and we become discharged from all further Allegiance to him. I suppose few would hesitate in granting such a conclusion, if the Late King had by a writing under his hand and seal solemnly abdicated the Government; but I know not what mighty force there is in a form of Words for renouncing the Government, that it may not be as effectually performed by a proper and notorious fact; or that a King may not as well renounce his Crown by doing it, as by saying it; and it is the thing itself and not the way of expressing it, which is the ground on which the relation between a King and his Subjects is dissolved; and therefore if a King doth actually desert his People, his Government and their Obedience must thereupon actually cease. You would perchance easily allow the argument, if the King had withdrawn deliberately and of choice, but it is said that he was rather hurried out of his Kingdom, by force and fear. It will be therefore necessary to relate to you the History of that transaction, which according to the truest account that I can meet with, is this: When the King went hence the first time, the Prince and his Armie were at a great distance, and a Treaty between them was pretended, but he left the City before his Commissioners could return with an Answer to his Demands; and it is certain that the Treaty was but a delusive Pretence, and that his Departure was resolved on some Days before; for he himself declared to a Person of Credit, that the Queen had obtained from him a Solemn Oath upon the Sacrament, on the Sunday, that if she went away for France on Monday, he would not fail to follow her on Tuesday; Which he accordingly attempted, and we are very well assured, that though his Subjects used some Force to hinder his Flight,5 yet they used none to compel him to it. When he left this City the second time, he received a Message from the Prince, which desired him to withdraw some few Miles from London, lest the Army coming thither, and Whitehall being thronged with Papists, some Disorders might thence arise, not consistent with the Publick Peace or the King’s Safety; but we are sure that it was altogether of his own Choice that he went first to Rochester, and thence out of the Kingdom.

If you reply that the late King being deserted by his Subjects, and exposed naked to the Prince’s Power, was brought under a necessity of flying. I must answer, that that Necessity was not absolute, but conditional: For the Prince (to whom he lately allowed the Character of being always Just to his Word) had assured him in his Declaration, that if he would suffer the Grievances of his People to be redressed in a Free Parliament, his Army should peaceably depart. And not a few of his Nobles, and others, did earnestly beseech him to comply with those Terms, and solemnly assure him that in such a Compliance, they would faithfully adhere to him. If therefore the late King would have returned to the English Government, he need not have left the Kingdom: but if he chose rather to depose and banish himself, than acknowledg and correct the Errors of his Government, or let fall those glorious Projects of advancing Popery and an Arbitrary Power in England, we have no Reason to think such a wilful Necessity which he imposed upon himself, a sufficient Excuse for deserting his Kingdom; but rather to conclude, that if he would rather leave us, than leave off to oppress us, we are happily released from our Allegiance and Oppression together. Yet if we should impute his Flight rather to the weakness of his Fear, than to the obstinacy of his Resolution; I do not see how the same Conclusion can be avoided. For if he leave off to administer the Government himself, and rather hinder than promote its Administration by others, the course of the Government is thereby stoped, and either this Nation must disband into Confusion, or we are necessitated to seek out and employ some other Expedient. If you think that he might in short time overcome his Fears, and return to his People and Government, even this Hope is fatally precluded, by his making himself a Royal Prisoner to the French King, from whom he can expect only, to be used and managed as will most contribute to the Designs and Interests of that Haughty Monarch; insomuch that we cannot conceive his Return possible, without the Consent and Conduct of Him whom he hath made his Patron, and without the dreadful attendance of a French Army, and the dismal Consequence of utter Ruine to our Church and Nation. And surely that Prince who can forsake his People, and abandon them out of his Care, and make it impossible to return, except as an Enemy to vanquish and destroy them, may very well be thought to cease de facto to be a King, and his Subjects to owe any Allegiance to him.

3. If the Lords Spiritual and Temporal and the Commons of England assembled in the late Convention, have upon mature Deliberation resolved and declared, that James the 2d hath abdicated the Government and vacated the Throne; we may be satisfactorily confirmed from their Authority and Judgment, that he ceaseth to be our King, and we to be his Subjects. That they have fully and expresly asserted so much, I need not prove; and their Testimony is so proper and authentick in the present case, that we may with good Reason suffer ourselves to be concluded by it. For the matter of the Enquiry consists of several ancient Laws and customary Usages of this Kingdom, of which the two Houses are the most competent Judges; and they representing the whole Nation, and being by our Choice commissioned to consider and determine this Case for us, we cannot with any Modesty or Equity reject their Determination. If also we consider, that in all Cases of a like Nature, the Nobles and People of England by their Representatives, have usually and finally determined them; and that upon the late King’s withdrawing, the chief Power of the Nation could reside nowhere rather than in the two Houses, it seems according to our English Constitutions, to be the Duty of private Men to submit to such a publick Judgment. And indeed, if such a solemn Assembly of the three Estates of the Kingdom, after a long and serious Consultation upon the Case, shall not be thought sufficient to determine it, I wonder who can, or may do it? For as particular Persons are less capable of making so exact a Judgment, so if every one should undertake to decide it, we must be reduced thereby into a helpless state of utter Confusion.

Secondly, The other Difficulty in the present Case to be considered, is, Whether we may lawfully transfer our Allegiance to the present King, he being not the next immediate Heir? I may here presuppose that our present King is acknowledged by the World to be so eminently indued with all Royal Virtues and Abilities, and to have obliged the Gratitude of this Nation with so glorious and happy a Deliverance; that every wise and good Man among us cannot but be ready to address an hearty Allegiance to him, if it can appear lawful for him to do so; and where the Heart is so well inclined, it will not be difficult to convince the Judgment, if we consider these few Particulars.

1. That according to our English Constitutions it is not necessary that the next immediate Heir should succeed. For if we review in History the ancient Usages and Practices of our Country, which are the Common Law of our Government, we shall find, that, though the Crown hath been usually appropriated to the Royal Family, and in that Latitude is said to be Hereditary; yet it hath very frequently passed over the next Heir to some other Branch of the Family, which was thought more capable of promoting the publick Ends of the Government in its present Circumstances. And we find no publick Censure ever passed upon such a King, or his Authority and Government in the least disabled thereby. And to make this matter unquestionably evident to any Man who is not far gone in the Conceit, that the Inheritance or Succession of the Crown is Jure divino, I add that the Kings of England have been allowed by the whole Legislative Power of this Nation to dispose of the Crown by their Nomination, which, as it may suppose that they would not give it out of the Royal Family, so it must suppose that it was not necessary it should descend to the immediate Heir; for he being determined by Nature, could receive no Advantage from such a Nomination. Thus particularly it was allowed to Henry the Eighth, and he, according to the Statute in that behalf, setled the Crown on his Son Edward, and the Remainder on his Daughters Mary and Elizabeth, both which could not be Heirs. And we find it also enacted in the 13th of Elizabeth that whoever should maintain in her Time that she and her Parliament might not limit the Descent of the Crown, should incur the Guilt of High-Treason, and after her Life, the Forfeiture of his Goods. From which Authentick Testimonies we cannot conclude less, than that it is not necessary that the next immediate Heir should always succeed.

2. Let us consider that our Allegiance being removed from the late King, it must be referred to some other Person, and we can think of none for whose sake we may justly deny it to the present King. The pretended Prince of Wales lying under such a general and vehement suspicion of being an Impostor, and being at present under the Conduct and disposal of the King of France, we see in him more Reasons to dissuade than invite our Allegiance. Our present Queen, who is the next immediate Heir, is not pretermitted; and though she hath a Consort in the Royal Dignity, yet he is such as was by Marriage become one with her, and who was admitted to the Partnership, not without her Advice and Consent. And the King himself being a Branch of the Royal Family, not far removed in the Succession, and who by the late glorious Enterprize hath retrieved the Right of both the Royal Sisters, and secured the Government itself from Subversion, it cannot but seem very indecent and unjust to overlook him in our Allegiance. If, lastly, we consider that the Protestant Interest in Christendom, and the Civil Interests of our own Nation, and of some of our best Neighbours are at present in most imminent and extraordinary Danger, which in Human Probability is not to be avoided but by the Prowess and Conduct of this Illustrious Prince, whom God hath by a Special Providence raised up among us; we cannot but conclude, that the Series of Providence, and the Necessity of Affairs, have determined our Allegiance to His Majesty; and that they seem to be unreasonably nice, who can sacrifice such great Interests to an empty Formality.

3. The great Council of the Nation having actually invested our King with the Royal Dignity, he hath thereby a Right to our Allegiance, and according to the Laws of this Realm, we become punishable in refusing it, and are indemnified in performing it, although his antecedent Title to the Crown may not be such as to exclude all Exception. So great an Article of State as this can be fit to be decided only by the Wisdom of the Nation in the most Solemn Assembly; and when so decided, ought to be submitted to by all private Persons, or all Settlement must be an impracticable thing: and if our Laws should not be executed according to such an authentick Determination, the Government seems to be at a stop, beyond all hopes of reviving into Motion. I wish that they who pretend or perplex their Consciences about such Affairs, would consider seriously whether they are proper or capable Judges of such Matters, and whether their Consciences may not be better conducted by the Resolution of such as are; whether they behave themselves as becomes private Persons, who oppose their Sentiments to the publick Judgment, or whether any Government can subsist if such a Presumption be not restrained? For my own part I am verily persuaded, that in all Civil Cases, decided by their proper Judges, my Conscience ought to acquiesce, and if I may be thereby misled into any Error, it will be without Guilt before God. And I am also informed that by a Statute made 11 Hen. 7. we are legally indemnified in paying our Allegiance to the King in being; if we continue faithful therein, however infirm his Title may afterwards appear; and therefore I cannot see what Danger can affright us from our Allegiance, or with what Safety we can refuse it.

Thirdly, I have now given you my Resolution of the chief Difficulties in the Case propounded, and the Reasons on which it is built; and I can think of nothing more requisite to your Satisfaction, except to shew how this Resolution doth consist with all the Obligations which may affect a good Conscience in the present Case; which are, I suppose, chiefly these three, viz. the Prescriptions of that Holy Religion we profess; the Solemn Oaths we have taken, or the Declaration we have subscribed; and the avowed Principles and Doctrines of this Church in whose Communion we live.

1. As to the first. The Rule of our Religion being the Holy Scriptures, nothing can be inconsistent with one, which is not repugnant to the other; and according to the best of my Understanding, the principles I have proceeded upon, do not disagree with any Sacred Text, rightly interpreted. The first King of Israel we meet with in the Old Testament is Saul, who was advanced to the Throne as well by God’s Institution, as the People’s Election, and who was according to the People’s desire, an absolute Monarch, like the other Kings in those Eastern Countries: But this, thanks be to God, is not our Case, who live under a mixt Government, and a Monarchy limited by the fundamental Constitutions of this Realm. And yet I cannot but observe how David (who is usually prescribed as an eminent Pattern of Loyalty) thought it lawful to raise a band of Souldiers for a defensive Resistance against the unjust Persecutions of Saul, though an absolute Prince; and surely we may conclude a minori ad majus, that such a defensive Resistance cannot be less lawful, when apparently necessary to preserve a whole People from imminent Ruine. I remember our Lord’s determination, that his Kingdom is not of this World: and as I think we rightly infer from thence, that there is no secular Force belonging to his Kingdom for inlarging its Borders, or securing its Interests; so I can see nothing in these words to hinder, but that when any of the Kingdoms of this World is become the Kingdom of Christ, by incorporating his Religion among its civil Constitutions, then we may use any Expedients for the defence of our Religion which we might use in defending any other Priviledges of our Civil Establishment. Our Lord hath taught us, to render unto Cesar the things that are Cesar’s; and his Apostle, that we must render to all Men their Dues, Tribute to whom Tribute is due, Custom to whom Custom, Fear to whom Fear, and Honour to whom Honour; but they have left us to the Constitutions of our Country to determine, what the things of Cesar are, what Custom and Tribute is due, and when to be paid. I have already had occasion to consider the Doctrine of St. Paul and St. Peter concerning our duty of Submission to the Supreme Authority, and to those who administer it; And upon the general review of the whole, he seems to me to do the part of a good Christian as well as of a good Englishman, who hath on his Mind an awful regard for the Supreme Authority which is of divine Institution, who will not refuse an Active Obedience to the Laws of our Legislators, if consistent with the Laws of God; who can readily submit to the King, and to those that are commissioned by him, in the Execution of those Laws; who pays the highest Civil Honour to the King as the Supreme Magistrate of the Kingdom; who makes the most candid and honourable Constructions He can of all his Prince’s Actions; who can quietly submit to any acts of Government, though they seem very unjust and grievous to his private Interests; and who never thinks a defensive Resistance lawful but when apparently necessary to save a Kingdom from utter Ruin. He that can do all this, is a good Proficient in his Religion, for he will find it not very easy to Flesh and Blood to go so far. But they who are not content with any Notion of Religion which will not expose to ruin the Kingdom that embraceth it, do but traduce our Holy Religion, and expose it to the Contempt and Hatred of the World.

2. Let us next consider how the Resolution I have given, will consist with the Oaths we have taken, and the Declaration we have Subscribed. You will here give me leave to premise that the Forms we have sworn or subscribed, are not to be taken carelessly according to the meer sound of words, but are to be understood according to the Sense which they plainly express, and which appears to be intended by our Superiors in imposing them. And if we consider our Oaths and Declaration according to this Rule, we shall discover that they have brought upon us no new degree of Allegiance or Subjection, which was not always due according to the ancient Fundamental Constitutions of this Kingdom; that we have hereby lost none of our English Rights and Liberties; nor the King enlarged his Prerogative beyond what it always was and ought to be; and therefore if according to the ancient Constitutions of this Kingdom, the Government is mixt and the Monarchy limited, so it continues. If the Freemen of England were before these Oaths bound to no Active or Passive Obedience beyond what the Law of the Land prescribes, they are bound to no more since; and if it was formerly lawful for the People of England in an extreme necessity, to remove a King whose Government was became inconsistent with the Publick-Weal, and to set up another by whom the publick Interest may be secured, it is as lawful still notwithstanding these Oaths we have taken, or the Declaration we have subscribed. And to evince this more satisfactorily, let us descend to Particulars.

1. The Oath of Supremacy prescribed 1. Eliz. doth plainly appear from the Preamble and Body of the Act, and from all the parts of the Oath itself, to be intended only for asserting to the Queen a Supremacy over Ecclesiastical Persons, and in Ecclesiastical Causes, in opposition to the pretentions of the Pope and Court of Rome. When therefore it speaks of bearing Faith and true Allegiance to the Queen, and her Heirs, and lawful Successors, it is in opposition to all Foreign Jurisdictions, Powers, Superiorities and Authorities; and when it speaks of our assisting and defending her Jurisdictions, Preheminencies and Authorities, it is only of such as have been parted or belonging, or united and annexed to the Imperial Crown of this Realm. And that no new Power was hereby given to the Queen is evident, for when she was informed that this was by some pretended, she caused a Paper to be printed, called An Admonition to simple Men deceived by the Malicious, in which she declares,

That she would have all her loving Subjects understand, that nothing was, is, or shall be meant, or intended by the same Oath, to have any other Duty, Allegiance or Bond required by the same Oath, than was acknowledged to be due to Henry 8. And Edward 6.—and that her Majesty neither doth nor ever will challenge any other Authority than what was challenged and lately used by the said Noble King of Famous Memory, which is and was of ancient Times due to the Imperial Crown of this Realm; that is, under God to have the Sovereignty and Rule over all manner of Persons born within these Realms, Dominions and Countries, of what Estate either Ecclesiastical or Temporal soever they be; so as no other Foreign Power shall or ought to have any Superiority over them.

And to render this Exposition of the Queen more Authentick, we find it confirmed by an Act of Parliament 5 Eliz. wherein is this Proviso;

Provided also, That the Oath expressed in the said Act, made in the said First Year, shall be taken and expounded in such Form, as is set forth in an Admonition annexed to the Queen’s Majestie’s Injunctions, published in the First Year of her Majesty’s Reign; That is to say, to confess and acknowledg in her Majesty, her Heirs and Successors, none other Authority than that was challenged and lately used by the Noble King Henry 8. and Edward 6. as in the said Admonition more plainly may appear.

I think we may be abundantly satisfied from so express a Testimony both of the Queen and Parliament, that the Oath of Supremacy hath asserted no new Power to the Crown, nor derived any new Allegiance on the Subject, but hath only ingaged him to pay that Fealty, which an Englishman did always owe to his Prince; and if that be all, it doth no way contradict the Positions above asserted.

2. The Oath of Allegiance appointed by an Act 3. Jacob. 1. doth manifestly appear in the Body of the Act, and of the Oath itself, to be intended, not for making any new kind or degree of Allegiance, but only for asserting the old Allegiance of an Englishman against the novel Doctrines and Practices of the Pope or Court of Rome, which pretended to a Power of Excommunicating and Deposing Kings, and of releasing Subjects from their Allegiance, and of bestowing this Kingdome on some other Prince at the Pope’s pleasure. And that this Oath was intended only to assert our Allegiance in opposition to such Popish pretences, is evident from hence, that the Oath was at first appointed, and for some years was required, only of known or suspected Papists. And an Act of Parliament following 7. Jac. 1. declares concerning this Oath, that it is limited and prescribed, tending only to the Declaration of such Duty, as every true and well affected Subject, not only by bond of Allegiance, but also by the Commandment of Almighty God, ought to bear to the King his Heirs and Successors. We find also that King James doth professedly assert and defend no more in his Apology for this Oath, and in the Act of Parliament just before cited, that Apology is approved and commended. And it being in that very Act required that this Oath should be Administered not only to Papists, but also to all others his Majesty’s Subjects, we cannot conceive that our Legislators understood, or intended it in any other, than that limited and prescribed sense they had before acknowledged. From hence therefore we may infer, that this Oath doth secure the King against all Popish pretensions, but not against the English Constitutions; and that the Allegiance we have sworn is no more than was antecedently necessary from those constitutions, and by consequence that if according to those Constitutions a King may be removed from the Government, and his people be released from their Allegiance, so they may be still, notwithstanding anything expressed, or intended in the Form of this Oath. But now if some among us (which I fear is the case of many) do mistake the matter of this Oath, and think they have Sworn to another kind, or higher degree of Allegiance than our Legislators intended, they cannot but thereby inthrall their Consciences with great perplexities; and can no other way find Ease, than by stating the Obligation of their Oath, according to the intention of those Superiours who imposed it; and this may relieve them, for I suppose that though a Man may through mistake suppose his Obligation to be greater than it is, yet that a promissory Oath doth really oblige him no farther, than the party by whom the form of his Oath was prescribed, and he to whom it was made, may be reasonably supposed to intend and require. Thus for instance, if a Man thinks he hath sworn Allegiance to the person of him that is King, so as to be bound to him, whether he Administer the English Government, or set up another quite contrary to it; or that it obligeth him to obey the Acts of a King’s private Will, though without and contrary to Law; or that his Allegiance is not terminable but by death, although the person to whom he Swore, may long before cease de jure, or de facto to be King; and to mention only one case more, which I observe to be somewhat common, if any thinks, he hath sworn such an Allegiance to the King’s Heirs, and lawful Successors, as obligeth him in Conscience to find out who is the next immediate Heir, to assist him in acquiring the Crown, and to pay subjection to him and to no other; although the great Council, or the whole Legislative power of the Nation should see reason to determine otherwise; In these and other such Cases, it is plain that our Consciences are intangled, not with the real Obligations which are upon them, but with our mistakes about them; that we conceit an Allegiance which our Ancestors never knew, and our English Constitutions do not require or allow.

3. The Declaration we have subscribed according to the Act in 14 C. 2. is in these Words, That it is not lawful upon any pretence whatsoever to take Arms against the King; and that I do abhor that traiterous position, of taking Arms by his Authority against his Person, or against those that are Commissioned by him. Which Declaration may be considered, in the present case, either as it expresseth our own judgment, or as it expresseth the judgment of our Legislators, who required it. As it is our Declaration, it can only import, that when we subscribed it, our judgment was really such, as we then thought this form of words did properly express, but we did not hereby declare that we should never change that judgment, if convinced by sufficient Arguments, and therefore cannot be bound in Conscience never to think, or act contrary to that Declaration. But an Argument from this Declaration is of more force as it pleads the judgment and determination of our Legislators, which will therefore deserve to be more attentively considered. I acknowledg that this Form was intended, in direct opposition to the Rebellious principles and practices of the times immediately preceding, and must conclude that according to the judgment of this Parliament, King Charles the I. did never de jure fall from his Regal Right, and that consequently the War his Subjects waged against him was a Rebellion, and the positions on which they proceeded were traiterous; and that it is not lawful upon pretence of his Authority, or any other pretence whatsoever to take Arms against his person, who continues to be de jure King. In all which the Parliament doth declare no defensive Resistance to be unlawful, which was not always so, nor condemn any positions which are not in themselves antecedently traiterous; and whoever thinks that they intended more, must suppose that that Parliament altered the Constitutions of our English Government, and did by apparent consequence, expose the Nation to utter Destruction. And if any of us in subscribing the Declaration, had any other apprehensions of it; we may, and I think we should renounce and condemn them.

4.6 Let us in the last place consider how this resolution will agree with the received Principles and Doctrines of the Church of England. We need not, I know, profess so high a regard for our Church, as to think any doctrine upon her sole Authority, to be a Sufficient rule of our Faith or Conscience; and yet it cannot misbecome us to pay so great a deference to her Judgment, as never to depart from it without great regret. But upon second thoughts I find we shall be under no necessity of doing so; for though there have been for some time, a party among us who have appropriated to themselves the Church of England exclusive of their brethren; yet if we extend her Arms wide enough to embrace all her genuine children since the Reformation, we shall find enough on our side to justifie our doctrines to be consistent with her principles. Her Homilies nowhere, that I know of, assert the Errors I have here condemned, or condemn any of the positions I have here asserted. The Homilies of Obedience teach us to Submit to lawful Authority and to know our bounden duties to common Authority, but they teach us no loyalty, beside or contrary to law. The Homilies against Rebellion are particularly designed against the Papists, whose Rebellion was the occasion upon which they were written, and though they teach us not to resist our Prince if his Government be legal, however contrary to our Religion or any other interests, yet they nowhere forbid, a defensive resistance against illegal oppressions which threaten an inevitable ruin to our Country; for they describe the Rebellion they condemn to be no other than resisting or withstanding common Authority. And that the principles of loyalty which obtained in the Church at that time were no other than I have been now asserting, we may easily satisfie ourselves from that form of Prayer they are charged with by the Parliament, in Queen Mary’s reign, that God would turn her heart from Idolatry to the true Faith, or else shorten her dayes and take her quickly out of the way. Also from the Reasons which the Bishops presented to Queen Elizabeth to prove that she ought to take away the life of Mary Queen of Scots because an Enemy to their Religion and Country, though the next Heiress of the Crown; as Constantine did of Licinius his fellow Emperour because he was an Enemy of the Empire and of the Christian Religion; And to such as might object against their Reasons and advice they thus reply, If our danger be joined with the danger of our Gracious Soveraign and natural Country, we see not how we can be accounted godly Bishops or faithful Subjects if in common peril we should not cry out & givewarning: Or on the other hand how they can be thought to have true hearts toward God and toward their Prince and Country that will mislike our so doing, and seek thereby to discredit us. We may also know their principles in the present case from the Subsidies which the Clergy gave to the Queen in several Convocations in the fifth, thirty-fifth, and forty-third years of her Reign, for her maintaining and assisting the Scotch, French, and Dutch in their defence of their Liberties and Religion against the injust oppressions of their Princes, as may be collected out of the preambles of those Subsidy Acts. And if it were not too tedious, this might be fully attested out of the writings of such Bishops as were most eminent in those times.

Bishop Jewel speaking of Luther, Melancthon &c. hath these words They do not teach the people to rebel against their Prince, but only to defend themselves by all lawful means against oppression; as did David against King Saul, and so do the Nobles in France at this day. They seek not to kill, but to save their own lives, as they have openly protested by publick writing to the world. Bishop Bilson in his book of the true difference between Christian subjection and Unchristian Rebellion, dedicated to Queen Elizabeth, thus gives his Judgment concerning that defensive Resistance which the Hugonots used against the injust oppressions of their King. I will not, Saith he, rashly pronounce all that resist to be Rebels: Cases may fall out in Christian Kingdoms, where the people may plead their Right against the Prince and not be charged with Rebellion. As for example, if a Prince should go about to subject his Kingdom to a forreign Realm, or change the form of the Commonwealth from Empire to Tyranny, or neglect the Laws established by common consent of Prince and People, to execute his own pleasure. In these and other cases, which might be named, if the Nobles and Commons join together to defend their Ancient and accustomed Liberty, Regiment and Laws, they may not well be counted Rebels. In the next Reign, we have the judgment of Abbot Bishop of Salisbury, that the Case of the Primitive Christians and of us differs in this, that they had no legal Right for their Religion, but were subject to the meer pleasure of the Government. Andwhile it was so, Christians did suffer themselves to be killed, and killed none in their own defence; but when under Constantine the Emperour they had the Laws on their side, [Non tam caedebantur quam caedebant] they did not so much yield up themselves to be killed, as allow themselves to kill others in their just defence. Such were the principles of the Church of England in the Reign of Queen Elizabeth, and King James; but indeed in the next Reign, when Popish and French Councils found admission at our Court, then arose together the New Principles of superconformity in the Church, and of Super Loyalty in the State; which like a preternatural ferment, have ever since disturbed the peace of both, and must be again cast out, if we ever recover a true English Temper, or a peaceful settlement. If then we frame our Character of the Church of England from the first and purest half of her Age, before she was secretly practised upon, by the Arts of her subtle Adversary, we shall easily discover, that her principles of Conformity and Loyalty are far more moderate and intelligible than those, which since that time, have been most industriously and impetuously recommended under her Venerable Name. And I wish that every one who professeth an Honourable and kind regard for our Church, would no longer ascribe to her such Principles and Doctrines, which she for many years was ignorant of; wherewith the Church hath given great advantage to her Enemies, and received nothing but Scorn and Contempts, and by which she may oblige the present Government to treat her with less kindness, than she might otherwise expect. But I forget that I am writing a Letter, and how much pardon I already need for running it into so great a length; but I thought it better to give you so long a trouble in reading, than to leave any trouble on your mind unremoved. I beseech you to excuse candidly the mistakes I may have committed; and to accept the Services of

Reverend Sir

Your Affectionate Brother and Faithful Friend, &c.

LondonMarch 1688/9

Anon, A Friendly Conference Concerning the New Oath of Allegiance

Anonymous

A Friendly

CONFERENCE

Concerning the New

Oath of Allegiance

K. WILLIAM, and Q. MARY,

WHEREIN

The Objections against taking the Oaths are impartially Examined.

AND

The Reasons of Obedience Confirm’d, from the Writings of the profound Bishop Sanderson,

And proved to agree to

The Principles of the Church of England, and the Laws of the Land.

By a Divine of that Church.

Licens’d, April 19. 1689.

James Fraser.

LONDON:

Printed for Samuel Smith, at the Princes Arms in St. Paul’s Church-yard. 1689.

This anonymous tract, licensed for publication on 19 April 1689, directly addresses the new requirement that office holders, both civil and ecclesiastical, must subscribe to an oath of loyalty to King William and Queen Mary.

To ease the consciences of the scrupulous, the new oath asked only for loyalty. It deftly sidestepped the issue of legitimacy and read: “I do sincerely promise and swear that I will be faithful and bear true allegiance to their majesties King William and Queen Mary.” Nevertheless with King James still alive many individuals with troubled consciences were unclear what obligation they still owed King James. They were anxious not to violate their sworn oath to him and wondered whether William and Mary were usurpers like Cromwell. Office holders had six months during which to swear to the oath or lose their posts.

“A Friendly Conference” is in the form of a dialogue. The author is an Anglican clergyman and a Tory. He claims he had been a nonjuror with grave objections to taking the oath. But having closely examined the writings of Bishop Robert Sanderson, he says he became convinced it was his duty to take it. Sanderson wrote extensively on obligation and oaths from 1649 and the execution of Charles I through the 1670s. The arguments in the dialogue provide a full discussion of the various aspects of the controversy. The author refers to the de facto act of Henry VII, the laws on allegiance, and tries to distinguish allegiance to King William from allegiance to “that usurper,” Oliver Cromwell. The tract appeared in a single edition.

[2. ]James II’s Declaration of Indulgence of April 1688.

[3. ]A Scots King when attaining his majority could annul acts passed during his minority. However, James II annulled acts passed during the minority of his grandfather, James I, even though these acts had been ratified by James when he came of age.

[1. ]The writer seems to be referring to James II here.

[2. ]Edmund Plowden, a sixteenth-century English jurist and the author of Commentaries, was so generally respected and cited that his name was embodied in the popular aphorism “The case is altered, quoth Plowden.” This saying appears to relate to an incident in which Plowden was asked by a neighbor what legal remedy there was against a man who allowed his pigs to stray into the neighbor’s field and was assured the law would protect him. Whereupon the questioner replied the pigs were Plowden’s. “Nay then, neighbour,” quoth Plowden, “the case is altered.” See Burton Stevenson, ed., The Macmillan Book of Proverbs, Maxims, and Famous Phrases (London, 1965), 291.

[3. ]The single end of command is the advantage of the people.

[4. ]Let that be legal which the people command last of all.

[5. ]In the best king nothing is in excess, in an evil one everything is too much.

[6. ]The Jesuit, Father Edward Petre, clerk of the Royal Closet, was believed to have had considerable influence on James II.

[7. ]Presumably James II’s second wife, the Catholic Mary of Modena.

[8. ]Neither can all suffer slavery nor all liberty.

[9. ]Sir William Temple, “An Essay upon the Original and Nature of Government” (1672), in The Works of Sir William Temple, Bart. Complete in Four Volumes, ed. Jonathan Swift, 1814 (rpt. New York, 1968), 1:21.

[10. ]The reference is to the Turkish ruler, the Grand Seignoir, frequently used by English authors as the paradigm of a despotic, all-powerful ruler. A seventeenth-century dictionary describes his government as “Monarchical, the Emperor absolute Master of the Life, Honour, and Goods of his Subjects: His Orders are above the Laws, which are but few, and those in Favour of Arms, and for the enlarging of the State. The Ottomans believe firmly, that the Sultan’s Will is the Will of God. . . . He is the only Heir of all their Possessions, for their Children and Friends never enjoy them but by his Permission.” See The Great Historical, Geographical and Poetical Dictionary: Being a Curious Miscellany of Sacred and Prophane History, by Several Learned Men (London, 1694), Turks, 2.

[11. ]That the British enjoyed no separate possession except that defended by the permission and power of the prince.

[12. ]Knight service was the obligation of a knight to attend the king in his wars for forty days a year, or less if he held less land in knight’s fee. Escuage, another variety of medieval knight’s service, required attendance on the king in his wars for forty days at the tenant’s own charge, or he could send a substitute. In later times this service was commuted for a specific sum of money. A tenant holding by petty serjeanty need only supply the king with a small implement of war—such as a bow or sword—annually; grand serjeanty required the performance of some honorary service to the king in person but did not require personal attendance in war.

Burgage, villenage, socage, homage, and fealty were varieties of medieval land tenure each of which obligated the holder to perform particular services to the landlord.

[13. ]The Barons’ Wars are the wars in the thirteenth century between the barons and kings John and Henry III.

[14. ]During good behavior.

[15. ]As part of his campaign to place Catholics in the Anglican educational establishment, in 1687 James ordered the fellows of Magdalen College, Oxford, to elect a reputed Catholic, Anthony Farmer, their president. The fellows conceded the king’s right to make the nomination, but—on the claim that the nominee was not of good character and not eligible under the college statutes—they elected one of their number instead. The dispute ultimately led to the king ejecting most of the fellows and replacing them with Catholics.

[16. ]Sir Robert Tresilian, chief-justice of King’s Bench and an advisor of Richard II, was hanged for treason in 1388. Sir Robert Belknap, chief-justice of Commons Pleas during the same reign, was exiled to Ireland for giving an opinion against Parliament’s impeachment of Michael de la Pole. He was recalled in 1397.

[17. ]William, Prince of Orange.

[1. ]See volume 1, 154.

[2. ]Charles I, “His Majesties Declaration to Parliament, in answer to that presented to him at Newmarket the ninth of March, 1641” (London, 9 March 1641/2), Wing C2801.

[3. ]Charles I, “His Majesties Declaration to the Ministers, Free-holders, etc. of the county of York, assembled at Heworth Moore” (York, and reprinted at London, 3 June 1642), Wing C2280.

[4. ]Louis XIV was regarded as a great enemy to Protestants when in 1685 he revoked the Edict of Nantes, which guaranteed the “irrevocable” right of French Huguenots to freedom of conscience. Louis proceeded to enact draconian measures to force them and their children to convert to Catholicism.

[5. ]James attempted to flee on 11 December 1688 but was intercepted and brought back. However, on reflection it seemed preferable to allow him to escape again.

[6. ]In the original this was incorrectly numbered 3.

[1. ]Joseph Keble, An Assistance to Justices of Peace (London, 1683), Wing K114.

[2. ]Traditionally a conqueror had no obligation to grant those he conquered their customary rights or, indeed, any rights at all. For the application to English constitutional theory, see J. G. A. Pocock, The Ancient Constitution and the Feudal Law, 2d ed. (Cambridge, 1987).

[3. ]The offense of “praemunire” was developed to protect the royal rights of jurisdiction, especially against foreign powers, in particular, the pretensions of the pope. In that context it was applied to those who gave obedience to the papal process which belonged to the king alone. The summarizing statute, passed in 1393 in the reign of Richard II, punished offenders with loss of property and imprisonment at the king’s will.

[4. ]Robert Sanderson, Bishop of Lincoln, wrote numerous essays on oaths. Among these see “De juramento, Seven lectures concerning the obligation of promisory oathes” (1655), Wing S589 and Wing S629.

[5. ]Oliver Cromwell.

[6. ]Daniel Finch, second Earl of Nottingham, and Thomas Osborne, Earl of Danby, both former councillors of Charles II, were instrumental in persuading the Convention to reword the oaths of allegiance and supremacy. It was Danby who, in 1675, failed to get the nonresisting oath imposed on members of Parliament.

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