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In the Wake of Revolution - Joyce Lee Malcom, The Struggle for Sovereignty: Seventeenth-Century English Political Tracts, vol. 2 
The Struggle for Sovereignty: Seventeenth-Century English Political Tracts, 2 vols, ed. Joyce Lee Malcolm (Indianapolis: Liberty Fund, 1999). Vol. 2.
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In the Wake of Revolution
Zachary Taylor, Obedience and Submission to the Present Government
[Zachary Taylor, 1653-1705]
LONDON, Printed for Robert Clavel at the Sign of the Peacock in St. Pauls-Church-Yard, 1690.
Zachary Taylor, who has been characterized as a hard-headed Whig, is regarded as author of this pamphlet. The tract illustrates the ironic transposition of the views held by radical Whigs and extreme Tories on obedience and resistance after the Glorious Revolution reversed their political fortunes.
Taylor was the son of a Presbyterian minister who had held a preferment in Ireland and served as a chaplain in the royal army there. By 1649 the family had moved to Cheshire and two years later to Lancashire. With the imposition of religious conformity in 1662 the elder Taylor was ejected from his living and turned to teaching for a livelihood. His son, Zachary, was born in Lancashire. In due course he attended Jesus College, Cambridge, where he graduated B.A. in 1675 and received an M.A. in 1678. Like his father, the younger Taylor became a clergyman. In 1680 he was appointed vicar of Ormskirk in Lancashire and was still there ten years later when “Obedience and Submission to the Present Government” was published.
The tract was addressed to nonjurors and urged them to take the oath of allegiance to William and Mary. Taylor attempted to demonstrate the necessity for their pledge of loyalty by arguing from the tenets of Bishop John Overall’s Convocation Book. This collection of canons adopted by Convocation in 1606 included a denial of the subject’sright to resist an oppressive government or even a government that had been created by conquest or rebellion. Indeed, one of the reasons King James I had angrily rejected these canons was because of his vehement opposition to the teaching that any “thoroughly settled” government should be obeyed whatever its origins. Therefore, the canons of 1606 had never been formally approved. The Convocation Book was printed for the first time in 1690, more than eighty years later, when the Jacobites published it on the assumption it would help their cause. But Taylor turned its prescriptions against them by pointing to its stress on the necessity for obedience, not to the ousted king, but to de facto powers. He argues, as had the Tories before the Revolution, that government is not from the people but from God. He then concludes that the Glorious Revolution must be the will of God. In short he deftly turns Tory arguments against them. He defended the new government by their old theories, if not precisely the divine right of kings then the more traditional notion of the great sanctity of rulers and the necessity of obedience to authority.
“Obedience and Submission” appeared in two editions. Late in 1690 Thomas Wagstaffe published a tract that attacked it, and in the next year there appeared three essays, including one by Taylor, that defended its reasoning.
Obedience and Submission to the Present Government, &c.
THAT those of the Church of England, who have taken the Oaths to Their Majesties KING William and QUEEN Mary, have Deserted their Principles about Allegiance and Government, is the common Reflection cast upon them, by some, whom either Malice or Ignorance does Dispose to Reproach them: But since Bishop Overall’s Convocation-Book1 appeared, they now Plead Reason and Authority to Justify the Scandal, and pretend that they have got a whole Convocation of Unprejudiced and Learned Men, who have Unanimously Condemned the late Submission, and such, as being far removed from any Temptation, are the fittest and most fair Judges that we can be Determined by; (though their Proceedings not having the Royal Confirmation which is absolutely necessary for Canons,2 does (as some think) very much, if not altogether invalidate their Authority, and makes them as insignificant as the last Convocation we heard of).3 I thought therefore I might do some Service to the Church, and its Members, if I could in some Measure Vindicate It and Them, by proving that their Compliance with the present Settlement, has not in the least deviated from the Doctrine of the Church of England, as it was Professed and Taught in that Convocation.
I shall begin therefore with laying down the Doctrine about Government and Allegiance in Four Propositions extracted out of the Convocation-Book, to which may be Reduced, whatever almost can be pretended in this Controversy;
And they are these,
First, That the Power of Kings was Originally Patriarchal, Derived from GOD and not from the People, C. 2. 6, 13.
For though Kings are, or ought to be Bound up, and Limited in the Exercise of their Power by Laws, C. 15. yet that proceeds from GOD and Nature, who never intended Princes to be such Leviathans, whose wilful Pleasure should be Laws; but Parents of their Countrey, Impowered from Above to Maintain the Native Liberty and Property of their Subjects, as of their Children. For the Conceit of Absoluteness never did, or could prevail in any State, but where Superstition or Ignorance blinded Men’s Reasons, as in Turky, and most of the Eastern Empires; or Parasitical Flattery, and the naked Sword Maintain the Arbitrary Usurpation, as it is in a Neighbouring Kingdom.
Second Proposition. That Descent in Hereditary Kingdoms, is the ordinary Way whereby a Right and Title to the Crown is Claimable.
I say, is the ordinary Way; For since Kings Rule by GOD, it is only, as the Convocation-Book saith, The Lord, who both may, and is able to overthrow Kings or Emperors, notwithstanding any Claim, Right, Title, or Interest which they can Challenge to their Countries, Kingdoms or Empires, pag. 53.
Third Proposition. That no Violence is to be used to Kings from their own Subjects for any Irregularities that they commit, C. 22.
For the Doctrine of Passive Obedience to a Government Established by Law, whether the PRINCE be Limited and Sworn to Govern byLaws Chosen by the People, and Enacted with his Consent, or the PRINCE be Absolute, and his will sufficiently Declared, by the Law, is of absolute necessity to the Support of any Government; and they who deny that, can never clear themselves from the Suspicion of some Designs against this.
Fourth Proposition. That having sworn Allegiance to a Prince, we cannot without the Dreadful Guilt of Perjury, transfer our Allegiance, whilst he continues to have an Authoritative Right and Title to the Crown, C. 36.
I say an Authoritative Right and Title, because the Case may so happen, that these being separated, the Claim of Right without the Authority, cannot Challenge our Allegiance, as in the Case of the Kings of Israel and Judah, that were led Captive by the Babylonians, who they survived in Babylon, and some of them out of Confinement yet, (as it appears from Jeremy’s calling for the People’s Prayers, and Obedience to the Babylonish Kings) could lay no Claim to the Allegiance of their late Subjects. The Reason of which, is, Because it is the Authority, which is GOD’s, that Commands our Allegiance; and though no Mortal can separate this Authority from the Person invested with it, yet GOD can, (of which more hereafter) and if he do transfer it to another, wherever it is placed, it calls for our Allegiance.
This is the Sum, I think, of what can be pretended in the present Controversie. To Reply to which, I will not Expatriate on what hath been abundantly offered by others, but Confine myself, as much as possible, to the Convocation-Book, that the Impartial Reader may judge which side, the Jurors or Non-Jurors, the Old Established Doctrine of the Church of England does countenance.
And as to the First Proposition, That Government in general, whether Monarchy, or any other Form, derives its Authority from GOD, the Author of Nature, and consequently of Human Society, and not from the People, (though their Consent be ordinarily necessary to the Constitution, both of the Form of Government, and the Persons Governing) is that which is to be the Ground-work of the whole Discourse, and therefore in the first Place to be admitted, which I the more Confirm, by observing from the Right Reverend the Author; First, That all Kingdoms are now (what was more peculiarly appropriated to the Jewish Nation in their First Constitution) in some sort Theocracies, wherein GOD according to His own Pleasure, takes away Kings, and setteth up Kings: For C. 35. P. 83. GOD being the Universal Lord, and Ruler over all the World, the whole World is His Universal Kingdom; in the Government whereof, He useth the Ministry of Civil Magistrates, as well in other Countries, as amongst His own peculiar People Israel, without any Desert of theirs, but as in His Heavenly Providence, He thinks it most convenient, p. 84. Howbeit He does not leave them at Liberty to do what they list, but holds Himself the Helm of every Kingdom, and useth their Services in such sort, as be they Good or Bad, and their Designments Holy or Wicked; He ever makes them the Executioners of His own Just Judgments, Will, and Good Pleasure, according as He is minded to Punish any Kingdom, People, or Countrey. And this He does by reserving to His Providence, the Prerogative of the Designation of the Person whom He intends for His Vice-Regent, and that even in Hereditary Kingdoms, as Adoniah, who was Solomon’s Elder Brother, and Anointed by Abiathar to succeed his Father, so his great Disappointment may be an Instance. Nay, GOD sometimes for the only designed Usurpation of a Prince, whose Title, and that in an Hereditary, was altogether Indisputable, does deprive him of the Government in Part or Whole, and will not allow him so much as to Endeavour the re-gaining of it, which was the Case of Rehoboam. And how oft he has Extinguished the Line Royal, and Advanced to the Crown such as had no Relation to it, the History of the Kings of Israel does amply Testify. In all which Cases, since it was GOD’s doing, the Dethroned Prince could have no Pretence unto the Subject’s Allegiance. All that I will Note hence, is, That the Line of Descent in an Hereditary Kingdom may be Interrupted, and yet the Law of Succession not Violated.
Secondly, I Remark, That a Sovereign may be Devested of his Power which he received from GOD, and Decline into the Inferiour Condition of a Subject.
This is plain from the Kings of Israel and Judah, who of Independent Monarchs, became not only Tributary, but Subjects to the Kings of Babylon, and being Subjects, whatever other Duty might, yet Allegiance could no way be due unto them, that being in general, peculiar only to a Sovereign Prince, not Dependent on, or Tributary to, another. This is Confirmed and Improved from the Convocation-Book, which in the Case of Jehu intimates, That his former Prince became his Subject, Ch. 25. p. 40. and both he and Ahud are excused from Guilt in laying violent Hands upon their Liege-Lords, in that though they had been Subjects, yet before the Commission of the Fact, they were Advanced to be Judges, Princes, and Rulers of God’s People, C. 27. p. 53. I will make no Corollary from hence, because of the Reverence that I bear to all such Heads as ever wore a Crown. I therefore hasten to the Last Observation; which is,
Thirdly, That when a Prince is thus Devested of his Power from GOD, and another Advanced to his Throne, our Legal Allegiance may justly be Claimed by the Possessor.
We have been told this from our Law-Books again, and again, and now you shall hear the Decision of it from the Convocation-Book, which taking Notice, C. 28. p. 56. of the strange Variations of Governments in its Forms, and Governours in their Persons, whether by Usurping Nimrods, or Traitorous Phocas’s, gives hereunto this Satisfaction, p. 57. That when either Ambitious Kings by bringing any Countrey into their Subjection, or Disloyal Subjects by their Rebellious Rising against their Natural Sovereign, have Established any Degenerate Form of Government, (viz. Aristocratical, Democratical, &c.) amongst theirPeople; The Authority either so unjustly gotten, or wrung by Force from the True and Lawful Possessor, being always God’s Authority (and therefore receiving no Impeachment by the Wickedness of those that have it) is ever (when any such Alterations are throughly Settled) to be Reverenced and Obeyed, and the People of all sorts (as well of the Clergy as of the Laity) are to be subject unto it, not only for Fear, but also for Conscience’ sake.
Here you may see that upon a Revolution from the worst of Circumstances, Usurpation, and Rebellion, Obedience to the Establishment is acknowledged Due. And sure I am, That Malice itself cannot be so bitter as to think the present Settlement Parallel to this Representation: For,
First, Here was no Ambitious Monarch, but a Prince that had a Just Cause of War, on the Account of the Pretended Prince of Wales, which whether he was Real, or Supposititious, since he had not that Satisfaction which was but Equitable as he Demanded, he might Appeal to GOD to Decide the Truth and Justice of it by the Sword. And,
Secondly, As for those who did Desert King James, thus much may be said for them, That they could not with a Safe Conscience Assist him in that War, because they Esteemed it on his Side Unlawful, and therefore they were Obliged at the least to Lay down their Arms.
Thirdly, The Monarchy is not Degenerated into a baser Form. We have the same Constitution, the same Laws, the same Liberties, or Greater than we had before; and therefore if in want of all these we ought to yield (as the Book asserts) Obedience; in the Enjoyment of them, we ought to add unto it, Thankfulness.
All that can be moved hereupon, is, When a Government may be said to be Settled.
And with Submission, I cannot but conceive, That the Government is Settled, when the Crown with all its Dignities, Prerogatives, Administrations, Authorities, Revenues, &c. are generally Recognized, and Personally Enjoyed, which must be supposed to be, when all Places of Power and Trust, of Royalty and Importance, are in the Sovereign’s Hands, and wholly at his Disposal. For to say, Because there are Foreign Wars, or Secret Plots, that the Crown is not in full Possession, since there always was, and always will be Discontented Parties at home, and Politick Machinations abroad, that either Actually do, or Craftily design to Disturb the Peace; so that we cannot but acknowledge that to be a Real Establishment, which hath the Countenance of Laws, and Parliament, to Own and Confirm it.
Thus since GOD hath been pleased to Devest the Late King James of that Authority which he had once Committed to him, and Transferred it into another’s Hands; both Clergy and Laity according to the Doctrine of the Church of England, ought to Reverence, Obey, and be Subject to it, not only for Wrath, but also for Conscience’ sake.
I have almost Flattered myself, so as to Believe the most moderate Persons will Subscribe what I have said, if I could but Produce any Moral Evidence that this was GOD’s Doing: To Answer whose Expectations, I will Search after such Criterions, as may Evince the present Revolution to be the Will and Pleasure of Almighty GOD. I therefore before hand, declare my Aversion to such Doctrines (as have not long since been Censured by one of our flourishing Universities)4 wherein, Success produced for an Argument of the Divine Aprobation of such Means, Methods, and Instruments, as are concerned in a Revolution.
But then I must assume, That GOD’s Providence in permitting, is a sufficient Indication of his Will and Pleasure as to the Event; which whether He designs it that he may thereby Punish the Sins of his People, or that he may Protect the Peace of the Church, is above my Capacity to Determine. But since Prophecy hath ceased, sure I am, that nothing but his Providence is Vocal to us; and such strong Arguments may we produce from it (especially where we can find a Parity of GOD’s Proceeding) as will not with Ease or Ridicule be Eluded.
I cannot therefore but observe, and that from this Convocation-Book, C. 24. p. 47. That even the Success of Divine Benedictions are to be left to the Disposition of GOD’s Heavenly Providence, which is there ascribed to the very Reason, why David, though already Anointed King, was not Advanced to the promised Crown till Saul’s Death. Whence since a Prediction, though Divine, is not sufficient Ground to proceed upon, until GOD’s Providence does interfere; I cannot restrain my Pen from moving this Query, viz. Whether the manifest Interpositions of a Gracious Providence, that tends to the promotion of GOD’s Honor, and the Establishment of his Church, (without which, Predictions themselves are not rashly to be Executed) be not to us (now that Prophecy is ceased) a Justifiable Ground for any Rational Man to Act upon, especially when it holds Analogy with those Proceedings, wherein GOD hath already Notified His Holy Will and Pleasure?
I think this will hardly be denied, and therefore all that remains, is to produce some Precedents wherein Royal Authority has been Translated, and GOD hath owned it for his immediate Doing. For if his Head was Interposed there, I see not how we can Exclude it here: Therefore,
First, When Kings have Illegally Oppressed their Subjects, and been too Arbitrary in their Imposition, GOD hath been pleased to Discharge them of their Trust: The Reason of which is, because they are GOD’s Representatives, and therefore what they do by Implication is, and cannot but be Interpreted to be GOD’s Work; and then as he saith of the Judges in the Execution of their Office, That they Judge not for Man, but for the LORD who is with them in the Judgment. The Wrong, if they do any, is an Injury to GOD, whose Judgement it is supposed to be; which Injury, he will not suffer to go unpunished. So the Usurpations of Princes, being Reflections upon GOD, whose Trustees they are, his Honor stands Engaged, (when our sins are sufficiently punished by such Scourges) to Vindicate its own Innocence, in Removing or otherwise Animadverting upon them that so abused his Trust. We have a notable Instance of this in Rehoboam, who being Rejected of the People, because of his Resolved Usurpations, and Endeavouring to Regain his Right by the Sword, is forbid by GOD; of which Prohibition, the Reason that is given by no mean Statesman, my Lord Clarendon,5 is this, Because he had been in the Fault himself. The Application I leave to the Reader.
Secondly, The Instance of Time is another Mark of GOD’s Interposition. For when His Church is on the Brink of Ruin, and the Designs against Her, have been so prevalent, that it is not in the Power of Man to overrule Them, than θεὸς ἀπὸ μηχανῆς,6 He is a Present GOD in Trouble. This the Deliverance of the Israelites out of Aegypt, will Attest, who have made upon it, this Comfortable Observation; then, whenever the Tale of Bricks, i.e. The utmost Servitude is imposed; Moses, i.e. A Deliverer is near at hand. And the Methods prescribed by Father Parsons, for the Reduction of England to the Roman Yoak, found in the Closet of the Late King James,7 and so religiously observed throughout his Reign, is too great an Evidence of our designed Extirpation for Impudence itself to deny.
Thirdly, The Way and Manner of this Revolution, which was without Bloodshed and Battles, i.e. Such as beseems the God of Peace, doth confirm the same. For not to enlarge on this, I desire any of the Non-Jurors to speak plainly, if they do not think the Peaceableness of the Restoration of King Charles to be an unanswerable Testimony of God’s Work, and Interposition; for my part, I must confess I always did. And then I know not how to deny the Infatuation of his Brother’s Desertion to intimate, that the same Hand that restored the One, was very much Consenting to the withdrawing of the Other.
I have done, and will provoke no Man by Reflections, but yet I earnestly intreat our Non-Juring Brethren, to Consider;
First, That the refusing of an Oath which may Lawfully be taken, as this in Controversie may, (if what these Canons say, be True) makes the Refusers Responsible for the Want of all that Good, which their Officiating in their Cures might have produced, together with all that Unsettledness in the STATE, which their Example hath encouraged.
Secondly, If what I have produced, be the Canonical Doctrine of the Church of England, let them be advised of the Mischief of that Fatal Division, which their Obstinacy will bring amongst us, and is already designed, if not begun, in a Form of Prayer pretended (though I think it smells too strong of Jesuite) to be theirs.
Therefore, for the Sake of Peace, whereof Christ is the Head, and his Doctrine is the Gospel: For the Sake of our Church threatened with a more Affecting and Pathetical Division than ever: For the Sake of the Reformation, which this Breach, above all things, will prejudice; and above all, for the Sake of GOD, Whose Truth and Worship, if another Revolution come, are, as far as we can see, to be extinguished. I entreat and beg of you seriously, to lay aside all Passion, Heat, and Peevishness, and whatever else may biass your Reason; and Consider, if what I have wrote be the Genuine Doctrine of the Church of England. For if it be not, I must Acknowledge my Mistake, and beg GOD Pardon for the Guilt, which by taking the New Oath I have incurred; which, till my Conscience be more enlightened, I am so far from suspecting, that I would not as my Conscience, for more Kingdoms than King James has lost, be in the same Guilt with those, who by refusing to take the Oaths, Contribute too much to the Designs of such, as will favour neither Them, nor Us, if our Sins should ever prevail with GOD to give them the Ascendency. Which GOD prevent for the Merits of His Son, the King of Peace and Truth. Amen.
William Sherlock, Their Present Majesties Government Proved to be Throughly Settled
[William Sherlock, 1641-1707]
Proved to be
That we may Submit to it, without
Principles of Mr. Hobbs.
That Allegiance was not Due to the Usurpers after the late Civil War.
Occasion’d by some Late Pamphlets against the Reverend Dr. Sherlock.
LONDON, Printed for Robert Clavel, at the Peacock in St. Pauls-Church-Yard, 1691.
This tract is generally attributed to William Sherlock, an Anglican divine. Sherlock was a prolific pamphleteer before the Glorious Revolution and a leading nonjuror after it. He explains in this tract why he abandoned that position and finally, if belatedly, swore allegiance to William and Mary.
William Sherlock was born in Southwark about 1641 and attended Peterhouse College, Cambridge. He graduated B.A. in 1660 and M.A. in 1663. Surprisingly it was not until 1669 that he obtained a preferment, an appointment to the rectory of St. George’s in London. Once installed, however, he quickly gained fame as a preacher. Similarly, from his first publication in 1674 he gained celebrity as a writer. His quick temper and ready pen embroiled him in one acrimonious dispute with the Dissenters after another. One of Sherlock’s favorite techniques, for example, was to ridicule the mystical aspects of Puritanism. In 1680 he became a doctor of divinity and with it other appointments followed—to the prebend of St. Pancras in St. Paul’s Cathedral, to a lectureship, and, in 1685, to the post of Master of the Temple. It may have been no coincidence that shortly before this last appointment Sherlock wrote vigorously upholding the divine right of kings and insisting upon the subject’s duty of passive obedience.
During the reign of James II Sherlock wrote against popery, a view he knew would annoy the new king, but he also continued to hew to his insistence upon passive obedience. Despite that stance in April 1687, when James commanded that the Declaration of Indulgence granting toleration to Catholics and dissenters be read from the pulpit, Sherlock was among those who refused.
After the Glorious Revolution Sherlock felt bound by his oath of loyalty to James and refused to take the oath of allegiance to William and Mary. He became one of the most prominent nonjurors. The day after he should have been deprived of his posts for failing to take theoath he publicly softened his stance when he preached praying for William and Mary as de facto monarchs. Nonetheless he would not take the oath of allegiance to them. It was not until August 1690—a year after the deadline for swearing—that Sherlock finally took the oath. He explained that a canon in Bishop Overall’s Convocation Book had demonstrated the rightness of obeying de facto monarchs. For their part his enemies argued that pragmatism, not theory, had persuaded him. Sherlock had been convinced, they jibed, by William’s victory over James in the battle of the Boyne a month before, and by his desire for office. In fact, promotion did follow his change of heart. A year after Sherlock took the oath, then published his reasons to a wondering world and called other nonjurors to follow, he was made dean of St. Paul’s.
Sherlock had justified his conversion in a pamphlet entitled “The Case of Allegiance Due to Sovereign Powers,” which became a best seller. It also drew numerous attacks. “Their Present Majesties Government Proved to Be Throughly Settled,” reprinted below, was penned by Sherlock to defend his position against one reply in particular, a tract by Samuel Johnson, but it answered his other critics as well. In it Sherlock struggled to distinguish his theory from that of Hobbes and to explain why William was a legitimate ruler, but Oliver Cromwell was not. The argument he hit upon was this. Authority is from God but the people must consent to it. Allegiance rests upon the willing submission of the individual to a government. Sherlock found a new government to be thoroughly settled “when the new Prince has the full Administration of the Government and is owned as Soveraign by the Representatives of the people freely chosen.” The interest in the subject and its author was so keen that this tract went into three editions, the first of which is reprinted here.
Their Present Majesties Government Proved to Be Throughly Settled, &c.
Having lately perused several Pamphlets, which the Authors’ style, Remarks on Dr. Sherlock’s New Book about the Case of Allegiance due to Soveraign Powers,1 I find they pretend to Charge him with Hobbism. I presume, it may not be thought useless to give the True State of the Case, and thence to prove the Lawfulness of our Submission to Their Present MAJESTIES; and that without approaching or Bordering upon the Opinion of Mr. Hobbs, who I still think is much in the wrong, as I shall shew by and by. And this I shall the rather do, because it may help to remove the Prejudices of our Brethren, who have not yet owned the Government, being scandalized, that we seem to favour his Principles.
Having wiped off this Stain, I shall briefly shew, That those Principles, by which I am governed, are not dangerous to the Thrones of Princes: This I undertake to prove, Because, any Principle that shakes the Throne, would be a Stumbling-Block to all Loyal Men, and at least prejudice them against such Arguments as may be urged to prove our Submission Lawful. And it seems the more necessary to give this Argument its full Weight, because the Learned Dr. Sherlock has but touched upon that Point, and only ballances this Danger on the Prince’s side, with the Doctrine of Non-Resistance on our Part; and indeed, it shews an excellent Providence, That God has so settled the Governments of the World, as to establish an irresistible Power in each Government, to preserve the Peace of it, and yet lays a most considerable Restraint upon such Governours, by putting it into the Power of their oppressed Subjects, to be idle Spectators of this Danger in the day of Trial, and to transfer their Allegiance as soon as any prosperous Conquerour can get into their Thrones.
But I think we have something more to offer on this Subject, viz. That our Principles are not prejudicial to Princes, or dangerous to their Crowns; or at least, according to these Principles, all good Princes (as for such as are Arbitrary and Tyrannical, they must shift for themselves) may have great Hopes of Recovering their Dominions, if by the Misfortune of War, or any other Accident, they be driven from their Thrones; which seems not to be enough provided for, by the Hypothesis that our Learned Author has given us. For if as soon as any Usurper has got quiet Possession of the Throne, Submission be then peremptorily and absolutely required, as a Duty incumbent on all the Members of that Government, then the Case of a Good and a bad Prince, when they are once dispossesed, seem to be equally desperate, viz. Neither of them can with any Moral Assurance, promise themselves any Assistance at home, from such as were their Subjects. Whereas, I am concerned to see Princes, so unlike in themselves, to be set on the same foot in their Quarrels; and I am in pain, to say something, which may support the Hopes of injured Innocence; I presume I shall do it. If I fail in the Attempt, I hope the Reader will impute it to an honest Zeal, to protect Vertue and Innocence, that has blinded my Eyes.
And in prosecution of this design, I shall prove, That there was no Obligation to submit to the Usurpers after the late Civil War, and that though we should suppose them in the quiet Possession of the Government; I hope that I shall be able to make all this appear Reasonable, without denying the Doctrine taught in Bishop Overal’s Convocation-Book;2 it may look somewhat like a Contradiction, but I must desire my Reader’s Patience until I can come at it.
To contract this Discourse, as much as I can, I shall make this one Supposition, That Princes, who originally have no Right to their Thrones, when their Government is thoroughly settled, are invested with God’s Authority, and must be obeyed by all the Members of that Government, in as full a Manner, as any other, the most Legal and Rightful Princes can challenge. This Principle is plainly taught in Bishop Overal’s Convocation-Book, and I think fully cleared by the Learned Doctor Sherlock; and he is so able to maintain what he has advanced, that it would be great presumption in me, to endeavour to set it in a better Light.
Taking it then for granted, That all such Princes are to be reverenced and obeyed by their Subjects; our Enquiry is, When a Government may be said to be Thoroughly Settled?
This to me seems a very Knotty Question, and will require some thoughts to Resolve it; and I know not how to do it, but by looking back to the Original of all Soveraign Power, where we have been much in the dark; some saying, Lo it is here, and Lo it is there; some one thing and some another; one raising all Soveraignty from the natural Paternal Authority, and another founding it in Conquest, a third in Election; others again pretending, that the several Soveraignties of the World have had several Originals. But for my part, with submission to better Judgments, I shall assert, that all Soveraignty is founded in submission; and this shall be the Thread to my following discourse, which if I can maintain, I doubt not but to prove all that I have promised on this Point: For if it appears, that no Man is a Subject but upon his own submission, and that Conquest without this can give no Man Authority to Govern, and Command me as his subject; then it plainly follows, that dominion is not founded in power; and that power, and a quiet possession, is no certain sign to us, that God has given the Soveraign Authority with it.
I Assert then, that all Civil Government, whether it be Elective, or Hereditary, Aristocracy, Democracy, or any other Form of Civil Government, it is all founded in submission; and I think there needs no other proof of this Doctrine, but to say, that a free man can never be made another’s subject, but by his own consent, or submission, either in his own Person, or by his Representative. By the fortune of War, I may become another Man’s Prisoner, but he must have my own consent to make me his subject; by the fortune of War, a Foreign Prince or a Rebellious Subject may get possession of our whole Kingdom, Usurp the Crown, and have the full and quiet Administration of the Government, and as it is usually done, Claim our Obedience as his Subjects. But in Truth, he has no true Title to it; indeed, if the War was just, all the whole property is his until we enter into Conditions; but the Obedience of Subjects is not due from us, until we have declared, and acknowledged him to be our Soveraign; and this I may call a Reciprocal Obligation, which either may refuse. Nor will it argue much bounty in the Conqueror to return us our Liberty and Property, in lieu of our Obedience; because without Obliging our Consciences, he can hope to reap but little fruit from all his Conquests; he can never be secure in his Throne, nor settled in his Government, until he has some Tie upon our Consciences; as we are his prisoners, he may Torment and Punish us; but all this while he has no hold upon our Consciences, all things are Lawful against him as against a publick Enemy, and we are free to draw our Swords against him, as soon as we can escape out of his hands; so that on these Occasions, a Conqueror is forct to stand Armed, or to bind our hands until he can bind our Consciences.
And this seems to be the key to understand those passages, quoted out of Bishop Overal’s Convocation-book: The New Government is then thoroughly settled, when the new Prince has the full Administration of the Government, and is owned as Soveraign by the Representatives of the people freely chose; we must then submit not only for Wrath, but Conscience’ sake, because it is the Ordinance of God. Here therefore, I must presume to assert, that the right of Government is not derived from God, without the consent or submission of the people; I do not say it is not derived from God, but the consent of the people, together with the full Enjoyment of the Regal Power, is our Visible Evidence, that such a Prince has received his Authority from God; for till this be done, we cannot with any propriety of speech, say that the Government is settled, nor is it called the Ordinance of God until it be settled. I say, Submission only makes a Thorough Settlement, because, notwithstanding a quiet possession, it is probable whole multitudes may wait an opportunity to overturn it, unless the Nation has declared its willingness to Acquiesce by Representatives, who are the mouth of the people, and impowered to speak their minds.
I Would not have it thought, as if by this, I denied the Power of God, to set an Usurping Tyrant over us against our wills; for God can do it if he please, and make us the instruments of it; when he means thus to afflict any Nation, or People, he can so incline their hearts, as to make them receive him to be their King, who shall be their Scourge; Or the Usurping Tyrant having them in his Power, may make them willing to be his Subjects, on such Conditions as they can get. And thus God can set a bad King over us in some sense against our wills, and yet it is our own Act: For we owe him no Obedience, and are not Obliged to Reverence, and Obey him on the score of Conscience, until his Government be settled by our receiving him to be our Soveraign, either in our own Persons, or by our Representatives.
I presume it will be sufficient to clear this Point, if I first prove, that our Present Civil Governments could have no other Original; and further, shew in what sense the Men of succeeding Ages, and our present Times, are not said to be Subjects, without their own consent or submission.
For the Reasons already given, I do suppose all Civil Governments must have their Original, either from Submission, or from the Paternal Authority. Now none of our present Princes can Claim their right from Paternal Authority, because it cannot be thought that any Prince now living, should be able to make good his Claim, as the direct Heir from Noah; though they want no flatterers, yet none of them are so vain as to give out, that they are the Heirs of this great Family; so that I shall take it for granted, that all pretences to Soveraign Authority from Paternal Power, are absolutely out of doors. And at present I can foresee nothing Material, that may be objected against this Hypothesis, unless it be what our Learned Author seems to object, viz. That as natural Authority is the most sacred, so no Man had Authority to give it away; that is, if I mistake not his meaning, a Father having Soveraign Authority over his Children, and Children’s Children, &c. may not Transfer this Authority to any other Person.
Now to clear this doubt, Perhaps it would be no difficult Task.
First, To shew the Necessity of Transfering this Authority as families multiplied; for everything that is Absolutely necessary is Lawful, just as we say it was Lawful for Cain to Marry his own Sister.
Secondly, If it were Unlawful in the Original, a long Succession wipes off the Stain, as our Author plainly grants.
Thirdly, It being impossible to Govern the whole World by the care and inspection of one Man, and it being impossible to point out the direct Heir in each country, and again impossible to settle the Limits of his Government: I Conclude it was Lawful for every Parent to Transfer, so much of his Authority to some Single Person, as was necessary to preserve Peace in the Neighbourhood, reserving still so much to themselves as might preserve a Filial Obedience; and this might be done, as we see it is at this day amongst us, though a stranger to their blood, were invested with a Soveraign Authority over them.
But Lastly, though no Authority, be so Sacred as what is Natural, yet I conclude it Lawful, not only on Necessary, but Prudential accounts to Transfer it: If any denies it is gratis dictum, when they publish their Reasons, it will be time enough to put in our Answer.
So that in short, I suppose it Lawful for any body of Free Men, to invest any one of themselves, or a stranger, with a Soveraign Authority over them: And that all our Present Governments did begin in this manner, is more than probable, because none of them could have such Authority by any other means; the pretences from Paternal Authority are out of doors, Conquest will lay no Obligation to Obedience on Man’s Conscience, and therefore nothing but Consent or Submission can do it.
It matters not whether this Submission was procured in gratitude for former Obligations, or by Flattery, or for fear of Rough Treatment; it may be sometimes a willing submission, and sometimes an Hard Choice, but one’s own Submission only binds his Conscience; if he would brave his Adversary, and not yield to become his Subject, or Vassal, he would, as we say, be his own Man, as soon as he escaped his Adversarie’s hands; whereas having once received him for his Soveraign, his Conscience is forever bound; and if I may so say, he carries his Chains with him to the Remotest Corners of the World. All Nations as far as I know being agreed, that no Subject can shake off his Obedience at his pleasure; and agreeable to this Principle they all Act, on occasion, calling any of them home, and proceeding against such as refuse to Obey their Summons, which you must confess ought never to be done by a bare Conquerour; I mean, who is not yet owned by the Estates: Or if such a Prince should pretend to Recall such as are Fled from his Usurped Government, though he has the Sword, and the whole Power in his hands, yet I suppose you will not say that such Refugies are obliged to return, and act the part of good subjects.
This therefore is a plain indication, that all our present Civil Governments were founded, and settled in the Consent, or Submission of our Ancestors; It remains now, to shew that their Posterity, and we of this Present Age, are not properly said to be subjects without our own submission: And it is Necessary to prove this, as well in Elective as Hereditary Governments; because the Government is not there Dissolved upon the Death of the Prince, nor would any Member of it be loose from his Obedience, though he should deny to Concur with them in the Election of a New King, and claim his Liberty at or before the Election.
I say then, as our Ancestors voluntarily submitted to be Subjects of this Hereditary Monarchy, so it is presumed to be our own Choice, they were as properly our Representatives, as those that we now Chuse in our own persons, and our Consent is as well presumed to the Enacting of their LAWS, as to those that are now made; and they transmitted no more Liberty to me, than they reserved to themselves. Nor is it any great Strain to presume our Consent in this Case; for, to give this Argument all the Force I can, I will suppose myself born in a very unhappy Government; but as a bad Government is better than none at all, so I should think it no foolish Choice, to Answer for my Off-spring, that they should be subject to the same Government, and might rationally suppose, that if they could now appear, they would ratify it in their own persons; because, all Civil Societies must soon be dissolved, if the Child be not born in the same Condition with his Parents; I mean, subject to the same Laws, and the same Government. Therefore, as my Ancestors did presume to Consent for me, that I should be subject to all the Laws which they Enacted, (for as yet I know no other Reason of my being subject to them); so amongst other things, they did Consent for me, that I should be subject to such a Government, to such and such a Prince. The Reason holds in both, by Vertue of their Act. I did as much Consent to be a Subject to the King of England, as I did Consent to any other Law which they Established. They thought it no Presumption to Consent for us, and we yet tread in their steps; for whatever Laws are now Enacted, will oblige our Posterity, as if it were their own Act; we Represent those that are yet unborn, and Choose for them; and as you find by what has been said, may rationally presume to do so.
Obj.If it be Demanded, On what Account our Ancestors, Three or Four Hundred Years ago, should Choose a King for us?
Ans. The Answer is very obvious, viz. They well understood the Conveniencies of Government, and therefore might well presume our Consent, to be Members of it, upon as good Terms as they could get; because, as I said before, a bad Government is better than none, since therefore they were to Choose for themselves, as well as their Posterity, and had an equal Interest in this great Affair, they might presume to Consent for us, seeing they consulted our Happiness and Security in the World; or if they acted foolishly and unfaithfully, yet since the thing must be done, or the World would become an Aceldama,3 they might on good Grounds presume our Consent, and Choose for us, as we yet do for our Posterity in other Cases; or indeed in the same Case, whenever we transfer any part of our Liberty, by enlarging the Prerogative of the Crown. We may Act wisely or foolishly, as it happens, but we Act not for ourselves alone, it affects our whole Posterity, whom we Represent, and who are supposed to Consent with us, for otherwise, I cannot see how it should oblige their Consciences.
Obj.But it may further be Objected against this Hypothesis, That the Major Vote cannot include my Consent, unless I please.
Ans. I grant it, if a New Government were now to be Erected, it could not; but where we could not Act in our own Persons, our Ancestors being our true Representatives, it was rational to presume on our Consent in what they did for us; and since we could not Choose for ourselves, our Consent is most rationally presumed to the Major Vote, as it is at this day, when any New Law is established; and since we cannot all act in our own persons, I suppose, every Wise Man would rather stand obliged by the Major Vote, than entrust his whole Property in the breast of those more peculiar Representatives, whom he elects himself, since it gives them so large a Power, and therefore is a Trust too great to be put into the hands of any one Man; and on this Account our Ancestors might well presume to Consent for us, that in these Cases we should be obliged by the Major Vote.
Indeed, at first sight it may seem somewhat hard, that our Ancestors should not reserve a Liberty to every particular Man to Choose for himself. We are naturally very fond of this Liberty, but in the main, it cannot be done, because no considerable Body of Men can be thus governed; and as it appears by the Event, they who have reserved most of this Liberty, have acted the most imprudently. Thus I suppose we are in some Measure sensible of the great Inconveniencies incident to an Elective Government in Poland, where, at their Diets, nothing is Enacted by a Major Vote, but only by a general Consent; the Wheel of Government moves so heavily, that that great People, who in their Persons are Valiant, in their Councils not inferiour to their Neighbours, and in their Numbers, as Considerable as any Nation in Europe, are become the Sport of Fortune, being miserably harrassed by every Puny Invader; and for want of giving away a little more Liberty, many of them frequently lose it all; Multitudes being daily carried into a miserable Captivity by their Enemies, by reason of those Dilatory Proceedings. So that our Ancestors might well presume to Consent for us, in passing away this Liberty; And indeed, with us there is such a true Temper observed, betwixt Liberty and Prerogative, that the whole Frame of our Laws, seem to be of our own inditing, being such as every Wise Man would Consent to, though we were to begin afresh. But this is more than needs be said; for if our Ancestors had Acted very Foolishly, and made our Condition much worse than it is, their Laws would have still Obliged us, they would have been lookt upon as our own Act, because they were our Representatives.
And now I hope it appears, I had some Reason to say, that no Man is a Subject without his own Consent, or Submission; but before I proceed to build upon this Principle, it may be necessary to remove the scruples of one sort of men (for they are no Arguments) against what is advanced.
Object.They may say, if Subjects give their Prince his Authority, they may take it away again, if they please.
Ans. But we say, they give Him not his Authority, though he has it not without their Consent, or Submission; they are only the Pipes, or the Channels, whereby God Almighty conveys his Authority to him: For as I said before, to shorten my discourse, I take it for granted, that all Government is the Ordinance of God, and therefore though the subjects may Elect the Person, it is God that gives Him his Authority. It is a Woman’s own Consent, that makes her Subject to the Law of her Husband; but yet Marriage being God’s Ordinance, as well as Government, when it is done she cannot Recall, or Reassume her Liberty.
But only for Argument’s sake, we will suppose all Authority derived from the People; yet then I say, it cannot be recalled, but by the Consent of all Parties concerned. And though our Representatives, may presume the Consent of the People, yet the King having a Negative Voice, nothing of this Nature, according to our Constitution, can be done without him, whilst he is able and willing to protect us. But if he abandons his People, and cannot, or will not come to protect us; and our Representatives, to prevent the utter ruin of the Common-wealth, do then agree, and declare the Soveraignty to be in the next Heir, that can protect us; and thus settle him in the full Administration of the Government, we must then submit, not upon Mr. Hobbs his base Principle, because dominion is founded in Power; but by Virtue of the Determination of our Representatives, which is lookt upon as the Act of the whole People, and includes the Consent of every Particular Person, which, as it appears by this discourse, is the only Visible means of conveighing a Soveraign Authority to any Person. And if this quiet possession, together with the free Consent of our Representatives, will not be thought a Thorough Settlement, I can think of nothing that can strengthen it, unless it be the Resignation of the Late King, which I presume, ought never to be expected, and would as much be wanted, upon the most Evident Conquest, as it is in this Case here before us. And therefore, I hope I may Conclude, that our Government is now Thoroughly Settled, and that we who submit to it cannot be charged with Hobbism; since we do not say that any Prince, who has quiet possession of the Throne, can Claim our Obedience, but only such as are Confirmed, and Settled in it by the Determination of our Representatives. This I think is a very Natural Explication of those Passages in Bishop Overal’s Convocation-Book, which require our Obedience to a Government Thoroughly Settled; for that Government must needs be very Slippery and Tottering, which our Representatives, who are supposed to have the Hearts, and to be the Mouth of the People, will not Confirm.
And for as much as I was satisfied, that my own submission was both just and rational, without bordering upon Mr. Hobbs his base Principle, which I always detested: on this Occasion, I thought it Necessary to Recollect my thoughts on this subject, and commit them to writing, that I might the more closely examine, how well my Reasons Hung together. But I could not set them in a True Light, without spinning them out to this length, before I came to the matter in hand, which I chiefly designed, viz. To shew what a Vast Difference there is betwixt Mr. Hobbs, his Opinion of Government, and our own.
His comes from the Father of Lies; Ours I hope from the God of Truth; his is the dictate of self-interest, ours the Resolves of Reason and Conscience: He says all Soveraignty, or all dominion is Founded in Power, we say no such thing. The greatest Conqueror cannot Compel us to be his Subjects without our own submission; though he has Power over our Country, and our persons, yet he can lay no Obligation upon our Consciences to become his Subjects. This must be our own act, either in person, or by our Representatives: And if this Notion will bear the Light, there is no pretence to say as Mr. Hobbs does, that his having the Power of the Sword, makes us become his Subjects.
And as this Hypothesis does entirely Wipe off the Stain of Hobbism, so likewise is it a great support, or at least not dangerous to the Thrones of good Princes; for one would suspect that his thoughts were ill grounded, if they obliged him to maintain such Principles; and indeed, it is a Melancholy thing to think, that we should be obliged as good Subjects to pay Obedience to the first Conqueror, that shall get quiet possession of the Throne, as Mr. Hobbs has taught us.
But according to this Hypothesis, the Government of the New Prince is never Thoroughly Settled, until he has acquired the Consent of the People; there is no Obedience due to him, until they Confirm his Authority.
And this I call a great Security to all good Princes; for supposing it necessary to have their Consent to Confirm a Government, that began perhaps in Usurpation, and settle it, I know nothing more, that a Good, but Dispossessed Prince, can desire to maintain his Hopes of an happy Turn of Affairs, to Re-instate him in his Dominions. For Men may say what they will, and suggest, That every Body is ready to Adore the Rising Sun; and that the worst Title, provided it be prosperous, never wants hands to support and strengthen it; but for my part, I could never be Tempted, nor do I think we ever had reason to make such odious general Censures. And as I hope we now want not many honest Patriots, who would have supported the late King James, to the last drop of Blood, had his Government been so Legal, as to have merited such a Sacrifice; so even in this Age, to the Honour of our Holy Religion, we want not many Generous Instances of Men’s Integrity to this rational Principle: For though Cromwell had as quiet Possession of the Three Kingdoms, as any Conqueror could hope for, though he had all our Persons naked and helpless, in his Power, and at one Time, no Armed Force against him, either at home or abroad; yet he could never compass the Consent of the People in a Free Convention or Parliament, as I shall shew you by and by.
This therefore may extreamly exalt the hopes of all good dispossesed Princes, who being just and innocent, may rationally expect, that the Free Representatives of the People, will not own the Usurped Power; and so long as this is not done, they may as rationally hope for Succour from their Subjects, on the first fair Occasion.
Obj.But some may say, How can this be? Is it probable that an Usurper, in the quiet Possession of the Throne, should not, though with some Difficulty, procure an Acknowledgment of his Authority from our Free Chosen Representatives.
Ans. I say it is probable, and this late Instance of a lasting Usurpation, where it could not be done, is a Convincing Proof, That it may be so again, if we should ever see the like unhappy Occasion.
I will grant that we live in a wicked Generation, and that the worst Tyrant will have many Followers, if it be but for Spoil and Plunder. He may be able to influence some by his Favours, others by his Threats; others again may go along with him out of pure Zeal, to reform such Grievances, as he shall please to Object against. But what is this towards influencing the Whole, or the Major part of the Nation? The Power of our Representatives is derived from so many Persons, that the Usurper’s Bounty can reach but few of them; his Menaces, when they are so general, lose much of their Force, and as soon as he pretends to the Soveraignty, many of his most Zealous Followers prove his worst Enemies. If he should pretend to Corrupt the Representatives themselves, it is too considerable a Body to be awed by Menaces, too numerous for his Favours, generally of too great Integrity to accept his Bribes, and of better Fortunes than to need them; so that on this Score, a Dispossessed Good Prince might well promise himself an After-Game.
Obj.But again it may be Objected, That if it be not Lawful to pay Allegiance to those Usurpers, whose Authority is not Confirmed by our Representatives, then our Condition at such Times, must needs be extreamly hazardous and desperate, being naked and destitute, and exposed to the Fury of those, who have all the Power in their hands.
Ans. I cannot but say these are most unhappy Circumstances; but in a general Calamity, every good Man should be willing to bear his Share, and venture his Security, and even sacrifice his private Interest, to preserve the Ancient Government, and Royal Family.
Besides, in such Cases the Danger is not so great, as we generally presume it is: Indeed, it can hardly be thought, but the Usurpers will sacrifice some Worthy Patriots to their Ambition, as those did in the late Times; but when they find a good Title, cannot be attained without a Sea of Blood, and much present Danger to themselves, they generally sit down as contented as they can, only with a quiet Possession. And as for those Leading Men, whose Zeal may have exasperated the Usurper’s Fury, they may live concealed, or generously follow their Unhappy Master into Exile, and there patiently wait the Happy Hour. Nor as the World goes with them, will they look upon this Honourable Banishment, as an hard Choice, since if it were just to submit to the Usurpers, they could not but expect to be lookt upon with an evil Eye, and perhaps to be Crushed at the first Opportunity.
And this, I hope, is sufficient to Convince any reasonable Man, That these Principles are not dangerous to the Thrones of Princes; for we do not Assert, with Mr. Hobbs, That as soon as any Prince or Rebel has got Possession of the Throne, we immediately thereby become his Subjects. Nay, though they should get, and keep quiet Possession of it, we yet say there is no Obedience due from us, until their Usurped Power be Settled, and Confirmed by our Representatives, whom we style the Fathers of our Country, who are the most knowing in these Affairs, and being at the Helm, can best judge, Whether things be come to that Extremity, or not. But, Morally speaking, this Recognition cannot be procured from them, but in the utmost Extremity; and in short, then only when they are entirely in the Power of a Conquerour, and sufficiently weary of their Dispossessed Prince, by reason of his Arbitrary and Illegal Proceedings.
Thus it literally happened after the late Civil War; for notwithstanding all the Endeavours that were used by the Usurpers, they could never procure an Acknowledgment of their Authority from our Free Chosen Representatives, as I shall now shew you by representing the true Matter of Fact, from Mr. Whitlock’s Memoirs,4 who must be allowed to speak as favourably to this Point, as the Case would bear.
And here, I suppose, it will not be necessary I should say anything of that part of the Parliament, commonly called the Rump; they indeed usurped the Government, but there was not so much as the Face of a general Consent in the Nation. Much less need I mention those 120 Persons, whom Oliver, as General of the Army, called together;5 who at last devolved, what Authority they had on him. It was never pretended they had any other Parliaments or Representative Body of the People to confirm their Power.
So that we are already come to Cromwel’s Government, as Protector, in which alone, if anywhere this Settlement is to be found.
Now Cromwel had but Two Conventions or Parliaments, as he called them, both which we will consider, as also what they did towards Settling his Authority, by a free Parliamentary Submission, which we here presume to be necessary to make a Thorough Settlement.
His first Parliament was Summoned June 9th. 1654 and there is very good Reason to suspect there could be no free Election, because there were such Restrictions and Limitations, which the Sheriff was to lay upon the People, ere they could be admitted to give their Votes.
Another Circumstance, which must necessarily prejudice the Freedom of this Parliament, was a strange Innovation made by the Protector, in admitting Thirty Scotch, and Thirty Irish Members into it: For, could we suppose all the English Members Freely Chosen, so great an Accession of Strangers must needs be a great Clog to the English. For if we may suppose these Sixty Strangers at the Protector’s Devotion, they, with the Help of some Friends they were sure to find here, might probably do things in Favour of the Protector, against the Sense of the People of England, whose Opinions are best known by our own Members. And that these Sixty Strangers, were the Protector’s Creatures, is no improbable Supposition; because, he would not otherwise have made this Innovation, or have fetched them so far for nothing. Besides, Five Sheriffdoms in Scotland returned, that not one fit to be a Representative, was to be found within their Liberty; which shews, That the Protector, and his States-men, were very nice in their Choice.
I might also Object against this Parliament, (and let it be Observed, That the former, and this Objection, lies also against his last Parliament) That it was not Free, because the Protector took upon him, to call only so many Persons as he pleased, augmenting the Number of Representatives in some places, and diminishing in others, according to his own Humour, without any Colour of Law; and having taken this Liberty, you may imagine he was careful to call most of the Representatives from those places, where he had most Creatures, as I might easily make it appear, if it were worth my Time.
But let us Consider what this Parliament did, when once they were come together.
After some few Preliminaries, we find them Entring on the Grand Debate, Concerning the Articles of the Protector’s instrument of Government, and that in such a manner as made him jealous of their proceedings; and then he thought it High time, to impose a Recognition upon them, which they were to Sign, before they were suffered to sit again in the House. This Recognition (which may be seen in the Memoirs) can in no sense be called a Publick Act, since it was not first Voted in the House: And Effectually, upon this, many of them left that pretended Parliament, and they who did Sign it, presently Voted, that it should not be Construed to Comprehend the whole instrument, Consisting of Forty-two Articles; which was, as much as to say, they reserved still to themselves a Power to Break with him, in Case they could not Agree afterwards upon the said Articles.
And if we still Trace on their Proceedings, we find them always very Busy in their Debates, about the Government, and never able to come to any Conclusion about it, (unless I think upon Two Articles in Forty-two) till the Protector, being jealous of them, in great Heat Dissolved them.
His second Parliament Met September 17. 1656. And it must be confest, that this Parliament, did as far as they were able, Confirm his Usurped Authority: But nothing is more Evident, than that, this was a packt Number of his own Creatures; and as the Business was then Managed, it is Ridiculous to think, they could speak the People’s sense in this matter.
For they were not only Crampt, as the former Parliament had been; but as our Author observes, none of them were suffered to enter the House, without a Certificate, that they were approved by the Protector’s Council. And when almost an Hundred of the Members, who were Secluded upon that Account, demanded Entrance, it was slavishly voted by the rest, that they should make their Application to the Council, for their Approbation. This Produced a most Sharp Remonstrance, Signed with their own Hands, as may be seen at Large in the Memoirs, page 640. And if there were nothing more, this is enough to Void and Null all their Proceedings; This is sufficient to shew, that this was possibly, the most packt Assembly, that ever pretended to the Name of a Parliament; and that there is not the least Colour of Reason, to say, that what they did, could any ways be the Act of the People; Though this was the best Title the Protector had to his Government, as he himself thought, not being Solemnly Inaugurated before this pretended Submission, of the People in Parliament, as he called it.
I Should now proceed to Consider the Case of Richard, but there need not many words to Blow off his Title; since the only Parliament He Had, as its freedom was questionable on the former accounts, and because of the Exclusion of some Members, who it seems were unworthy, because they had been in Arms against the Rump Parliament; so they never came to any Conclusion, about the Recognition of his Authority.
And after all, if those pretended Parliaments had owned both Oliver, and his Son after Him, yet we could not call it the Consent of the Nation, because of the Violent Exclusion of the True House of Peers.
As for what followed, Richard, until the return of King Charles, everybody knows it was perfect Anarchy, and confusion. It is certain however, there never was any Parliament to Confirm the Authorities then in being: and since that is the only Legal way, to Testify the consent of a People, we may safely Conclude the Usurpation was never Settled.
I might proceed in this Argument, and at least make it probable, that if Cromwel’s Government had been Confirmed, as far as the free Consent of our Representatives could have Settled it, yet it would not have been the duty of all Private Men, to own his Authority; which, though it be not at all necessary to maintain my opinion, I shall by way of Digression insist a little upon. Now this may seem a contradiction to what I have already Asserted, or at least Inconsistent with the Doctrine Taught in Bishop Overal’s Convocation-Book, but I presume it is neither; and I only urge it, that the True State of the Controversy betwixt us, and some of our brethren, may the better be conceived, who insinuate, as if it were one and the same thing to pay Obedience to the present Government, or to that of the late Protector, or any other in his Circumstances. What has been said already, does sufficiently shew the Vanity of these Men; and therefore it must be observed, that if I fail in this attempt, it will not Prejudice those Principles I undertook to maintain; therefore, what I say on this head, must stand or fall alone, and I only propose it to the Consideration of Wiser Men.
What I have to say, Runs upon this Supposition, that an Usurpt Authority is not to be Obeyed, nor judged to be the Ordinance of God, until it be Thoroughly Settled?
It may be asked then, If there be quiet possession, and it be confirmed by our Representatives, what distinction can excuse us from paying Obedience to such Powers?
I Answer, our Representatives had no Authority to destroy the Monarchy: And therefore if they had thus Transgrest the Limits of their Power, it would not have Obliged those whom they Represented.
If it be Urged, that they have an Unlimited Power:
I Answer, it is True, but not unless, when they Act in their own Sphere, and in Conjunction with the King.
Obj.But it may further be Objected, that at this rate our Representatives could not Transfer our Allegiance to their Majesties, since they could not make any binding Act without a King.
Ans. I deny it. This they can do, as I shall shew you by and by; but it is an Exception from this Rule: They alone, can do no other Act, that can Oblige us: for instance, they cannot impose Taxes, or make Laws that shall Oblige us. In these, and in all other Cases, (except this instance now before us, of Confirming the Authority of a New King) it is our interest and security, that nothing should be Enacted, but by the Consent of the King, and our Representatives; and therefore, since we Commission them to Act only with the King, they can never Act without him.
Thus for instance, If a Conqueror has got the whole power into his hand, they may Transfer our Allegiance to him; Or if the Royal Family should be Extinct, they may proceed to a New Election. But if they pretend to Govern us themselves, without a King, this is more power, than we have given them; for we never Trusted the whole Legislative Authority in their hands; and I know not how they should come by it otherwise.
Obj.But some will say, in such a Case it is Devolved to them.
Ans. I deny it, they may have Power to dispose of the Crown as they please, but not to Assume the whole Soveraignty to themselves. By this means they will Lessen our Security; for whereas now we are Obliged only by Laws made by the King, and our Representatives, we should then be Obliged by Laws, made only by themselves; which I may say, is contrary to our Fundamental Law, viz. To be Governed by a King and our Representatives.
The Chain of my Discourse, hath led me into these untrodden paths, I will Disentangle myself, as soon as I can, but all this was necessary to prove the thing I am aiming at. But to proceed,
Obj.Against this it may be Objected, that if the ROYAL FAMILY were Extinct, the whole Power would be Lodged in the Hands of our Representatives, and who may Resist them?
Ans. To prevent the Dissolving of the Government, it is Necessary, they should take the Sword into their Hands; but if they will not declare a New King, according to Custom, I cannot see why they may not be Compelled to it, since they have their Power only in Trust, not in their own Right: Thus in Poland, upon the Death of the King, if the Representatives of the People, who on that occasion are Entrusted with the whole Power, should pretend to be Lords Paramount, and would not proceed to a New Election; I know not why the People should not demand their Right, which is to be Governed by a King.
Now this would have been our Case, if our Representatives, in the late times, had patcht up a Government without a King: Though this had been done by our Representatives, it could not properly be called the Act of the People, because we never gave them such Authority. This you cannot but grant, unless you will presume, that we Commission them to destroy the Monarchy; which as you find can hardly be supposed in an Elective Kingdom, upon the Death of their King; but it is perfect Nonsense to suppose it, in an Hereditary Government, whilst the Royal Family is yet in being. It may be supposed, that we Commission them to Elect a King, in Case the Royal Line should Fail, or finding two pretenders, to declare who has the best Title, or to appoint a Protector, in Case of Infancy, or Lunacy; Or to receive a Conqueror into the Throne, in case our Natural Prince, be Fled out of His Kingdom, and incapacitated to protect us, and they in no condition to make opposition; or to invest the next Heir, with Royal Authority in case of Desertion, especially if the deserting Prince, dare not, or cannot come to protect us; their enquiry not being, how he came into that condition, but whether he be in a Capacity to Protect us; and if he be not, they are then free to invest the next Heir with the Royal Authority. In all these Cases our Representatives may well presume on our Consent, though they Act without the King, because it is almost Absolutely necessary, these things should be done; and intolerable inconveniencies would ensue, perhaps to the utter Ruin of the Common-wealth, if they were not done. But to presume, that we give them Authority to take, and keep the whole Legislative Power in their own Hands, or to destroy the Monarchy, this is a strain beyond my comprehension, at least it is not Properly the Act of the People; and therefore they, whom they represent, must Ratify it in their own Persons, ere they can pretend a Thorough Settlement.
But then, if the People all the while shew great uneasiness under this Usurpation, if their cries be loud and clamorous, and many of them absolutely refuse to own the Authority; This has not the Face of a Settlement. Here is nothing, that looks like a general consent; and that though we should suppose our Representatives to have owned the Usurpt Authority; (for as by the Fundamental Laws of the Nation, we only Authorise them to act with the King); so whatever they shall do without a King, is not valid, unless it be in the Cases before mentioned, which both Necessity and Reason will allow; whereas, neither Necessity nor Reason can be pleaded in the former Instance.
But I do not pretend, that what I have said on this Point, will amount to anything like a Demonstration; a short-sighted Man may chance to find greater Flaws in it, than I am now aware of. Perhaps, my Zeal for Monarchy, has too much heated my Imagination; and I can only say, in my Excuse, That I have no pleasing Ideas of a Common-Wealth; and therefore, would willingly shut the door against it.
But if this will not stand the Test of a Judicious Reader, let this Long Parenthesis pass for nothing, we need no such precarious Principles; our Case is good without it, as you may find in the other parts of this Discourse.
And now I have nothing more to trouble my Reader with, but only to Answer Two or Three Objections which could not so conveniently be considered in the Body of this Discourse; and then draw some Conclusions from it.
Obj.First then it may be Objected, That according to these Principles, we are now Settled upon a Legal and Rightful Government.
Ans.First, If this be well proved, so much the better; it is then no Argument against me.
Secondly, I can see no good Reason, Why we should not own it to be a Legal and Rightful Government, unless it be, that our Heads are perplexed with the nice Distinction of a King de Jure, and a King de Facto. By a King, de Jure, we commonly mean a Prince who has the Crown by Right of Inheritance; and it is thought, that any other Person can be, at best, but a King, de Facto: Upon this, many suppose, that His Present Majesty cannot be King, de Jure, at least, during the Life of King James; but yet may be obeyed, because the Law, made in the 11th. of Henry 7th.6 determines our Obedience to a King, de Facto. It is True, that Law indemnifies those who shall obey the King in the time being, as the Words of the Act run; that is, the King in possession, Whether he Claims the Crown by Right of Inheritance, or otherwise. But if Interpreters shall say, That he only is a King, de Jure, who Claims his Crown by Right of Inheritance, it is a visible Mistake; for all Mankind, as far as I know, are agreed, That a Conquerour, who makes a just War, upon the Submission of the Conquered Nation, becomes a King, de Jure: and if in this present Case, His Majesty is justly invested with the Royal Authority, he is so likewise, as I think I have proved. So that, you find this common Interpretation is imperfect: a King, de Jure, should not so peremptorily be restrained to a King by Inheritance; but we run away with the Mistake; and without Considering, seem to yield the Point, as if His Present Majesty were only a King, de Facto.
I cannot say, Whether such as are skilled in the Laws, will allow of this Interpretation; but with submission, I presume it is agreeable to reason, and does not defeat the Design of the Law. To say, That a King, without a Title, is a King, de Jure, is a Contradiction; but to suppose, that he that originally wants a Title, does by an Act of Recognition, receive a Title; this we may suppose, without straining or forcing our Reason. I am sure it does not sound so harsh, as to require Obedience to an Illegal Government, for Conscience’ sake. On other Occasions we make no Scruple to say, That a Sentence in a Court of Judicature, gives a Man a Title to an Estate; and upon this, the Tenants and Vassals, though it were procured corruptly, are to look upon him, and pay him Homage, as the Legal Possessor; and the like may be said in the Case before us, if our Representatives, without any good Reason, had placed His Majesty on the Throne, he had then been a King, de Facto, a Legal Possessor in the Eye of the Law; but if they acted according to Reason and Conscience, as I presume they did, he is then King, de Jure.
And if this were allowed for Sence, we should not be driven to say, That God Almighty requires our Obedience to Illegal Governments; which I cannot yet assent to, notwithstanding all the Authorities, which are brought to support this Doctrine. I acknowledge once for all, that God removeth Kings, and setteth up Kings, as He pleases; He is not bound by Human Laws, as we are; and when He has set up a New King, He must be obeyed; but an Usurpt Soveraignty must not be ascribed to God, or it does not appear to be His Act, until the New King gets quiet possession, together with an Act of Recognition; it is then soon enough to ascribe the Revolution to the Hand of God. When God means to carry things to this Length, He does by one means or other, dispose the People’s Hearts, to receive such a Prince, and then he hath God’s Authority.
Obj.But it may be urged, That this Explication defeats the Design of the Law; which, as they say, was Enacted, to indemnify such as assisted Henry the Seventh, in case of a New Revolution; because, originally he had no good Title to the Crown; for if quiet Possession, and the Recognition of our Representatives, gives a Title, it may be said, there was no need of this Law.
Ans. First, Abundans Cautela non nocet; They could never make themselves too secure; and therefore, lest their Enemies, as it was in the Fable, should say, that their Ears were Horns, they did wisely provide against it, fencing themselves with an Act of Parliament, though really there was little Occasion for it; but lest their Enemies might afterwards pretend, That Henry the 7th. was not King, de jure, they declared it Lawful to Obey a King, de Facto; though at the time, there was no great Reason to Enact it barely on his Account.
And I presume, the rather, to make this Construction of it, because it is scarce credible, That Henry the 7th. (who had so many Claims to the Crown, viz. Blood, Conquest, Marriage, and all strengthened by an Act of Recognition) should suffer his People to say, that he had no Rightful Title to the Crown; whereas it is said, he was the most suspicious Prince then living; and therefore, it is very improbable, he should own such a Blot in his Title, which must be, if he made himself thus a King, de Facto, only.
Secondly, If this be an empty groundless Surmise, His Majesty is yet a Legal King, because this Law supposes we may have such a King: And I may say, King James was no more; for though he had his Authority from God, the Law only was our Evidence of his Authority; just as we say, Marriage is the Ordinance of God; yet if a Man be not Married by the Form, which the Law prescribes, we presume to call it no Marriage. But after all, we are very unfortunate, if this Law, which was made to Govern and Direct us in our Obedience, should prove the main Foundation of all our Scruples; for perhaps, if our Fore-Fathers had not troubled us with this nice distinction of a King de jure, and King, de facto, we should not have coined it on this occasion, but have generally submitted to their Majesties, as Lawful and Rightful King and Queen.
Obj.But Secondly, against this Hypothesis may be Urged our Vulgar Maxim, That Conquest gives Right; for if there be any Truth in this saying, there is no need of our Consent.
Ans. This I have in part answered before, and if the Maxim be ill grounded, it must shift for itself.
Secondly, I allow there is some Truth in it, Conquest may give a Prince Right to the Conquered Dominions. When we are Conquered, we lose our Property. But I cannot conceive, that he should have Right to our Obedience, and our Persons, as so many Cattle, and Stock upon the Ground; and in short, if you would make this the sense of it, the condition of a Conquered People, would be most intolerable, since we thus bind their consciences without Reserving them any Property; it being agreed by all, that a Conqueror has the whole Property in the Conquered Country; and we only plead to have their consciences free, until they can make Terms for themselves, which I think ought not to be included in this Maxim; or it be, I had rather quit the Maxim, than lose my Liberty.
I Should now have done, only it may be convenient to draw some Conclusions from this Hypothesis, which may not be disagreeable to men of our Principles.
As first, If this be true, then it was not his Majestie’s Sword, nor his Armies, that gave him his Authority over us, but our Representatives; in the Condition we were in, did justly Transfer our Allegiance to him, as I have already Demonstrated. This therefore must be great satisfaction to us all, that notwithstanding this great Revolution, things have run in the Right Channel, and that he did not get into the Throne, by Illegal means, which being supposed, we may the better hope for prosperity under his Government.
Secondly, If these Principles be True, then his Majesty was not Elected as some affirm; for in as much, as the Late King was not able, or willing to Protect us, the Crown Naturally Devolved on his Majesty, (for if Her Majesty, and Her Royal Highness the Princess of Denmark be pleased to postpone their Right, what is that to us) and if his Majesty upon the Late King’s Leaving the Kingdom, did not presently take it, but left the doubt to be decided by our Representatives, it is no more than might be done upon a Descent, if there were two pretenders to the Royal Dignity; which being thus determined, I presume would not be Deemed an Election; their Act does not so much give the Crown, as determine, to whom it did belong. And I think this is much the same Case to that which is now before us; viz. The Consent of the Estates, to place his Majesty on the Throne, does no more Derogate from his Right, than the Act of Recognition,7 past by King James the First, did suppose a Flaw in his Title.
Thirdly, Upon these Principles we may also Silence those Rash Men, who for Reasons best known to themselves, frequently tell us, that the Government was dissolved, when the Late King left us.
But surely these Men cannot see an inch before them, and I am almost ashamed to give them a serious answer. Let them tell me, if the Government did thereby Crumble into pieces, by what Right did our then Representatives, Erect another on the Ruins of it? If the Fountain of Honour failed, what Right had the Nobility to their Peerage, and why might not the meanest Peasant send his Representative, as well as any Landed Man, or free Burgher? These questions are too difficult to be resolved, unless it be upon the supposition, that the Old Government was then in being. They were at a loss indeed, to know in whom the Government should be vested, and they came together to determine this great question, which they soon Wisely Resolved; And unless we quietly submit to what is done, by our Representatives in these Exigencies, we might as well say the Government was Dissolved, when the King Left us, if the remaining Powers might not Determine, where we should Pay our Obedience: For I suppose those Confusions, what by an unruly Rabble, and a Disbanded Army, did sufficiently shew the necessity of fixing somewhere; and I humbly suppose it is as evident to all Mankind, that the Late King would not, or could not come to Act his part in the Government.
But lastly, upon these Principles (if it were necessary to refute such vile Reproaches) we might secure our last Unhappy Prince, from being accounted the Grand Rebel, as he is styled in a late Scurrilous Pamphlet. For if it is only our own Consent, that makes us Subjects, we may at least be so favourable to the Ruins of Majesty, as to excuse him from being a Subject or a Rebel; since he cannot be the Head, he has not consented to be any other Member of the Government, not being here in Person, or any Deputed from him; though this cannot be said of any other Person, since they are Represented in our Estates, whether they will or not. Nor upon any other Hypothesis can I Conceive it Rational, to exclude the Late King himself from being a Member of this Present Government; but this way he is set at Liberty, and consequently, as free to Invade Their Majesty’s Dominions, as any other Prince. If he molest us with an Unjust War, he must expect, at the Great and Dreadful Day, to give Account for all the Desolations and Blood-shed, that shall ensue upon it. If he is injured, he has a good God to Fight his Battles, and we a Merciful Creator, that I hope will Compassionate our Sins of Ignorance. I hope I may well call them so; for my part, my Conscience bears me Witness, That I think it my Duty to submit to Their Present Majesties’ Government; and that I see nothing, that moves a Scruple in my Heart, but the contrary Example of some Worthy Men, who, I am perswaded, Act with great Sincerity. But since Example is no Argument, and if it were, is much stronger on our part; I dare not but follow the Dictates of my own Conscience.
Bartholomew Shower, Reasons for a New Bill of Rights
[Sir Bartholomew Shower, 1658-1701]
New Bill of Rights:
Humbly submitted to the Consideration
Printed in the Year 1692.
In many respects Sir Bartholomew Shower, an ardent Jacobite, seems an unlikely author for a tract urging the extension and refinement of the Bill of Rights. And yet there is little doubt that he wrote the essay.
Shower was the son of a prosperous Exeter merchant. He entered the Middle Temple in 1676 and was called to the bar in 1680. He rose quickly. In 1685 he was named deputy recorder of London, two years later he was knighted by James II, and in February 1688 he became the recorder of London, the chief legal adviser of England’s greatest city. Shower’s older brother, John, was a Presbyterian minister, and it may have been King James’s tolerance of dissenters that strengthened Shower’s attachment to the Crown and James’s religious policy. At any rate he spoke for the Crown at the trial of the seven bishops in June. This clearly did not endear him to the city fathers, for in 1688, with the landing in England of William of Orange, Shower was replaced as recorder.
Shower opposed the new king and queen and was among those who published tracts attacking William Sherlock for his abandonment of the nonjuror position. He did manage to continue his legal practice, and this seems to have made him all the more conscious of the shortcomings of the recent Bill of Rights. He had initially opposed trial reform but by 1692, in a dramatically changed political climate, he was enthusiastically pressing for legal change, especially for change of the procedures used in treason trials. Those accused of treason, for example, were not given a copy of the charges against them or granted the right to be represented by counsel. A bill to modify the procedure in trials for treason was introduced into Parliament in 1690 but was not to become law until 1696. In the present tract Shower points out the haste with which the English Declaration of Rights was drafted and spells out a series of desired reforms that were neglected and in need of implementation. His essay appeared in a single edition.
Reasons for a New Bill of Rights, &c.
Considering the many impetuous and convulsive Struggles, which this Land hath so frequently groaned under, between the People and their Prince; and that some Persons of Honour, Sense and Sagacity, have always been engaged in those Convulsions; it must provoke an Agony of Wonder, that no more or better Provision is hitherto acquired, for the Ensurance of Men’s Lives, Estates and Liberties.
The Defect can be ascribed to no other Original, than the sudden Cesser of violent and eager Essays for that purpose, which Violence is seldom durable, and therefore the Occasion of its own Disappointment; but now in the present Circumstances, when a Forreign War1 hath employed the warmer and more sanguin part of Mankind, and an entire Calm overspread the Face of Domestick Counsels and Affairs, the Season perchance is arrived, for a mature and sedate, and consequently successful Consideration of sound, proper and true Methods, to secure Ourselves and Posterity in these Particulars.
However a provocative of this kind can never be unseasonable; though Provisions of Money in the approaching Parliament will be one thing, yet it cannot be the only one necessary, especially when a Flaw in our Title to any of these Ingredients of Bliss, destroys the necessity of that. It is therefore to be hoped, that the Courtier, Statesman and Officer will permit the Country Gentleman in some soft Degree, to attempt the Supply of his own as well as their Occasions; nor can the Proposal of the one obstruct the just Progress of the other; for it is the old fundamental Doctrine of a true English Parliament, that they should always concur, and now there’s Reason and Opportunity for both.
To obviate Prejudice and Objection against a perusal or regard of the following Lines, it may not be amiss to premise, That the Author is neither Republican nor Enemy to the present Establishment; nor can the usual Artifice of Nicknaming a Proposition as Antimonarchical, render it the less acceptable to him that’s concerned, as every Englishman formerly was, is today, or may be tomorrow, in this: It is too well known to have been an ancient as well as modern Courttrick, to advise Kings from encouraging, and the Commons from prosecuting of a full Security by just and rational means, with the terror and dread of a Commonwealth, as the unavoidable consequent of a true Liberty, though whosoever knows Men in England, must also know that Figure of Government here to be impracticable. But methinks since the Discovery of Priest-craft in Religions, and the Detection of Intreaguery in State Matters, Men should be wiser, than to slight or reject Endeavours for their own Happiness, because of Names, Titles or Epithets if of an harsh Sound, though improperly applied.
I am sensible of another Objection from the Bill of Rights, but surely that Scruple vanishes upon the first Reflection; for the nicety of the then Circumstances, the multitude of incurring Exigences both at home and from abroad, may well be agreed to have hindered a plenary or sufficient comprehensive Thought of all our then Grievances. It must be confessed, that the Instances there mentioned are considerable and great, and the Provisions made for them are useful and good, though too generally expressed, and perhaps obnoxious to some different Constructions, whensoever reduced or applied to particular Use; the Settlement of Religion and Church-men’s Property by those Items is politick and happy; and in truth the Bill doth extend to little more than that, and the Health of Corporations; but the Acquirement of those Reliefs, was never intended to be exclusive of more, if more appeared necessary; the private Lay Gentlemen deserve some Consideration, for their Number exceeds both Clergy and Officers, though the latter are sufficiently numerous; nor is the Ballance of the Gentry inconsiderable in the Government.
Another Cavil is expected at these Papers as needless, because the Judges are fixed and free from Temptation, their Pattents are not now upon Pleasure, and those at present in BR.2 (where the ensuing Queries do most frequently arise, and are most properly determinable) are Persons endued with Learning, Probity and Resolution.
Agreeing all this, and more, that they are, and so indeed they are, the Glory of the whole Revolution, it doth yet still remain worthy of a Thought that they are mortal, and another King may arise in Israel, that may make another Choice; and notwithstanding they should be more independent, through the certainty of their Office and Salaries, then formerly yet it may be of Men temptable by the accruer of a greater Pension, or the like; it cannot be forgot what some Ministers have rung in the Ears of former Princes, that Hearts not Heads, were necessary for that Court; that the Humour of the Man, and not his Knowledge in the Law, was the most considerable in the Election of a Judge: that Complaisance to Prerogative was a much better Quality than that of a judicious and crabbed, if stubborn Lawyer. But further, we should deserve the Pity of Fools, if after so much Treasure and Blood spilt for the Redemption of Liberty, the same should be ascertained by no better a Fund than the Life of three Men at the present in Power;3 nor can their Preservation ensure Englishmen against Hardships in the subsequent Cases; for this Proposal evinces the Imperfection of our Laws as now received and practised, and the necessity of another Statute to explain or amend them. And therefore this Objection is an Argument rather to inforce than to discourage the Prosecution on it; for sure we are, these Judges will and must (as by Oath obliged) observe those Rules; and from thence springs the true Cause for new, but better Provision; nor do those Remarks aim at or import Reflection upon the present Practice, but meerly endeavour to demonstrate the necessity of a Law or two more; now new Laws do not always suppose Faults in Fact, but many times in Posse, they are as often made to obviate as to relieve against Grievance and Oppression; and were it otherwise, this is no more than every Act of Parliament past hath done; and therefore such new Law (as is here contended for) doth still appear necessary.
Now for PARTICULARS.
First, As to Life; the late Bill for regulating Trials in Cases of Treason4 is a clear Evidence of the imperfect Defence which the Laws in being afford to Men’s Lives; the Misfortune which attended that Bill doth call for a Reinforcement of that Design; the Opposal it met with (considering the Persons who made it) doth in a demonstrative manner declare its Conveniency and Necessity; and therefore the honest part of the Nation do hope that the next Session will pass that or another such; nor is there any Reason to despair on it, unless Men improve in their Fondness of Danger, even of Death; for no Person living can be undoubtedly secure, that he never shall become or be deemed a Malecontent, both which are one in point of Danger. As to the pretended Reasons against such Relief, a Line of Answer is more than they deserve; but however to propose some hints convictive of their Weakness may not be improper. It argues some Defect in thinking to pretend that the 25 of Ed. 3.5 hath governed our Forefathers, and hitherto the present Age, and therefore we need no other Law; for might not this Objection have damned the Petition of Right, or any or every other Act of Parliament, because we had a Magna Charta before; besides Innovation and the dismal Consequences on it was always a Bugbear both in Church and State to prevent Alterations even for the better; but wise Men, if honest, have as often contemned the Pretence as ever ’twas objected, or otherwise we should have wanted that Pittance of Security which we have acquired already; but do hope to increase. It is manifest upon the First, Second, Third, and every Reading of that Statute, that ’tis a general, uncertain and obscure Provision, sufficient Confusion, Doubt and Contradiction hath there been in expounding it; the Chronicles and Reports of every Age since Edward 3. proves this, nor can our own Observations fail of furnishing us with Arguments of infinite Difficulties resulting from that Law, and many with Semblance of Reason and Authority on both sides; the late Paper skirmishes about the unhappy Lord Russel’s Case do prove the need of a new explanatory, directive Act; as also the new Notions vented in the Earl of Stafford Case about Witnesses to several Facts or rather Circumstances which have precedented it almost to every subsequent Trial. Then in the Name of God, what Harm can accrue to the Publick in general, or to any Man in particular, that in Case of State Treason Councel should be allowed to the Accused, what Rule of Justice is there to warrant its Denial, when in a Civil Case of a Halfpenny Value the Party may plead either by himself or Advocate. That the Court is Councel for the Prisonner can be no effectual Reason, for so they ought to be in every Action, unto each Party, that Right may be done; but the Frenchman’s Remark upon this Phantom, for ’tis no more hath sufficiently censured it, That my Councel ask no good Questions for me, my Councel make no good Sign for me, me no like my Councel. And it hath too often proved according to that poor Fellow’s Observation; nothing but Practice, No written Law excludes from Councel in any Case, (says the great and late honest Coke) and there is the same pretence for denying a Copy of the Indictment, though that has been granted in case of Felony in one Bothe’s Case, the which is in a Book called, More’s Reports.
But some bold Whisperers do pretend, that the Times are, or may be dangerous, the Crown ought to have a Power to support itself, this will make Convictions difficult, the Government must sometimes have a Lift, there must be Methods to lop off an Enemy, or the Head of a Party now and then, and there is no better Convenience for it than a doubtful Law, and therefore no Explanation or Amendment is politick.
’Twas thought that these Principles had been abdicated with the late King, but since their renewal calls for an Answer, I’ll briefly observe to those which vent them, that all Human Affairs are so unstable, and Courts under several, nay, under the same Sovereigns, do so often change Interests and Inclinations, and consequently Parties, that ’tis possible a malicious Chance may make the Enemy’s Lot to become the Objector’s; and so hath Fate most frequently doomed it in a most smart and Exemplary Form upon the Opponents of their Country’s Liberty, that they have been lasht with that very Rod which they have refused to remove, have endured that very Oppression, which when in their Power, they denied to redress: English Story is too full of such Instances, and God forbid the increase of them again.
This Objection is absurd and subverts Fundamentals, for in such extraordinary Emergences of State and Consequence, the Parliament is, or ought to be at hand; the Use of that Assembly is not barely the Gift of Subsidies, but to help the King and People according to their respective Occasions, and there is the Crown’s Recipe, Impeachments or Bills are his infallible Remedy; and our Constitution never intended any other Relief in case of such Difficulties, than that of a Parliament. Then if we consider the strict Rules of common natural Justice, ’twill appear, much more eligible, that sundry Offenders should escape, than one innocent should suffer, for that such Cases admit of no Restitution, the Reversal of an Attainder injuriously procured, cannot render a Satisfaction; the Head returns not to the Shoulders, nor Life to the Party, though the Title be restored to the Name, and the Estate to the Son of such a Martyr.
It is evident beyond contradiction, that within twelve Years past, many would have resigned the half of their Estates for the procurement of such a Law, as now (to the wonder of the Nation) themselves have opposed. The Fact admits of no Reason but Revenge or the Change of their Principles upon the Occasion of Power and Employments, each whereof is alike unmanly and therefore unwarrantable; but methinks they should consider that they are not certain of the stability and continuance of their present Settlements, much less of their Interests, and the same Occasion as formerly, may in future Ages revive, and then the Reviver of Complaints with their Suffering may be fruitless and vain, when the Opportunity of Relief is fled and gone; not good Hopes concerning future Administrations but good Laws only, that can give a Plerophory or full Assurance of Security. Now is the Season, if ever, for a Fixation of our Franchise from the Perils, from the actual endurance whereof we are but just delivered; it may be presumed, that the late turn of our English Affairs is not yet banished our Memory, nor the end of the Change buried in Oblivion, and the present Proposal was unquestionably one Design of the Revolution. The Convention of the Estates of the Realm in Eighty eight, eighty nine, intended somewhat more than the Ejection of Thirty or forty fat Officers, and the prefering as many other in their places, though of the more intelligent and honest Principles, for these are still Men, and liable at least, I will not say prone, to human Infirmities, and though not possibly equal, yet like to those of their Predecessors. The Purpose of the Nation’s Wisdom was to gain a Security beyond the reach of Construction, Power or Craft to evade, and if the same be not hitherto accomplished (which whither it be or not, let the Reader be Judge). It is now therefore the Duty of all sincere and true Britains, to endeavour the Perfection of such their Security against every of their former or the like Mischiefs; the Necessity of the War summons a Parliament for Supplies, and this renews our Opportunity for to finish the intended Errant of the First Assembly after the Abdication. This is the Time, said a great Man upon a less Occasion, and every Man may say the same now, and with more Reason: Then as to the Second concerning our Estates.
It cannot be denied, that both Law and Equity do in their Practice need a Regulation; the Exorbitances of that Prerogative Court called Chancery do loudly cry for a Bridle, and that by an Act of Parliament. There ’tis that the single and sudden Thoughts of a Keeper are the only Rules for Justice, and the Power is but Durante (it must not be said) secundum bene placit R. and this may caveat the Rich and Bulky to promote some moderate Reformation of that Court, or else to resolve, that his Quarrel shall never be with a Courtier, and that he’ll never incur the infortunate Character of dissaffected to the Government; for it hath been formerly, and may be hereafter very easy, with one of those Monosyllables Fraud and Trust (which have already almost devoured every other Title in the Law) to decree such a one a Beggar; Nickname his Purchase and his Estate doth instantly change its Owner; then if a Commoner prove his Adversary, whose Inheritance commands a Borough, the Wretch is remediless, and his Beggary everlasting; for there’s no Appeal but in Parliament, and with his Hopes of Relief commences Priviledge, and then he must wait, at least till the Issue Male of the Family be extinct, and that is too long an Expectancy to be called a Relief. To expose the Dilatories and Expences of that Court is a Province much fitter for some Lawyer’s Pen than mine. My only Remark is this, that that Court is too dependant upon another, that its Power is too Arbitrary, and its pretended Rules too uncertain; and although the Probity of the present Keepers do prevent Mischief at the present, yet future Reigns may use Creatures of a worse Kidney, and to worse Purposes, and then the Authority of the Seal as now in practice, will afford Opportunity to do Mischief more than sufficient. Then for the Law, it must be agreed to stand in the like need of a Purge too; but such Topicks would be proper to employ the Head of some Practitioner, whose Experience capacitates him to discover its blind side and corruptions; that which I observe is this, that there wants some Act to facilitate the Practice of Attaints, by allaying the severity of the Judgment therein, and then we might hope to see Corruption of standing Juries reformed, and the Consequences of that Corruption banished too, viz the forced Practice of granting New Trials, when the Verdict displeases the Judge, though the Fact be not within his Sphere; at our Assizes I have for several Years observed a great uncertainty in the Rules of Evidence, in the Gift of Actions, and in the Notions both of Titles of Land and Property in Goods, every Circuit perhaps differing from the last, but that seems ascribable to the great Latitude given to the sudden Opinion of a Judge by the predominant increase of General Issues, which leaves too much at the Discretion of a single Person. These and many more hints might be given of this kind, but of this enough, for they are Trifles to my last and chief Topick, because, concern but a few; for Men with Temper and Wisdom may easily prevent the Plague of Law Suits, and the want of one of them is generally the cause of Vexation either by Common Law or Chancery; but there’s no Fence against Imprisonment, for the cast of a Man’s Eye, the Smiles or Frowns of his Face, entire Silence or too much or too little Speech, as the Company pleases to interpret and represent, may raise Suspicions concerning Principles. If he keeps company he is judged by the Humour of that, if he keeps none he’s thought reserved, and therefore the more dangerous; if a Maggot in his Head or a fanciful Thought in his Brain occasion a Laugh when ill News is arrived to the Court, or if the Distasters of his Personal or Family Concern, or a Pain in his Body provokes a sour Look upon the talk of a Victory or the like, these and a thousand more such are Badges of Malice to the Government, where Construction is at liberty, so that the following Doubts are of consequence to every one.
Thirdly, Liberty of Person; ’twould be Subject of Ridicule and Jest to attempt the Conviction of our Countrymen, that Liberty is pleasant, and to preserve it deserves our Care. It’s one of our first Principles connatural to an English Heart, to be tender and jealous of its loss and Abridgment. The Contentions here both with Tongue, Pen and Sword for its continuance hath proved such a Theme needless; our Magna Charta places the contrary in equal rank with Disseizin and Exile, both which are sufficiently odious, the one depriving a Man of his Country, the other of his Fortune, and this debars him of the Pleasure, nay Use of both; it is pretended by all the Judges, that Liberty is the Darling of the Law, and Restraint the Badge of Bondmen and Vassals, but the Practice in almost all Ages hath given the Lie to such pretence; for nothing hath been so often and easily lost, to Peers and Commons, to the Grandees and the Peasant, upon very little or no Suspicion as personal Liberty. That particular Piques or private Malice of State Ministers or perchance that which is less cause; the insolent Humour of Commandments in Power, or the generous Behaviour of a Gentleman with its usual attendant Popularity, (which is always an Eye-sore at Court) or the Fears of Statesmen though resulting from their own Weakness when there’s no Danger, or from their own false Steps in Government. Where there is these and such like Occasions, have frequently gaoled great Numbers of the best part of the Nation in all Ages. It must be impertinent to recollect Instances, since Members of Parliament have not been free even in Parliament time; as for the Oppressions of which Imprisonments, whosoever hath suffered them is sufficiently convinced, and he that hath not, may easily conjecture; for much the greater part of the Nation either by themselves or their Friends and Acquaintance hath experimented the Pleasure of such forced Retirement, within less space than Forty Years past, and therefore I’ll forbear to enlarge on it.
The Cause of this Grievance hath sprung from the Imperfection or Uncertainty of our Laws concerning this Subject; the Questions about it in Charles I. Time, were so fiercely debated, not only within the Walls of the Commons House, but in the Press and Field too, that their Notoriety recalls them to every Man’s Remembrance; the Opinions of Parliaments was always against indefinite, general, or causless Commitments, but no Man imagined himself secure till the late Habeas Corpus Act, which inflicted Penalties upon its Violators, nor hath that accomplished the Design of ensuring a true Liberty, as I shall now endeavour to demonstrate; that this Act was, and is a wholsome Law, cannot be denied, and ’twas worth the Price it cost; but yet another will deserve twice as much, for the former is deficient to a great Degree. To convince that it is so, let it be considered that 31 Car. 2. did that Statute pass the Royal Assent, and since that time Five hundred Persons to one have been committed more than ever were tried, or so much as indicted. It is observable that every Year or two, a dozen or twenty Lords are usually shopt, together with incredible Numbers of the greatest Commoners, over and besides the small Fry of &c. Halls and Churches have been turned into Prisons when the common Gaols were crowded even to danger of Infection; and I am apt to believe that hundreds have been committed without Oath, and consequently without just cause of Suspicion, for there ought to be Oath of that Fact or Circumstance which rendered the Party suspected. And this is the first Defect in the Statute, that it doth not enjoin an Oath to be mentioned in the Warrant, which is unquestionably consonant to Reason, that the Person and his Judges may become privy to the true Reason of his Commitment; perhaps it may not be for the Service of the Crown to name the Informant upon the first Accusation, but that no Commitments ought to be without Oath first made, is certainly Law; and an Injunction to mention an Oath in the Warrant, together with a Penalty for Imprisonment without Oath in Writing, will make the Ministers concerned more cautious in cases of Liberty; nor can any Reason be assigned in Nature why Priviledge should not be denied by Act of Parliament, in case of the Violation of the Subject’s Freedom, which is and ought to be dear to us all. The end of frequent Parliaments is for Maintenance of Personal Liberty, and why such frequency should hinder Suit for Incroachments on that Liberty, the Reason is behind the Curtain. Another Fault is, That the cause of Commitment is not enjoined to be specially signified, charged for compassing the King’s Death, or adhering to his Enemies, is in truth no more special or plain than to say for Treason, for there are a Thousand Acts and Ways of doing both these, and those dependant upon construction, so that a Man is not a whit the better informed to prepare for his Trial or Defence by the one than by the other; for when he considers of one Action obnoxious to strain, another, a third, or a hundredth may be trumpt to his Charge; the end of that Provision certainly was, to have the Fact known whereof the Party was accused. Again, Warrant to seize being charged for High Treason in compassing or adhering, &c, and to bring before me to be examined, and such Messenger to detain for Days, Weeks and Months, seems somewhat unreasonable, when the Party granting such Warrant expresses himself doubtful in his Judgment concerning the Charge, and the Fact indeed to need an Examination, yet this Case is not bailable; whether Secretary or Privy Councellor, not having actually taken the Oath of a Justice of Peace can commit for Felony or Treason, is no small Query, but the Ferments of latter times, and the supposed Necessity arising from thence hath answered that Problem by some Years’ Practice, and therefore that Point is not to be stirred without doors, but surely they ought to be in the same State as other Justices, to answer Suits for unjust or wrongful Restraint of Men’s Persons, and the Greatness or Priviledges of these Officers ought not to exempt from common Actions, but the rather an Access to Relief against them, should be made more easy, since they monopolize that Trade, and consequently are more frequently liable to Mistakes wilful or by accident; the Method for such Relief is above my reach either to contrive or propose.
When the Cause is only Suspicion, Bail and that at Discretion of the Judge is now required, and this is all the Relief at present, and that is tantamount to none; for if the Judge or Minister pleases, such extravagant Sums and Estates may be required, as to render the Party remediless, and his Continuance in Gaol inevitable; here’s no Measure prescribed, nor any Penalty imposed on the Judge if he be guilty of Excess in such his Demand. In case of an actual Breach of Peace, and the Complainant swears a Danger of his Life, the common Rate is £.40 Principle, £.20 a piece the Bail; but for Suspicions of Treason, or as generally disaffected to the Government, swinging Sureties for Bulk in their own Estates, and Sums in their Recognisance, have been and may be again exacted, and no Relief.
Commitments with the Clause of denying Pen, Ink and Paper, or Friend or Relation, are not provided against, nor yet in truth warranted by that or any other Law; for if the Party be not guilty of the Charge, or but suspected without Evidence sufficient, the Usage is not Humane or English; if he be guilty and there’s Evidence for such Guilt, then Liberty of Access ought to be allowed to his Friends with the Use of Writing, that he may prepare for a Trial. For the Law never impowered a Secretary to commit a Man because thought dangerous to the Government, but because he is guilty of a Crime, and that he is only to secure him to be forthcoming to a Trial, not to punish him before his Trial, for till then it remains in doubt whether guilty or innocent.
Another Defect is this, Suppose a Man committed in Trinity Term for the Charge of Treason, and after the expiration of four or five Months, and before the arrival of Michaelmass, the Secretary thinks fit that Bail be admitted, then though no Indictment or other Prosecution, this Bail may be continued from Day to Day, and from Term to Term, for seven Years together, and he can’t help himself; within the Memory of Man this hath been practised for seven, nine, nay twelve Terms successively upon the same Recognizance; then it is an infinite Default, that if a Man be committed to a Country Gaol, and perhaps that may be, as it hath been, to Hull or Canterbury, this Man is remediless till an Assizes, and that sometimes not happening in several Years, and then this Wretch can’t make his Prayer in B.R. he hath not Money to procure a Commission of Gaol Delivery, or Oyer and Terminer, and if he could, perhaps ’tis denied him, and no Provision made against such Denial. Now here is an indefinite Imprisonment, this Difficulty arises from a constructive Opnion upon that Law, that the Prayer may be either in B.R. or before Oyer and Terminer, as to be taken distributively and respectively, if here about Town in B.R. if in the Country then at the Assizes, though the Words are general, one or the other.
Further Remedy is, If no Indictment the first Term, the Party is to be bailed, unless Oath be made that the King’s Witnesses could not be produced that Term. Now this needs an Explanation for the end of our Lawmakers unquestionably was, that he should be bailed, unless there was Evidence sufficient whereon to indict, and such Evidence could not be produced; whereas according to a litteral Construction of that Clause, any Man may be detained though not Evidence enough to found an Indictment, as if Oath be made that there is Evidence against A. B. and C. and every of them, that the Witnesses against them could not be produced, and no possibility to convict the Jurate of Perjury, for it may all be true in some Sense (and if true in any Sense it excuses from Perjury) and yet besides the Intent of the Law to have the Persons detained, there might be two Witnesses, one against one, and another against the other, and yet no Indictment could be on this for want of two Witnesses against each. Now ’tis plain when the Law says, If he be not indicted he shall be bailed unless Oath be made that the Witnesses could not be produced, it must be meant such Witnesses as could swear to the Indictment, which one alone could not, because the Statute requires two even upon the Bill, besides such litteral Construction renders the Affadavit Maker Judge of what is evidence, when perhaps he is ignorant of the thousandth part of the Difficulties and the Doubts upon that Subject; then for could not be produced, t’would be but reasonable that the Court should know and judge of the Reason of the Nonproduce, and not the Swearer; perhaps the Reason might not be sufficient in the Court’s Opinion, but more than sufficient in the Swearer’s; he might think an Horse-rase or Wedding, want of Pay or Recantation, or Forgetfulness of part of his Testimony, a Reason; nay, the Witness might be dead, and yet his Oath true, for there might be Evidence by Papers, and one Witness to prove them, and the other Witness departed, and so could not be produced; though these Thoughts are equivocal, yet they’ll deliver him from the Charge of a wilful, false, corrupt and devilish Perjury; these short Notices are enough to shew an Occasion of an additional, explanatory Act.
Another Defect is this, That if committed to any Gaol in Wales as a dangerous Man, or upon Suspicion of Treason, he is remediless by this Law, unless he has Money to pay for a Journey to London, and that must be paid down before he shall be brought; for no Judge or other Authority there is bound to bail him, and then if he lies till their Session of Gaol Delivery, he can’t be bailed upon the want of an Indictment, because the Treason is not specially signified; and then he is left as at Common Law, and how uncertain and merciless a Remedy that was before the making of this Act, we and our Forefathers have been sufficiently taught. A further Enemy to Liberty, is a Power still reserved to Judges of a Court, to commit upon pretence of Contempt to them, and this out of the Act, and such an Authority hath every little Petty Court of Record in the Nation, and Mistre’s Experience tells us, every slight Matter makes a Contempt to them, and there’s no examining the Cause, for the Court that commits is Judge of the Contempt, and further there’s no Deliverance, till Submission and their Discharge.
Add to these Opponents of bodily Freedom, the new found Offices of a King’s Sollicitor, &c. a Novelty never heard of till the latter end of Charles II. and the Subject has Reason to thank God that ’tis so late an Invention, for before that time the King had as few, and since hath had more Causes than any of his Subjects, ’tis from those Mutes that Characters are received, which extorts a bleeding in the Culprit’s Pockets, for as that moves either open or shut, so doth the sign of a Shrug with the Shoulder, or a Wink tipt upon his superiour Officer, produce Hardships or Ease to the trembling Gaol-bird; perhaps the hint doth not take, and then there’s a necessity of a secret Whisper, that the Bird in the Cage, is either a damned Tory or a confounded Republican, as the times respectively require; but if the Medicine requisite was duly applied, then with a Smile in the Face and the Hand on the Purse as the Cause, proceed these or the like Words, He is an honest, harmless, fair-conditioned Fellow; and an immediate Assent to the Partie’s Bailment or Discharge is the certain consequent. In old time, the Ability of Bail was tried by Examination upon Oath in Court, but this new Office hath introduced a new Practise of giving Notes of the Names in order to Enquiry, and the Use and the Profit of such Practice is notoriously evident.
Lastly there’s a Penalty on the Judge or Judges, if they deny any Habeas Corpus, but none if they refuse to bail or discharge, when and where they ought; then there’s one thing more which ought to be considered, for it plainly spoils our Claim or Pretence of being a Free People, and that is the Power of our Lieutenancy as now established, for they are made and continued at the will of another, and they at their own wills may commit whom, and when, and for so long as they please; and as I am informed there’s no relief, they sit and act whensoever they are bid, and composed in all places and times of some one predominate Party, for the Ballance can seldom be supposed exactly equal in such Assemblies, and by Consequence the lesser Party must expect their Mercy on every the least Occasion; now considering the Sides and Factions in England and their natural eagerness each against the other, and the small hopes there are of an Union, methinks true Policy should direct some measures and Rules of Restraint, to prevent Oppressions and Hardships on either part; the Form of making such Provision must be submitted.
These are but few among many Instances, which might be produced to evince the necessity of a new Law; nor is it convenient for a private Person to enumerate everything of this kind deserving Remedy; it suffices to offer such and so many Items, as may excite the Parliament to consider of these and the other Mischiefs which need a Provision, and to continue Methods accordingly.
To conclude, a Word of Religion cannot be improper, the Act of Toleration hath exempted Dissenters from the Prosecution of the sanguinary and other Penal Laws; but that Exemption is imperfect, for that a Force still remains on their Consciences in respect of their Children, for though themselves are not constrained to frequent the Legal Church, yet absurdly enough they are constrained to educate their Children in Methods contrary to their own Opinions and Sentiments, for no School is permitted them, though but to teach the Assemblie’s Catechism, and this seems inconsistent in itself, that their Judgments may be freely persued in the one and yet restrained in the other, especially if a religious Reason induced the former, for if so the same obliges to the latter.
Now after all, the intent of these Lines is only to propose and not reflect, and surely thinking must convince Men, that such a Law would add to our Happiness, if procured; nay, it seems strange that any should oppose it, since that the want of it may prove any Man’s Misfortune, and no Man can be professedly desirous of Slavery, or dependance on another’s Will for Liberty; but to the Shame of our Nation, there are too many in it, that are willing to be Slaves to a few, so as many may be Slaves to them; and from that corner we expect an Opposition; therefore to provoke an Appetite and Zeal for true Liberty, let us consider our Government and its Nature; ’tis a Monarchy Royal (as an Attorney General hath confessed) and not Seignoral, and by our Law the Subject hath an entire, absolute, independent and uncontroulable Interest both in Land and Goods; now yet without Freedom of Person, and that ascertained, we are not Freemen but Villains, and shall Englishmen content themselves to hold their Liberty upon Will? Let us consider the Examples of our Forefathers and follow them, let us read and recollect how the Patriots of the last Age, Coke, Selden and the rest, did esteem and value it, when they tugged it so nobly in their Conference with the Lords, Anno Charles I. Quarto, though the Argument then was against General Commitments, yet their Zeal and Courage was true and cordial for Liberty in general, and so ought ours to require an ample and compleat Security on it. If we conceive ourselves in person to be exempt from the Danger, because the Complaisance of our Principles may secure us from Hazard upon every Turn, let Generosity and a true English Good-nature raise a Concern for others, whose Discretion may prove defective upon such an Occasion; nay, the Inconstancy of Men and things may deceive even ourselves in some Events, and balk such our Confidence.
Let us be humane and pity the Miserable and Forlorn, that have been made so upon Suspicion only, during the Rage of other Men’s Plots either real or sham, or that may become so hereafter upon the like Contingencies; to describe the Misfortunes of Patients in this kind, with their several Circumstances in particular and at large, would I am confident, melt the Soul of the most obdurate Reader, and to affect him there would need no use of Rhetorick; my Request is only, that he would once visit our common Prisons and view those Lodgings, which have at several times received the best of our English Worthies, and perhaps some of his own Acquaintance; if this be too nauseous a Task, let him but frame an Image in his Mind, that he saw the Body of a disturbed Citizen, hauled and dragged with Swords and Staves, from his House and Bed in the midst of Night; then consider him as bled by some Harpie of a Messenger for a certain Season, and withall listen to those insolent Huffs and Abuses of those insatiable Devourers of Coin and Liberty, during such his Bondage under their Dominion, then see him hurried to a Gaol or Dungeon, there loaded with Irons in abundance, disabling him to sit, or lie, or stand, without actual and continued Torment, excluded from the Benefit of Light or Friend, Pen or Ink, Paper or Book, Fire or Candle, or other Help of Nature, then consider the Fears and Anxiety of such a Captive, either for himself, or Family or other Relation, and that continued for Nights, Days, Weeks, Months; and invisible to any human Creature, except some griping Turnkey, whose Visits perhaps are followed with the approach of some devilish Tempter who comes to increase his Torture by the false Promises of Reward, if he will confess discover and evidence some unknown Story; or else unhuman Menaces of an infinite Misery and Death as its only end in case of Refusal; then review him as alone, his Soul wrackt, tortured and distracted between the dread of Dishonour and Gallows, and his Keeper’s Usage changed (and that by Command of the tempting undertaker to facilitate his Design) and then the Wretch’s Corpse is reloaded with a double Train of Artillery, and therewith removed to a nastier Sty, if such there be, and immediately the Nickhole of Light, if any, is stopt, and the Man left alone overwhelmed with Chains, Darkness and Stench, to which you may add the Disturbance of his Mind and Thoughts about the last Temptation, which is usually repeated while in this or the like condition; and here you may leave him a while to himself, and turn your Eye to his Wife and Children with Tears and trembling Attendant at the Grate, after having by Pawns or Beggary got some Guineas wherewith to soften (if possible) the Gaoler’s Heart, you may hear them begging and intreating for a sight of this their Relative though at a Distance, nay sometimes praying but a Notice and view of those exteriors of those Walls, within which such their Dearest lies thus intombed, and even this shall be denied with execrable Reproaches and Insults, and all under Pretence of express Orders.
Then follow those ambulatory Wretches and you’ll find them making their Court to the Criminal, Agent, or his Deputy, for Leave to apply to the Secretary for Leave to see this English Slave, and this first Leave must be paid for too, or else there will arise an hope of Evidence with an Aggravation of his ill Character, and so an opposal of this their just and legal Right; but anon you’ll meet them at Whitehall, where after four or five Days’ Expence in Waiting, and a Curtesie dropt with a Crown to the Porter, and two of them with double the Sum to the Footman, my Lord’s Clerk becomes visible; and when both are doubled again to him, at last the Secretary is seen, but then her first Address proves certainly abortive, and the second procures only an Adjournment for Inquiry and Recollection after the much no Evidence, which however to her Assurance of the Accused’s Innocence yield some Hopes, and then it may be the Widow’s Importunity extorts a Promise of Speech with King or Councel about the Matter, especially if the Dun be followed close. But then Business of Necessity enforces two or three more Excuses, and at last if the Woman’s Patience, and Money can hold out to gain a frequent Access, so as to disturb his Lordship with repeated Cries and Tears, a Promise is made of an Order for Leave. Now to tire the Reader no longer with these Difficulties; upon Payment of expedition Money and the usual Fees, the Order is drawn and signed, and with Thanks and Joy received; notwithstanding all this Labour and Charge, this Order is not legible at the Prison, unless the Keeper’s Spectacles be guilt, and when allowed ’tis worth but little, for the Keeper’s Presence is commanded, and not a word must pass between Wife and Husband but in his Hearing, which frequently makes it a silent though mournful Meeting, for fear of Misrepresentation, and this dear bought Leave can serve but once, and its renewal in price comes little short of the first.
After all this, when the Man’s Body hath contracted Distempers, and small Fortune is quite exhausted, and his Employment with his Credit lost, and consequently his Family undone, and his Children, if not himself consigned to Parish Care; then without Trial or Indictment Ex mero motu, of a sudden an Order issues for the Delivery or Bailment of this miserable Captive; and this called, and must be owned as Grace, though nothing but Suspicion did found the Commitment, or that the Man was thought of a Party, or had been in company with some that were thought so, and some of them perchance had been dabling at Treason or it may be only at true Politicks; and now what Reparation ever was, or ever can be made for such injurious Hardships. This hath been English Practice and the same may be possibly repeated. It is certainly therefore the Duty and Interest of our Senators to be wise, and consider and provide for their own and our Posterity now in this, their, and our Day.
Further consider Imprisonment as a possible and safe Instrument or means of Revenge even to Death, for there the Nod of a great Man may be an easie but effectual Guide to a Gaoler (I need not add here any Epithete or harder Name than his own) to provide unwholsome Lodging and worse Diet for his Enemy, especially if he be of a tender Constitution, and then ’tis finishing Work, without the useless Formality of a Challenge, or the ignoble Method of Hirelings and Assassinates, or the more base Fatigue of belabouring Witnesses and managing Juries, in all which there’s somewhat of Danger and Hazard to the Avenger, and this hath been practised too in England.
When these particulars are duly considered, with the pretty tickling Retirements of the Nobles and Rich of our Realm, and those repeated several times in one Age, and Year, and without Evidence upon some of them, it may be justly expected, that such Consideration will create an Abhorrence of the least uncertainty or doubtfulness in the Laws of Liberty.
Some will object that these Proposals will embarrass the King’s Affairs in the next Session and therefore unseasonable; but this Objection doth answer itself, the Occasion for Supplies at present makes our Relief probable in this Conjuncture, which upon another Meeting may find greater Opposition; and if the last Session countermined part of this, a future may dam the whole, therefore now if ever is the Attempt convenient. Besides a sound Zeal for the present Government, cannot be better testified, than by a cheerful Promotion of such Laws, for that these Methods do conciliate and fix the Interests, Opinions and Affections of the People to the Crown, and a Sense of present Ease, Safety and Liberty, with a certain Security of its Continuance is the surest Preservative of Duty and Assistance from the Subject; whereas an opposition hereto, must make the Government lose ground by narrowing of its bottom; for that which crosses the Interest must alienate the Affections of the People, and this hath been found true in Three Reigns already within our Memory. No Authority or Power can be so considerable and lasting, as that which is founded on Love and Esteem, and those can never be acquired with any great Certainty, but by the Allowance of such Concessions as the People need, or think that they need, or think that they need, and do desire, or demand. Now the Miscarriages of former Reigns with the Observation of the French and others’ Tyranny, which multiplies Commitments upon slight Fears or Suspicions, are so continually in their Minds and Mouths, that their Belief of the need of such Securities is not to be eradicated.
’Tis a gross Mistake to imagine, that an easie and full Power of chopping Men in Pieces upon a Block, or confining them to Newgate or other Gaoles, can add any Strength to the Crown, for Englishmen generally speaking are fond of a King, not only for his but their own sakes, and consequently such Fondness can be but of an equal Duration with their Ease and Liberty, and a Suretiship of its Permanency; for the Loss or Fear of the Loss of either, will quickly produce Aversion, and that Hatred, and that somewhat worse: upon which Account, ’tis incumbent upon all true Friends of their present Majesties, to promote this Prosecution of an Additional Security.
At last it may be Queried, What need of all this Bustle and Stir about Liberty, when Parliaments meet so often, that their Awe prevents all these and many more possible Oppressions; to this I’ll answer by another Query, What new Security have we got, that if the War cease, we shall have a frequency of those Assemblies.
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[1. ]John Overall, Bishop Overall’s Convocation-Book MDCVI concerning the government of God’s catholic church and the kingdoms of the whole world (London, 1690). John Overall, bishop successively of Coventry and Lichfield and of Norwich and Regius Professor of Theology at Cambridge in the late sixteenth and early seventeenth century, took part in the Hampton Court conference of 1604. His Convocation Book, framed by the members of that meeting, was intended to discuss and settle the origin of both the civil and the ecclesiastical polities. James I took exception to some of the canons. The book was first published by William Sancroft, Archibishop of Canterbury, in 1690.
[2. ]Because James I objected to several of the proposed canons the proceedings never were officially adopted.
[3. ]Convocation agreed the courts of Star Chamber and High Commission, abolished in 1641, should remain suppressed, Laud’s canons of 1640 were declared illegal and Convocation gave up its claim to tax the clergy. According to David Edwards in Christian England the result was that Convocations did not need to meet at all and were, in fact, suppressed from 1664 until 1689 and throughout most of the next century and a half. See Edwards, Christian England (London, 1983), 2:311.
[4. ]The campaign to exclude James from the throne and the discovery of the Rye House Plot of 1683 had raised the terrifying specter of civil war. The reaction of the Anglican church was a vigorous reaffirmation of nonresistance and insistence upon divine right monarchy. A convocation of the University of Oxford in July 1683 issued decrees against “certain pernicious books and damnable doctrines.” The condemned books included works of Buchanan, Milton, Goodwin, and Hobbes. The damnable doctrines included the principle that authority is derived from the people, the compact theory of government, and the idea that a Christian can resist a lawless king.
[5. ]Edward Hyde, Earl of Clarendon.
[6. ]The god from the machine (Greek for deus ex machina).
[7. ]Robert Parsons was a prominent English Jesuit in the sixteenth century. He was a prolific and talented author and managed to publish scores of tracts under the noses of the Elizabethan authorities. He was particularly notorious, however, for his zealous promotion over the course of twenty years of a Spanish invasion of England. In 1690 Edward Gee published a tract purporting to contain extracts from a copy of Parsons’ work that had been presented to James II. Gee’s tract was entitled “A Jesuit Memorial for the intended reformation of England under their first Popish prince.”
[1. ]A pamphlet with approximately this title was “Some Modest Remarks on Dr. Sherlocks New Book About the Case of Allegiance Due to Sovereign Powers, &c.” (London, 1691), Wing S4526. Another had been published the previous year with an almost identical title, “Remarks upon Dr. Sherlock’s Book, Intituled, the Case of Allegiance Due to Soveraign Princes, Stated and Resolved” (London, 1690), Wing S841. Sherlock’s book “The Case of the Allegiance due to Soveraign Powers” excited an unprecedented number of replies, of which some thirty-four were attacks, twelve were defenses, and another six were satirical verse tracts. See Mark Goldie, “The Revolution of 1689 and the Structure of Political Argument,” Bulletin of Research in the Humanities (winter 1980), 480.
[2. ]John Overall, Bishop Overall’s Convocation-Book MDCVI concerning the Government of God’s catholic church and the kingdoms of the whole world (London, 1690). See above, Taylor, “Obedience and Submission,” note 1.
[3. ]An Alceldama, a scene of slaughter.
[4. ]Bulstrode Whitelocke, Memorials of the English Affairs: 1625-60 (London, 1682).
[5. ]After dismissing the Rump in April 1653, Oliver Cromwell ruled for several months as commander-in-chief. In that capacity he summoned a group of men to a “Nominated Assembly.” The group of 140 men, 129 of whom were from England and Wales, met at Whitehall on 4 July 1653 and gave themselves the title of Parliament. They disbanded themselves on 12 December 1653.
[6. ]The so-called De facto Act, 11 Henry VII, cap. I (1495).
[7. ]“A most joyfull and just Recognition of the immediate, lawfull, and undoubted Succession, Descent, and Right of the Crowne,” 1 Jas I, cap. 1.
[1. ]The war begun by the League of Augsburg against Louis XIV lasted from 1689 until 1697. One of William of Orange’s chief motives in pressing his wife’s claims to the English throne was to bring England into this conflict.
[2. ]An abbreviation for Bancus Regis, King’s Bench.
[3. ]King’s Bench consisted of a chief justice and three puisne justices.
[4. ]The procedures for treason trials were eventually reformed in 7 & 8 Will. III, cap. 3 (1696), The Trial of Treasons Act.
[5. ]The 25 Edw. III, stat. 5, cap. 2, passed in 1350 was the main treason act and possibly the first to make it treason to levy war against the king in his realm.