THE Fundamental Constitution OF THE English Government .

PROVING KING WILLIAM and QUEEN MARY our Lawful and Rightful KING and QUEEN .

In Two Parts .

In the First is shewn , The ORIGINAL CONTRACT , with its Legal Consequences allowed of in former Ages .

In the Second , All the Pretences to a Conquest of this Nation by Will. 1. are fully examin'd , and refuted .

With a large Account of the Antiquity of the English Laws , Tenures , Honours , and Courts for Legislature , and Justice .

And an Explanation of material Entries in Dooms-day-Book .

By W. A. Author of the first Answer to the late Chief Justice Herbert on the Dispensing Power .

London , Printed by J. D. for the Author , 1690.

THE following Collections , in which I may say I have taken some Pains , are but an Enlargement upon what I publish'd , immediately after the Accession of their Majesties King William and Queen Mary , to the Throne of this Kingdom .

I must needs say I was glad to find , that the Effect of those Studies , which had drawn upon me the weight of an Arbitrary Government , might at least entitle me to the Protection of a Government , which rose , like the Phenix , from the Ashes of the other ; and was founded in such a Consent as gives Establishment to our Laws .

Some may think I carry the Point too far , and prove more than is fitting ; they at least for whose Conviction so much was needful , that they may gain strength to their Party , will represent all that oppose their Extream as embark'd in the other . And as they were justly become odious to all People who had any love for the English Liberties , they will be sure to run down others as Common-wealths Men , not fit to live and breath in a Monarchy .

But to give the Objection its full weight , The Doctrine of Non-resistance , or Passive Obedience , no way concern'd in the Controversy , &c. By a Lay-Gentleman . I shall consider it as it has been managed by a Lay-Gentleman , who contends that the Doctrine of the Bowstring was just to the late King , and would be serviceable to this ; but that the contrary is dangerous to all Crowned Heads .

And while I vindicate them who expose the modern Notion of Passive Obedience , I will shew that they who may be presumed best to understand their own Doctrine , in effect condemn him for a Renegado .

This Lay-Gentleman absurdly labours to prove , That they who would not assist their Prince , to maintain that Power which they had beyond measure advanced , and were both in Principle and Practice , against contributing towards our present happy Settlement , are , for those very Reasons , the only Persons fit to be trusted under it .

The greater his Abilities are , and the larger his fore-sight of Consequences , the more is he confounded in the Defence of those of our Clergy , who have made the greatest Noise for that spurious Non-resisting Doctrine , which he , and they , would impose upon our Church as its genuine Sense .

While he , like a true Son of the Church , takes the Rules of his Obedience , and of judging in Civil Affairs , not from the Laws and Legislative Power , but from the Bishops ; upon which account alone , he will have the Truth of our King's Declaration , The Doctrine of Non-resistance , &c. p. 5. when he was Prince , not to be questioned , because , forsooth , all the same things in a manner are complain'd of in the Bishop's Proposals .

And thus , if Matters of Fact , or Points of Law , are adopted by the Clergy , 't is not for the profane Laity to enter upon this hallowed Ground , without their License ; and for them to take it from the Church , is such a sort of Sacriledg , as Dr. Heylin , and others , charge upon our Reformers , for alienating and clearing the Nurseries of Superstition .

Vid. Hist. of Passive Obedience , p. 97. speaking of Dr. Hicks his Jovian , that elaborate Commentary on the Doct. of Passive Obedience .

P. 96. Dr. Sherlock's Book of Non-resistance is so strong , and his Arguments from Scripture so cogint , &c. The Doctrine , &c. Pag. 2 , 38.

The not resisting the King , or any commissioned by him , but being wholly passive , when our Constitution and Laws are notoriously violated , and we are persecuted against Law .

Page 2. Wherein this Gentleman would have Obedience to continue when the Law which required and ascertain'd it , is subverted in such a manner , as there can be no question of it , this he owns that the late King was guilty of , Page 7. and that he would give us no assurance we could rely on , to do otherwise for the future . So that we were to expect , that what he calls an arbitrary , Page 3. tyrannical , exorbitant Persecution , would , if not prevented , have been entail'd on our Posterity .

And the truth of it is generally , to avoid Suspicion , he sufficiently loads the late King ; yet it is not without reason , that the boldest Talkers have formerly been suspected to have secret Indulgence ; The Design of the Author of the Magistracy and Government vindicated . but in this he is something more politick than the Author of the Vindication of the Magistracy and Government of England , who would make his Court to this Government by justifying the last ; yet this Gentleman's Policy is no more than needful , when he contends that to excuse them of the English Nation , who have been instrumental towards the late Revolution , Pag. 36. we must set up our selves against the Doctrine of Christianity . Such a Liberty do some Men take , with hopes of Impunity , of branding those Men , whom all Generations to come will praise , for shaking off that Yoke , which neither they nor their fore-Fathers were able to bear ; and must have entail'd Curses on their own Memories , had they suffered it to be entail'd on their Posterity .

This zealous Gentleman need not wonder , Pag. 1. or be impatient ( except as his Sores are rub'd ) at the bandying of this Non-resisting Doctrine to and fro in this distracted Kingdom , Pag. 1. till the Broachers of it , who first rais'd the Disturbance , if they have not the Grace to repent , at least have the Modesty not to boast of it , and to stile themselves the only good Subjects , Pag. 3. and good Christians ; especially till they leave off , not only censuring , but misrepresenting others , who , by a fair state of the Question , are they alone who are directly contrary to them ; which himself is elsewhere sensible of , when he says " of the direct contraries in all probability one is true ; Pag. 35. but the direct contrary to what they hold is not , that it is lawful for every Man to rebel when ever he thinks it necessary ; Pag. 2. much less when he pleases . Pag. 37.

Himself yeilds that non-assisting the late King was notoriously necessary for preservation of the Nation ; and what restrains others from judging when there is the like notoriety for resisting ? As he charges others with holding , that they may resist when and whom they please ; they may say that he is for not assisting in the like latitude , Pag. 37. and for cramping the Government , if he has not the Courage to attempt against it .

We may resist when the Original Contract is notoriously broken , and we must not resist when the Original Contract is notoriously broken ; are contrary and contradictory Propositions , one of which I grant to be true : But we must resist in no case , and we may resist in any case , Pag. 37. when every Man pleases , or , at least , thinks it necessary , are not Contraries , Pag. 2. but Extreams ; and 't is odds but the Truth lies in the middle , that we may resist in some case , which cries aloud , and justly stirs up a Nation , as with the Voice of God .

This Gentleman does not observe , that the Question is of one who ceases to be King , according to that of Bracton , non est Rex ubi dominatur voluntas , & non Lex , which is not barely his Opinion , but warranted by that noble Transcript of the Original Contract , the Confessor's Law , which shews , that if a King does not answer the true end for which he was chosen , he loses the Name , or ceases to be King , which was very well understood by J. 1. who told his Parliament , Vid. J. 1. his Speech in Parl. March 21. Anno 1609. that every just King is bound to observe that Paction made with his People by his Laws , framing the Government thereunto ; and a King leaves to be a King , and degenerates into a Tyrant , as soon as he leaves off to govern by Law . And thus the Protestants in Germany who resisted the Emperor , notwithstanding their Oaths of Fidelity to him , Hornii orbis Polit. p. 18. pleaded that they resisted him not as Caesar , but qua non fuit Caesar .

Our Author confesses that the late King notoriously subverted our Constitution , Pag. 2. did not treat us like English-Men , but Slaves , and says , all grant his design was certainly to extirpate the Protestant Religion , Pag. 16. to enslave , and consequently to extirpate the English Nation . And I dare appeal to Dr. Falkner's Christian Loyalty to try ours by in such case , Dr. Falkner's Christian Loyalty . where there was a manifest Renunciation of the Government as an English King .

And surely no Man of Sense will say , that such a liberty for resisting , as this Lay-Gentleman imputes to the Williamites , can be the Consequence of resisting such a Prince as he describes , and of exploding that Sycophantry which did encourage , and would support him ; or that the best of Princes can need the influence of that Doctrine , which hurried on the other to his Ruin : the insinuation of this is the greatest Reflection which can be put , not only upon the Friends of their present Majesties , but upon their Majesties themselves .

Tho some would have been so ungrateful to have sent his Majesty back uncrowned , after he had rescued them from their present Fright , which might soon have been laid with a few flattering Caresses ; the English Nation abhors such a Reproach : nor can their Majesties so far depart from their own Nature , to violate that Constitution which they have restored ; nor yet can the confuting their slavish Doctrine of Passive Obedience , Pag. 36. in the least derogate from that religious Awe and Reverence , which is due to Crowned Heads : tho it may remove that Bugbear and Mormo , with which some would fright Mankind out of love with them .

Nor can any good Prince's Crown be unsecure , by rejecting the deceitful Officiousness of others ; since nothing can hazard it , but such extravagant Actions as a well-dispos'd Prince can never fall into , and which by natural Consequence as well as Equity , provoke a whole Nation . The Laws make all Risings against the King punishable with Death , and therefore single Persons or Companies , in their sound Minds , will not attempt them , but when the Cause is so apparent , that they who suffer them to stand alone in it , do but invite and encourage Attempts upon the Lives and Liberties of all : But if , as often such there are , hot Men over-valuing themselves , or the Strength of their Adherents , will endeavour to destroy a good Government to raise their Faction , or accomplish some low Ends of their own ; the Prince has sufficient Security with the Laws and Hearts of his People on his side : And how strict soever the Laws are , 't is a vain thing to expect Safety from them alone , when any part of that Authority from which they flow , is render'd cheap , or invaded with an high hand . And they who think to get above all Law , will find their open Violations to give the same Freedom to others , which they take to themselves .

It ought , says the Lord Clarendon , Lord Clarendon's Survey of the Leviathan , p. 48. prudently to be consider'd whether People may not be very naturally dispos'd to use that Force against him , that declares himself to be absolv'd from all Oaths , Covenants and Promises : and whether any Obligation of Reason , or Justice , can establish the Government in him , who founds it upon so unrighteous a Determination .

As a judicious Person has well observ'd , The new Oath of Allegiance justified , Edit. An. 1689. sold by Ran. Taylor . If single Persons , or many together be injur'd by the Prince , they are oblig'd to suffer quietly , rather than disturb the Publick Peace , and in this case Passive Obedience is a Christian Duty , and is necessary to the Quiet of every Nation ; since the best Governours may by mistake injure some few ; and if they do so , that doth not break the Compact , because all the People collectively , or representatively , were but one Party in the Stipulation ; and therefore those Acts , by which a King must forfeit , are such as are likely to take away the Rights of the whole People , or aim at changing the Form of the Government , subverting the Laws : In such case Passive Obedience is not the Duty of a Community , who have Rights and Liberties secured by Law ; and for the whole People to stand by silent , and see that done , is the greatest Folly , and the highest Treachery to their Country and Posterity .

Doctrine of Non-resistance , p. 1. But as this Gentleman asks , What can the Friends of their present Majesties pretend to palliate their Contempt and Scorn of the current Doctrine of Passive Obedience ? Some would ask , whether he does not exclude himself from the glorious number of Friends ?

Nor will they be shy of affirming that he does so , when they observe , that he contends that they forgot their Duty both as good Christians , Pag. 3. and good Subjects , who declared for the Prince of Orange , his now Majesty , before the late King actually left the Nation .

Yet he seems not aware , that while he blemishes these , with setting up themselves against the Doctrines of Christianity , he condemns , Pag. 36. not only some of our Clergy , but the Church of England , for maintaining a Doctrine , which he does not deny to be destructive to the Constitution of our Government , and to Mankind : by which one would be tempted to think , that his business is , to make Men not only out of love with Crowned Heads , but with Christianity it self .

Pag. 36. As to particular Persons he confesses , that the heat of Controversy has misled some of the Church of England , to write too much in favour of wicked and tyrannical Princes , even to the encouraging them to do worse , than otherwise they would . Where he taxes their Doctrine of Non-resistance with encouraging Tyranny , and such excesses of it , as the Tyrant would not otherwise presume upon .

Pag. 31. Nor does he less condemn the whole Church . The Disloyalty , says he , of two other Parties have made the Church of England take into the contrary Extream ; and , as a Jesuit wish'd it might do her much good in scorn ; So she had like to have pay'd too dear for the pretence : and they who would now again sacrifice her to their Interest and Reputation , are , to speak softly , none of her best Friends . They pretend we have not suffered enough for our Religion to justify our Resistance , Why ? according to their Principles , we are never to resist whatever we suffer , but to suffer on till there is not one left to resist .

Herein I confess he makes a true Representation of that Principle which himself runs into so naturally , that he is not sensible of it .

But is not this by him judged to be an Extream to be avoided ? Does he not yeild that the Church of England has been made to take into this Extream , out of abhorrence to the other ? Nay , does he not in effect admit , that himself and others sacrifice the Church to their own Interest and Reputation , while , that they may justify their Extream , they condemn those who avoided both Scylla and Charibdis , in Making to an happy Port , along with our Caesar and his Fortune .

God forbid that it should still be Mens Interest to justify that Extream ! and let them enjoy the Reputation , of never acknowledging an Error , tho the most gross and pernicious .

But what a miserable Defender has our Church , which must needs reject such Doctrines and Defences !

This Gentleman pretends to have the Scriptures , Pag. 35. and all Primitive Antiquity on his side , Vid. inf . f. to which he would draw in the Church of England ; which upon a rational Construction cannot be thought to mean more than , that we are bound to obey the King 's Legal Commands , and not to resist him while he continues King : nor has that any thing against the Supposition of a Civil as well as Natural Death . And as to the two other Topicks , it is to be considered , 1. That the Scriptures meddle not with particular Constitutions , but give a general Rule for Obedience ( which is more than bare Non-resistance ) according to those Constitutions which are God's Ordinance , as he authorizes Human Laws , in Civil Affairs , not contrary to his own . And , 2. Pag. 3. This Gentleman himself sets aside all Primitve Antiquity when he confesses , that in those times the Religion was contrary to the establish'd Laws ; and so Men could not be persecuted for it against Law , at least not so as to come up to our case : especially if we take in what he acknowledges farther ;

The Roman Emperors , says he , under whom they liv'd , So Jovian , p. 85 , 86. Julian did persecute them legally , vid. p. 91. were absolute independent Princes , whose Will was the Law ; and the Constitution of the Empire differed vastly from that of England , so that we are not under the same Obligation they were ; because our Princes have not the same legal Power as the Roman Emperors had : but then I doubt not but we are as much bound to submit to the legal Commands of the King of England , as the Primitive Christians to the legal Commands of their Princes . But , says he , this was no part of the Controversy under the Reign of James 2. who had as little Law as Reason for what he did .

If this be not a giving up all Primitive Antiquity , I shall never pretend to understand how words ought to be taken .

Since therefore , neither the Scriptures , Primitive Antiquity , nor the Doctrine of the Church of England are against them , who embrac'd and assisted in the Deliverance which his present Majesty vouchsaf'd us ; it became not this Gentleman , who takes such pains to purge himself from having any hand in it , to censure those Worthies who had , as not behaving themselves like good Christians and good Subjects . Pag. 3.

Pag. 3. And to call them a few , is almost an equal Reflection upon the honour of the Nation , which has never been backward in freeing it self from Tyranny ; and was ready as a Man to act in this King's Service , before they were so just as to lay the Crown at his Feet ; nay , before Success had crown'd his glorious Enterprize : which almost all were eager to evidence as they had opportunity ; and I may say of many , with Mr. Cowley in his Description of Envy .

That the Body of the Nation were thus forward , is manifest in their declaring by their Representatives that the late King had broken the Original Contract ; which must have been before the Judgment pass'd upon it , or ortherwise the Judgment were not warrantable .

Pag. 25. When the Gentleman will allow of no Title in his present Majesty , but real Conquest over the Nation as well as the late King , and lawful , meaning lineal , Succession ; either of which Titles he supposes he may claim by ; he would do well to consider , 1. That he reflects upon the great Representative of the Nation , which founds it upon the others Misgovernment . 2. He sets it all aside , when he owns that this King does not claim by Conquest ; nor in truth could he be a Conqueror , who was not only invited by those who had a just Ascendant over the Minds of the People , but was pray'd for , and receiv'd with open Arms , by the Nation in general ; tho indeed such an universal Consent , with such Inducements from Gratitude and the common Necessity , ought to subdue all Scruples , as much as the most real Conquest .

And this Gentleman must yeild that our King does not claim as lawful Successor , if lawful be confined to Succession in the Line , not only as the Predecessor is alive , and two are invested with the Soveraignty annexed to the Crown of this Realm , which according to Dr. H. and others of that Notion , Vid. Dr. H. his Preface to Jovian , p. 41. is void and null ; but if Conquest ( which could be no Foundation for Hereditary Succession in the Conqueror ) be out of the question , according to this Lay-Gentleman's Principle , there could be no colour for the Succession , but a bare Desertion , or leaving the Kingdom without providing for the Government , which whether voluntary or involuntary he matters not ; and consequently , Pag. 6. as this might be forced and submitted to animo revertendi , that alone could not devolve a Right upon a Successor : Shall no Misgovernment whatever put an end to this Right , yet shall a suppos'd faultless Desertion ? How could any upon this Principle excuse the Attempts for restoring King Charles the Second ? Men cannot reasonably hope to serve their Party with Notions , which would condemn more of them than they can pretend to justify .

Besides , effectually to set aside the invidious Suggestion of a real Conquest over the Nation , and absur'd one of a legal lineal Succession , in such Circumstances as attend this Case ; his Majesty cannot be presumed to claim the Crown , but as he received it , nor to have receiv'd it but as it was offered , which was upon the Vacancy of the Throne , through the others Violation of the Original Contract between Prince and People .

But if , for the sake of an unreasonably disaffected Party , Men shall be allowed to reflect , Pag. 36. not only upon those , who being duly discharged from their Allegiance to the late King , assisted this from the beginning in settling the Kingdom ; but upon the Proceedings of our true Representatives , and the Settlement it self , for fear lest the exposing their Insolence and Folly should exasperate them ; it would argue that distrust of the Cause , which would be a greater Justification of their Insolencies , than they can derive from any other colour .

But if , as our Representatives have judged , and thereby concluded us , the Contract was broken before they determined so ; what ought to have restrain'd them , who were so inclin'd , and had opportunity , from meeting our Great Deliverer , as the Jews did Alexander , with an High-Priest , or Bishop in the Van ?

And they who leave wholly to Providence , what may require their Co-operation , deserve an Epicurean God , like unto themselves , meerly Passive , or unactive , while the World goes round .

Pag. 34. This Gentleman tells us , that as we had no disloyal Exhortations from Press and Pulpit to perswade Men to fight against their Prince ( tho he might have met with many a strong innuendo , enough to have stigmatized a poor Whig ) so neither had we any to pers●ade us to fight for him , but the thing was committed to God to determine as he thought fit ; and he says , if it were unlawful to resist him , Pag. 7. it was also as unlawful to assist him , and enable to destroy the true Religion , the English Liberties and Immunities , nay the very Nation .

Now it is evident , that if our present King had not receiv'd Incouragement from many in this Nation who had promised , and were ready to assist him as occasion might serve , the bare non-resisting the late King and his Army , had enabled him to destroy the English Nation , which 't is granted that he was bent upon ; and therefore assisting our present King was not only no Sin , but a Duty , by the same reason that it was a Duty not to assist the other .

But they who are of a contrary Opinion can by no means excuse themselves , for not fighting for the late King , or endeavouring to assist him , when he stood in need , and required it of them ; for if he continued their lawful King , whom they were bound not to resist upon any account whatsoever , according to this Advocate for the Non-assisters , they were obliged to obey all his legal Commands ; Pag. 5. and they were certainly equally bound as they would be true to their Oaths to bear him Faith and true Allegiance , and to their Power to assist and defend all Jurisdictions , Privileges , Preheminencies and Authorities granted or belonging to him , as King , or united and annexed to the Imperial Crown of this Realm .