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Appendix A: 'Considerations on the Nature of Oaths at Present'

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Appendix A: 'Considerations on the Nature of Oaths at Present' Appendix A: ‘Considerations on the Nature of Oaths at present’ When Lord North and Grey was arrested on 29 September 1722 the govern- ment found in his papers, in his study at Catlidge, a very interesting document written by him (A Report from the Lords Committees to whom the Report and Original Papers Delivered by the House of Commons at several Conferences were referred, London 1723, pp. 2–3). It was entitled ‘Considerations on the Nature of Oaths at present’ and is an analysis virtually unique in explaining the thoughts of a Jacobite who took the oaths in order to sit in Parliament. It deserves, therefore, to be quoted in full: At a Time when nothing is so common as Reproaches, and when Words are slung about by People who know not their Meaning, and one calls the other Perjured and Traytor, being Ignorant of the true Meaning of either of those Terms, it will be not unuseful, however not unacceptable, to say a little on the former Word, and explain what is Perjury: for the latter there are so many able Expositions of the Law ready to Interpret Traytor in the favourable Sense (I mean to the Government) that I my self, who will endeavour to keep as clear of the forum humanum as possible, do not know but that a Code of Conscience may be construed within the Stat. of 15 of Edward III and I to shew my Parts against Mr. Attorney and the King’s Council. I’ll conceal my self therefore, and, if I can help it, will stand no Tryal but in my own Country, a Place where Justice is practised, a great way off hence. But before I come to the Design of this little Tract, which is to explain what Oaths are obligatory, and consequently the Breach of what Oaths is Perjury, I cannot forbear observing how ridiculous the Reproach of Perjury comes out of the Mouth of my Britain that can remember 30 Years. They that thought the Revolution no breach of the Oaths of Allegiance, can they reproach any one with a Breach of these? But there are some People anti-Casuists, that think an Oath only obliges in unlawful Matters, that like a very Lewd Fellow that used to assert every Falsity with an Oath, saying a Truth could shift without it. But thus much, and perhaps too much, by way of Preface. Now to the Point. The Ingenious and Pious Dr. Sanderson defines an Oath to be a Religious Act by which God is called as a Witness to confirm a doubtful Matter; He likewise lays down five Hypothesis, of which I shall mention but the 3.4. and 5. they being only to our Purpose. 3. No Oaths takes away a Prior Obligation*. 4. What is impossible cannot oblige; now what you cannot lawfully do is look’d upon as impossible, id tantum Possumus; quod jure Possumus. 5. We cannot oblige our selves to do what is unlawful, for if it is an unlawful Thing which you were to do, the Perjury is in Swearing, not in breaking that Oath.* An Oath has an Obligatory Force with it, but not Destructive, but Constructive only; that is to say, it may bring a new Obligation where there was none before, or to confirm one that preceded it, but it cannot remove any Obligation that it finds already entered into, or superimpose other repugnant to it. He gives some Instances 244 Appendix A: ‘Considerations on the Nature of Oaths at present’ 245 the mutual Obligation between Man and Wife, Father and Son, Master and Servant, King and Subject. Thus far out of that great Casuist; which is enough to determine what Force the Oaths of Allegiance and Abjuration under the Present Powers can possibly have. I shall only therefore apply them to that Purpose. First, As to the Oath of Allegiance if there was no Obligation in the People of England neither by natural Duty to any other Prince, nor Antecedent Oaths to him and his Successors before the time of this Revolution, then the Oaths to King William etc., are certainly valid; but if the contrary were true, then according to the 3d Hypothesis the first Obligation remains in full Force notwithstanding the Oath. Again, if there are no Powers in the People to make a King, and if there be any Acts of Parliament unrepealed which declare the Subject to have no coercive Power o’er the King; nor even both Houses of Parliament; then tho’ you Swear to such a Person as King, it neither makes him such, nor obliges to any Allegiance, but comes within 4th Hypothesis. Whether the 5th Hypothesis is concerned in this Question will appear to any one who will examine the Law of Nations, particularly our own, and Declarations of Acts of Parliament of the King’s Rights (I mean a lawful Assembly of Kings, Lords and Commons) and if there he finds that Kings are subject to none but God, particularly the King of England; that the Monarchy is Hereditary, not Elective, and that either of both Houses of Parliament have no coercive Power over the King, why then to transfer Allegiance whilst the Rightful Monarch is in Being is unlawful; an Oath to that Purpose is consequently Invalid, has no manner of Force whatsoever against our natural Duty. But before I leave this Point, I must take notice how Dr. Sanderson answers an Objection here made, and shall Answer otherwise than he does; The Objection is, But not fulfil what you promise, is Perjury? Yes, (says my Author) but if the thing was unlawful which you swore, you were perjured when you took that Oath, not when you broke it. With all the Respect due to so great a Man, I think this Expression too Rhetorical for a Casuist, for there is need of both Tropes and Figures to make the taking of any Promisary Oath Perjury; I cannot agree with him therefore in this, that the Breach of such an Oath is Perjury; it is certainly a Sin and a very grievous one. God forgive them that shall take such; but I think cannot be called by that Name, for that which never carried any Obligation with it, the Breach of it cannot be Perjury; as in Marriage (a most Holy Vow) there is no setting aside the Contract (except for Cause of Fornication) without declaring it null and void from the Beginning, so in Promisary Oaths, except the Person sworn to so releases you and ut Supra, nothing can set them aside except they be null and void from the Beginning, as Prior Obligations, Impossibilities and Injustice makes them. The Committee of the House of Lords commented that it contained ‘several very extraordinary Reasonings on the Nature of Oaths; tending to prove that Oaths to the present Government are not obligatory but unlawful & a grievous sin if inconsistent with prior oaths and obligations’. Appendix B: ‘A State of England’ (RASP 65/16) Cornwall Strong in Tinners and Fishermen a bold, hardy and well affected people Lord Lansdowne chief Sir John St Aubyn of Clowance Sir Richard Vivian of Trelowren Alex. Pendarvis of Roscrow Mr. Williams of Truthern Mr. Basset of Redruth Mr. Tonkin of Treuanance Mr. Polekinham of Helston Mr. Hawes of Kellew Mr. Collins near Truro Mr. Paint near St. Columb Sr. Wm. Pendarves Mr. Macworth of Trevethan Mr. Killigrew of Falmouth Mr. Kemp of Kosteage Mr. Kemp of Carclew Majr. E. Salte of Penrice Mr. Rashleigh of Menebilly Mr. Goodall of Foway Mr. Grills Mr. Glyn Mr. Anstis near Leskard Captn. Gilbert Majr Nance Sr. William Carew near Saltash Sr. John Coriton Capn. Piper Mr. Phillips Coll. Whaddon [Dubious] Mr. Trevanion of Carhays Henry Scobel Mr. Nicolas Vincent Mr. Buller Mr. Trelawny Mr. Mannaton old Francis Scobel [Whiggs] Mr. Boscawen Mr. Williams of Trauaray Mr. Moile of St. Germin Mr. Gregore near Tregony Devonshire Numerous in Cloathiers and Manufacturers most idle at present and discontented 246 Appendix B: ‘A State of England’ 247 Sr. William Courtenay Mr. Day Sr. Coplestone Bampfylde Mr. Goold Sr. Nicolas Morris Mr. Elford Sr. Jn. Chichester Mr. Prescot Sr. Thomas Bury of Exeter Mr. Wolcombe Mr. George Courtenay Mr. Tothill Mr. Basset of Heaton Court Mr. Quick Mr. Northmer Mr. Champernoon Mr. Carew of Corelly Mr. Fownes Captn. Stafford Mr. Northleigh Lord Clifford [Dubious] E. Radnor Mr. Role of Ackueston Sr. Thomas Pitt Mr. Bulteel Sr. William Pole [Whiggs] Sr. Francis Drake Sr. George Chudleigh Mr. Edgecumbe Sr. Walter Yonge Mr. Treby Somersetshire A trading populous county wherein the number of honest people is by much Superior as in Bristol, Bath and Wells. E. Pawlett Mr. Bamfield of Hetercomb Sr. Wm. Windham Mr. Fownes of South Poorton E. Castlehaven Mr. Phillipps of Montacute Lord Storton Mr. Palmer of Fairfield Colonel Pratter of Frome Mr. Poo of Bridgewater Captn. Lansdown Mr. Farwell Mr. Horner of Mellis Captn. Farwell of Horsington Mr. John Horner his brother Mr. Newman of Northeadbury Sr. Jon Trevilian Capn. Fox of Bristol Sr. Phillip Sydenham Mr. Pye of Bristol Lord Lansdown’s credit is great here [Dubious] Mr. Brewer [Whiggs] Cap. Pigot Mr. Bubb alias Doddington Mr. Spike of Lakinton the magistrates of Bristol Glocester Shire Numerous in discontented cloathiers and manufacturers Lord Bathurst chief Capn. Burghe steward to the Lord Conway Duke of Beaufort Lord Tracy Mr. Jon. Barkley Mr. Jon Howe Coll. Pool Mr. Chamberlin of Mesbury Mr. Aylesse Mr. Masters of Cirencester Mr. Chester near Bristol 248 The Atterbury Plot Mr. Catelman of Cubberly Mr.
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