Antony Ascham

A discourse wherein is examined,
What is particularly lawfull during the confusions and revolutions of government.
Or,
How farre a man may lawfully conform to the powers and commands of those who with various successes hold kingdomes divided by civill or forreigne warres.

London 1648

 

Preface to the Reader

… The original and inherent rights of the society of mankind is that which I here search after - not those rights of this or that country of which there is no determined end; no, not betwixt the lawyers of any one dominion. That so finding out and afterwards holding to our own native rights as men, we may be sure we do others no wrong as subjects, be it either in acting with them or dissenting from them.

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Part I.

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As for the point of right, it is a thing always doubtful and would be ever disputable in all kingdoms, if those governors who are in possession should freely permit all men to examine their titles and those large pretended rights which they exercise over the people. And though this party's title may be as good or a little better than that party's, yet a man in conscience may still doubt whether he have limpidum titulum, a just title or clear right, especially in those things which are constituted by so various and equivocal a principle as the will of man is.

Besides, most governors on purpose take away from us the means of discovering how they come their rights. Insomuch that though they may really have that right to which they pretend, yet through the ignorance we are in of what may be omitted in their history (either through fear, flattery, negligence or ignorance) it is dangerous for us upon probable human grounds only, to swear their infallible right, as is showed in the following treatise of oaths. Upon this ground Tacitus saith well, Tiberii Caiique & Claudii ac Neronis res, florentibus ipsis, ob metum falsae; postquam occiderant recentibus odiis compositae sunt [The histories of Tiberius, Caius, Claudius, and Nero, while they were in power, were falsified through terror, and after their death were written under the irritation of a recent hatred]. And if the parties' rights be but one as good as anothers, then his is the best who hath possession:  which generally is the strongest title that princes have. A whole kingdom may be laid waste before it can be infallibly informed concerning the parties' true rights, which they require men to die for and avow by oath.

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The will of those who first consented mutually to divide the earth into particular possessions was certainly such as receded as little as might be form natural equity; for written laws are even now, as near as may be, interpreted by that. And from hence it is, that in extreme and desperate necessity, the ancient right of using things as though they had still remained in common is revived. 'Tis necessity which makes laws and by consequence ought to be the interpreter of them after they are made. Hence flows this legislative rule. Leges humanae obligant uti factae sunt, scilicet, cum sensu humanae imbecillitatis [Human laws oblige in the same way as they are made, namely, recognizing human weakness]. …
Though states punish those who out of mere necessity take something out of another's plenty, yet that proves not the act to be a sin or repugnant to equity or conscience, but rather repugnant to conveniency of state lest thereby a gap might be laid open to libertinism. Reason of state, we know, considers not virtue so much as public quiet and conveniency, or that right which is ad alterum.

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To assure our consciences of a justifiable obedience during the confusions or revolutions of war, it is best and enough for us to consider, Whether the invading party, just or unjust, have us or the means of our subsistence in their possession or no.

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Part II.

… And though the Roman state could pretend right, yet what can this Caesar pretend? Every man's conscience knows that it was but the other day he usurped over the Senate, in which resides the true jurisdiction of Rome. And if that were otherwise, yet how can he pretend to a title unless poison be pedigree, or violent usurpation a just election, by which he who is but the greatest thief in the world would pass now for the most sovereign and legislative prince? How then are we in conscience obliged to pay tribute to this Caesar? Though these lawyers thought in their consciences that they were not truly obliged to pay it, and that Our Saviour likewise as a Jew thought so too, yet they supposed he durst not say so much in the crowd nor yet deny it by shifting it off in silence, lest the Roman Officers should apprehend him.
But when Our Saviour showed them Caesar's face upon the coins and bade them render to Caesar that which was Caesar's, and to God that which was God's, his answer ran quite otherwise. Not (as some would have it) that by a subtlety he answered nothing to the point proposed … 'Tis beyond all cavil that Our Saviour's opinion was positive for paying of tribute to that very Caesar, because de facto he did pay it. And the plain reason of it appears evidently in this his answer:  Caesar's face was upon the coin, that is to say, Caesar by conquest was in possession of that coin by possessing the place where he obliged them to take it - coining of money being one prerogative of sovereign power.

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In government it ought to be most prudently cautioned that a society or state raffle not out into a dissolute multitude. For in confusion there is a rage which reason cannot reclaim and which must be left to calm and settle as waves do after a tempest both upon themselves and of themselves.
This confusion arises most out of the reflection which particular men may make on their particular rights and liberties, which may perhaps may lawfully belong to them, but are not always convenient for them to have - no more than knives and daggers are for young children or distracted persons. Libertas enim singulorum erit servitus omnium [For the liberty of each will be be the servitude of all]. Besides it takes away all future intelligence and breaks a crystal glass which can never be pieced again so finely as it was, but ever after will show broken and angry faces.
We think our service here very hard being on every hand exposed to perpetual combats, and fain we would meliorate our condition by experimenting whatsoever presents itself first to our pressures; but in vain. For like men in fevers we may change the sides of the bed but not our temper.
The state of monarchy is of all the rest most excellent - especially when it represents God's dominion more in the justice than in the singularity of the governor. But because there is no prince who is enabled with prudence and goodness any way so great and sovereign as is his power, therefore he cannot but commit great errors. And standing on the people's shoulders, he makes them at last complain of his weight and of the loss of their liberty which is always their desired end.
Aristocracy stands like a moderator betwixt the excellency of kingly and popular power - but this mixture oftentimes produces monsters. The bloodiest commotions that are happen in this state, though esteemed most temperate, just as the greatest storms are formed in the middle regions of the air and in those seasons of the year which are least sharp. No one part of a state can be strengthened but by cutting the sinews of another. Sed spoliatis arma supersunt; Juve. [The plundered are still armed]. And impotency, representing at the same time both misery and scorn, takes life even in despair, and if it cannot be beholden to the relief of an enemy will make the public ruins of a kingdom its grave. Take away arms and liberty and every man is without interest and affection for his country; invade his goods and the fountain of a treasury is immediately dried and he as soon made a beggar. And after these distresses, as Machiavell saith, He will not lament so much the loss of his public parent as of his private patrimony.
Democracy reduces all to equality and favours the liberty of the people in everything. But withal it obliges every man to hold his neighbours' hands. It is very shortsighted - permits everyone in the ship to pretend to the helm, yea, in a tempest. Through policy it is oft constrained to introduce all those desolations whichought to be feared only from envy; and at last blinfoldedly gets such falls that it scarce hath force enough remaining to raise itself on its legs again. It hath swing of liberty large enough but such as is not proper to cure its own distempers, seeing it is very dangerous for a man (when he may have other choice) to be both patient and physician to himself.
Finally, if this supreme power falls into the hands of a heady and unconstant multitude, it is lodged in a great animal which cannot be better than in chains. This is the circle which we so painfully move in without satisfying our desires. And no wonder, seeing nature in every part is sick and distempered and therefore can find rest in no posture. Human laws grow out of vices, which makes all governments carry with them the causes of their corruption and a complication of their infirmities. And for this reason they are ever destitute of virtue, proportionable to the deviations of our crazy complexions, just as the statues of Trajan's gods were disproportioned to the gate of his temple, out of which (as Apollodorus told him) they would not be able to get, if he should at any time stand in need of their assistance.
Yet in the midst of these our shiftings and changings, we are naturally inclined to one sort of government more than to another. And it is observable both out of the histories of the former monarchies and out of the modern state of the world, that the eastern and hot countries which lie under the course of the sun are most disposed to the state of monarchy, as in the large extents of Persia , Turkey, Africa, Peru,  and Mexico; (in which latter quarter of the world, the people who have experimented both are governed better and more contentedly by the Spaniard or Portuguese than by the Hollander, who are by fits in the excesses of kindness and cruelty). But in Europe and so nearer the pole, countries are disposed more to republics and popular mixtures, tempered according to fundamental laws and the authority of Diets and Senates. Nec totam servitutem pati possunt, nec totam libertatem. Taci. [They can endure neither complete servitude nor complete liberty]. For this reason some vainly say that the northern quarter of the world is always more embroiled in civil war than the eastern. For though such fundamental parties in their societies seem to confine as it were on a battle ground, where a gap is open to usurpations and to snatchings from one another, yet the supremacy and ultimate result of power in such states is so defined and lodged that they provide more effectually for the stifling than for the growth of ambition and tyranny. Seeing therefore this tempest which we live in is like to be perpetual the best way to sleep in it (as Our Saviour did in his) is to quiet all within rather than unnecessarily to dispute anything without. And to consider that we are now in faece mundi [in a world of excrement] that we can turn to no sort of government which hath not in the very constitution of it, a power to wrong us in all the parts of distributive justice, reward and punishment.

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… A man cannot by oath or any other way be obliged further to any power than to do his utmost in the behalf thereof. And though the oath for the right magistrate be taken in the strictest terms of undergoing death and danger, yet it is to be understood always conditionally as most promises are, viz. if the action or passion may be for that power's or prince's advantage. Let us take the case as we see it practiced. In an army each man is or may be obliged by oath to lose his life for the prince whose army it is rather than turn back or avoid any danger; such an oath is called sacramentum militare. This army after having done its utmost is beaten. And now the soldiers can do no more for their prince than die - which indeed is to do nothing at all but to cease from ever doing anything either for him or themselves. In these straits, therefore, it is not repugnant to their oath to ask quarter or a new life; and having taken it, they are bound in a new and just obligation of fidelity to those whom they were bound to kill few hours before. Neither can the prince expect that by virtue of their former oath to him, they should kill any in the place where their quarter was given them. They who live under the full power of the unjust party may be said to take quarter and to be in the same condition with the former. And so have the liberty to oblige themselves to that which the prince now cannot but expect from them, viz. to swear to those under whose power they live, that they will not attempt anything against them. …

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§§§

 

 

The Bounds & Bonds of publique obedience
Or
A vindication of our lawfull submission to the present government,
or to a government supposed unlawfull, but commanding lawfull things

London 1649

 

… As for the will of the major part of the people, how will the Demurrer prove that they had not rather obey this present power than seek to be rid of it by the hazards and calamities of another war. They usually look after nothing but their rents, markets and reasonable substances, they are the luxurious and ambitious part only which pretend to new troubles. The people's question thereof is not how the change was made, but an sit - whether it be changed or no? For if according to its formality, that be not rightly done, it concerneth not their consciences (no more than the thunder of lightning over their heads doth) which are things totally out of their power; much less may they lawfully desolate neighbours for them.

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… That seeing the old form of this state, as it was in the supremacy of King, Lords and Commons, hath in that relation ceased to be and is civilly dead, not being able any longer to act anything; and that a civil body as well as a natural one cannot live without a head one day. It follows then by this position that the regal government is gone and that we are in the state of a republic - no other power now informing or actuating us beside that which pretends to such a state, And where, I pray you, is that to be found now but at Westminster?

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It is easily granted, That a man may not marry another woman so soon as his wife falls into a swound. But you must again be reminded that the nature of marriage and of government differ extremely there, where you suppose them most to agree. For marriage is not always necessary to every particular man. But the public body of a people cannot be without government one day - no more than a man can be without a head because a small time serves to the ruin of a man. Secondly, to take this or that woman to wife is a thing of free choice, but it is not so always with the people in relation to kings, who have many of them committed great rapes upon them, as I believe this gentleman will acknowledge.
A woman may not marry another husband whilst her first is in captivity and willing to come to her if he might.
These cases of marriage still make a very bad parallel with our present case. For first, we have been taught by all parties in this war that a king of England is not as a husband to the people of England. For a husband is he alone who makes and abrogates the laws of his own family as a right of his propriety, which a king of England could not do alone in this state. Secondly where was this prince ever crowned by which this author means solemnly married to this state? Where was the benedictio sacra [sacred blessing], the anointing or oath of contract taken by him? I am sure the Covenant hath made no provision for him. …
… should a stranger come to another's wife and call himself husband (having before either imprisoned or slain the rightful husband) and require submission, surely though she might be forced yet it were a sin to submit to him thus as a husband.
I answer, to submit in adultery is a plain sin, but for a woman to submit in lawful things to the power of a stranger is no sin, though he please to call himself her husband or exercise the government of the family. There is the same mistake of husband here as in the former, so that the argument built thereupon of itself falls to the ground.
But if by this he means that in matter of supreme command, we of the people may not obey any but the husband or the king, why then did the Presbyterian party for so many years and not totally submit to their now supposed husband? Why did they comissionate so many thousand men who by accidents of war had the power though not the chance to kill him? Nay, in the Parliament's case, it was always conjointly argued by them that it was he (the husband) that would have killed them (the supposed wife) for which reason the Kirk of Scotland long ago sent him a bill of divorce unless he satisfied for the blood of three kingdoms. …

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… But in our sense of plenary possession, which was the case of the Apostle's time, we can easily see first how our present power is the higher (the whole kingdom now receiving all law, protection and subordinate magistracy from them), and how they may in lawful things be obeyed according to the same Apostle; and to the duty of our creation and being in this world.

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I conceive (according to what is already proved) that nothing can be found either more consonant to Christian charity or to the preservation of states than this our principle of obedience. Besides, he knows no country in the world where people do not obey upon this same plenary possession - allegiance always relating to protection. And if according to his consequence, we should suspend all obedience until we have infallibly found out that person who derives a known and undubitable right from him who was the first in compact (because according to these authors intermediate intrusions are violations of rights and may not be obeyed even in things lawful) then, I pray you, of what can we resolve less than certainly to extirpate one another? which will come to pass ere we find what we search for in such a blind scuffle. And for fear of doing a lawful thing under the inspection of one who is supposed to have done another thing unlawfully, must we resolve of doing all unlawful things by wars ourselves, and desert unnecessarily the cares of wife and children, of church and neighbour?

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Philosophers hold that the definition of  a man belongs to an infant as well as to one of many years, because after the organization of the parts, he is informed with the same principle of life and reason as a grown man is and, having the same form, is the same thing. Even so, the present power hath possessed all the parts of this kingdom, gives them life in the administration of public justice and protection, which are the soul of a state. And the power which preceded this, what did it infuse more vital than this? And now that that is taken away, if this other did not presently enter into its place, , the commonwealth were dead and each man were left in his naturals to subsist of himself, and to cast how he could in such a state of war defend himself from all the rest of the world - every man in this state having an equal right to everything.

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But, I pray you, what do people get when wars for recoveries of dubious rights are long and calamitous? What are the people of France or the people of Spain better for the long and hereditary anger of their two kings? Or what was the world better for Alexander conquering it?  The houses which are burnt and the millions of bodies left dead in the field are the people's and princes - scorning to derive from them - still trample them to dung. We talk of some titles wronged as if their rights were so certain and so necessary to live under as God Almighty's is, who yet disposes of the changes which are made here among his chief officers, and not we. Who is it then that can right wronged titles, but he alone who makes all titles right?

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[Spelling and punctuation modernized]

 

Antony Ascham (ob. 1650) was educated at King's College, Cambridge. He was tutor to Charles I's son, James. In 1650 he became parliamentarian ambassador to Spain, but on his arrival there was assassinated.

Juve. = Juvenal Satires VIII :
[But above all,  ‘Be careful to withold
Your talons from the wretched and the bold;
Tempt not the brave and needy to despair;
For, though your violence should leave them bare
Of gold and silver, swords and darts remain,
And will revenge the wrongs which they sustain:
The plunder'd still have arms.-- ]

as Apollodorus told him = The story is given in Cassius Dio's Roman History, Book 69, 4 (where it is Hadrian whom Apollodorus teased this way at the cost of his life).

Taci. = Tacitus, Histories 1.16.28 - The Emperor Galba told his successor that "You have to reign over men who cannot bear either absolute slavery or absolute freedom."

Saviour in his = Luke 8:22-25

swound = swoon

this prince = Charles, Prince of Wales. He did not rule in England until 1660, but Royalists believed that he succeeded to the throne immediately on Charles I's execution in 1649 ("the king is dead, long live the king").

Apostle's time = When Saint Paul wrote his Epistle to the Romans exhorting obedience.