establishing his Conscience if he be a Justice of the Peace whether Lord Knight Mayor Alderman or Gentleman I must not wish any Body to seek it from that Book Of which as the Bookseller then did not name the Author I will not now rake up the Title Only the Distress of many Serious Conscientious Pious Gentlemen that are or at least have bin or may be called to this Office in regard to the Taking and Keeping that Oath which is then put upon them in which Case the tender Constable also may be included in regard to His does require a more Candid determination In all Oaths that are Promisory we are to know there are some Conditions to be supposed or understood as the Ground of the Lawfulness of such Oaths which else could be nothing but Snares to any good Men that took them I do not think it easie presently nor needful to reckon up all such Conditions But as for the Execution of the Laws of the Land unto which the Justices Swear there is this One most certain viz. That these Laws still be Executed in Subordination to the Supream Authority There are several things might be Instanced which a Justice is to do according to Law when upon Command from Above he is to Surcease His Authority is Subordinate to the King and the Laws to Almighty God. God now is the Supream Authority in the World and consequently there is no Man takes such an Oath to see the Laws Executed but it must be understood with Subordination to the Authority of Heaven as that of the King. If therefore there be any thing in the Laws of the Land that will not stand with our Duty to God according to the Law of Nature or his Revealed Word the Justice is to be supposed that he Sware not to Execute That but this Salvo is to be understood in his Oath Saving the Rights of God Almighty no less than those of the Crown The Ground of this does lye a little more deep than every one at first sight does see which is That every thing that is such is not indeed Law. That which the Justice Swears to Execute is the Law But if this or that particular thing enjoyned by Man be disagreeable to the dictates of Nature or the Scripture which both are God's Will such a thing cannot be made Law is no Law and he is to look to himself as not Sworn to perform it I suppose the Justice will readily give his Ear to this and it is thus confirmed Power is a Right to Command This Right is the Grant of the Superiour Authority God is Supream of All. He does not grant that a Man or any Men should Command what he Forbids Whatsoever then is disagreeable to his Will cannot be Commanded that is cannot be Law and the Justice Swears only to Execute Law. I remember a great while agoe I applied my self to a Justice to deliver a Quaker out of Goal I found him willing heartily but he believed he might not for fear of his Oath I went away not daring if he thought so to press him any more to it but I thought upon it I considered it was a hard thing that Men by the Law should be Imprisoned and kept Year after Year only for their Perswasion I considered again that Goodness which makes Men like God the Rule of Righteousness Quod tibi non vis fieri alteri ne fieris the Law of Love and the Duties especially of Mercy Kindness Gentleness which Christ requires of his Followers did prompt to acts that are Contrary I resolved then if the Law required one thing and Christianity or the Law of Nature another the Law of God must take place and no Oath consequently could bind against God's Commandment is to be Exercised And the Issue perhaps will come to this That according as he believes the sparing or not sparing such made Faults that is Faults of Man's making by Law upon such extrinsical accounts and not God's to be conducive to those ends if they be good he is to be guided in his actings Saul binds the People with a Curse That they shall not Eat till the Evening Jonathan knowing nothing of this Eats and upon Lot and Discovery is Commanded to be Slain The People for all this Oath will not Execute that Law or Command but save Jonathan Now look what would justifie the People in refusing Obedience to that Oath will acquit the Justice who upon the same account for all his Oath does not Execute some Law of the Realm The People thought it a rash Determination an unreasonable Sentence and a Sinful Command against the Sixth Commandment that the Innocent should be Punished It had been Murder if they had pursued the Oath And upon that account we are to judge Saul reproved of his unadvised Curse and he bound to Repent but no body to Execute what he had Sworn And yet all of them nevertheless bearing still the same Faith and Allegiance to the Anointed of the Lord. If you desire more than this I will distinguish in the next place between the Law and the Reason of it the Letter of the Law and the Purpose of it according to which it receives its Construction If a Justice of Peace does act according to the Intent and Reason of the Law I do apprehend he does perform his Oath better than if he rigorously stood upon the Letter Nay he may contract Guilt upon himself in the One when he shall not in the Other The Laws now against the Dissenter I apprehend to stand in general upon this Reason They would have them come to Church and secure the Peace of the Nation If a Justice then apprehend that the using of Rigour will but drive more from the Church and enkindle disturbance I ask Whether he be most obliged for the observation of his Oath to Forbearance or Prosecution Severity it is true hath been found a little of late as it so happened to have done something But at another time with other Persons where the Conscience is Steeled it hath done and it can do just nothing unless where it is Over-Cruel and that makes Desolation and at long running doth but widen the breach Solitudinem faciunt pacem vocant Again Though the Law pass in Parliament the Executive part is committed to the King. I will suppose now a Prince to be of the Mind that Tenderness is like to be more conducive to the Good these Laws design than Violence or to be in his Judgment against Persecution I ask then Whether the Justice who acts under the King might not satisfie his Conscience in this That he shall according as he Judges by Indulgence rather than by Rigour best comply with the Will of the Supream Governour I remember well in the time of the late King That I my self once heard Him with my own Ears declare at Council-Board and that Solemnly for he rose up saying so That He was against the Persecuting any for their Consciences
present and justifies this Plea. In the Oath which the Justice takes for the Executing his Office the words run thus You shall do equal Right to Rich and Poor after your Cunning Wit and Power By which Word Cunning continued from Antient Use I understand not so much according to the best of a Mans Skill and Knowledge of the Law which is comprised rather in the Word Wit But according to the best of his Discretion Wisdom and Prudence which includes 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i.e. Candor Moderation in Cases that require it That is You shall well and truly do trary to the Law of Nature and Reason lose their force and are no Laws at all Finch's Law p. 75. The Law of Nature and Reason is unchangeable and perpetual and no Statute can prevail against it Doctor and Student p. 4. Constat profecto ad salutem civium vitamque omnium beatam conditas esse leges says Cicero Ex quo intelligi par est eos qui perniciosa populis jussa descripserint quodvis potius tulisse quam leges in his two excellent Books De Legibus which have indeed given the first Light to all things almost which our Divines and Lawyers have said well on this Subject I will add St. Augustine and turn to no more Mihi lex esse non videtur quae justa non fuerit De Lib. Arb. l. 1. c. 5. After these Testimonies it is yet needful I explain the thing a little more for which I bring them When I say therefore That a Command or Law made against Charity Righteousness the Publick Good is No Law I understand not but that any Bill which passes the Houses and the King is a Law or Statute of the Realm that is a Law in Foro Humano in Mans Court or at the Bar in Westminster and if any Justice will Execute it the Outward Publicum And consequently if a Law prove otherwise or is against the Common Good it must be supposd also That such a Law is devoid of their intention or is not according to their Will and so does not bind the Conscience even upon a double ground both because it is destitute of the Authority it should have from God and its Authority from the Will of Man also upon the account already given If any Man now rise up again with a But who shall be Judge he may return to his Seat unless he choose to be a Bruit seeing every man according to the Religion of Protestnnts must be allowed a Judgment of Private Discretion to be his Guide in all which himself acts And if when a thing is commanded him he must judge whether it be agreeable to God's Word which is so much harder how much rather whether it be aggreeable to Right Reason which is the Law of Nature and the Common Good There were two Laws made in the latter Long-Parliament One about Burying in Woollen and the Other about Waggons Neither of which were at first regarded But the Woollen Act being found good for the Publick was renewed and is observed but the Other not being so is neglected that is as to the number of Horses very frequently but as to the breadth of the Wheels altogether I ask now Whether the Waggoner that makes no Conscience how many Horses he puts in his Waggon no more than of the dimension of his Wheels and breaks this Law does sin in it If he does seeing he does it every day and continues without amendment how can he be Saved If it be no Sin because the Common Good supersedes the Law I ask Who then is Judge whether this Law be for the Publick Good or not It is plain the Man himself finds the Inconvenience of it and he judges what is good for his Waggon and can do it better than they that Passed the Act and so orders his matters accordingly Suppose then an Informer comes to the Justice and Swears against him the Justice may Punish him if he will but he judging it no ways conducive to the Publick Advantage as well as the Waggoner at least not so much as can countervail the private damage of the Poor Man lets him go Here the Justice of Peace does judge of the Law in regard to his Execution of it and the Waggoner put Fear into the Heart of Man to be the Instrument by which his Vicegerents Govern the World. And now having stated the Case I took in hand as near as I can to my Mind I will suppose the most of such Gentlemen who are in Commission for the Peace if they may choose would be willing to live quiet with their Neighbours and if they may enjoy Their own Consciences be loath to vex others about Theirs but yet That there are some of another Make who either out of Hatred to the Conventiclers or Zeal for the Church or Sense of their Office or Instigation of Others or put upon it by some Informer are still for the Executing the Law against the Dissenting Meeter I must therefore take upon me to argue a little with the Justice of this sort and ask him two Questions What a Conventicle is and In what Manner he will proceed For the former The Act against Conventicles declares against all Assembling under Colour or Pretence of any Exercise of Religion in other manner than according to the Liturgy and Practice of the Church of England And the Oxford Act describeth such Meetings as under Colour of any Exercise of Religion are contrary to the Laws and Statutes of the Kingdom It is not all Meetings then of above Four that are not of the same Family to perform a Religious Exercise are Conventicles but such as can be proved to be in other manner than according to the Liturgy and Practice of the Church or are contrary to the Laws of the Kingdom The Church and Law now of England does own the Word of God and Gods Word commandeth Religious Exercises at home and abroad as well as Church-Worship Christ Prayed and Preached on Mountains in Houses in Ships and so did his Disciples Cornelius called together his Kinsfolks and Friends to hear Peter The Apostle commands To Exhort one another daily and to consider one another to provoke to good Works The Thirteenth Canon requires all Persons to Celebrate the Lords Day not only by Publick but Private Prayer Confessing their Sins Reconciling themselves Charitably to their Neighbours and using all Godly Conversation Queen Elizabeths Injunctions 1559. allows a Minister at all times when necessity requires to comfort his Flock with the lively Word of God which is the stay of Man's Conscience Moreover The Church hath appointed the Psalms in Metre for Private Houses Forms of Prayer bound up with the Bible the Practice of Piety Nowel's Catechism Jewel's Works to be kept in every Parish where more than Four may Read them If more than Four or Forty meet to Feast together the Church and Liturgy forbids them not to give Thanks for their Meat no nor to Pray
Jesus Christ and his Apostles had not so much Justice These are things that the Justice who is of the Prosecuting Perswasion is to think upon and if he be a London Justice there is one thing more to be put to him There are at least a Hundred or two Hundred Thousand Souls in the great Parishes in and about London more than can hear in the Churches I ask him now Would you have all or half these Persons to live as Atheists and Worship God in no manner at all in any Congregation or would you not If you would not Why do you Prosecute them for going to Private Meetings when they cannot come to the Publick in their own Church which will not hold them If you would I desire Sir then very fairly to have done with you for it were better to have to do with a Mahometan than with a Christian of such a Mind After this I must return to the state of our Case to touch it again in the main Point If any Law of Man be inconsistent with God's Will either manifestly by the Light of Nature or Scripture such a Law should not have passed by the Law-giver and is not to be Executed by the Inferior Magistrate or observed by the People But if the Matter of a Law be such as is of an indifferent Nature and all Circumstances considered it does appear doubtful and difficult to us what we are to do There is some Rule to be laid down on necessity to walk by or we are at a loss Now as God hath given us a Rule in Matters of Religion which is the Scripture by which we are to judge and try what is to be Believed and Practised therein and every Man 's own Private Judgment or Conscience must be the Discerner of it And as in Moral things He hath given us the Dictates of Reason for our Rule So in Matters that are Political hath He given us our Rule or Test also which is the Publick Vtility for the Apostle speaking of the Higher Powers that give Laws or Supream Ruler does tell us That he is the Minister of God for our Good as I have noted and Man being a Creature endued with Discernment by his Rational Faculties he is to attend and compare such things with that Rule And as they agree or not agree thereunto he is to Pass to Execute to Obey a Law or Not to do it accordingly This is a Truth I am perswaded or Light that I have struck out of the Collision of many Thoughts and do propose it therefore as Tasted Clear Fixed and Established to Others When a thing now to proceed upon it is really against the Common Good or a Man so judges his Judgment not being the Rule it self but the Discerner of it such a thing at least to that Man is never to be thought to have the Authority of God as that Religion hath none of it which hath not Foundation in Scripture nor indeed the Intent of Man this Publick Vtility being the scope of the Law-giver or which ought to be in all his Laws as hath been before signified and settled And consequently whether it Be or be Not so as whether it Be more predominantly or Not agreeable to God's Word is for the most part therefore the chief point to be inquired into as to the Obligation of Conscience in these matters Any Man may be made to do the thing for fear of Wrath whether Justice or People So that if the Supream Power will have it they must do it or Suffer all Resistance being forbidden and as for the Law it is all one whether a Man act out of Conscience or not so long as it makes him do it But if a Man really in his Soul does judge the thing Commanded to be against the Common Good the Justice that Executes not that Law and the Man that Obeys it not if they can escape with Man are not obliged for Conscience-sake even as when they think it against God's Will for God's Will indeed is that Men should Rule only for our Good so as they need think by that Omission they Sin against God. I pray note all the way I speak still not of what is safe in point of Law but of what is Innocent in point of Conscience And when I allow a Private Man to judge of a Law whether it be for the Publick Good or not this is not to have a hand in determining the Question Whether I am obliged or not to obey it under the Penalty of the Law but under the Guilt of Sin and God's Judgment Neither must I forget to distinguish from that well Studied Divine Dr. Field upon the Church between Subjection and Obedience and consequently between the not Obeying a Law and Resisting of Authority the latter whereof is made always Damnable by the Apostle and the former is Good or Evil or Indifferent according to the Matter required with consideration of the Circumstances a Man is in And though I am perswaded as to the point of Obedience that when a Law is unprofitable that is when a Man does Impartially judge the Matter Commanded not to be conducive to Publick Benefit or at least if he truly judge the same to be against it such a Law does not such a Law cannot oblige the Inner Man which all wholsom Laws I hold do any farther than to avoid Contempt and Scandal Yet do I in the point of Subjection hold and maintain and am ready so far as it may concern me to declare That I hold it unlawful for any Subject or Subjects to take Arms that is Levy War against the Authority of the King that is against the Supream Executive Power which God hath committed into his hands according to the Constitution of this Realm whether as Residing in his Person or issued out from Him to any other Person or Persons by his Commissions upon any Pretence whatsoever Which I do declare the rather because I am out of doubt that those they call Nonconformists as well as the Conformists who understand themselves on both sides however it comes to pass that One Party of them are scrupled for want of but so little Explication as this is are perfectly reconcileable on that Point To conclude The Law in such or such a particular Case requires the Justice to act against the Common Good What must he do then I speak not of what he may choose to do in point of Prudence which in case a Law is directly against God's or so extreamly to Publick hurt as quite over-ballances our Sufferings is not to be consulted but of what he is bound to in point of Conscience And every one I think will give this Answer That the Superiour Law must have still the Preheminence unless there be something particularly to be alledged in regard to that Matter which is not exceptionable in the Case if it be against God's Word He must himself judge in referrence to his own Act or he acts as a Beast and Punishes as an Horse strikes And he is also the Minister of God under the King for the Peoples Good. This is the very End Of Magistracy it self Of the Laws Of the Execution Consequently the Common Good Salus Populi being the Supream Law whosoever he be that sincerely seeks That whether he Executes or Forbears a Statute he is he must be in the Forbearance or Execution thereof upon that account the best Minister Of the Laws Of God and Of the King Princeps est Dei imago Lex Principis opus Finis Legis Justitia Ex Justitia Communis Salus Deo Gloria FINIS ERRATA PAge 9. Line 8. for fieris read feceris p. 20. l. 7. for prevent r. pervert p. 45. l. 3. for are r. may be p. 57. l. 9. for forbid r. forbad