et Dominationem Potestatem c. than this Discourse of Fortescue is 2. Another Reason which he gives why the King is Irresistible in all Cases is Because he is a Sovereign and it is essential to Sovereignty to be irresistible in all Cases Which is false For the King of Poland is a Sovereign He coins Money with his own Image and Superscription upon it which according to our Author p. 50. is a certain Mark of Sovereignty and p. 51. by the very Impression on their Money it is evident that he is their Sovereign Lord He stiles himself by the same Grace of God with any King in Christendom and wears the like Crown He assembles Dyets he disposes of all Offices he judges the Palatines themselves and is full of the Marks of Sovereignty And yet he that shall take a Polish Peny and make such work with it as our Author does with the Roman Tribute money and out of it read Lectures either of Active or Passive Obedience in all Cases will read amiss For in case he break his Coronation-Oath they owe him no Obedience at all of any kind for this is one Clause in it Quod si Sacramentum meum violavero incoloe Regni nullam nobis obedientiam praestare tenebuntur So that in case he violate his Oath his Irresistibility departs from him and he becomes like other Men. 3. A third Reason is Because the Iewish Kings in the Old Testament and Caesar in the New Testament were Irresistible in all Cases Now that is more than I know and I leave it to Divines to examine whether it was so or no as also to enquire why the Christians of Nero's Houshold did not shew their Loyalty in defending their Master after the Senate had pronounced That he was Hostis Humani generis But this I say That if they were thus Irresistible and if this be a good Argument here it is a good Argument in Poland and thither I would desire our Author to send it by the next Shipping for the Law of the Land has furnish'd us with those which are much better I come now to the second Case which as I said before is resolved under the covert and countenance of the former That as well inferiour Magistrates as others imploy'd by a Popish or Tyrannical Prince in the most Illegal and Outragious Acts of Violence such as cutting of Throats c. are as Irresistible as the Prince himself under pretence of having the Prince's Authority to do these Acts and must be submitted to under pain of Hell and Eternal Damnation Now this Resolution is very false which I shall shew 1. By confuting all the Reasons which are brought for it and 2. By producing some Reasons against it His Reasons are 1 st A Personal Authority in the Prince antecedent and superior to all Laws which makes himself inviolable tho he trample upon all Laws and exercise an Arbitrary Power and makes all others inviolable under him who act by this Authority But I have shewed already that this Personal Authority is false and groundless and that the King is inviolable by Law and that this Prerogative is highly just and reasonable and can never prejudice the Subject for the King can do no wrong And it is plain that he cannot give such an illegal and miscalled Authority to others if he have it not himself To shew that the Authority to which we are bound to submit is not in Laws but in Persons tho acting contrary to Law he has brought this following Argument which is the most laboured of any in his Book Nay it is very false and absurd to say that every Illegal is an Vnauthoritative Act which carries no Obligation with it This is contrary to the Practice of all Humane Iudicatures and the daily Experience of Men who suffer in their Lives Bodies and Estates by an unjust and illegal Sentence For the most illegal Iudgment is valid till it be revers'd by some Superior Court which most Illegal but Authoritative Iudgment derives its Authority not from the Law but the Person of him whose Iudgment it is Now to use his own words this is very false and absurd all over For 1 st Legal and Authoritative are all one and Illegal Authority is in English unlawful lawful Power 2 dly It is not true That an Illegal Judgmen is valid till it be revers'd For the Judgment of a Man to Death in an Arbitrary way either contrary to the Verdict of his Jury or without a Jury is not Authoritative nor Valid at all no not for an hour But I suppose by Illegal Iudgments this Author means legal Judgments which have Error in them and if these should not be Valid and stand Good till that Error be found in some Higher Court there could not be Legal nor Illegal nor any Judgments at all but all humane Judicatures must come to an end For if Judgment cannot be given till we have Judges who are not subject to Error the Laws must lie by and rust and there can be no Administration of Justice 3 dly The Authority of a Judgment which is Erroneous is not from the Judges Personal Authority above the Law nor from his mistakes beside the Law but from that Jurisdiction and Authority which the Law has given to Courts and Judicial Proceedings which if they be in due Course oâ— Law are legal and are presumed to be every way right and as they should be and free from Error tilâ— the contrary appears in some Higheâ— Court. But if the Judges in Westminster-Hall should use a Personal Authority superiour to Law in judging Men to Death without a Jury or in condemning a Man when his Jury acquits him or the like the Law having given no Authority to any such Proceedings these Judgments would be illegal and void and have no Authority at all And herein I say no more than this Author himself has said in another place For where he professedly lays down the difference betwixt an Absolute Monarchy and the English Constitution pag. 208 209. he has these words An Absolute Monarch is under the Government of no Law but his own Will and is not ty'd up to strict Rules and Formalities of Law in the execution of Iustice but it is quite contrary in a Limited Monarchy where no Man can lose his Life or Estate without a Legal Process and Trial. But thus do men contradict themselves who write by rote and without considering things and thus does their blind Passive Obedience tie us up to Impossibilities and oblige us to lose our Lives and Estates without a Legal Process and Trial where even as this Author confesses no man can lose them in such a way 2 dly Another reason why we must submit to Illegal Violence is this Because though they have no Legal Authority for it yet we have no Legal Authority to defend our selves against it But he himself has given as full an Answer to this as can be desir'd in these
Commission by being convicted of some Offence against the Laws which is punished by such a disability Or 3 dly Which we may likewise refer to this Head a Person may be unqualified by Law to execute a Commission or act by Virtue of it till he have perform'd some Condition required by Law As for Instance till he have taken his corporal Oath for the due and impartial Execution of the Trusts committed to him or as in the Militia-Act every Lieutenaut Deputy-Lieutenant Officer and Souldier remains unauthorized till he have taken the Oath For in all these Cases where the Law says no Man shall be enabled or impowered he is not impowered The third Requisite to a Person 's being Commissionated is that he be appointed to execute or exercise some Legal Power and Authority No Man can be commissioned to exercise Powers which are Illegal and Arbitrary and which the Law says shall not be exercised And therefore all such Commissions are null and void that is they are no Commissions As for Instance Letters Patents or Commissions to erect a Court with such Powers and Authorities as the High Commission Court had or because we are speaking of Military Commissions a Commission for Proceedings by Martial-Law contrary to the Laws and Franchises of the Land. The next thing is to consider when a Man acts in Pursuance of his Commission And First It is plain that he does not act by Virtue nor in pursuance of his Commission who exceeds the Legal Powers and Authorities of his Commission For in those Acts he is not authorized and impowered but acts of his own Head. Secondly Much less does he act in pursuance of his Commission who acts quite contrary to the Intents and purposes of his Commission As for Instance he who in case of Insurrection Rebellion or Invasion is Commissionated to lead imploy the Militia for the suppressing such Insurrection or Rebellion or for repelling such Invasion if instead of this he himself shall raise an Insurrection or Rebellion or assist an Invasion he pursues his Commission to Death and acts in direct opposition to the end for which the Law has impowered him and does that which he neither is nor can possibly be authorized to do But because no Commission can be given no Power can be granted no Authority can be entrusted with any Person but may be unfaithfully discharged yea though men be sworn to the due and impartial Execution of it it may be made a Question Whether Legal Powers and Authorities which are not duly and truly and impartially executed are Authoritative and consequently must be submitted to To which it must be Answered That a trust is inseparable from an Office or Commission and that no Legal Power or Authority can be so cautiously regulated but that still something that is within the Compass of that Power and Authority must be left to the Honesty and Integrity of him that executes it Only it is the Perfection of the English Laws whereby they have preserved the Franchise of the Land that they have left very little to the Discretion of those who are intrusted with the Execution of them but in all Cases have secured the main As where they have left Fines at the Will of the King still it is Salvo Contenemento But where the Law has expresly intrusted a Commissioner with the exercise of some Power while he acts within the Bounds and Limits of his Authority there he is to be submitted to though he should exercise that Power amiss As for instance in this Act The said respective Lieutenants and Deputies or any three or more of them shall have Power to hear Complaints and examine Witnesses upon Oath which Oath they have hereby Power to Administer and to give Redress according to the Merits of the Cause in matters relating to the execution of this Act. Now if they do not faithfully discharge this Power nor give Redress according to the Merits of the Cause a Man must even put his Complaint in his Pocket till he can have legal Redress elsewhere This Act likewise inables the Lieutenants or any two or more of their Deputies to warrant the seizing of all Arms in the Possession of any Person whom the said Lieutenants or any two or more of their Deputies shall judg Dangerous to the Peace of the Kingdom Now if they shall abuse this Power which is for securing the Peace of the Kingdom to the disarming the Loyalest and Best Subjects the King has and will not restore these Arms to the Owners again nor they be able to recover them by Replevin it cannot be help'd nor indeed is it of very great Importance because they may buy more But as I said before where the Property or Liberty or Lives of the Subject are concern'd this very Act has been careful to secure them so as to forbid searching for Arms in the Night-time unless within the Bills of Mortality Cities Market-Towns and every where has required it to be done with a Parish-Officer whereby both the Persons and Goods of the Subject are least exposed It has likewise been careful to provide That neither this Act nor any matter or thing therein contained shall be deemed construed or taken to extend to the giving or declaring of any Power for the transporting of any of the Subjects of this Realm or any way compelling them to march out of this Kingdom otherwise than by the Laws of England ought to be done And yet some Men I cannot say have deemed and taken but I am sure have wickedly construed this Act to extend much farther even to a Power of destroying the Liege Subjects of this Realm and marching them out of the World otherwise than by the Laws of England ought to be done But this last Proviso has sufficiently confuted all such mischievous Doctrine Where is Arbitrariness then It is excluded By what Law Even by the Imperial Law or Law of the Prerogative For though the Power of the Sword is declared in these Acts to the full yet they have taken care to prevent all such dangerous Mistakes as if thereby those that are Commissionated by the King had any Power of transporting his Liege Subjects or compelling them to march out of the Kingdom and much less have they any Power to destroy them at home as both Magna Charta and the Petition of Right 3 Car. intituled A Declaration of divers Rights and Liberties of the People to the King 's most Excellent Majesty do fully declare Now I would fain know wherein those who transport the King's Liege Subjects without any Power to transport them differ from Kidnappers or those that destroy them without any Power to destroy them differ from Murderers And surely the People of England have a Legal Right and several Legal ways to rescue themselves from Kidnappers and Murderers without pretending to the Command of the Militia But though the last mentioned Proviso was twice Enacted yet comes the Pulpit Law and utterly repeals it as it
were sworn to the Execution of the Laws And throughout the late Reign of Treason I would fain know the Man that kept his Oath of Allegiance in discovering to a Magistrate the High-Treason against the King and the Realm of Persons being Reconciled to the Church of Rome and of those who endeavoured to Reconcile others and that did not conceal these Treasons which he knew of and thereby make himself guilty of Misprision No they were Happy Men who laid down their Lives betimes and did not stay to see the Guilt and Misery in which a Popish Successor has since involved their Country the Foresight of which made them not count their Lives dear to them but they endeavoured to prevent such a Calamity at the expence of their last Blood and died the true Martyrs of their Religion and Countrey But as for us who are left behind we must see the Wretches who shed that more than Innocent Blood wash their Hands in it and justify the shedding of it and cause it to cry afresh This is particularly done in an Infamous Libel entituled The Magistracy and Government of England Vindicated wherein the Murthering of the Greatest English-man we had for endeavouring to save his Country is still avowed If these Men had the Trying of Causes once more no doubt we should have our late Deliverance Arraigned for an Invasion and every brave English-man who joined with that unexpected Helping Hand out of the Clouds Indicted and Condemned for a Traytor I shall only say in general That that Vindication wants another as much as the Magistracy and Government which it pretends to Vindicate for there is not one material Word of it true For instance A Consult to levy War is not an Overt Act of Compassing the Death of the King because the Actual levying of War is often done without any such Tendency as I could instance over and over again in former Times but I love to quote what is fresh in Memory My Lord Delamere whom I mention out of Honour to him did very lately levy War and when he had the late King in his Power at Whitehall was so far from Compassing his Death that he only delivered him a Message to remove in Peace And being that Illegal Tryal is still justified I must needs add this That if there had been Law enough left to have Tried a Felon in the Counties of London and Middlesex that Great Man had never been brought upon his Tryal But because the Parties concern'd desire to answer it only in Parliament I only desire that there they may be put to make out how known Vnlawful Sheriffs de Facto obtruded upon the City of London against their own Lawful Choice on purpose to be Instruments of destroying the Lives Liberties and Estates of the best Subjects could be at the same time Lawful Sheriffs de Jure And on the other Hand it is easy to make it good That the Validity of that Tryal and Proceedings depending upon the Legality of the Sheriffs and Iury that pretended Court was of no Authority and was such another Low Court of Iustice as the Black-Guard are able to make among themselves every Day Perhaps they may plead Ignorance of so notorious a Matter and that they could take no Cognizance of it because it did not come Iudicially before them But that cannot be said for the Nullity of those very Sheriffs was before that brought in that very Place in a Special Plea and Over-ruled Their best and their truest Plea is this That they never Dreamed of the Prince of Orange's coming over to restore Iustice to this lost Nation which we doubt not he will cause to run down like a Mighty Stream For otherwise as appears by the repeated Choice of the Never-to-be-forgotten Sir John Moor these Men must have the Destroying of their Countrey over again only to Iustify their having Destroyed it once before REMARKS UPON Dr. Sherlock's late Book ENTITULED The Case of Resistance of the Supreme Powers Stated and Resolved according to the Doctrine of the Holy Scriptures THE Case which the Title of this Book promises to Resolve is a very plain Case and soon resolved for it never was made a Question Whether Men might lawfully Resist any Legal Subordinate Powers much less the Supreme Powers and they are ordinary Readers indeed that are to be instructed That Resistance is unlawful in this Case But under the shelter and countenance of this plain and unquestioned Case and under the covert of these Names Sovereign King Prince Authority and the like this Author has slily convey'd into his Book the Resolution of another Case of a far different nature and determines That as well inferiour Magistrates as others imploy'd by a Popish or Tyrannical Prince in the most illegal and outragious Acts of Violence such as cutting of Throats or the like are as Irresistible as the Prince himself under pretence of having the Prince's Commission and Authority to do these Acts and must be submitted to under pain of Hell and Eternal Damnation I fully agree with this Author in his Resolution of the first Case but I crave leave to dissent from him in the Resolution of the latter Case and to enter the Reasons of my dissent But though I agree with him in his Resolution of the first Case yet I do not in his Reasons of that Resolution which are utterly insufficient and betray the Cause which he seems to maintain His Reasons why the King is Irresistible in all Cases are such as these 1. That the King has a Personal Authority antecedent to all the Laws of the Land independent on them and superiour to them Which is not true for the King is King by Law and Irresistible by Law and has his Authority from the Law. Indeed our Author says That the Great Lawyer Bracton by those very words of his Lex facit Regem was far enough from understanding that the King receives his Sovereign Power from the Law. I confess I never was so well acquainted with Bracton as to know what secret meanings he had contrary to the sense of his words and therefore cannot tell how far he was from understanding that the King receives his Sovereign Power from the Law but I am sure he was not far from saying so for he says it in the very next words Attribuat igitur Rex Legi quod Lex attribuit ei videlicet Dominationem Potestatem He proves that the King is under the Law and ought to govern by Law because he is made King by the Law and receives his Power and Authority from the Law and then adds what this Author is pleased to cite Non est enim Rex ubi dominatur Voluntas non Lex He is no King who governs by Arbitrary Will and not by Law that is no lawful English King Bracton must mean for still he may be a good outlandish and Assyrian King and no Tyrant though his Arbitrary Will does all For our Author pag.
41. quotes out of Dan. 5. 18 19. That God gave Nebuchadnezzar such an Absolute Kingdom that whom he would he slew and whom he would he made alive and whom he would he set up and whom he would he pulled down And I hope no Man tyrannizes over his People who uses the Prerogatives which God has given him tho' He does over Authors who quotes what he will and suppresses what he will and construes them how he will and renders Lex facit Regem To govern by Law makes a Sovereign Prince a King and distinguishes him from a Tyrant which will pass with none but such Ordinary Readers as he writ his Book for and who never saw Bracton Chancellor Fortescue likewise says That a Limited Monarch receives his Power a Populo efluxam which unriddles our Author's Riddle in the same place How the Law can make the King when the King makes the Law But is it such a wonderful thing that there should be a Law to create a King and to enable him so far in the making of Laws as to make his Consent necessary to the Being of all future Laws Was it not thus when the Two Houses were erected and endowed with the like Power For our Author says amiss when he says The Law has no Authority but what it receives from the King for the Laws are made Authoritate Parliamenti which is by the Authority of the King Lords and Commons But to lay aside Bracton and Fortescue at present let us a little reason the matter This Personal Authority of the King antecedent to all the Laws of the Land independent on them and superiour to them whence is it Has He a Throne like God Is he of Himself and for Himself Or has he a Personal Authority from God antecedent to Laws to be a King Then shew a Revelation from God where he is named Or has he the Natural Authority of a Father to govern his Children Then it must be proved that he has begotten his Three Kingdoms and all the People in all other His Majesty's Dominions Or has he a Personal Patriarchal Authority which is set up as a Shadow of the Authority of a Father whereby the eldest Son is his Father by Representation Then it must be proved that the King is the Eldest Son of the Eldest House of all the Families of the Earth Or were Mankind made in the day of their Creation by Nations and created Prince and People as they were created Male and Female But if none of these things can be said then it remains that a Civil Authority that is a mutual Consent and Contract of the Parties first founded this Civil Relation of King and Subject as we see it every day does of Master and Servant which is another Civil Relation and that the Consent of a Community or Society is a Law and the Foundation of all Civil Laws whatsoever is proved beyond all Contradiction by Mr. Hooker Eccl. Pol. Lib. 1. Cap. 10. And as this Personal Authority of the King which is antecedent to all the Laws of the Land and independent on them is airy and imaginary and has no Foundation but is of this Author 's own making so he has been pleased to make it very large and lawless and though he be but a Subject yet like Araunah the Iebusite he gives like a King. For it is a Personal Authority Superiour to the Laws of the Land whereby all manner of Arbitrary Acts are binding whereby the Prince may trample upon all the Laws and in vertue whereof he still governs in the violation of all these Laws by which he is bound to govern Whereas the Law of England absolutely denies that the King has any such Personal Authority For not to mention King Edward's Laws Chap. 17th De Officio Regis which were confirmed by William the Conqueror and sworn to by all succeeding Kings nor to mention the Mirror which page 8. gives us a far different account of things nor to mention Magna Charta which Chap. 37. says That if any thing be procured by any person contrary to the Liberties contained in that Charter it shall be had of no force or effect So that a Personal Authority which can trample upon the Liberties of the Subject and violate the Laws is an Authority of no force nor effect a void Authority or in other words it is nothing I say not to insist upon any of these I shall quote some passages out of my Lord Chancellor Fortescue where he professedly handles the difference betwixt an Absolute Monarchy and a Limited Monarchy and after he has shewn the different Original of them he thus proceeds in the 13th Chap. Now you understand most Noble Prince the form of Institution of a Kingdom Politick or limited Monarchy whereby you may measure the Power which the King thereof may exercise over the Law and Subjects of the same For such a King is made and ordained for the Defence of the Law of his Subjects and of their Bodies and Goods whereunto he receiveth Power of his People so that he cannot govern his People by any other Power To whom the Prince thus answer'd in the 14th Chap. You have good Chancellor with the clear light of your Declaration dispelled the Clouds wherewith my Mind was darkened so that I do most evidently see that no Nation did ever of their own voluntary mind incorporate themselves into a Kingdom for any other intent but only to the end that they might enjoy their Lives and Fortunes which they were afraid of losing with greater security than before And of this intent should such a Nation be utterly defrauded if then their King might spoil them of their Goods which before was lawful for no Man to do And yet should such a People be much more injured if they should afterwards be Governed by foreign and strange Laws yea and such as they peradventure deadly hated and abhorred and most of all if by those Laws their Substance should be diminished for the safegaurd whereof as also for the security of their Persons thcy of their own accord submitted themselves to the Governance of a King. No such Power for certain could proceed from the People themselves and yet unless it had been from the People themselves such a King could have had no Power at all over them Now this Discourse of the Institution of a Political Kingdom was to shew the Prince of Wales that he ought to study the Laws of England and not the Civil Laws by which an English King cannot Govern whereof the Prince stood in doubt Chap. 9. But now you see that Cloud is dispelled and he is convinced by this That a Political Kingdom cannot be govern'd by foreign and strange Laws which had signified nothing toward his Conviction if England were not a Political Kingdom And I think there cannot be a plainer Comment upon those former words of Bracton Lex facit Regem attribuat igitur Rex Legi quod Lex attribuit ei videli
does the 13 th of Eliz and says the Subjects of England must be Compelled and shall be Compelled to march out of the Kingdom if those that are Commissionated by the King shall think fit For though these have no Power to Compel yet the Subjects of England are bound in Conscience to know their Duty and their Drivers and to supply this lack of Legal Power by the inward Impulses of their own Spiritual and never-failing Passive Obedience and must either go out of the Kingdom upon this Occasion or go to the Devil for their wicked and rebellious Refusal It likewise repeals all the Legal Limitations which have ascertained Penalties for the several Offences committed against the Laws As for Instance in this Act whereas the Law says That the chief Commissioned Officer upon the place may imprison Mutineers such Souldiers as do not their Duties and shall and may inflict for Punishment for every such offences any Pecuniary Mulct not exceeding five Shillings or the Penalty of Imprisonment without Bail or Mainprise not exceeding twenty Days The Doctrine of Passive Obedience makes nothing of these Legal Restrictions and says that Men must submit to perpetual Imprisonment or to be hanged for such Offences or for no Offence at all if those that are Commissioned will have it so I humbly submit it to the Wisdom of our Legislators when they shall be assembled in Parliament Whether they will endure to have all their Laws thus used and suffer them to be put into a Bottomless Bag as the Poets say Iupiter disposes of Lovers Vows of a boundless and endless passive Obedience But because some Men have moved another Question Who shall be Judg when there is an Insurrection Rebellion or Invasion and consequently whether there be occasion or not according to Law to imploy the Militia and to draw them forth into Actual Service it is fit to say something to it To which I answer That the Law has judged already and determined the matter to our hands and all English-Men know as well as if they had the Opinion of all the Judges that going peaceably to Market or to their Parish-Church is neither Insurrection Rebellion nor Invasion But I have long since observed that those who would inslave Men either under an implicit Faith or a blind Obedience are very pert in putting such Questions The Scripture is the Rule of Faith but who shall be Iudge of the sense of it And when you have once allowed them that point of an Absolute Judg then presently an Apple shall be an Oyster Bread shall be Flesh and Blood and Bones Pig shall be Pike and a Dog shall be a Catawimple Now I humbly conceive there is no need at all of constituting a Judg to resolve that the Barbar's Bason is not Mambrino's Helmet when none but a Madman who is bent upon seeking Adventures and is ready to pick Quarrels with all Mankind will say it is As to the third Act concerning the Militia 15 Car. 2. c. 4. I shall only take notice of one Clause of Indemnity in these Words And it is further declared and enacted That all and every Person and Persons which since the five and twentieth day of March one thousand six hundred sixty and two have acted or done any thing in the dismantling of any Cities or Towns or demolishing of Walls and Fortifications thereof or relating thereunto shall be and are hereby indempnified and saved harmless Now this was long after the Militia had been declared to be in the King yet these Persons having exceeded their Legal Powers stood in need of an Indemnity by Act of Parliament which had bin vain if the King's Command or their own Commission would have justified them and born them out in it I come now in the 2 d place to produce some Reasons to prove the Lawfulness of defending our selves against Illegal Violence which is a Truth so obvious and so agreeable to the common sense of Mankind that even those Men who set themselves to oppose it do oftentimes assert it unawares and give unanswerable Reasons for it I shall therefore first set down those Concessions which the Force of Truth has extorted from this Author and 2 dly add some other Arguments to them 1 st No Man wants Authority to defend his Life against him who has no Authority to take it away p. 69. But no Man whatsoever has any just and legal Authority that is any Authority at all to take it away contrary to Law. p. 190 191. And from these premises it is easy for any Man to infer the Conclusion 2dly He that resists the Vsurpations of Men does not resist the Ordinance of God which alone is forbidden to be resisted But Acts of Arbitrary and Illegal Violence are the Vsurpations of Men. Therefore c. These again are our Author's Doctrines the former p. 128. l. 15. the other p. 211. l. 11. as likewise 212. l. 22. he acknowledges that the assuming of an Absolute and Arbitrary power in this Kingdom would be Vsurpation tho he says at the same time that no Prince in this Kingdom ever usurped such a Power which is notoriously false for Richard the 2 d by name did not to mention any other 3 dly A 3 d Argument which this Author furnishes us withall is this p. 164 165. The Reason why we must submit to Governours or Subordinate Magistrates is because they are sent by our Prince and act by his Authority and we must never submit to them in opposition to our Prince Now nothing is better known in this Kingdom than that those who commit Illegal Violence do not act by the Princes Authority for as our Author says p. 190. he himself has no just nor legal Authority to act against Law and therefore we need not submit to them in such Acts. Nay farther according to this Author we must never submit to them in this Case because they are in opposition to our Prince for they act against the Peace of our Soveraign Lord the King his Crown and Dignity as the Law has evermore interpreted such Acts. 4 thly Our Author p. 126. has these Word Every Man has the Right of Self-Preservation as intire under Civil Government as he had in a state of Nature Vnder what Government soever I live I may still kill another Man when I have no other way to preserve my Life from unjust Violence by private Hands Now the Hands of subordinate Magistrates imployed in acts of Illegal Violence are private Hands and armed with no manner of Authority at all of which this is a most convincing Proof That they may be hanged by Law for such Acts which no Man can or ought to suffer for what he does by Authority They are no Officers at all in such Acts for Illegal Violence is no part of their Office. This is sufficient to shew that this Author holds so much Truth as would have led him to his own Conviction if he had but attended to the immediate consequences of it instead of blending it with a great many Falshoods and after he has answered his own Arguments I shall desire him to do as much for these which follow 1. No Man can authorize himself But in acts of Illegal Violence if a subordinate Magistrate have any Authority at all he must authorize himself For it is a Contradiction to say the Law authorizes him to do an Illegal Act as our Author well observes p. 195. and it is as false to say that the King who can do no wrong can authorize another to do it In the great Conference of the Lords and Commons 3 o Caroli concerning the Contents of the Petion of Right the Law was held to be That if the King command a Man to do Injury to another the Command is void Actor fit Author and the Actor becomes the Wrong-doer That is he acts of his own Head and authorizes himself 2 dly The Illegal Violence of Subordinate Magistrates cannot be more Irresistible only by being more Criminal than it is in other Men for that would be to make a Man's Crime to be his Protection But Illegal Violence done by subordinate Magistrates is not only as inauthoritative as if it were commited by private persons but likewise more criminal as being done with a face and colour of Authority and under pretence of Law making that partaker of their Crime violating and blemishing the Law at once I might multiply such Arguments but if this Author will please to give a full and clear Answer to these only I here promise to be of his Opinion FINIS Pag. 196 197 c. Pag. 196. Page 54 55 c. Pag. 193 194 195. Page 192. Page 191. P. 200. â—age 202. Page 205 206. Page 212. Pag. 32. Pag. 41. Pag. 61. Page 79. Ephemeris Parliam
Advice and Consent of the Lords Spiritual and Temporal and Commons in Parliament Assembled and by the Authority of the same That the King 's most Excellent Majesty his Heirs and Successors shall and may from Time to Time as occasion shall require issue forth several Commissions of Lieutenancy to such Persons as his Majesty his Heirs and Successors shall think fit to be his Majesties Lieutenants for the several and respective Counties Cities and Places of England and Dominion of Wales and Town of Berwick upon Tweed which Lieutenants shall have full Power and Authority to call together all such Persons at such Times and to arm and array them in such Manner as is hereafter expressed and declared and to form them into Companies Troops and Regiments and in case of Insurrection Rebellion or Invasion them to lead conduct and imploy or cause to be led conducted or imployed as well within the said several Counties Cities and Places for which they shall be Commissionated respectively as also into any other the Counties and Places aforesaid For suppressing all such Insurrections and Rebellions and repelling of Invasions as may happen to be according as they shall from Time to Time receive Directions from his Majesty his Heirs and Successors And that the said respective Lieutenants shall have full Power and Authority from Time to Time to constitute appoint and give Commissions to such Persons as they shall think fit to be Colonels Majors Captains and other Commission-Officers of the said Persons so to be armed arrayed and weaponed and to present to his Majesty his Heirs and Successors the Names of such Person and Persons as they shall think fit to be Deputy-Lieutenants and upon his Majesties Approbation of them shall give them Deputations accordingly always understood that his Majesty his Heirs and Successors have Power and Authority to direct and order otherwise and accordingly at his and their Pleasure may appoint and commissionate or displace such Officers any thing in this Act to the contrary notwithstanding And that the said Lieutenants respectively and in their Absence out of the Precincts and Limits of their respective Lieutenancies or otherwise by their Directions the said Deputy-Lieutenants during their said respective Deputations or any two or more of them shall have Power from Time to Time to Train Exercise and put in Readiness and also to Lead and Conduct the Persons so to be armed arrayed and weaponed by the Directions and to the Intents and Purposes as is hereafter Expressed and Declared Here you see all is Regulated and Limited and the Lieutenancy have no other Powers nor Authorities nor can execute them but by the Directions and to the Intents and Purposes expressed and declared by Law. Consequently The Lieutenancy have no Power to raise Insurrections or Rebellions or to assist Invasions for that is directly contrary to the Intent and Purpose of this Act which is In Case of Insurrection Rebellion or Invasion whereby occasion shall be to draw out the Militia into Actual Service to imploy these Forces for suppressing all such Insurrections and Rebellions and repelling of Invasions as it is frequently repeated in this Act. Nor Secondly have they Power to act contrary to the Directions of these Acts as for Instance to search for Arms in the Houses of Persons judged to be dangerous without a Constable or Parish-Officer nor to search in Villages or Country-Towns other than within the Bills of Mortality between Sun-setting and Sun-rising nor have the Commissioned Peers Power to imprison a Peer where he is expresly excepted from that Penalty The rest of this Act is spent in charging the Quota's and Proportions of Men and Arms in setling Pay for the Souldiers and in declaring what Powers and Authorities shall be executed in all Cases relating to the Militia And to the Persons concern'd we leave them only taking notice of this Oath which is directed by the Act to be administred to all Officers and Souldiers in the Militia in these following Words I A. B. do declare and believe that it is not lawful upon any pretence whatsoever to take Arms against the King And that I do abhor that Traiterous Position That Arms may be taken by his Authority against his Person or against those that are Commissioned by Him in pursuance of such Military Commissions But as I said before neither are the People of England enslaved by this Oath For as for the first Clause It never was lawful upon any Pretence whatsoever to take up Arms against the King for that in other Words is to levy War against Him. And as for the first part of the Position to be abhorred That Arms may be taken by the King's Authority against his own Person it was always Traiterous Non-sence and fit to go along with the other Proposal in the Oxford Expedient of inthroning the Name of a Prince but banishing his Person 500 Miles off under Pain of Death And so the other part of the Position That Arms may be taken by the King's Authority against those who have received Authority from the King in the Execution of that very Authority is Stuff as ill put together as the other for it makes the King's Authority to supplant and destroy it self And therefore the renouncing and abhorring of such Positions can never be interpreted to be parting with our English Liberties which having been all along preserved by our Ancestors at a vast Expence both of Blood and Treasure must needs be presumed to be something that was more valuable than barbarous Nonsence But because there are many Men who like Trouble-all in Bartholomew-Fair take two or three Words under the Hand of a Magistrate to be a sufficient Warrant for any thing and think all to be Commissions which are so called whether they be so or no it will be necessary to take into Consideration this last part of the Oath and to shew 1. What a Commission is And 2. Who act in Pursuance of such Commission 1. A Commission is the Legal Appointment of a Legal Person to execute or exercise some Legal Power or Authority And therefore the first thing requisite to a Persons being Commissionated is that he be Legally appointed So Dr. Falkner commenting upon this Clause of the Oath by a Commission understands a Commission regularly granted Book 2. chap. 1. Sect. 6. But though as he says that be the true Sense of the Clause yet it is not the whole Truth For tho a Commission may be issued in due Form of Law and be regularly granted yet the Incapacity or Disability of a Person to receive a Commission or the Illegal Powers of the Commission it self may render it void 2. The next thing requisite to a Persons being Commissionated is that he be a Legal Person For First a Person may be uncapable by Law of being Commissionated as he that was not a Natural-born Subject of England was uncapable of being an High-Commissioner Or Secondly A Person may be disabled by Law from having a
abolish any Politick Laws as Luther's constant Position was which Bishop Bilson thought was undeniable In the Old Testament his two Examples of Non-Resistance are David and the Iews under Ahasuerus which are the untowardest for his purpose that he could have pitch'd upon For as for the former of them if the Duty of Passive Obedience may be practised by a Subject at the Head of an Army and if to decline engaging the King's Army only when it is Six to One which always at the least was the odds between Saul's Forces and David's be an Example of Nonresistance I am sure it is such Passive Obedience and such Nonresistance as if it were acted over again in the Highlands of Scotland for half the time that it was in the Wilderness of Zìph would occasion new Sermons against Rebellion even in the same Pulpit where the substance of this Book was preach'd The other he says was as Famous an Example of Passive Obedience as can be met with in any History and yet it amounts to no more than this That the Iews being doomed to utter Extirpation by a Law and delivered up as a Prey to their Enemies thinking a Defence either unlawful or impossible for the Scripture does not say which did look upon themselves as lost men till they afterwards had procured a Law which in effect reversed the former by publishing it to all People That the Iews might stand for their Lives to destroy to slay and to cause to perish all the Power of the People and Province that would assault them both little ones and women and to take the spoil of them for a prey Esth. 8. 11. upon which they made a vigorous and successful Defence against their enemies who were so hardy as to take no warning by this Law but continued maliciously resolved to destroy the Iews though they were thus expresly threatned that they must do it at their utmost peril And may not those men then be as Famous Examples of Passive Obedience who if the Laws were against them would readily submit but having the Laws on their side shall defend themselves against the Illegal Violence of any evil disposed persons that never were nor ever could be authorized to destroy them As for St. Peter's Case in the New Testament it was the Resistance of Lawful Authority and therefore justly condemned by our Saviour For the apprehending our Saviour was not an act of unjust and illegal violence as our Author there says but was done by proper Officers by vertue of a Warrant from the Chief Priests and Elders the Lords Spiritual and Temporal among the Iews who were aided by the Roman Guards for fear of a rescue As this Author says Our Saviour is our Example in not resisting a Lawful Authority but what is that to the resisting of those that have no Authority And yet if our Saviour had practised Non-resistance towards persons having no Authority it had not been binding to us no more than his not appealing to Caesar hindred St. Paul of his appeal In a word There is not a Case or a Text which he has argued from in Scripture which he has not perverted and abused I shall answer the Arguments used in this Question which are taken out of the Acts concerning the Militia and which are mentioned by this Author p. 111 112. by giving the Reader a particular and distinct view of those Acts whereby it will appear that we are not enslaved by those Acts neither are the Subjects hands tied up from making a legal defence against illegal Violence There are three Statutes concerning the Militia The first 13 Car. II. cap. 6. which was an Interim or Temporary Provision till the Militia Act could be perfected Entituled An Act declaring the Militia to be in the King and for the present ordering and disposing the same The second is 14 Car. II. cap. 3. to establish the Militia Entituled An Act for Ordering the Forces in the several Counties of this Kingdom And the third is an Explanatory and Supplemental Act Entituled An Additional Act for the better ordering of the Forces in the several Counties of this Kingdom 15 Car. II. cap. 4. The two former of those acts have the very same preamble in these words Forasmuch as within all his Majesty's Realms and Dominions the sole Supreme Government Command and Disposition of the Militia and all Forces by Sea and Land and of all Forts and Places of Strength is and by the Laws of England ever was the undoubted Right of his Majesty and His Royal Predecessors Kings and Queens of England And that both or either of the Houses of Parliament cannot nor ought to pretend to the same nor can nor lawfully may raise or levy any War Offensive or Defensive against His Majesty His Heirs or lawful Successors And yet the contrary thereof bath of late years been practised almost to the Ruine and Destruction of this Kingdom and during the late usurped Governments many evil and Rebellious Principles have been instilled into the minds of the people of this Kingdom which unless prevented may break forth to the disturbance of the peace and quiet thereof This preamble consists of five Clauses of which the three first are concerning matter of Law and the two last concerning matter of Fact. In the first Clause there are these two things evidently contained First That the Militia is in the King by Law. Secondly That the Militia's being in the King is no new Power but was ever the undoubted Right of all the Kings of England Conclusion Therefore unless the people of England were ever Slaves under all former Kings they are not made Slaves by this Declaration The two next Clauses say That both or either of the Houses of Parliament cannot pretend to the sole Supreme Government Command and Disposition of the Militia Forces Forts and Places of Strength Nor can raise or levy any War against the King But neither is it here said that the King can or lawfully may raise or levy any War against both or either of the Houses of Parliament or any of his Liege Subjects The two last Clauses are concerning matter of Fact in these words And yet the contrary thereof hath of late years been practised That is the Houses did pretend to the sole Supreme Government Command and Disposition of the Militia Forces Forts and did raise and levy War against the King. And during the late usurped Governments many Evil and Rebellious Principles were instilled into the minds of the People such I suppose as asserted the Militia to be in the Parliament c. As to the Body of the first Act it is all of it either repeated in the second or else superseded by it and therefore we are next to consider what is enacted in the 14 th Car. 2. cap. 6. And immediately after the Preamble before recited there are these Words Be it therefore Declared and Enacted by the King 's most Excellent Majesty by and with the