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A46961
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Remarks upon Dr. Sherlock's book intituled The case of resistance of the supreme powers stated and resolved, according to the doctrine of the Holy Scriptures written in the year 1683, by Samuel Johnson.
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Johnson, Samuel, 1649-1703.
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1689
(1689)
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Wing J839; ESTC R32984
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24,921
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80
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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
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.