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A31665 Of magistracy Johnson, Samuel, 1649-1703. 1688 (1688) Wing C1939; ESTC R38737 5,534 5

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has by Scripture or to find a Terrier of his Lands there so it is a vain thing to look for Statutes of Prerogative in Scripture XII If Mishpat Hammelech the manner of the King 1 Sam. 8. 11. be a statute of Prerogative and prove all those particulars to be the Right of the King then Mishpat Haccohanim the Priest's custom of sacrilegious Rapine Chap. 2. 13. proves that to be the Right of the Priests the same word being used in both places XIII It is the Resolution of all the Iudges of England that even the known and undoubted Prerogatives of the Iewish Kings do not belong to our Kings and that it is an absurd and impudent Thing to affirm they do Coke 11 Rep. p. 63. Mich. 5. Iac. Note upon Sunday the Tenth of November in this same Term the King upon Complaint made to him by Bancroft Archbishop of Canterbury concerning Prohibitions was informed That when Question was made of what matters the Ecclesiastical Iudges have Cognizance either upon the Exposition of the Statutes concerning Tythes or any other Thing Ecelesiastical or upon the Statute 1 Eliz. concerning the High Commission or in any other Case in which there is not express Authority by Law the King himself may decide it in his Royal person and that the Iudges are but the Delegates of the King and that the King may take what Causes he shall please to determine from the determination of the Iudges and may determine them himself And the Archbishop said That this was clear in Divinity That such Authority belongs to the King by the Word of God in Scripture To which it was answered by me in the prefence and with the clear consent of all the Iustices of England and Barons of the Exchequer That the King in his own person cannot adjudge any Case either Criminal as Treason Felony c. but this ought to be determined and adjusted in some Court of Iustice according to the Law and Custom of England And always Iudgments are given Ideo-consideratum est per Curiam so that the Court gives the Iudgment And it was greatly Marvelled That the Archbishop durst inform the King that such absolute power and authority as is aforesaid belonged to the King by the Word of God. CHAP. III. Of Obedience I. NO Man has any more Civil Authority than what the Law of the Land has vested in him Nor is he one of St. Paul's higher powers any farther or to any other purposes than the Law has impower'd him II. An Usurped Illegal and Arbitrary Power is so far from being the Ordinance of God that it is not the Ordinance of Man. III. VVhoever opposes an Usurped Illegal and Arbitrary Power does not oppose the Ordinance of God but the Violation of that Ordinance IV. The 13 of the Romans commands Subjection to our Temporal Governors because their Office and Imployment is for the publick welfare For he is the Minister of God to Thee for good V. The 13 of the Hebrews commands Obedience to spiritual Rulers because they watch for your souls VI. But the 13 of the Hebrews did not oblige the Martyrs and Confessors in Queen Mary's Time to obey such blessed Bishops as Bonner and the Beast of Rome who were the perfect Reverse of St. Paul's spiritual Rulers and whose practice was murthering of Souls and Bodies according to that true Character of Popery which was given it by the Bishops who compiled the Thanksgiving for the Fifth of November but Archbishop Laud was wiser than they and in his time blotted it out The Prayer formerly run thus To that end strengthen the Hands of our Gracious King the Nobles and Magistrates of the Land to cut off these workers of Iniquity whose Religion is Rebellion whose Faith is Faction whose practice is Murthering of Souls and Bodies and to root them out of the Confines of this Kingdom VII All the Iudges of England are bound by their Oath and by the duty of their place● to disobey all Writs Letters or Commands which are brought to them either under the little Seal or under the great Seal to hinder or delay common Right Are the Iudges all bound in an Oath and by their places to break the 13 of the Romans VIII The Engagement of the Lords attending upon the King at York Iune 13. 1642. which was subscribed by the Lord Keeper and Thirty Nine Peers besides the Lord Chief-Iustice Banks and several others of the Privy-Council was in these words We do engage our selves not to Obey any Orders or Commands whatsoever not warranted by the known Laws of the Land. Was this likewise an Association against the 13 of the Romans IX A Constable represents the King's person and in the Execution of his Office is within the purview of the 13 of the Romans as all Men grant but in case he so far pervert his Office as to break the Peace and commit Murther Burglary or Robbery on the Highway he may and ought to be Resisted X. The Law of the Land is the best Expositor of the 13 of the Romans Here and in Poland the Law of the Land There XI The 13 of the Romans is received for Scripture in Poland and yet this is expressed in the Coronation Oath in that Country Quod si Sacramentum meum violavero Incolae Regni nullam nobis Obedientiam praestare tenebuntur And if I shall violate my Oa●h the Inhabitants of the Realm shall not be bound to yield me any Obedience XII The Law of the Land according to Bracton is the highest of all the Higher Powers mentioned in this Text for it is superior to the King and made him King Lib. iii. Cap. xxvi Rex habet superiorem Deum item Legem per quam factus est Rex item Curiam suam viz. Comites Barones and therefore by this Text we ought to be subject to it in the first place And according to Melancthon It is the Ordinance of God to which the Higher Powers themselves ought to be subject Vol. iii. in his Commentary on the Fifth Verse Wherefore ye must needs be subject not only for Wrath but also for Conscience sake He has these words Neque vero haec tantum pertinent ad Subditos sed etiam ad Magistratum qui cum fiunt Tyranni non minus dissipant Ordinationem Dei quam Seditiosi Ideo ipsorum Conscientia fit rea quia non obediuut Ordinationi Dei id est Legibus quibus debent parere Ideo Comminationes hic positae etiam ad ipsos pertinent Itaque hujus mandati severitas moveat omnes ne violationem Politici status putent esse leve peccatum Neither doth this place concern Subjects only but also the Magistrates themselves who when they turn Tyrants do no less overthrow the Ordinance of God than the Seditious and therefore their Consciences too are guilty for not obeying the Ordinance of God that is the Laws which they ought to obey So that the Threatnings in this place do also belong to them wherefore let the severity of this Command deter all men from thinking the Violation of the Political Constitution to be a light Sin. Corollary To destroy the Law and Legal Constitution which is the Ordinance of God by false and arbitrary Expositions of this Text is a greater Sin than to destroy it by any other means For it is Seething the Kid in his Mothers milk CHAP. IV. Of Laws I. THere is no Natural Obligation whereby one Man is bound to yield Obedience to another but what is founded in paternal or patriarchal Authority II. All the Subjects of a patriarchal Monarch are Princes of the Blood. III. All the people of England are not Princes of the Blood. IV. No Man who is Naturally Free can be Bound but by his own Act and Deed. V. Publick Laws are made by publick consent and they therefore bind every man because every Man's consent is involved in them VI. Nothing but the same Authority and Consent which made the Laws can Repeal Alter or Explain them VII To judge and determine Causes against Law without Law or where the Law is obscure and uncertain is to assume Legislative power VIII Power assumed without a Man's consent cannot bind him as his own Act and Deed. IX The Law of the Land is all of a piece and the same Authority which made one Law made all the rest and intended to have them all Impartially Executed X. Law on One Side is the Back-Sword of Iustice. XI The Best Things when Corrupted are the Worst and the wild Iustice of a State of Nature is much more d●sirable than Law perverted and over-ruled into Hemlock and Oppression LONDON Printed for L. C. near Fleet-bridge 1688. (a) Prout Regalis Officii exposcit utilitas (b) sicome le profit de Office Demaunde The Kingly or Regal Office of this Realm jo Mar. Sess. 3. Cap. 1. Give us a King to Iudge us 1 Sam. 8. 5. 6 20. Verse 4. Verse 17 18 Edw. 20 Edw Cap. 1.