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
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
words pag. 59. For no man can want Authority to defend his Life against him that has no Authority to take it away 3 dly We must submit to illegal Violence because the people cannot call inferiour Magistrates to an Account page 191. But sure the People may defend themselves against the murderous Attempts of inferiour Magistrates without pretending to call them to an Account or sitting in Judgment upon them And when they themselves are called to an Account for this Defence they may give a very good Account of it by the 24 H. 8. cap. 5. 4 thly We must not defend our selves when we are persecuted to Death for our Religion contrary to the Laws of England because we must not defend our selves when we are thus persecuted contrary to the Laws of God and Nature which are as sacred and inviolable as the Laws of our Countrey Answ. I grant that the Laws of God and Nature are more sacred and inviolable than the Laws of our Countrey but they give us no Civil Rights and Liberties as the Laws of England have done Every Leige-Subject of England has a Legal Property in his Life Liberty and Estate in the free Exercise of the Protestant Religion established amongst us and a Legal Possession may be Legally Defended Now the Laws of England in Queen Maries time were against the Protestants and stript them of this unvaluable Blessing and therefore tho they chose rather to observe the Laws of God and Nature than those of their Countrey which at that time violated both the other yet withal they submitted to the Laws of their Countrey which alone give and take away all Legal Rights and Titles and when all is said are the only Measures of Civil Obedience 5 thly Men must not defend their Lives against a Lawless Popish Persecution when they are condemned by no Law because they must not defend their Lives when they are condemned by a wicked persecuting Popish Law. For such a lawless Persecution has as much Authority as such a wicked persecuting Law. This is manifestly false For a lawless Popish Persecution has no Authority at all but has all the Authority of Heaven and Earth against it whereas a wicked Popish persecuting Law tho as it is wicked it cannot command our Obedience yet as it is a Law it may dispose of our Civil Rights If Queen Maries Laws were no Laws because they were wicked persecuting Laws why were they repealed why were they not declared to be null from the beginning I know the Protestants in her time and in Queen Elizabeths time before they were repealed disputed the validity of them and would not allow them to be of any Force or Authority as appears particularly from Mr. Hales Oration to Queen Elizabeth Fox Vol. 3. p. 997 978. But their Reasons were because the Parliaments were not legally constituted Queen Maries first Parliament was of no Authority because as his words are the Commons had not their free Election for Knights and Burgesses for she well knew that if either Christian men or true English men should be elected it was not possible that to succeed which she intended and therefore in many places divers were chosen by force of her threats meet to serve her malicious affections Also divers Burgesses being orderly chosen and lawfully returned as in some places the people did what they could to resist her purposes were disorderly and unlawfully put out and others without any order of Law in their places placed For the which cause that Parliament is void as by a President of a Parliament holden at Coventry in 38 H. 6. appears And the third Parliament he says was void because the Writs of Summons were contrary to a Statute Now these were needless and frivolous Exceptions if a wicked persecuting Law were no Law without any more ado And I desire no greater Advantage in a Civil Question than to reduce an Adversary to this Absurdity of making no difference betwixt Laws and no Laws 6 thly That Non-Resistance of illegal Violence is the best way to secure the publick Peace and Tranquility and the best way for every man's private defence for self defence may involve many others in blood and besides exposes a man's self That is to say when the publick Peace is violated in an high manner the best way to secure it is quietly to suffer it still to be broken further a man's best defence is to die patiently for fear of being killed and when Murtherers are broke loose the only way to prevent the effusion of more Christian Blood is to let them alone Now in opposition to this Doctrine I shall only remember our Author that if there had not been a Defence made against the Irish Cut-throats in Forty One though they had the impudence to pretend the King's Commission there had hardly been a Protestant left but the pestilent Northern Heresie had been throughly extirpated in that Kingdom 7 thly Another Reason is Because Non-Resistance is certainly the best way to prevent the change of a Limited into an Absolute Monarchy Now this is so far from being true that on the other hand absolute Non-Resistance even of the most illegal Violence does actually change the Government and sets up an Absolute and Arbitrary Power in the shortest way and by the surer side For a Prince whom the Laws themselves have made Absolute has thereby no more than a Right aud Title to an Absolute Subjection but Non Resistance puts him into the actual Possession of it Our Author himself has made this out beyond all contradiction for pag. 44. he says That Non-Resistance is as perfect Subjection as can be paid to Sovereign Princes and pag. 115. he calls it The only perfect and absolute Subjection we owe to Princes Now the most perfect and absolute Subjection that can be paid erects the most absolute Government that can be devised For those words are of Eternal Truth which we read in pag. 63. of this Book For Authority and Subjection are Correlates they have a mutual respect to each other and therefore they must stand and fall together There is no Authority where there is no Subjection due and there can be no Subjection due where there is no Authority And is not this as bright and as evident a Truth There is no absolute Authority where there is no absolute Subjection due and there can be no absolute Subjection due where there is no absolute Authority I shall now briefly run over his Scripture-proofs so far as they concern this second Case For if he had multiplied his Texts of Scripture to shew that Kings are Irresistible I should have had nothing to say to it because the Law has made our King so but if the Law had not made him so all his Texts would never have done it as I have instanced in the Kingdom of Poland For the Scripture does not erect new Polities as St. Chrysostom long since observed nor does the Gospel bar or
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