This I take to have been his Native Judgment and whatsoever his Adventitious Practice might be upon the Scene-altering there are none but must confess both alike favourable at the time of his Declaration to his Loving Subjects which is not so many Years past as to be out of our Remembrance rightly according to a Mans Conscience not erring intollerably is instead of Vice and Ill-doing I do ask How can the Justice be bound by his Office to do that which does prevent the Institution it self But let us suppose a Justice of Peace who is of the mind that the Dissenters are ill Men and their Conventicles not to be endured I pray let me see this Justice as Zealous also against Prophaneness Swearing Drunkenness and Debauchery of all sorts which are Offences against the Law and alike Punishable by him or else if the Man be so Hot for Restraining Meetings but Cold for Repressing Vice I can hardly think that what he does is done meerly out of Conscience of his Oath There is a Law That a Nonconformist may not abide within Five Miles of a Corporate Town What now if his business brings him thither and he cannot possibly live else Is this a piece of Evil-doing unto which the Ruler should be a Terror Suppose an Informer should come to a Justice of Peace and Swear against a Brewer for Brewing with Hops There is a Law made against That as I have taken it up though it may not be in the ordinary Book of Statutes which pretends only to Collect those which are fit for use and the Justice Swears He will do his Office after the Statutes of the Realm I will ask now Upon what account can any equal Justice dismiss such a Brewer and not Punish him upon that Complaint but he may upon the same dismiss a Nonconformist who is accused of being in a Corporation notwithstanding his Oath If a thing be not Evil it is against Righteousness to Punish it No Law but must give place to Righteousness no Oath can bind against it I would put it here to the question Whether the not coming within Five Miles of a Corporation as the Brewing without the Ingredients of Beer be matters of that Nature as ought to be brought within the Sanction of a Law any more than that a Man shall not make Water against a Wall Quod non habet rationem publici commodi non potest proecipi lege humana I would make it a Moot Case at the Inns of Court as well as a Probleme in the Schools What is unreasonable methinks should be against Nature and cannot be commanded for a Law seeing Laws are grounded upon Reason I will not be so bold as to averr That the Execution of such an Act does Clash with Magna Charta Nullus liber homo capiatur imprisonetur aut disseisietur de tenemento vel libertatibus utlegetur exulatur aut aliquo modo destruatur nisi per legem Terrae But if it does but clash with that which ought to be the end of every Commandment The end of the Commandment is Charity it will be more certainly enough to take off the obligation from the Conscience See Dr. Taylor Duc. Dub. l. 3. c. 1. r. 3. But I must advance a step farther I do not apprehend only That when the Execution of a Law will not consist with the Law of Nature or God's Word that is with Religion and Moral Good but when it will not stand with that Political Good which the Law intends the Magistrate is not in that case to observe it For when the King and his Justices are bound to see the Execution of the Laws they are not to be look'd on as Blind Brutish Executioners of them but that they must judge of them on necessity so far as concerns their own acting about them The King must judge whether the matter be good for his passing the Law. The King and Justices must judge whether it be still good as to the Execution Nay every single Man must Judge of the Laws made so far as concerns his own Obeying them seeing If he be bound to do nothing that is ill he must likewise be bound before he does any thing to satisfie himself whether he does ill or no as is very honestly said though in an adverse Book Entituled Toleration Discuss'd which came out about the same time with the Book at first intimated but not named By the way We must upon necessity observe here the Case being brought on to this state That the King as well as the Justice is concern'd in it There is therefore the Positive and Negative Power of the King and there are matters Civil and Ecclesiastical It is true That the Government of England is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a Government Regulated by Laws and that the King can Positively do nothing but according to Law But there is this other thing to be known and considered also That the great Law the Supream Law in all Polities is the Common Good. And in the use of that Power which is Negative or in Suspending his own Act which the not permiting a Process in his Name or the granting a Nolle prosequi I think is no other in the Execution of his Government at least in matters Ecclesiastical wherein he hath all that Authority given him by the Statute as the Pope ever had a Prince is never to be said Not to Govern according to Law when he does only give Preheminence to That which is the Greatest the Weal of the Community Salus Populi Suprema Lex esto And thus much being said in referrence to the King Let any one that please reason what will follow in regard to the Justice who is but an Officer I suppose under Him to act in his stead and in his Name If the Magistrate then to go on whether Supream or Subordinate does judge that such or such a Law be good and good to be executed that is That the Execution of it will tend to the Publick Good which is intended in it as in all Laws it must be and that it is not inconsistent with Religion or Morality in which case the Superiour Law does vacate this then is he to look to himself and what he hath Sworn knowing that God will not hold him Guiltless that beareth the Sword and much less him that taketh his Name also in vain But if he judge sincerely in his Conscience That the Execution will not be for the Good but rather Hurt to the Government and the People though otherwise the thing be not unlawful I do apprehend the Execution of his Office in this case does lye in the Non-Execution of that Law if the Higher Powers be contented and he shall do his Duty by leaving such work undone I have heard that some Judges in their Charge to the Jury have given Directions to Prosecute the Dissenter upon One Statute of the Queen and not upon some Other which in effect is a suspending that Law at
THE GREAT CASE OF THE JUSTICES Stated and Determined TOUCHING Their Duty of putting the Laws in Execution whether Dissenters were Indulg'd or Not. OR A DISCOURSE concerning the OATH of the Iustice of Peace explaining the Extent of its Obligation Being a Case universally seasonable in regard to Righteousness Peace and the Prosperity of this Nation Published with Allowance London Printed by W. D. â—nd are to be Sold by Randal Taylor 1688. ligation upon them to the Execution of the Statutes of the Realm having once Sworn thereunto notwithstanding the King's Declaration for Indulgence being short of a Law so that upon Supposition an Information was Legally brought they could not forbear doing as they did formerly without having an Ill Conscience And if there were no Volubility in Humane Affairs to Disturb the Dissenters in the Possession of their present Freedom but that they might think themselves so Safe and Inviolable as to be out of Fear That what Hath been May be again Yet were it a thing insufferable for a Dissertation upon this Subject which is so Elaborate being Written with such Care in weighing every thing it sets down with so much feeling Tenderness and pondered Moderation with such an Acumen yet Calmness of Stile and which hath been so well Advised and Supervised by the most Judicious of any I know to be Cast away and become as Water spilt on the Ground which cannot be gathered up But if on the contrary there be many Justices of that Perswasion and amongst a new set of Aldermen and Justices there are some likely to be more Tender in a point of Conscience than They Then must this Discourse be absolutely Necessary at present in regard to Such And if the Fire that is pent up does but Burn more vehemently so that when the Indignation breaks out it is likely to rage more furiously for the Restraint And if the Lives of Princes especially when they are Benign and Good are not certain to be longer than other Mortals Besides a multitude of other Accidents of Life that go to the turning about that Wheel which makes those Persons and Things that are at the Top now to be like to be at the Bottom again at another Season Then doth it seem Convenient also for Others that we imitate the Provident Housholder who sets down a Profitable Receipt in his Book for an Occasion hereafter though at present never a one of his Family hath need of it This Case Reader is a Case of very great Moment and Difficulty and the Determination Singular for so would it have been judged undoubtedly if it bad come out at another Time But the Author has so mannaged it laying his Foundation so sure as he goes and then raising his Structure so evenly upon it that what is Difficult he hath made appear Easie and that which is Peculiar he hath made appear as Common so that every Body will be ready to say He would have determined the Point just so himself when there is a great deal more Study Learning and Judgment goes into the Matter than comes to Anothers share to be Master of I will note a few things There is one short Paragraph in the Book let the Reader find it himself which states that Ticklish Point of the King's Power about the Laws He has written so Castigately on it distinguishing the Negative and Positive Power and offering his Notion in regard to the Publick Good the Supream Law that I think so compendious and clear a Determination is not any where else to be found I will by way of Confirmation thereof add this Story Not long before the Death of the Late King the Justices were sending Mr. Richard Baxter to Prison but He out of his kind Nature being told That it would kill the good Man sent word immediately he should be forborn Should the King have Controuled the Law to his Hurt it had been Tyranny but when it was done only for his Good with out hurt to any who is there will not justify the King's assuming Power over Law and Justices both in that matter To Vsurp Authority over the Law only for the sake of a Man's self as to take our Mony without a Parliament were the greatest Latrociny and which our King does abhor who hath declared for his Subjects Property as well as Liberty But for a King to declare his Pleasure that He will have all his Subjects be Happy and Enjoy their Consciences so long as the Publick receives no Detriment by it and to that end will forbear to Execute such and such a Particular Law or Laws which appears to him prejudicial thereunto I must say after this Grave Author That this being a thing altogether for the Welfare of his People and not for his Personal Benefit He must be said to Govern still According to Law seeing He does Act by the Supream Law to which all Others are Subordinate according to the Profound Determination of that Paragraph Another thing I will note in regard to the Candor of this Gentleman who no doubt does Write in Favour of the Dissenters could not be pleased with any Cause or Party who were for Persecution Yet does he very purposely Vindicate the Church of England her Liturgy and the Law from the abuse of such Justices and cursed Informers who as they dealt with many People did make them worse than Mahumatism while they pressed Them only to militate against the Sober Exercise of the the unquestionable duties of Christianity This Author will not have That which is barely the Fault of the One to be Imputed to the Other Reader I have no room to proceed to any further Note but commit this Piece to Thy Hands as a Jewel in my Opinion THE Justices CASE THERE was a Book I cannot tell just how many Years agoe but it was at a time I remember when the Fanaticks were not troubled which together with some other Books was put out de industria toward the raising a Storm upon such People the Contents whereof came to this That the Oaths of the late Times the Covenant the Negative Oath the Engagement were unlawful and not to be kept but the Oath which the Justices of Peace take is unquestionable and must oblige And if they do not therefore Execute the Law to their utmost upon the Dissenter they are Perjur'd Persons and must every Man of them for ought I could see by that Book be inevitably Damn'd I am very apprehensive That His Majesties Justices of Peace throughout the Realm are little beholding to any Men for such Discourses If they were to be supposed of that profligate Conscience that they thought they might Swear any thing and not be obliged to Perform what they Swear then might such a Book be Serviceable though not so much I hope as barely Reading over the Third Commandment But if there be any thing of Judgment or Discernment required in an undertaking of that Nature to yield the Reader the expected Fruit of
present and justifies this Plea. In the Oath which the Justice takes for the Executing his Office the words run thus You shall do equal Right to Rich and Poor after your Cunning Wit and Power By which Word Cunning continued from Antient Use I understand not so much according to the best of a Mans Skill and Knowledge of the Law which is comprised rather in the Word Wit But according to the best of his Discretion Wisdom and Prudence which includes 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i.e. Candor Moderation in Cases that require it That is You shall well and truly do trary to the Law of Nature and Reason lose their force and are no Laws at all Finch's Law p. 75. The Law of Nature and Reason is unchangeable and perpetual and no Statute can prevail against it Doctor and Student p. 4. Constat profecto ad salutem civium vitamque omnium beatam conditas esse leges says Cicero Ex quo intelligi par est eos qui perniciosa populis jussa descripserint quodvis potius tulisse quam leges in his two excellent Books De Legibus which have indeed given the first Light to all things almost which our Divines and Lawyers have said well on this Subject I will add St. Augustine and turn to no more Mihi lex esse non videtur quae justa non fuerit De Lib. Arb. l. 1. c. 5. After these Testimonies it is yet needful I explain the thing a little more for which I bring them When I say therefore That a Command or Law made against Charity Righteousness the Publick Good is No Law I understand not but that any Bill which passes the Houses and the King is a Law or Statute of the Realm that is a Law in Foro Humano in Mans Court or at the Bar in Westminster and if any Justice will Execute it the Outward Publicum And consequently if a Law prove otherwise or is against the Common Good it must be supposd also That such a Law is devoid of their intention or is not according to their Will and so does not bind the Conscience even upon a double ground both because it is destitute of the Authority it should have from God and its Authority from the Will of Man also upon the account already given If any Man now rise up again with a But who shall be Judge he may return to his Seat unless he choose to be a Bruit seeing every man according to the Religion of Protestnnts must be allowed a Judgment of Private Discretion to be his Guide in all which himself acts And if when a thing is commanded him he must judge whether it be agreeable to God's Word which is so much harder how much rather whether it be aggreeable to Right Reason which is the Law of Nature and the Common Good There were two Laws made in the latter Long-Parliament One about Burying in Woollen and the Other about Waggons Neither of which were at first regarded But the Woollen Act being found good for the Publick was renewed and is observed but the Other not being so is neglected that is as to the number of Horses very frequently but as to the breadth of the Wheels altogether I ask now Whether the Waggoner that makes no Conscience how many Horses he puts in his Waggon no more than of the dimension of his Wheels and breaks this Law does sin in it If he does seeing he does it every day and continues without amendment how can he be Saved If it be no Sin because the Common Good supersedes the Law I ask Who then is Judge whether this Law be for the Publick Good or not It is plain the Man himself finds the Inconvenience of it and he judges what is good for his Waggon and can do it better than they that Passed the Act and so orders his matters accordingly Suppose then an Informer comes to the Justice and Swears against him the Justice may Punish him if he will but he judging it no ways conducive to the Publick Advantage as well as the Waggoner at least not so much as can countervail the private damage of the Poor Man lets him go Here the Justice of Peace does judge of the Law in regard to his Execution of it and the Waggoner put Fear into the Heart of Man to be the Instrument by which his Vicegerents Govern the World. And now having stated the Case I took in hand as near as I can to my Mind I will suppose the most of such Gentlemen who are in Commission for the Peace if they may choose would be willing to live quiet with their Neighbours and if they may enjoy Their own Consciences be loath to vex others about Theirs but yet That there are some of another Make who either out of Hatred to the Conventiclers or Zeal for the Church or Sense of their Office or Instigation of Others or put upon it by some Informer are still for the Executing the Law against the Dissenting Meeter I must therefore take upon me to argue a little with the Justice of this sort and ask him two Questions What a Conventicle is and In what Manner he will proceed For the former The Act against Conventicles declares against all Assembling under Colour or Pretence of any Exercise of Religion in other manner than according to the Liturgy and Practice of the Church of England And the Oxford Act describeth such Meetings as under Colour of any Exercise of Religion are contrary to the Laws and Statutes of the Kingdom It is not all Meetings then of above Four that are not of the same Family to perform a Religious Exercise are Conventicles but such as can be proved to be in other manner than according to the Liturgy and Practice of the Church or are contrary to the Laws of the Kingdom The Church and Law now of England does own the Word of God and Gods Word commandeth Religious Exercises at home and abroad as well as Church-Worship Christ Prayed and Preached on Mountains in Houses in Ships and so did his Disciples Cornelius called together his Kinsfolks and Friends to hear Peter The Apostle commands To Exhort one another daily and to consider one another to provoke to good Works The Thirteenth Canon requires all Persons to Celebrate the Lords Day not only by Publick but Private Prayer Confessing their Sins Reconciling themselves Charitably to their Neighbours and using all Godly Conversation Queen Elizabeths Injunctions 1559. allows a Minister at all times when necessity requires to comfort his Flock with the lively Word of God which is the stay of Man's Conscience Moreover The Church hath appointed the Psalms in Metre for Private Houses Forms of Prayer bound up with the Bible the Practice of Piety Nowel's Catechism Jewel's Works to be kept in every Parish where more than Four may Read them If more than Four or Forty meet to Feast together the Church and Liturgy forbids them not to give Thanks for their Meat no nor to Pray