the Divines of the Church of England that the Kings of England receive no power or Authority from the People for all Soveraign Power comes from God and the Crown of England is not Elective but Hereditary Nay they own that no Essential branch of Soveraign Power can be taken away from a Soveraign Prince the only question is whether the exercise of Soveraign Power can be regulated and limited by Laws of the Kings own making and this those who talk of a limited Monarchy must own for there can be no limited Monarchy if the exercise of Soveraign Power cannot be bounded by Laws Thus I have shewn as well as I can learn what the Sense of the Divines of the Church of England is in these Points how far they agree with the Judges reasons if they be theirs I cannot tell because I know not in what Sense they understood them As for his application of all this to the case of Liberty of Conscience I have nothing at all to say to it for since the King has declar'd his pleasure in it I will not dispute against it I am not without hope that Liberty of Conscience will not do the Church of England so much hurt as her Adversaries wish nor the Church of Rome so much good as they expected for tho' Fanaticism is a pleasing delusion Popery is not popular in this age and therefore it is not meer showing that will make Converts and I believe Liberty of Conscience it self at this time will not drive any Sober Dissenter the farther from Church And I have more hope of Gods Protection because we are upbraided as we are by this Writer with our very hope and confidence in the Divine Providence for who ever reads it can think it nothing less besides the knavery of the Quotation Doctor Hicks in answer to that Objection against the Doctrine of Passive Obedience Jovian p. 263. Where then is our security How can we be safe from the oppression of our Soveraign if we may not be allow'd to resist Among other things tells his Readers Pag. 265. that there neither is nor can be any absolute security either for the Soveraign against the Subjects or for the Subjects against the Soveraign in any Government and therefore in the second place it may be a sufficient answer to the question to show that we have all the security against the King that the King hath against us even all the security that any people in the World ever had have or ought to have and he instances in the Providence of God in the Conscience and Honour of the King and in the Laws of the Realm to which every man be he never so great is obnoxious besides the Prince himself This was all very much to the Doctors purpose it being all the Security we can have that our Prince will not oppress us which is not absolute security neither But what does this signifie to Liberty of Conscience how does this secure the Church of England if all her Enemies be let loose upon her But this Writer picking out two or three sayings from what the Doctor said of the Divine Providence without any regard to the series of the Argument concludes it with these words in Capital Letters So that they have all the security that any People in the world ever had have or ought to have As if the Doctor had taught that no People in the World ever had or ought to have any other security against the Oppression of a Soveraign Prince but only the Providence and Protection of God whereas he applies this not only to the Providence of God but To the Conscience and Honour of the King and the security of Laws The Providence of God indeed has the over-ruling determination of all things but ordinary Providence works by means and we have no reason to expect Miracles now and therefore the Providence of God does not make other securities needless The Doctor tells us Page 267. As the Princes best security against the People is the watchful Providence of God so the same watchful Providence is the Peoples best security against the Prince So that the Providence of God is an equal security to Prince and People against each other But how would any Prince look upon such a trifler who should tell him Sir all the security you have or possibly can have against your Subjects is only the Providence and Protection of God and therefore you may save Money and disband your Guards and Armies To perswade Men to part with all other securities and to venture upon the most destructive Methods in confidence of the divine Protection is like the Devils Temptation to Christ to cast himself down from the Pinnacle of the Temple for it is written he shall give his Angels charge concerning thee and in their hands they shall bear thee up lest at any time thou dash thy foot against a stone 4. Mat. 6. I believe both Prince and People desire all the security they can and do not think it reasonable to part with one good security because they have another We have the Kings Word his Conscience his Honour and his Laws and thank God for all and implore the Protection of his Providence without which all other Securities are nothing and next to the Providence of God Laws are the best security because they are the Foundation of Conscience and Honour too and of all promises to govern by Laws for Conscience respects Laws and where there is no Law in the the case Conscience is not concern'd and can hinder nothing and to be sure the Honour of a Prince as well as Conscience is less concern'd when it is under no restraint of Laws He concludes this Pamphlet with some few Authorities for Liberty of Conscience I shall not now examine how pertinent they are for I will give no other Answer but this when he has answered all the Presbyterian Arguments against Toleration but especially that Book call'd Tolleration discus'd and the Arguments of Doctor Parker now the Right Reverend Bishop of Oxford in his Ecclesiastical Policy When he can prove that Liberty of Conscience is the Doctrine and Practise of the Church of Rome and the standing Rule of the Inquisition then I will consider further on this Argument In the mean time Sir I am Your most Obedient Servant FINIS Books lately printed for Richard Chiswell A Discourse concerning the Necessity of Reformation with respect to the Errors and Corruptions of the Church of Rome Quarto First and Second Parts A Discourse concerning the Celebration of Divine Service in an Unknown Tongue Quarto A Papist not Misrepresented by Protestants Quarto An Exposition of the Doctrine of the Church of England in the several Articles proposed by the late BISHOP of CONDOM in his Exposition of the Doctrine of the Catholick Church Quarto A Defence of the Exposition of the Doctrine of the CHVRCH of ENGLAND against the EXCEPTIONS of Monsieur de MEAVX late Bishop of Condom and his VINDICATOR Quarto An Answer to THREE PAPERS lately printed concerning the Authority of the Catholick Church in Matters of Faith and the Reformation of the Church of England Quarto A Vindication of the Answer to SOME LATE PAPERS concerning the Unity and Authority of the Catholick Church and Reformation of the Church of England Quarto An Historical Treatise written by an AUTHOR of the Communion of the CHVRCH of ROME touching TRANSVBSTANTIATION Wherein is made appear That according to the Principles of THAT CHVRCH This Doctrine cannot be an Article of Faith Quarto A CATECHISM explaining the Doctrine and Practices of the Church of Rome with an Answer thereunto By a Protestant of the Church of England 8vo The Law-Christian's Obligations to read the Holy Scriptures Quarto The Plain Man's Reply to the Catholick Missionaries 24o. The Protestant's Companion Or an Impartial Survey and Comparison of the Protestant Religion as by Law established with the main Doctrines of Popery Wherein is shewn that Popery is contrary to Scripture Primitive Fathers and Councils and that proved from Holy Writ the Writings 〈◊〉 the Ancient Fathers for several hundred Years and the Confession of the most Learned Papists themselves Quarto A Discourse of the Holy Eucharist in the two great points of the Real Presence and the Adoration of the Host In Answer to the Two Discourses lately printed at Oxford on this Subject To which is prefixed a large Historical Preface relating to the same Argument Quarto The Pillar and Ground of Truth A Treatise shewing that the Roman Church falsly claims to be That Church and the Pillar of That Truth mentioned by S. Paul in his First Epistle to Timothy Chap. III Vers 15. Quarto A Brief Discourse concerning the Notes of the Church with some reflections on Cardinal Bell rmin's Fifteen Notes Quarto whereof Ten are extant The rest will be Published in their order A Defence of the Confuter of Bellarmin's Second Note of the Church Antiquity against the Cavills of the Aâ—…viser Quarto The Peoples Right to read the Holy Scriptures asserted In Answer to the 6th 7th 8th 9th and 10th Chapters of the Popish Representer Second Part Two Discourses Of Purgatory and Prayers for the Dead Quarto A Short Summâ—ry of the Principal Controversies between the Church of England and the Church of Rome Being a Vindication of several Protestant Doctrines in Answer to a late Pamphlet intituled Protestancy destitute of Scripture-Proofs
AN ANSWER to a late PAMPHLET INTITULED The Iudgment and Doctrine of the Clergy OF THE CHURCH of ENGLAND Concerning one Special Branch of the KING's PREROGATIVE VIZ. In dispensing with the Penal-Laws SHEWING That this is not asserted by The Most Reverend Fathers in God the Lords Arch-Bishops Bancroft Laud and Vsher The Right Reverend Father in God the Lord Bishop Sanderson The Reverend Doctors Dr. Heylin Dr. Barrow Dr. Sherlock Master of the Temple Dr. Hicks Dr. Nalson Dr. Puller So far as appears from their words cited in THIS PAMPHLET In a LETTER to a Friend LONDON Printed for Ric. Chiswell at the Rose and Crown in St. Paul's Church-yard MDCLXXXVII Imprimatur May 13. 1687. GVIL. NEEDHAM An Answer to a late Pamphlet c. SIR I Have received the Book you sent me Intituled The Judgment and Doctrine of the Clergy of the Church of England concerning one special branch of the King's Prerogative viz. Dispensing with the Penal Laws Had I not now learnt to wonder at nothing it would a little have surprized me but now I shall only tell you that I have read it and do not like it And reserving one little reason for by and by viz. That it is not true I shall at present give you some other reasons of my dislike to prevent mistakes And first negatively Not because it is for the King 's dispensing Power For I never envy my King any Prerogative that belongs to his Crown And tho it may be this Branch of the Prerogative was not so well understood in former days yet it is certainly now the right of the Crown as much as the Opinion of the Judges can make it so and I never dispute against such an Authority And I think it is a disparagement to the judgment of the Reverend Judges to call in Clergy-men to help them out when he himself tells us p. 34. Vnto the Judges the people are bound lastly and finally to submit themselves for matter of Law Why then does he make any further dispute about the matter As if he distrusted the Judgment of the Judges or thought that people would rather believe Divines than Judges in matter of Law which would be a great scandal to that Reverend and Learned Bench. And therefore I confess I am very much offended with that priority he gives to the Judgment of Churchmen in this point before the Judgment of the Judges He says We could not resolve our selves in this great point of the Supreme Power inherent in and inseparably annexed to the Crown to dispense with Penal Laws but by these two ways 1. To see how far the Judgment of our Church-men appearing in their Doctrines which are for our edification doth warrant this Prerogative to be in the King 2. To see how far the Judges Resolutions in declaring their sence of the Law of the Land in this doubtful question do agree in such their Judgments and Doctrines Fie for shame First make the Clergy Judges of Law and Preach edifyingly about the Prerogative and then set them before the Judges themselves as a Rule and Pattern for them to follow and then as it naturally follows judg over the Judges judgment by its agreement with the judgment of Divines about Law and Prerogative If the Writer of this Letter was a Divine it argues a good Opinion of his own Profession but if he were a Lawyer or but a Justice of Peace I know what he deserves Secondly This brings me to the positive Reasons of my dislike of this way and they are comprehended in two 1. That I do not think fit to lay such stress upon the Judgment of Church-men in matters of Law and such sure this unlimited dispensing Power is a meer point of Law and that such an abstruse point too as not all Lawyers nay not all Judges have formerly been agreed about Now what does a Churchman's Judgment signify in matters of Law No man's Opinion is of any value but in such things wherein he is skilled now a Churchman does not signifie one who is skilled in Law but in Divinity And tho a Church-man should be a good Lawyer if he gives his Opinion in any point of Law his Opinion is not valuable as the Opinion of a Church-man but of a Lawyer for suppose a Church-man were skilled in Physick too would you value his Judgment in Physick ever the more because he is a Church-man Or think your self more safe in his hands than in a professed Physicians There are Interlopers indeed in all Professions but that any man's Judgment should be valued because being of one Profession himself he gives judgment in another is a Mystery to me And therefore this Writer should first have proved all those great Divines Arch-bishops Bishops Deans Doctors with whose names he hath so pompously filled his Title Page and to whose judgment he appeals about the King's Prerogative to haxe been great Lawyers as well as great Divines or else the Cause is Coram non judice and yet he makes no offer at this unless by the Title he gives Dr. Sherlock of Master of the Temple he would intimate his great skill in Law too but this will not do for his Book of Non-resistance was written before he liv'd within the infection of the Law-air So that it seems a very great injury to the Cause to appeal to such Judges as have no skill in the matter For what credit can the Opinion of Divines do it when it is not a point of Divinity but of Law that is in question For it is generally seen that those are very apt to mistake who guess at things out of their Ken and people are apt to suspect that such contemplative men who keep their Studies and seldom look abroad into the World may form fine Romantick Idea's of Government which will not suit the publick Constitutions of Kingdoms and Nations Secondly I think it is a very dangerous thing to put the Question upon such an issue as this The design of it I suppose is to recommend it to the Layety of the Church of England by such venerable Names but he should have considered that the Layety of the Church of England are not so Priest-ridden as they are at Rome and Geneva they have not an implicite Faith in their spiritual Guides and their Guides do not desire they should and therefore it is not their Names but their Arguments must prevail but if people are taught to rely on the opinion of their Ministers in such Prerogative Disputes the Popish Priests and Phanatick Ministers are great Politicians too but if they may be Judges Sovereign Princes will get nothing by it The Church of England indeed has always been addicted to the Service of the Crown but there are other Maxims of Government among other men Bellarmin and Suarez and Mr. Baxter's Common-wealth and the Dissenters Sayings not to take notice now of Julian the Apostate are not very favourable to the Prerogatives of Princes and I fear people are more
inclinable to follow such Guides as these and therefore I should have thought it more advisable to have taught people more to rely on the Opinions of Judges than of Divines in matters of Prerogative and Law because I fear that the honest Prerogative Divines will be greatly out-numbred by the Popish and Phanatick Common-wealths-men and whether this will prove for the service of the King should have been considered 2. My second Reason why I dislike this way is That I fear instead of doing service it will do great disservice to the King by weakning the Authority of those many excellent discourses which have been written about Non-resistance and which did great service not only to former Kings but even to our present Soveraign in the late evil and critical times It will not easily be forgot how many hard Censures those honest Divines underwent who durst both from the Pulpit and the Press oppose that factious humour which was then so rampant and presaged those wicked Conspiracies which were afterwards by the Divine Providence so happily discovered and disappointed The Doctrine of Non-resistance would very hardly go down and the great objection against it was That it made the Prince absolute and set him above all Laws which were Laws no longer than he pleased to have them so and thus our Lives and Properties and Liberties and Religion were at the Will of the Prince and if this were really the natural consequence of the Doctrine of Non-resistance I suspect it would to this day put a great many English Subjects out of conceit with it and yet this is in great measure the design of this Letter to apply those Sayings or Arguments which were urged for the Doctrine of Non-resistance to prove a Dispensing Power inherent and inseparable from the Crown Now far be it from me to dispute this Point Whether there be such an inherent Right in the Crown or no especially as far as the Judges have determined that there is but this I say That it is not a necessary Consequence of the Doctrine of Non-resistance that because we must not resist our Prince whatever he does therefore he may de jure dispense with what Laws he pleases and I think it is for the Interest of the Crown that these two should be kept distinct that the Prerogatives of the Crown should be asserted and maintained upon their own bottom and that the Doctrine of Non-resistance which must defend all other Prerogatives and is a better and cheaper security than Forts and Castles may not be entangled with other Disputes which will weaken its Authority though it be Divine when it is clogged as some men will think with such uneasie and fatal consequences This I confess gives me a just indignation against those half-witted Scriblers who to serve as they think a present turn have endeavoured to lessen the Reputation and to weaken the Arguments of those Divines who have appeared so zealous for the Doctrine of Non-resistance and Passive Obedience by affixing a great many consequences to them which are neither consequences nor theirs and by wresting their words to other purposes than they intended and for this reason I judg it a very good piece of Service to the Crown to undertake the Vindication of the men and of their Doctrines For Divines to determine points of Law especially such as require deep skill and insight into the nature of the Constitution as I observed before is out of their Sphere but obedience to Soveraign Princes both Active and Passive is not merely a point of Law but a Gospel command and this they not only may but ought to explain and press upon the Consciences of their hearers This the Church of England her self has done in the Homily of Obedience and this the Ministers of the Church have taken all occasions to do and with that success that there are not more Loyal Subjects in the World than the true Sons of the Church of England but farther than this they have not gone or if a few dablers in Politicks have let them answer for themselves The Scripture teaches Obedience but the Prerogatives of Princes and the Liberties of Subjects are the matter of human Laws and Constitutions which properly belong to another Gown And thus I come to consider what Testimonies this Writer has produced to prove That it is the Doctrine and Judgment of the Reverend Clergy of the Church of England that the Power of Dispensing with any Laws is an inherent and inseparable Right of the Crown where I will not meddle with the main point Whether the King have any such right for I will not dispute that but whether these Divines whose Authority is alledged in the cause ever taught any such Doctrine He begins with the Reverend Dr. Hicks Dean of Worcester and endeavours to render one of the best Books that ever was wrote for Passive Obedience wholly useless or odious to those men who are not fond of the dispensing Power But what does the Dean teach That the English Realm is a perfect Soveraignty or Empire and that the King of England by the Imperial Laws of it is a Compleat Imperial Independent Soveraign that it is a contradiction to call this an Imperial Crown unless he have all those Rights which are involved in the very Notion of his Imperial Soveraignty Well! to make short work with it does the Dean say That this Dispensing Power is one of those Rights which are involved in the notion of Imperial Soveraignty No he says no such thing but this Writer says so for him that this Power of dispensing with Penal Laws must be or nothing one of those Prerogatives which he proves from Sir Robert Pointz his Vindication of Monarchy and what then suppose it be does the Dean say so for that is the only point in question What his Judgment is No but he says That the Imperial Crown has all the Rights which are involved in the Notion of Imperial Soveraignty and our Author can prove that the dispensing Power is such a Right and therefore the Dean must grant that this dispensing Power is a Right inherent in the Crown Very well A Popish Priest will allow that an Imperial Crown has all the Rights that are involved in the Notion of Imperial Soveraignty now say I a Supremacy in all Causes over all Persons as well Ecclesiastical as Civil is an inherent Authority of the Imperial Crown therefore Popish Priests renounce the Supremacy of the Bishop of Râ—me and own the Supremacy of the Kings of England If he think this is not a good proof let him consider this matter over again which will be worth the while if it be only to teach him to Reason a little When there is any Dispute about the rights of Soveraignty it is a ridiculous inference to say That he who owns all the Rights of Soveraignty owns whatever any man says is a Right of Soveraignty for still he owns no more than what he himself believes to be so
the severities of the penal Laws whereby he may mâ—…st his clemency and goodness as well as his greatness and justice of graciously pardoning the â—maller Breaches of his Laws and the more capital offences which he might most justly punish For whoever denied this The King without doubt may not only pardon some smaller Fault but the greatest of Crimes but how this is to his purpose I still want to be inform'd And so I do as to what he quotes out of Doctor Puller's Book concerning The Moderation of the Church of England Iâ— that Equity which consists in remitting of the rigâ—… of the Laws when they press too hard upon particular Persons or in supplying the defects of the said Laws where they provide not sufficiently for particular â—ases which is all Doctor Puller contends for be all that this Writer wou'd have what need he to have writ a book about it and confirm'd it with so many great Authorities when I don't know that in this he has an Adversary in the World if he have it is fit such a man if ever he stood in need of Clemency and Mercy shou'd never have it Who thinks the Court of Chancery an illegal Court and yet that is properly a Court of Equity It is one thing to moderate the rigour of Laws in favourable cases another to dispense universally with such Laws as if Doctor Puller's Book prove any thing are very moderate already and yet this may be the Prince's Prerogative resulting not from Moderation and Equity but a Plenitude of Power As for his Anonymous Author with whom he concludes I neither know him nor his Book and suppose the cause will not depend upon a single Authority Thus we have heard what the Reverend Prelates and Doctors of the Church of England have said of this matter in the next place he tells us what were the Reasons that induc'd the Reverend Judges in Westminster-Hall so openly and solemnly after mature deliberation to declare their Resolutions in this Point for the thing But I had much rather he had told us what their Resolution was how far they extended this dispensing Power whether to all Cases or only to some or to all or to some as the King at any time judges necessary for I have heard very different Accounts of the matter but cou'd never see any authentick Record of it To have inform'd us in this matter had been a real Kindness because 't is the Rule of our Actions of our Words and of our Writing too for when I once know what the Judges declare to be Law I will enquire no further their Opinions solemnly declar'd must silence all Disputes because they carry Power and Authority with them unless any superiour Authority think fit at any time to judge over their Opinions This makes it very necessary to know what the Judgment and Resolution of the Judges is especially in any great and concerning Points but as for their Reasons I am not so fond of knowing them because it is the Authority of the Men not of their Reasons which must determine such matters for Mankind reasoning so very differently as they do there never cou'd be any final Determination of such Cases if all men must be first satisfied in the validity of their Reasons And therefore I think this Writer has done no service to the Cause by making their Reasons the Subject of Dispute for tho' they may be very good Reasons yet it may be all men will not think so and then such men will be apt to be dissatisfied that a Judgment which as they think is not founded on sufficient Reasons shou'd have such great Authority For it is not enough to say as this Writer does That the Reasons they went upon were only such as were exactly correspondent with the avow'd Doctrines before recited and that by this Declaration of theirs the Law of the Kingdom of England concerning this Soveraign Power in the Crown is no more than what was before publickly asserted to be the Divinity of the Kindom For tho' the Divinity of the Kingdom is a great word and cannot be determin'd by a Jury of Divines who liv'd in different Ages and never spoke together about it nay indeed can never be determin'd by any single Divines tho' never so many and never so learned but only by the Authority of a Convocation or National Synod yet those who think the Reasons not good will like them never the better because some Divines have been of that mind when they can so out number as I said before the Church of England with Popish and Fanatick Divines who teach another Doctrine And besides this I doubt he puts it upon a very dangerous Issue For if after all his confidence and assurance other men shou'd not think that these Reasons do so exactly correspond with the avow'd Doctrines of the Bishops and Doctors of the Church of England that they have neither taught the same Doctrine nor us'd the same Reasons as possibly this Author by that time he has read thus far may see reason to suspect what then had he not better have let all this alone have not the Reverend Judges great reason to thank him for bringing their Judgment and Reasons to such a Test as they will not bear They need not the Authority of Divines to justifie their Determinations at Law and therefore it is at best over-officiousness and a lessening of their Authority to make such Appeals besides the folly and rashness of making such Appeals as will do no Service But suppose these were not the Judges Reasons how will he justifie himself for publishing these Reasons as theirs without their Authority which I dare boldly say he never had Nay I dare lay considerable odds that these were not their Reasons as he has worded and represented them and that for more Reasons than one Did all the Judges agree upon these Reasons and make a Record of them or has he seen them signed with all their Hands if not how does he know that these are their Reasons For a Bench of Judges may agree in their Conclusion when they differ in their Premises and Reasons And I will believe that they had other Reasons besides these here mentioned Possibly some such thing as this might be said in Court but I believe not as it is here reported and it is an Affront to Judges in such a weighty Point as this to declare their Reasons upon meer hear-say when it is so evident that of twenty men who hear the same thing searce two of them shall exactly agree in their Report so uncertain and variable a thing is Oral Tradition which how infallible soever it may be in Divinity is not so in Law But to let all this pass and to allow these Reasons to be very good for I will no more dispute any Reasons which are attributed to the Judges than I will dispute their Resolutions yet the question still remains Whether these Reasons are exactly the same with what
abrogate Laws by their Proclamations I am sure Dr. Barrow said no such thing tho our Author did believe or would have his Readers believe that he did unless he quoted it to no purpose And that is not improbable by his next Quotation which is to as little purpose as one could wish P. 318. The power of enacting and dispensing with Ecclesiastical Laws touching exterior Discipline did of old belong to the Emperor and therefore not to the Pope which is the design of it and it was reasonable that it should because old Laws might not conveniently sute with the present state of things and the publick Welfare because new Laws might conduce to the good of the Church and State the care of which is incumbent on him because the Prince is bound to use his Power and Authority to promote Gods Service the best way of doing which may be by framing Orders conducible thereto And what is all this to a Power of dispensing with Acts of Parliament whether they concern Church or State Who ever but the Pope denied the Princes Authority in Ecclesiastical Affairs If the Oath of Supremacy indeed prove the dispensing Power then not only a few Bishops and Doctors but the whole Church of England teaches it if it does not our Author might have spared this Quotation And so he might his next P. 400. It is a Priviledg of Soveraigns to grant Priviledges Exemptions and Dispensations No doubt but it is and they may in many Cases do it by Law which owns this Authority in the Soveraign There are many legal Priviledges Exemptions Dispensations in the Power of the Prince Ergo What Thus much for Dr. Barrow and the Pope's Supremacy which was never favourable to the Prerogatives of Princes The The next in course is The Reverend Doctor Sherlock Master of the Temple who says in a positive manner It does not become any man who can think three consequences off to talk of the Authority of Laws in derogation of the Authority of the Soveraign Power The Soveraign Power made the Laws and can repeal them and dispense with them and make new Laws The only Power and Authority of the Laws is in the Power that can make and execute Laws Soveraign Power is inseparable from the Person of a Soveraign Prince Here our Author breaks off for he durst go no further it immediately following And though the exercise of it may be regulated by Laws and that Prince does very ill who having consented to such a regulation breaks the Laws yet when he acts contrary to Law such Acts carry Soveraign and irresistible Authority with them while he continues a Soveraign Prince Now it is all out and let him make his best of it But to expose the Shuffling Arts of this Writer it will be convenient to consider what the Dr. was a proving when these words dropt from his Pen. The Case of Nonresistance of the Supream Powers chap. 6. p. 186. Having at large proved the Doctrine of Non resistance from Scripture Testimonies and the common Principles of Reason in the Sixth Chapter he answers some Objections against it The Second Objection is That a Prince has no Authority against Law as is urged in Julian the Apostate There is no Authority on Earth above the P. 109. Law much less against it It is murder to put a man to death against Law and if they knew who had Authority to commit open bare-faced and down right murders this would direct them where to pay their Passive Obedience But it would be the horrid'st Slander in the World to say that any such Power is lodged in the Prerogative as to destroy Men contrary to Law To this the Doctor answers Now I perfectly agree with them in this also that a Prince has no just and legal Authority to act against Law that if he knowingly persecute any Subject to death contrary to Law he is a Murderer and that no Prince has any such Prerogative to commit open bare-faced and down-right Murders But what follows from hence Does it hence follow therefore we may resist and oppose them if they do This I absolutely deny because God has expresly commanded us not to resist And I see no inconsistency between these two Propositions that a Prince has no legal Authority to persecute against Law and yet that he must not be resisted when he does He who exceeds the just bounds of his Authority is lyable to be called to an Account for it but he is accountable only to those who have a Superior Authority to call him to an Account Thus the Soveraign Prince may exceed his Authority and is accountable for it to a Superior Power But because he has no Superior on Earth he cannot be resisted by his own Subjects but must be reserved to the Judgment of God who alone is the King of Kings In answer to what is said That an Inauthoritative Act which carrys no obligation at all cannot oblige Subjects to Obedience thereby meaning Passive Obedience he urges That it is very false and absurd to say that every illegal is an Inauthoritative Act which carrys no obligation with it This is contrary to the practice of all human Judicatures and the dayly experience of Men who suffer in their Lives Bodies or Estates by an unjust and illegal Sentence Every Judgment contrary to the true meaning of the Law is in that sense illegal and yet such illegal Judgments have their Authority and Obligation till they are rescinded by some higher Authority This he explains at large and comes at last to P. 195. enquire Whence an illegal Act or Judgment derives its Authority and Obligation The Answer is plain It is from the Authority of the Person whose Act or Judgment it is Which he proves and confirms in four Propositions 1. That there must be a Personal Power and Authority antecedent to all human Laws For there can be no Laws without a Law-maker and there can be no Law-maker unless there be one or more Persons invested with the Power of Government of which making Laws is one branch For a Law is nothing else but the publick and declared will and command of the Law-maker whether he be the Soveraign Prince or the People Which shows in what sense the Dr. affirmed That Soveraign Power made the Laws and can repeal them and dispense with them and make new Laâ—… viz. That there is no such thing as a Law without a Lawgiver who can make and repeal and dispence with Laws and without whose Authority too the Law can have nâ—ne For without doubt the same Power that makes Laws can repeal and dâ—spense wiâ—h them too 2. And hence it necessarily follows That a Soveraign Prince dâ—… not receive his Authority from the Laws but Laws receive theâ—… Authority from him For the Law has no Authority nor can give any but what it receives from the King and then it is a wonderful Riddle how the King should receive his Authority from the Law 3. Hence
the Divines of the Church of England have formerly taught This he asserts and this I hope I may examine without any offence for it is no Condemnation of their Reasons tho' I shou'd say that they were never us'd by Divines Now a Reason has a necessary Relation to the Conclusion or to that which is to be prov'd by it for tho' a hundred men should say the same thing and draw a hundred several Conclusions from it you cannot say that their Reason is the same because their Conclusions are not the same for those only reason alike who from the same Premises draw the same Conclusion so that tho' every one of these Propositions which are here said to be the Judges Reasons had been asserted a hundred times over by the Divines of the Church of England yet if they did not draw the same Conclusion from them which the Reverend Judges have done they cannot be said to be the same Reasons and whether they have done that or not may be learn'd from what has been already said And yet in truth I cannot tell whether the Premises be the same or not for they are set down in such loose and general terms in this Paper as admit of very different Senses and in which Sense they are understood by the Reverend Judges is not said And therefore I shall shew you in what Sense these Propositions have been own'd by the Divines of the Church of England and then those who know the Judges sense of them will easily see where they agree and where they differ 1. That the Kings of England are Soveraign Princes This is universally own'd by the Divines of the Church of England but then they make some difference between Soveraign Princes not with respect to the fulness of Power for they have all the Rights of Soveraignty but with respect to the Exercise of this Soveraign Power for some Princes are under no Restraints and Limitations but only the Laws of God and Nature they can make what Laws they please repeal them when they please dispense with them as they please without the consent of any but themselves Other Soveraign Princes tho' they have all Soveraign Power and therefore are irresistable and unaccountable to any but God yet the Exercise of their Power is by their own consent directed and regulated by Laws that they can neither make nor abrogate Laws but by the Consent of their Nobles and Commons assembled in Parliament and therefore tho' they never can do any thing to forfeit their Power yet they may do that which is illegal and how far the legal Exercise of such a Soveraign Power extends must be known by the particular Laws and Constitutions of their several Kingdoms not from the unlimited notions of Soveraign Power and Soveraign Will and Pleasure And the Divines of the Church of England have generally look'd upon the Kingdom of England as such a limitted Monarchy and if they have been mistaken in it I hope it is a pardonable mistake because it has been so general 2. That the Laws of England are the Kings Laws This also is universally acknowledged and the reason assigned for it by the Learned Doctor Sanderson Sanders Praelectio septima de Legum humanarum causâ efficiente Quin in jure nostro in quotidianis processibus juridicis in foro contentioso ex solenni formulâ Regiâ—… Leges diâ—… solent the King's Laws non aliam ob causam ut nos docuerunt juris nostri periti quam quod Reges Angliae sint fons justitiâ—… Legum legibus ipsis ut pro legibus habeantur vim omnem imponendi habeant concessam sibi à Deo 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 potestatem because as the Lawyers teach the Kings of England are the Fountain of Justice and Laws and have alone that Soveraign Authority that can give the Force and Vertue of Laws to the Laws themselves For tho' as he observes there is something necessary to prepare the matter for Laws as the consent and advice of Parliament yet it is the consent of the King only which gives them the Form and Obligation of Laws So that they are the Kings Laws because that it is his Authority that makes them Laws but when they are made Laws by the King they become the Laws of the Land the Rule of his own Government and his Subjects Obedience 3. That therefore it is an incident inseparable Prerogative in the Kings of England as in all other Soveraign Princes to dispence with penal Laws in particular cases and upon particular necessary Reasons It is also asserted by the Divines of the Church of England That the King may pardon what Crimes he pleases and in some cases upon great and urgent necessities may dispence with some Laws for a greater publick Good or for the Relief of some particular Persons where the Law appears too hard and rigorous while the general Intention and Vigour of the Law is secur'd For as they urge the Imperfection of all humane Laws requires such an Authority as this to supply their defects But the therefore I do not so well understand for I find none of them resolve this dispensing Power into the Laws being the Kings Laws which indeed will prove a Power of dispensing with all Laws where he pleases for all Laws as well as penal Laws are the Kings Laws Nor do I find any of them say that this dispensing Power is equal in all Soveraign Princes For they generally make some difference between absolute and limited Soveraigns that is the Exercise of whose Power is bounded by Laws of their own making the first sort who can make and abrogate Laws at their own pleasure may certainly dispense with them also when they see fit whether those who can neither make nor abrogate Laws without the consent of their People can dispence with what Laws they please is a question which I find no where debated among them and therefore cannot give their opinion in it 4. That of these Reasons and these Necessities the King himself is Sole Judge This I do not find any of our Divines meddle with tho' I think the Case is very plain every Man judges for himself and will do so and therefore a Soveraign Prince who has no Superiour will finally judge for himself and no man can call him to an account for it no more than they can resist him tho' he shou'd judge amiss and exercise an illegal Power But this does not alter the case nor make that legal which in it self is illegal he is concern'd to judge right and exercise no Authority but what he may because there is a Superiour Judge even of Soveraign Princes and then which is consequent upon all 5. That this is not a trust vested in or granted to the King by the People but is the ancient remains of the Soveraign Power and Prerogatives of the Kings of England which never yet was taken from them nor can be This also is universally own'd by