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ID Title Author Corrected Date of Publication (TCP Date of Publication) STC Words Pages
A58674 Two cases submitted to consideration L'Estrange, Roger, Sir, 1616-1704. 1687 (1687) Wing S141; Wing L1320A; ESTC R23606 7,680 2

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Specification of Particular Duties drawn from the General Lights and Precepts of Nature and recourse must be had in All Cases to Those Authentick Originals for the Correcting of False or Imperfect Copies What 's to be done where the Letter of the Law draws One way and the Conscience of the Prince Another He must of Necessity Dispense with One of the Two Laws He is Accountable to God for the Breach of Trust if he does not Act according to his Iudgment for the Good of his Subjects And the Law of the Land can never Oblige the Sovereign to do any thing contrary to the Law of his Authority and Commission which is no more then Employing the Law of his Prerogative for the saving of a State from the Law of the Land which as it may happen would Hazard the Ruine of it But where 's the Danger at last of This same Bug-bear-Prerogative of a Dispensing Power The Right and Practice they say of Dispensing with One Law layes All the Rest at Mercy But I am of Opinion rather That the Want of such a Power layes Government it self at Mercy And whereas it is Objected that it sets up Absolute Power under the Cloak of a Dispensation it does in Truth prevent the Introducing of an Anarchy for fear of Tyranny Neither is it the Bus'ness of a Dispensation to Invalidate Humane Laws but to Uphold the Authority of Laws Divine Reason of State and Equity make All Governments to be Absolute in Some Cases and Occasions and what matters it to Us Whether This comes by Creation or by Accident Briefly He that Quarrels Government for being in some Respect Arbitrary Quarrels God's Providence for Making it so and for finding it Necessary so to be And This Exception strikes at the very Foundations of Power it self If a Prince cannot Dispense he cannot Govern where Necessity is too strong for the Law. His Commission is Positive and he Acts under a Command as well as under a Duty He is upon his Peril to Execute the Powers that are Given him and as much Obliged to Assert his Prerogative against all Usurpations as not to abuse his Power to Violence and Oppression Or even in case of such an Abuse a Prince has a Power to do many things that he has not a Right to do and therefore the Morality of Acting must be Distinguished from the Authority of Governing for the Character stands Firm in Despite of the Male Administration There is Another Unlucky Mistake too that 's very Rife Stay for a Parliament they Cry and let those Laws be Repealed that are not fit to be Continued This is the Best way certainly where the Time the Quality of the Case and the Temper of the People will Bear it But what if the Danger Presses What if the Delay be Certain Death and the Disease cannot Wait for a Remedy The King's Duty never Sleeps his Authority never Intermits and he is as much Accountable to Almighty God for the Exercise of his Function Out of Parliament as in Parliament If YOUR OWN Laws will not do it says God make Use of MINE as you will Answer the Contrary Shall a Prince say Lord I must not Dispense as if he might Dispense with God's Law though not with his Own. And then for the Quality of the Case the Privacies of State-matters as the Manage of Secret Commissions Negotiations Intelligences Counsels and Intrigues These are Affairs so peculiar to the Cabinet that they are Wholly Foreign to the Cognizance of a Parliament and yet these Invisible Wheels are a kind of Political Perpetual Motion and of Absolute Necessity to the Great Design of Government it self There are Other Cases where the Ground of the Suspension is only This or That Particular Emergency And in These Cases it often falls out that it may be Death almost Not to Suspend and yet as Mortal to Repeal the same Law. And so the Temper of the People must be Allow'd to go a great way too when the Mobile are Poyson'd with Ill Opinions and Iealousies of their Superiors as in the Instance of That Fatal Parliament of Forty One And the Danger of Two Parliaments since at Westminster and Oxford where his Late Majesty scap'd very narrowly the Dear Experiment of the same Remedy Well! but 't is a Temptation they pretend to the setting up of an Arbitrary Power to say that a Prince MAY do 't if he WILL Now this is to Suppose that Whoever MAY do 't if he WILL WILL do 't if he CAN and if it holds That Way there 's Nothing but Oppression and Tyranny upon the Face of the Earth For the Prince that has it not in his Power to Oppress has it not in his Power to Govern for he is Govern'd where he is Impotent and the Controll sets up One Sovereignty against Another The Republicans insist mightily upon the Trust the Receptacle and the Possible Abuse of it But what now if there be No Avoyding of such a Trust What if there never was any Government in the World Or if Humane Society cannot subsist WITHOUT it What if at the same Time that this Trust is Controverted there are a Hundred other more Dangerous Trusts Admitted That is to say as to the Enabling of a Prince to make Slaves of his People What if the Trust and the Power have Always been in the same Hands And in Conclusion if it be Utterly Impossible to secure People against a Possible Abuse how Wild and how Unreasonable a Thing is it to raise Scruples against the Eternal Course of Nature and Iustice To speak to the Matter as it lyes somewhere or other there must be a Trust and That Trust may be Abused whereever it is Placed So that a Trust is Inevitable 2ly If it never Was Otherwise the Case is Universal 3ly There must be a Trust amongst All Sorts and Degrees of Men in All manner of Dealings and in a Million of Common Cases where Life Limb Liberty Fortune Body Soul and Good Name perchance may all be Concern'd There is No Place in fine for the Offices either Publick or Private of Humane Society without it What 's the Chancery but a Court of Dispensation for Granting Relief in Equity against the Letter of the Law Do we not Trust Divines Surgeons Physicians Lawyers Bankers Relations Children Servants Nay and so Trust them too as in some Cases to Allow them a certain Latitude of Abating somewhat of the Rigour of their Commission And in a Word there is a Law of Necessity that supersedes the Obligation of All Our Positive Laws Upon the Main we cannot Live Man by Man without Trusting one Another and Providence has made This Trust so Necessary that we can have neither Peace Safety Conversation nor Property without it and shall we make a Greater Difficulty to Trust Governours with the Administration of Iustice Nay and where God has Entrusted them Beforehand for Kings are God's Trustees not the Peoples Will Men have no Government at all
unless they may have such a Government as God never made and which God has made Impossible ever to Bee Why This would be to make Every Will and Tom an Umpire of the Controversie Where Every Body is No Body and yet This very Mobile must be Trusted over again and find Their Vouchers too But 4ly Why is so much more Stress laid upon this Single Prerogative then upon All the Rest that may do Fifty times more Mischief Why are not People as much Affraid of Rapes Massacres Robberies and other Military Violences from the UNDISPUTED Power of the Sword as they are of Tyranny and Oppression from the Prerogative of the Dispensing Power VVhy not of the Mint Life and Death War and Peace for fear of False Money Protecting Criminals bringing in Foreign Forces c. All comes to This at Last that a Iust and a Gracious Prince VVILL not Misapply his Dispensing Power and He that would make himself Wholly Absolute can do his Work in Despite on 't and without it 5ly The Power and the Trust are so Inseparable that where there 's no Publique Power there 's No Publique Trust and where there 's No Publique Trust there 's No Publique Power What 's Authority without the Right to Iudge of the Time the Case the Measure c as if the Multitude were to Iudge and to Appoint and the Sovereign only to Execute or in Plain English to Depose himself in a Resignation to the Dictates of the People Let them once Prescribe to a Prince what is Fit for Him to do and they shall soon put it to a Vote among Themselves whether it be Fit or No for That Person to Govern. But what Pretence have they to Govern in This Prerogative more then in All the Rest And how come they to be Rulers in This Case and Subjects in All Others To Close This Point the End of Law is Equity and where the Letter of the Law will not reach That Equity it is to be presum'd that the Law speaks One Thing and means Another In This Case it belongs to the Sovereign to Explain and Execute That Law according to the True Intention of it The Equity of it being the Rule of Government 6ly It cannot be Imagin'd that the Possible Abuse of Power which is Impossible to be Cleared or Prevented should be Offer'd as a Reasonable Argument against the Divine as well as the Political and the Necessary use of it for it puts a Stand to the Sun in its Course which is all one with a Stop to the Orderly Motions of Government It is Objected once again What if the Chief Ruler shall say there Is a Necessity where there is None and make That Pretended Necessity the Ground for his Proceeding at Will and Pleasure Necessities they say are Notorious and carry Pomp and Noise along with them In Sea Breaches or Conflagrations the Multitude are Witnesses to the Stress To which I Answer that if a Prince says there IS a Necessity where there is None The People on the other hand may say there is NONE where there IS and no Umpire at last to End the Strife But Right or Wrong the Former is a Sentence of Order and Authority upon a Foundanion of Law and Conscience The Other an Indeterminable License in Opposition to Practice and Common Sense and an Usurpation over and above The People Judge by their Eyes their Ears and shortly by what they See Hear or Feel but the Magistrate reads Effects in their Causes and it is both the Prudence and Duty of his Function to Prevent Mischiefs in the very Seeds and Roots before they come to a Head. To Sum up the Whole now If Government The Rules Powers and Measures of Goverment be all of God If Those Foundations be layed in Right Reason and Iustice and Communicated to All Mankind in the very Bowels and Instincts of Reasonable Nature If Humane Laws fall short of the Ends they were Design'd for and No Means left us to supply That Failing the Inference is that either Those Original Lights are given us in Vain or that Providence has made a False Reck'ning which are Two Points that cannot be so much as supposed without the Highest Indignity to God's Power and Wisdom As to the Receptacle of this Sovereign Prerogative and the Iudgment Where When How and in what Degree it is to take Place the Order of Nature and of Government tells us that It is impossible to Vest it in the People without Confounding Sovereignty with Subjection CASE II. The Nullity of any Act of State that Clashes with the Law of God. THe Two Cases above are but Effectually the Abstract of Twenty or Thirty Observators upon the same Text. I have done with the Former and as to the Other now It is out of Doubt that all Those Pretended Laws are Nullities that take upon them to Forbid what God and Nature Commands or to Command what God and Nature Forbid This Single Position might serve for a Full and a Final Resolution upon This Point but having Touched upon One Particular under This Topique in several Observators in the Case of Charles the First and particularly in my Late Answer to a Letter to a Dissenter c. I would willingly Propagate the Opinion if it will hold Water and I am as ready to Relinquish it if it will not Abide the Test. But however I shall recommend it to the Publique Once again in the very same Words In the Case of the Proceedings under Charles the First against the Papists That Excellent Prince according to all Reasonable and Humane Presumption lost his Crown and his Life in Complement to a Void Act of his Own in pretending to Bar himself the Use and Service of his Subjects As if an Act of State could Supersede a Fundamental of God and Nature I have the Authority of a Great Man Bishop Sanderson to Back me in the Casuistical Stress of This Instance God says he hath given to his Vicegerents here on Earth a RIGHT In and a POWER Over the Persons of ALL their Subjects within their several Respective Dominions even to the spending of their Lives in their Countries Service WHENSOEVER they shall be by Their Authority called thereunto Five Cases p. 71. Now if they have These Privileges of RIGHT and POWER from GOD and Extending to ALL and WHENSOEVER without Exception either to Time Number or Distinction of Persons What Earthly Power shall dare to Controll This Commission And I have One Word more to Offer now that I have formerly spoken to which comes a little Closer yet to the Point The Precept of Honour thy Father and thy Mother is undoubtedly of Divine Authority and a Command of an Immutable and Indispensable Obligation And it has Catholique Assent to 't that it Extends as well to our Civil and Political as to our Natural Parents By This Law All Subjects are Bound in Conscience to Attend the Call and the Service of their Prince for the Precept is Positive without Any Qualification Limitation or Condition whatsoever The Question will be Shortly This now Whether Any King can by any Act of Civil Authority Divest himself of This Right over the Persons of his Subjects I do not say but he may Chuse whether he will Command them or Not but he Cannot Discharge his People of their Duty of Obedience in case he Requires their Service That is to say In any Case which is not Contrary to the Will and Word of God No Humane Law Can Absolve them from That Office of Allegeance So that in the Conclusion either Those Subjects are Clear before God that serve their Prince when by him thereunto required notwithstanding any Law of Man to the Contrary Or the Ten Commandments may be turn'd to Waste Paper If the Law of the Land shall Forbid upon a Penalty That which the Law of God Commands upon a Penalty London Printed for R. Sare and Publish'd by Randal Taylor 1687.