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
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
or read the Scripture or a Licensed Book or Sing a Psalm if they will at the end of their Supper If any one then shall go to turn the Law and Church against God by threatning Godly Persons for doing these things and would seduce the Justice to Prosecute them for it with Mulcts and Imprisonment let the Accusation be heard Is it for the meer number of such that meet that they must be made Criminal or for the Faultiness of the Thing that they meet about It cannot be for the meer number because there are more allowed to meet at a Play-House a Sessions-House an Exchange at an Horse-Race a Cock-Match a Bull-Baiting a a Bear-Baiting an Hunting an Execution in the Street in a Ship. It must be the unlawful Exercise then must make it a Crime or nothing for to lawful Exercises no Limits are set And what I pray then is that If it be only reading God's Word to more than Four besides the Family that is not unlawful nor a Licensed Book no nor Repeating a Sermon for where does the Law or Liturgy forbid either of them If Men Meet to call themselves adistinct Church and to form Rules of Discipline and Impeach the Government or Liturgy This indeed the Canon forbids and makes it the Character of a Conventicle and so expounds the Name Tutors may Catechize more at once than Four and more than Four may joyn in Prayer If a God-Father have Four and Four God-Children may he not after they are Sixteen Years of Age Exhort them together to perform their Vow which he made in their Name at Baptism May not more than Four together give God Thanks at a Table More than Four Travel together or Visit and are they forbidden Religious Conference to Edifie one another Should the Church or Law forbid this what were the Church but an Anti-Church and the Law the Devil's Militia to Fight against Piety and Mens Salvation Well then The Church and Law not forbidding but allowing these things I come in the next place to inquire how the Justice will proceed for I will conceive him to be a Man of Temper who acts with Prudence and Righteousness with Care and Conscience in what he does If any Witness will Swear only in general That above Four met for Religious Exercises in other manner than the Church and Law alloweth either they must Swear also what that unlawful Exercise was or they do not If not the Liberties of English-Men are brought to a sine pass when two Persons that list may take them away and undo Folks at their Will. Is it thus besides in all the Courts of Justice Do they Hang Men as Felons when any will but Swear that they are Felons and never tell what they Stole nor from whom Will the Lords Condemn a Peer for Treason if two will Swear that he spake Treason and never tell what Words he spake Will the Church excommunicate a Man if two will Swear that he is a Murderer but cannot tell of any body he Murdered Turks and Heathens abhor such doings as we abhor Toads and Snakes If they Swear what the unlawful Exercise was it is supposed they are but Witnesses and Accusers and not the Judges If every Woman or Beggar that can but Swear does become a Judge whether the Religious Acts of Lords Knights Minister and People be according to the Law and Church or not when they know not what the Law and Church is it were far better be among Serpents and Tygers than for People to have their Estates and Lives at the Will of such Persons for who dare then displease any Beggar Rogue or Servant It is not the Accuser therefore but the Justice is Judge and he must Examine the Witness seeing else he must become but a Register or Executioner and that must be of two things What the unlawful Exercise was as is already Suggested and how the Witness knoweth it He must examine first What the unlawful Exercise was If they say now There was a Meeting and plead Notoriety of Fact So is there at a Play at a Market in a Ship and other such greater Meetings as are before-named If they say There was Notoriety of a Religious Meeting So is there in all Church-Meetings in Meetings only for House-Prayer Holy Conference Grace at Table and the like not forbidden which are also before touched At Doctors-Commons they do meet about Admonishing Excommunicating Absolving and these are certainly Religious Exercises of Grand Importance and yet performed without reading Common-Prayer Either the Crime that Men are Accused for is Omission of something required or Commission of somewhat forbidden The Omission of the Liturgy cannot here be Criminal because the reading That is required in Church Worship but it is not imposed on Private Persons and Places Families Converse or Occasional Meetings And there is no Crime of Commission because neither the bare number of Men nor any of these Exercises before-named and supposed only here used are forbidden If they say That the Law forbids not above Four to be at a Play a Tavern a Feast but it forbids all above Four of another House to be at any Religious Meeting it is a Slander for the Law never forbid more than Four to be at Any Religious Exercise but Forbidden Exercises which differ from the Church Liturgy and Practice which none of the fore-mentioned Exercises do The other thing the Witness must be Examined upon is How they know the Accusation to be true And if it be Omission of the Liturgy that they Swear they must Swear they were present from first to last else they cannot Swear that it was not Read and Men must not be Judged and Ruined upon Presumptions and Opinions of others without Proof If part of the Liturgy is said to be omitted even in Church they must Swear which Part. But if they be Crimes of Commission that are Sworn the Words and Deeds must be recited with all that is Integral to the Sense before any Judgment can be given It is against all Humanity Law or Reason that any Man should be refused to speak for himself and see his Accusers Face to Face and know what they are and have leave to put Interrogatories to them If you reply That Leave to know the Accusers and Witness will hazard and discourage them and Leave to plead for ones Self it may frustrate all both Judgment and Execution I answer If indeed you stick there you are not the Man I took you for that is no fair Man and if that be the Rule you would go by I will tell you there is a nearer way than yours yet Never stand troubling us or your self with Laws Courts Judge or Witnesses but take all Mens Goods and Money that you have a mind to or Imprison or Hang up any Man that you will without giving any Reason or account for it It will be considerable Clemency to a Man to let him Dye as Innocent and escape the Infamy of Accusation
Jesus Christ and his Apostles had not so much Justice These are things that the Justice who is of the Prosecuting Perswasion is to think upon and if he be a London Justice there is one thing more to be put to him There are at least a Hundred or two Hundred Thousand Souls in the great Parishes in and about London more than can hear in the Churches I ask him now Would you have all or half these Persons to live as Atheists and Worship God in no manner at all in any Congregation or would you not If you would not Why do you Prosecute them for going to Private Meetings when they cannot come to the Publick in their own Church which will not hold them If you would I desire Sir then very fairly to have done with you for it were better to have to do with a Mahometan than with a Christian of such a Mind After this I must return to the state of our Case to touch it again in the main Point If any Law of Man be inconsistent with God's Will either manifestly by the Light of Nature or Scripture such a Law should not have passed by the Law-giver and is not to be Executed by the Inferior Magistrate or observed by the People But if the Matter of a Law be such as is of an indifferent Nature and all Circumstances considered it does appear doubtful and difficult to us what we are to do There is some Rule to be laid down on necessity to walk by or we are at a loss Now as God hath given us a Rule in Matters of Religion which is the Scripture by which we are to judge and try what is to be Believed and Practised therein and every Man 's own Private Judgment or Conscience must be the Discerner of it And as in Moral things He hath given us the Dictates of Reason for our Rule So in Matters that are Political hath He given us our Rule or Test also which is the Publick Vtility for the Apostle speaking of the Higher Powers that give Laws or Supream Ruler does tell us That he is the Minister of God for our Good as I have noted and Man being a Creature endued with Discernment by his Rational Faculties he is to attend and compare such things with that Rule And as they agree or not agree thereunto he is to Pass to Execute to Obey a Law or Not to do it accordingly This is a Truth I am perswaded or Light that I have struck out of the Collision of many Thoughts and do propose it therefore as Tasted Clear Fixed and Established to Others When a thing now to proceed upon it is really against the Common Good or a Man so judges his Judgment not being the Rule it self but the Discerner of it such a thing at least to that Man is never to be thought to have the Authority of God as that Religion hath none of it which hath not Foundation in Scripture nor indeed the Intent of Man this Publick Vtility being the scope of the Law-giver or which ought to be in all his Laws as hath been before signified and settled And consequently whether it Be or be Not so as whether it Be more predominantly or Not agreeable to God's Word is for the most part therefore the chief point to be inquired into as to the Obligation of Conscience in these matters Any Man may be made to do the thing for fear of Wrath whether Justice or People So that if the Supream Power will have it they must do it or Suffer all Resistance being forbidden and as for the Law it is all one whether a Man act out of Conscience or not so long as it makes him do it But if a Man really in his Soul does judge the thing Commanded to be against the Common Good the Justice that Executes not that Law and the Man that Obeys it not if they can escape with Man are not obliged for Conscience-sake even as when they think it against God's Will for God's Will indeed is that Men should Rule only for our Good so as they need think by that Omission they Sin against God. I pray note all the way I speak still not of what is safe in point of Law but of what is Innocent in point of Conscience And when I allow a Private Man to judge of a Law whether it be for the Publick Good or not this is not to have a hand in determining the Question Whether I am obliged or not to obey it under the Penalty of the Law but under the Guilt of Sin and God's Judgment Neither must I forget to distinguish from that well Studied Divine Dr. Field upon the Church between Subjection and Obedience and consequently between the not Obeying a Law and Resisting of Authority the latter whereof is made always Damnable by the Apostle and the former is Good or Evil or Indifferent according to the Matter required with consideration of the Circumstances a Man is in And though I am perswaded as to the point of Obedience that when a Law is unprofitable that is when a Man does Impartially judge the Matter Commanded not to be conducive to Publick Benefit or at least if he truly judge the same to be against it such a Law does not such a Law cannot oblige the Inner Man which all wholsom Laws I hold do any farther than to avoid Contempt and Scandal Yet do I in the point of Subjection hold and maintain and am ready so far as it may concern me to declare That I hold it unlawful for any Subject or Subjects to take Arms that is Levy War against the Authority of the King that is against the Supream Executive Power which God hath committed into his hands according to the Constitution of this Realm whether as Residing in his Person or issued out from Him to any other Person or Persons by his Commissions upon any Pretence whatsoever Which I do declare the rather because I am out of doubt that those they call Nonconformists as well as the Conformists who understand themselves on both sides however it comes to pass that One Party of them are scrupled for want of but so little Explication as this is are perfectly reconcileable on that Point To conclude The Law in such or such a particular Case requires the Justice to act against the Common Good What must he do then I speak not of what he may choose to do in point of Prudence which in case a Law is directly against God's or so extreamly to Publick hurt as quite over-ballances our Sufferings is not to be consulted but of what he is bound to in point of Conscience And every one I think will give this Answer That the Superiour Law must have still the Preheminence unless there be something particularly to be alledged in regard to that Matter which is not exceptionable in the Case if it be against God's Word He must himself judge in referrence to his own Act or he acts as a Beast and Punishes as an Horse strikes And he is also the Minister of God under the King for the Peoples Good. This is the very End Of Magistracy it self Of the Laws Of the Execution Consequently the Common Good Salus Populi being the Supream Law whosoever he be that sincerely seeks That whether he Executes or Forbears a Statute he is he must be in the Forbearance or Execution thereof upon that account the best Minister Of the Laws Of God and Of the King Princeps est Dei imago Lex Principis opus Finis Legis Justitia Ex Justitia Communis Salus Deo Gloria FINIS ERRATA PAge 9. Line 8. for fieris read feceris p. 20. l. 7. for prevent r. pervert p. 45. l. 3. for are r. may be p. 57. l. 9. for forbid r. forbad