establishing his Conscience if he be a Justice of the Peace whether Lord Knight Mayor Alderman or Gentleman I must not wish any Body to seek it from that Book Of which as the Bookseller then did not name the Author I will not now rake up the Title Only the Distress of many Serious Conscientious Pious Gentlemen that are or at least have bin or may be called to this Office in regard to the Taking and Keeping that Oath which is then put upon them in which Case the tender Constable also may be included in regard to His does require a more Candid determination In all Oaths that are Promisory we are to know there are some Conditions to be supposed or understood as the Ground of the Lawfulness of such Oaths which else could be nothing but Snares to any good Men that took them I do not think it easie presently nor needful to reckon up all such Conditions But as for the Execution of the Laws of the Land unto which the Justices Swear there is this One most certain viz. That these Laws still be Executed in Subordination to the Supream Authority There are several things might be Instanced which a Justice is to do according to Law when upon Command from Above he is to Surcease His Authority is Subordinate to the King and the Laws to Almighty God. God now is the Supream Authority in the World and consequently there is no Man takes such an Oath to see the Laws Executed but it must be understood with Subordination to the Authority of Heaven as that of the King. If therefore there be any thing in the Laws of the Land that will not stand with our Duty to God according to the Law of Nature or his Revealed Word the Justice is to be supposed that he Sware not to Execute That but this Salvo is to be understood in his Oath Saving the Rights of God Almighty no less than those of the Crown The Ground of this does lye a little more deep than every one at first sight does see which is That every thing that is such is not indeed Law. That which the Justice Swears to Execute is the Law But if this or that particular thing enjoyned by Man be disagreeable to the dictates of Nature or the Scripture which both are God's Will such a thing cannot be made Law is no Law and he is to look to himself as not Sworn to perform it I suppose the Justice will readily give his Ear to this and it is thus confirmed Power is a Right to Command This Right is the Grant of the Superiour Authority God is Supream of All. He does not grant that a Man or any Men should Command what he Forbids Whatsoever then is disagreeable to his Will cannot be Commanded that is cannot be Law and the Justice Swears only to Execute Law. I remember a great while agoe I applied my self to a Justice to deliver a Quaker out of Goal I found him willing heartily but he believed he might not for fear of his Oath I went away not daring if he thought so to press him any more to it but I thought upon it I considered it was a hard thing that Men by the Law should be Imprisoned and kept Year after Year only for their Perswasion I considered again that Goodness which makes Men like God the Rule of Righteousness Quod tibi non vis fieri alteri ne fieris the Law of Love and the Duties especially of Mercy Kindness Gentleness which Christ requires of his Followers did prompt to acts that are Contrary I resolved then if the Law required one thing and Christianity or the Law of Nature another the Law of God must take place and no Oath consequently could bind against God's Commandment is to be Exercised And the Issue perhaps will come to this That according as he believes the sparing or not sparing such made Faults that is Faults of Man's making by Law upon such extrinsical accounts and not God's to be conducive to those ends if they be good he is to be guided in his actings Saul binds the People with a Curse That they shall not Eat till the Evening Jonathan knowing nothing of this Eats and upon Lot and Discovery is Commanded to be Slain The People for all this Oath will not Execute that Law or Command but save Jonathan Now look what would justifie the People in refusing Obedience to that Oath will acquit the Justice who upon the same account for all his Oath does not Execute some Law of the Realm The People thought it a rash Determination an unreasonable Sentence and a Sinful Command against the Sixth Commandment that the Innocent should be Punished It had been Murder if they had pursued the Oath And upon that account we are to judge Saul reproved of his unadvised Curse and he bound to Repent but no body to Execute what he had Sworn And yet all of them nevertheless bearing still the same Faith and Allegiance to the Anointed of the Lord. If you desire more than this I will distinguish in the next place between the Law and the Reason of it the Letter of the Law and the Purpose of it according to which it receives its Construction If a Justice of Peace does act according to the Intent and Reason of the Law I do apprehend he does perform his Oath better than if he rigorously stood upon the Letter Nay he may contract Guilt upon himself in the One when he shall not in the Other The Laws now against the Dissenter I apprehend to stand in general upon this Reason They would have them come to Church and secure the Peace of the Nation If a Justice then apprehend that the using of Rigour will but drive more from the Church and enkindle disturbance I ask Whether he be most obliged for the observation of his Oath to Forbearance or Prosecution Severity it is true hath been found a little of late as it so happened to have done something But at another time with other Persons where the Conscience is Steeled it hath done and it can do just nothing unless where it is Over-Cruel and that makes Desolation and at long running doth but widen the breach Solitudinem faciunt pacem vocant Again Though the Law pass in Parliament the Executive part is committed to the King. I will suppose now a Prince to be of the Mind that Tenderness is like to be more conducive to the Good these Laws design than Violence or to be in his Judgment against Persecution I ask then Whether the Justice who acts under the King might not satisfie his Conscience in this That he shall according as he Judges by Indulgence rather than by Rigour best comply with the Will of the Supream Governour I remember well in the time of the late King That I my self once heard Him with my own Ears declare at Council-Board and that Solemnly for he rose up saying so That He was against the Persecuting any for their Consciences
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