et Dominationem Potestatem c. than this Discourse of Fortescue is 2. Another Reason which he gives why the King is Irresistible in all Cases is Because he is a Sovereign and it is essential to Sovereignty to be irresistible in all Cases Which is false For the King of Poland is a Sovereign He coins Money with his own Image and Superscription upon it which according to our Author p. 50. is a certain Mark of Sovereignty and p. 51. by the very Impression on their Money it is evident that he is their Sovereign Lord He stiles himself by the same Grace of God with any King in Christendom and wears the like Crown He assembles Dyets he disposes of all Offices he judges the Palatines themselves and is full of the Marks of Sovereignty And yet he that shall take a Polish Peny and make such work with it as our Author does with the Roman Tribute money and out of it read Lectures either of Active or Passive Obedience in all Cases will read amiss For in case he break his Coronation-Oath they owe him no Obedience at all of any kind for this is one Clause in it Quod si Sacramentum meum violavero incoloe Regni nullam nobis obedientiam praestare tenebuntur So that in case he violate his Oath his Irresistibility departs from him and he becomes like other Men. 3. A third Reason is Because the Iewish Kings in the Old Testament and Caesar in the New Testament were Irresistible in all Cases Now that is more than I know and I leave it to Divines to examine whether it was so or no as also to enquire why the Christians of Nero's Houshold did not shew their Loyalty in defending their Master after the Senate had pronounced That he was Hostis Humani generis But this I say That if they were thus Irresistible and if this be a good Argument here it is a good Argument in Poland and thither I would desire our Author to send it by the next Shipping for the Law of the Land has furnish'd us with those which are much better I come now to the second Case which as I said before is resolved under the covert and countenance of the former That as well inferiour Magistrates as others imploy'd by a Popish or Tyrannical Prince in the most Illegal and Outragious Acts of Violence such as cutting of Throats c. are as Irresistible as the Prince himself under pretence of having the Prince's Authority to do these Acts and must be submitted to under pain of Hell and Eternal Damnation Now this Resolution is very false which I shall shew 1. By confuting all the Reasons which are brought for it and 2. By producing some Reasons against it His Reasons are 1 st A Personal Authority in the Prince antecedent and superior to all Laws which makes himself inviolable tho he trample upon all Laws and exercise an Arbitrary Power and makes all others inviolable under him who act by this Authority But I have shewed already that this Personal Authority is false and groundless and that the King is inviolable by Law and that this Prerogative is highly just and reasonable and can never prejudice the Subject for the King can do no wrong And it is plain that he cannot give such an illegal and miscalled Authority to others if he have it not himself To shew that the Authority to which we are bound to submit is not in Laws but in Persons tho acting contrary to Law he has brought this following Argument which is the most laboured of any in his Book Nay it is very false and absurd to say that every Illegal is an Vnauthoritative Act which carries no Obligation with it This is contrary to the Practice of all Humane Iudicatures and the daily Experience of Men who suffer in their Lives Bodies and Estates by an unjust and illegal Sentence For the most illegal Iudgment is valid till it be revers'd by some Superior Court which most Illegal but Authoritative Iudgment derives its Authority not from the Law but the Person of him whose Iudgment it is Now to use his own words this is very false and absurd all over For 1 st Legal and Authoritative are all one and Illegal Authority is in English unlawful lawful Power 2 dly It is not true That an Illegal Judgmen is valid till it be revers'd For the Judgment of a Man to Death in an Arbitrary way either contrary to the Verdict of his Jury or without a Jury is not Authoritative nor Valid at all no not for an hour But I suppose by Illegal Iudgments this Author means legal Judgments which have Error in them and if these should not be Valid and stand Good till that Error be found in some Higher Court there could not be Legal nor Illegal nor any Judgments at all but all humane Judicatures must come to an end For if Judgment cannot be given till we have Judges who are not subject to Error the Laws must lie by and rust and there can be no Administration of Justice 3 dly The Authority of a Judgment which is Erroneous is not from the Judges Personal Authority above the Law nor from his mistakes beside the Law but from that Jurisdiction and Authority which the Law has given to Courts and Judicial Proceedings which if they be in due Course oâ— Law are legal and are presumed to be every way right and as they should be and free from Error tilâ— the contrary appears in some Higheâ— Court. But if the Judges in Westminster-Hall should use a Personal Authority superiour to Law in judging Men to Death without a Jury or in condemning a Man when his Jury acquits him or the like the Law having given no Authority to any such Proceedings these Judgments would be illegal and void and have no Authority at all And herein I say no more than this Author himself has said in another place For where he professedly lays down the difference betwixt an Absolute Monarchy and the English Constitution pag. 208 209. he has these words An Absolute Monarch is under the Government of no Law but his own Will and is not ty'd up to strict Rules and Formalities of Law in the execution of Iustice but it is quite contrary in a Limited Monarchy where no Man can lose his Life or Estate without a Legal Process and Trial. But thus do men contradict themselves who write by rote and without considering things and thus does their blind Passive Obedience tie us up to Impossibilities and oblige us to lose our Lives and Estates without a Legal Process and Trial where even as this Author confesses no man can lose them in such a way 2 dly Another reason why we must submit to Illegal Violence is this Because though they have no Legal Authority for it yet we have no Legal Authority to defend our selves against it But he himself has given as full an Answer to this as can be desir'd in these
Commission by being convicted of some Offence against the Laws which is punished by such a disability Or 3 dly Which we may likewise refer to this Head a Person may be unqualified by Law to execute a Commission or act by Virtue of it till he have perform'd some Condition required by Law As for Instance till he have taken his corporal Oath for the due and impartial Execution of the Trusts committed to him or as in the Militia-Act every Lieutenaut Deputy-Lieutenant Officer and Souldier remains unauthorized till he have taken the Oath For in all these Cases where the Law says no Man shall be enabled or impowered he is not impowered The third Requisite to a Person 's being Commissionated is that he be appointed to execute or exercise some Legal Power and Authority No Man can be commissioned to exercise Powers which are Illegal and Arbitrary and which the Law says shall not be exercised And therefore all such Commissions are null and void that is they are no Commissions As for Instance Letters Patents or Commissions to erect a Court with such Powers and Authorities as the High Commission Court had or because we are speaking of Military Commissions a Commission for Proceedings by Martial-Law contrary to the Laws and Franchises of the Land. The next thing is to consider when a Man acts in Pursuance of his Commission And First It is plain that he does not act by Virtue nor in pursuance of his Commission who exceeds the Legal Powers and Authorities of his Commission For in those Acts he is not authorized and impowered but acts of his own Head. Secondly Much less does he act in pursuance of his Commission who acts quite contrary to the Intents and purposes of his Commission As for Instance he who in case of Insurrection Rebellion or Invasion is Commissionated to lead imploy the Militia for the suppressing such Insurrection or Rebellion or for repelling such Invasion if instead of this he himself shall raise an Insurrection or Rebellion or assist an Invasion he pursues his Commission to Death and acts in direct opposition to the end for which the Law has impowered him and does that which he neither is nor can possibly be authorized to do But because no Commission can be given no Power can be granted no Authority can be entrusted with any Person but may be unfaithfully discharged yea though men be sworn to the due and impartial Execution of it it may be made a Question Whether Legal Powers and Authorities which are not duly and truly and impartially executed are Authoritative and consequently must be submitted to To which it must be Answered That a trust is inseparable from an Office or Commission and that no Legal Power or Authority can be so cautiously regulated but that still something that is within the Compass of that Power and Authority must be left to the Honesty and Integrity of him that executes it Only it is the Perfection of the English Laws whereby they have preserved the Franchise of the Land that they have left very little to the Discretion of those who are intrusted with the Execution of them but in all Cases have secured the main As where they have left Fines at the Will of the King still it is Salvo Contenemento But where the Law has expresly intrusted a Commissioner with the exercise of some Power while he acts within the Bounds and Limits of his Authority there he is to be submitted to though he should exercise that Power amiss As for instance in this Act The said respective Lieutenants and Deputies or any three or more of them shall have Power to hear Complaints and examine Witnesses upon Oath which Oath they have hereby Power to Administer and to give Redress according to the Merits of the Cause in matters relating to the execution of this Act. Now if they do not faithfully discharge this Power nor give Redress according to the Merits of the Cause a Man must even put his Complaint in his Pocket till he can have legal Redress elsewhere This Act likewise inables the Lieutenants or any two or more of their Deputies to warrant the seizing of all Arms in the Possession of any Person whom the said Lieutenants or any two or more of their Deputies shall judg Dangerous to the Peace of the Kingdom Now if they shall abuse this Power which is for securing the Peace of the Kingdom to the disarming the Loyalest and Best Subjects the King has and will not restore these Arms to the Owners again nor they be able to recover them by Replevin it cannot be help'd nor indeed is it of very great Importance because they may buy more But as I said before where the Property or Liberty or Lives of the Subject are concern'd this very Act has been careful to secure them so as to forbid searching for Arms in the Night-time unless within the Bills of Mortality Cities Market-Towns and every where has required it to be done with a Parish-Officer whereby both the Persons and Goods of the Subject are least exposed It has likewise been careful to provide That neither this Act nor any matter or thing therein contained shall be deemed construed or taken to extend to the giving or declaring of any Power for the transporting of any of the Subjects of this Realm or any way compelling them to march out of this Kingdom otherwise than by the Laws of England ought to be done And yet some Men I cannot say have deemed and taken but I am sure have wickedly construed this Act to extend much farther even to a Power of destroying the Liege Subjects of this Realm and marching them out of the World otherwise than by the Laws of England ought to be done But this last Proviso has sufficiently confuted all such mischievous Doctrine Where is Arbitrariness then It is excluded By what Law Even by the Imperial Law or Law of the Prerogative For though the Power of the Sword is declared in these Acts to the full yet they have taken care to prevent all such dangerous Mistakes as if thereby those that are Commissionated by the King had any Power of transporting his Liege Subjects or compelling them to march out of the Kingdom and much less have they any Power to destroy them at home as both Magna Charta and the Petition of Right 3 Car. intituled A Declaration of divers Rights and Liberties of the People to the King 's most Excellent Majesty do fully declare Now I would fain know wherein those who transport the King's Liege Subjects without any Power to transport them differ from Kidnappers or those that destroy them without any Power to destroy them differ from Murderers And surely the People of England have a Legal Right and several Legal ways to rescue themselves from Kidnappers and Murderers without pretending to the Command of the Militia But though the last mentioned Proviso was twice Enacted yet comes the Pulpit Law and utterly repeals it as it
were sworn to the Execution of the Laws And throughout the late Reign of Treason I would fain know the Man that kept his Oath of Allegiance in discovering to a Magistrate the High-Treason against the King and the Realm of Persons being Reconciled to the Church of Rome and of those who endeavoured to Reconcile others and that did not conceal these Treasons which he knew of and thereby make himself guilty of Misprision No they were Happy Men who laid down their Lives betimes and did not stay to see the Guilt and Misery in which a Popish Successor has since involved their Country the Foresight of which made them not count their Lives dear to them but they endeavoured to prevent such a Calamity at the expence of their last Blood and died the true Martyrs of their Religion and Countrey But as for us who are left behind we must see the Wretches who shed that more than Innocent Blood wash their Hands in it and justify the shedding of it and cause it to cry afresh This is particularly done in an Infamous Libel entituled The Magistracy and Government of England Vindicated wherein the Murthering of the Greatest English-man we had for endeavouring to save his Country is still avowed If these Men had the Trying of Causes once more no doubt we should have our late Deliverance Arraigned for an Invasion and every brave English-man who joined with that unexpected Helping Hand out of the Clouds Indicted and Condemned for a Traytor I shall only say in general That that Vindication wants another as much as the Magistracy and Government which it pretends to Vindicate for there is not one material Word of it true For instance A Consult to levy War is not an Overt Act of Compassing the Death of the King because the Actual levying of War is often done without any such Tendency as I could instance over and over again in former Times but I love to quote what is fresh in Memory My Lord Delamere whom I mention out of Honour to him did very lately levy War and when he had the late King in his Power at Whitehall was so far from Compassing his Death that he only delivered him a Message to remove in Peace And being that Illegal Tryal is still justified I must needs add this That if there had been Law enough left to have Tried a Felon in the Counties of London and Middlesex that Great Man had never been brought upon his Tryal But because the Parties concern'd desire to answer it only in Parliament I only desire that there they may be put to make out how known Vnlawful Sheriffs de Facto obtruded upon the City of London against their own Lawful Choice on purpose to be Instruments of destroying the Lives Liberties and Estates of the best Subjects could be at the same time Lawful Sheriffs de Jure And on the other Hand it is easy to make it good That the Validity of that Tryal and Proceedings depending upon the Legality of the Sheriffs and Iury that pretended Court was of no Authority and was such another Low Court of Iustice as the Black-Guard are able to make among themselves every Day Perhaps they may plead Ignorance of so notorious a Matter and that they could take no Cognizance of it because it did not come Iudicially before them But that cannot be said for the Nullity of those very Sheriffs was before that brought in that very Place in a Special Plea and Over-ruled Their best and their truest Plea is this That they never Dreamed of the Prince of Orange's coming over to restore Iustice to this lost Nation which we doubt not he will cause to run down like a Mighty Stream For otherwise as appears by the repeated Choice of the Never-to-be-forgotten Sir John Moor these Men must have the Destroying of their Countrey over again only to Iustify their having Destroyed it once before REMARKS UPON Dr. Sherlock's late Book ENTITULED The Case of Resistance of the Supreme Powers Stated and Resolved according to the Doctrine of the Holy Scriptures THE Case which the Title of this Book promises to Resolve is a very plain Case and soon resolved for it never was made a Question Whether Men might lawfully Resist any Legal Subordinate Powers much less the Supreme Powers and they are ordinary Readers indeed that are to be instructed That Resistance is unlawful in this Case But under the shelter and countenance of this plain and unquestioned Case and under the covert of these Names Sovereign King Prince Authority and the like this Author has slily convey'd into his Book the Resolution of another Case of a far different nature and determines That as well inferiour Magistrates as others imploy'd by a Popish or Tyrannical Prince in the most illegal and outragious Acts of Violence such as cutting of Throats or the like are as Irresistible as the Prince himself under pretence of having the Prince's Commission and Authority to do these Acts and must be submitted to under pain of Hell and Eternal Damnation I fully agree with this Author in his Resolution of the first Case but I crave leave to dissent from him in the Resolution of the latter Case and to enter the Reasons of my dissent But though I agree with him in his Resolution of the first Case yet I do not in his Reasons of that Resolution which are utterly insufficient and betray the Cause which he seems to maintain His Reasons why the King is Irresistible in all Cases are such as these 1. That the King has a Personal Authority antecedent to all the Laws of the Land independent on them and superiour to them Which is not true for the King is King by Law and Irresistible by Law and has his Authority from the Law. Indeed our Author says That the Great Lawyer Bracton by those very words of his Lex facit Regem was far enough from understanding that the King receives his Sovereign Power from the Law. I confess I never was so well acquainted with Bracton as to know what secret meanings he had contrary to the sense of his words and therefore cannot tell how far he was from understanding that the King receives his Sovereign Power from the Law but I am sure he was not far from saying so for he says it in the very next words Attribuat igitur Rex Legi quod Lex attribuit ei videlicet Dominationem Potestatem He proves that the King is under the Law and ought to govern by Law because he is made King by the Law and receives his Power and Authority from the Law and then adds what this Author is pleased to cite Non est enim Rex ubi dominatur Voluntas non Lex He is no King who governs by Arbitrary Will and not by Law that is no lawful English King Bracton must mean for still he may be a good outlandish and Assyrian King and no Tyrant though his Arbitrary Will does all For our Author pag.
41. quotes out of Dan. 5. 18 19. That God gave Nebuchadnezzar such an Absolute Kingdom that whom he would he slew and whom he would he made alive and whom he would he set up and whom he would he pulled down And I hope no Man tyrannizes over his People who uses the Prerogatives which God has given him tho' He does over Authors who quotes what he will and suppresses what he will and construes them how he will and renders Lex facit Regem To govern by Law makes a Sovereign Prince a King and distinguishes him from a Tyrant which will pass with none but such Ordinary Readers as he writ his Book for and who never saw Bracton Chancellor Fortescue likewise says That a Limited Monarch receives his Power a Populo efluxam which unriddles our Author's Riddle in the same place How the Law can make the King when the King makes the Law But is it such a wonderful thing that there should be a Law to create a King and to enable him so far in the making of Laws as to make his Consent necessary to the Being of all future Laws Was it not thus when the Two Houses were erected and endowed with the like Power For our Author says amiss when he says The Law has no Authority but what it receives from the King for the Laws are made Authoritate Parliamenti which is by the Authority of the King Lords and Commons But to lay aside Bracton and Fortescue at present let us a little reason the matter This Personal Authority of the King antecedent to all the Laws of the Land independent on them and superiour to them whence is it Has He a Throne like God Is he of Himself and for Himself Or has he a Personal Authority from God antecedent to Laws to be a King Then shew a Revelation from God where he is named Or has he the Natural Authority of a Father to govern his Children Then it must be proved that he has begotten his Three Kingdoms and all the People in all other His Majesty's Dominions Or has he a Personal Patriarchal Authority which is set up as a Shadow of the Authority of a Father whereby the eldest Son is his Father by Representation Then it must be proved that the King is the Eldest Son of the Eldest House of all the Families of the Earth Or were Mankind made in the day of their Creation by Nations and created Prince and People as they were created Male and Female But if none of these things can be said then it remains that a Civil Authority that is a mutual Consent and Contract of the Parties first founded this Civil Relation of King and Subject as we see it every day does of Master and Servant which is another Civil Relation and that the Consent of a Community or Society is a Law and the Foundation of all Civil Laws whatsoever is proved beyond all Contradiction by Mr. Hooker Eccl. Pol. Lib. 1. Cap. 10. And as this Personal Authority of the King which is antecedent to all the Laws of the Land and independent on them is airy and imaginary and has no Foundation but is of this Author 's own making so he has been pleased to make it very large and lawless and though he be but a Subject yet like Araunah the Iebusite he gives like a King. For it is a Personal Authority Superiour to the Laws of the Land whereby all manner of Arbitrary Acts are binding whereby the Prince may trample upon all the Laws and in vertue whereof he still governs in the violation of all these Laws by which he is bound to govern Whereas the Law of England absolutely denies that the King has any such Personal Authority For not to mention King Edward's Laws Chap. 17th De Officio Regis which were confirmed by William the Conqueror and sworn to by all succeeding Kings nor to mention the Mirror which page 8. gives us a far different account of things nor to mention Magna Charta which Chap. 37. says That if any thing be procured by any person contrary to the Liberties contained in that Charter it shall be had of no force or effect So that a Personal Authority which can trample upon the Liberties of the Subject and violate the Laws is an Authority of no force nor effect a void Authority or in other words it is nothing I say not to insist upon any of these I shall quote some passages out of my Lord Chancellor Fortescue where he professedly handles the difference betwixt an Absolute Monarchy and a Limited Monarchy and after he has shewn the different Original of them he thus proceeds in the 13th Chap. Now you understand most Noble Prince the form of Institution of a Kingdom Politick or limited Monarchy whereby you may measure the Power which the King thereof may exercise over the Law and Subjects of the same For such a King is made and ordained for the Defence of the Law of his Subjects and of their Bodies and Goods whereunto he receiveth Power of his People so that he cannot govern his People by any other Power To whom the Prince thus answer'd in the 14th Chap. You have good Chancellor with the clear light of your Declaration dispelled the Clouds wherewith my Mind was darkened so that I do most evidently see that no Nation did ever of their own voluntary mind incorporate themselves into a Kingdom for any other intent but only to the end that they might enjoy their Lives and Fortunes which they were afraid of losing with greater security than before And of this intent should such a Nation be utterly defrauded if then their King might spoil them of their Goods which before was lawful for no Man to do And yet should such a People be much more injured if they should afterwards be Governed by foreign and strange Laws yea and such as they peradventure deadly hated and abhorred and most of all if by those Laws their Substance should be diminished for the safegaurd whereof as also for the security of their Persons thcy of their own accord submitted themselves to the Governance of a King. No such Power for certain could proceed from the People themselves and yet unless it had been from the People themselves such a King could have had no Power at all over them Now this Discourse of the Institution of a Political Kingdom was to shew the Prince of Wales that he ought to study the Laws of England and not the Civil Laws by which an English King cannot Govern whereof the Prince stood in doubt Chap. 9. But now you see that Cloud is dispelled and he is convinced by this That a Political Kingdom cannot be govern'd by foreign and strange Laws which had signified nothing toward his Conviction if England were not a Political Kingdom And I think there cannot be a plainer Comment upon those former words of Bracton Lex facit Regem attribuat igitur Rex Legi quod Lex attribuit ei videli
Nuncio upon the Nation with that insolence that he must dine at Guildhall But the Things I shall mention are The keeping a Mercenary in constant Pay to deprave ridicule and pervert the English Constitution and to Banter the Nation out of all their Laws by two or three authorized Observators every Week The Murthering of great Numbers in the West in cold Blood without any Process of Law The garbling of Iudges and perverting of all Iustice in Westminster-Hall The breaking the Peace of the Nation the keeping whereof was a principal part of his Office by keeping up a standing Army for several Years together in the Bowels of the Kingdom not only at the Charge but to the Terror and Disherison of his People Whereas as I remember it was a considerable Article in the Deposing of Edward the Second That he went into Glocestershire with a thousand Horse The five Positions of the Eleven Iudges The Yearly Declarations of Dispensing with the Laws that is violating them by whole-sale instead of Annual Parliaments The High-Commission Court and at the latter end of the Day the Tyranny and Oppression was coming home to those who had long been made the Instruments of Oppressing and Destroying all others Besides these were all of them Instances of an open and avowed Tyranny which was to have been the Inheritance of our miserable Posterity under a Pretence of Prerogative Soveraignty Imperial Laws Dispensing Power and the like So that our Children should never have known but that they had been born Slaves at Common-Law and so never have aspired after their English Freedom more And to make all sure by Packing the only Parliament in that Reign by Closetting the Members of it by Regulating Corporations and by their last Project of a Supernumerary Nobility we were likewise in a fair way to have been made Slaves by Statute I have not mentioned his Desertion all this while neither will I take any Advantage of it because I look upon it as the very best Action of his whole Life and the stopping him in it was an ill Day 's Work And if he had absented himself for-ever as for me he had carried his Tyranny and all the Faults of his Mis-rule along with him neither should I ever have mentioned them in this manner But being he has altered his Measures and Deserted his Desertion and wants more Blood and is come back in a War upon the Kingdom whereby the Subjects of England will have occasion to stake down their Lives in the Field against him I thought it necessary thus far to open the Merits of our Country's Cause against him And to shew that we shall venture our Lives in the best Cause in the World against the very worst in Defence of our Religion and Countrey against the irreconcileable Enemy of both who has been just such a Father of our Countrey as he was a Defender of our Faith. Besides we are able to produce the Original of an English King and the very Fundamental Contract made with him before they made him King out of the 8th Page of the Mirror out of the Saxon History and Laws out of Bracton and Chancellour Fortescue who writ his Book on Purpose to shew the English Constitution where it is demonstrated to be a perfect Stipulation and a down-right English Bargain Part of which was For the King to be obeysant to suffer the Law as others of his People And it is likewise declared to be the First and Soveraign Fraud Abusion and Perversion of the Law for the King to be Lawless whereas he ought to be subject to it as is contained in his Oath And he that makes strange and wonders at such a National Covenant never yet knew where he lived whether Here or in Turkey or at Algiers neither could he ever tell whether he and his Children were born Freemen or Slaves And tho the Phrase and Form of this Contract has varied upon occasion in the Coronation-Oath yet the Effect and Substance of it has always been Preserved We are able further to prove That the Oath of Allegiance being the Counterpart of the Coronation-Oath and containing the Subjects Duty as the other does the King's is of the nature of all Covenants and is a Conditional Oath Suppose in a lower Instance an Apprentice were sworn to his Indenture would he be bound in Conscience to perform his Master's Service when his Master instead of finding him Maintenance and Lodging would allow him neither but turned him out of Doors Such a Master must even do his own Business himself or Travel abroad to find him out a new Apprentice if he can notwithstanding his former Apprentices Oath Moreover we are able to prove That the Oath of Allegiance taken to a Tyrant would be a void unlawful and wicked Oath Void because it is an Obligation of Obedience according to the Laws which a Tyrant makes it his business to destroy so that it is swearing to things Inconsistent Vnlawful because the English Constitution will not admit such a Person to be King it knows no King but such a one as can do no wrong and Wicked because it strengthens his Hands in the Destruction of our Countrey He that swears Allegiance to a known publick Enemy and engages to be aiding and assisting to him is so far a publick Enemy himself If some Persons knew him not to be a Tyrant when at the first they were sworn to him yet as soon as they do know him to be such or especially if the Realm declare him to be such their Oath of Allegiance becomes a void unlawful and wicked Oath to them and they cannot possibly keep it any longer if they would And therefore to ask Who shall Absolve us from our Oath to King James is to ask Who shall Absolve us from an Oath which cannot bind from an Oath which ought not to have been made and is now at least as if it had never been made which was ill made and would be worse kept Such an Oath is so far from needing any Absolver that on the other hand an Angel from Heaven cannot oblige us to keep it And whereas it is the Maxim of the Malecontents to the same Purpose Better Popery than Perjury They may remember if they please That the Popery and the Perjury have always gone together and have been both of a Side They may remember That their Popish King while he was Duke was the Cause of almost an Vniversal Perjury in Corporations by delivering up their Charters and that he got the best Franchises of his greatest Village in Europe to be betrayed and surrendred by the help of such another Maxim Better half a Loaf than no Bread. That he was Perjured in the very taking of the Coronation-Oath which he did not and could not take in Good Faith and all the World knows how well he kept it That he likewise by his own Perjury-Prerogative of a Dispensing Power brought an Vniversal Perjury upon the Magistrates of England who
words pag. 59. For no man can want Authority to defend his Life against him that has no Authority to take it away 3 dly We must submit to illegal Violence because the people cannot call inferiour Magistrates to an Account page 191. But sure the People may defend themselves against the murderous Attempts of inferiour Magistrates without pretending to call them to an Account or sitting in Judgment upon them And when they themselves are called to an Account for this Defence they may give a very good Account of it by the 24 H. 8. cap. 5. 4 thly We must not defend our selves when we are persecuted to Death for our Religion contrary to the Laws of England because we must not defend our selves when we are thus persecuted contrary to the Laws of God and Nature which are as sacred and inviolable as the Laws of our Countrey Answ. I grant that the Laws of God and Nature are more sacred and inviolable than the Laws of our Countrey but they give us no Civil Rights and Liberties as the Laws of England have done Every Leige-Subject of England has a Legal Property in his Life Liberty and Estate in the free Exercise of the Protestant Religion established amongst us and a Legal Possession may be Legally Defended Now the Laws of England in Queen Maries time were against the Protestants and stript them of this unvaluable Blessing and therefore tho they chose rather to observe the Laws of God and Nature than those of their Countrey which at that time violated both the other yet withal they submitted to the Laws of their Countrey which alone give and take away all Legal Rights and Titles and when all is said are the only Measures of Civil Obedience 5 thly Men must not defend their Lives against a Lawless Popish Persecution when they are condemned by no Law because they must not defend their Lives when they are condemned by a wicked persecuting Popish Law. For such a lawless Persecution has as much Authority as such a wicked persecuting Law. This is manifestly false For a lawless Popish Persecution has no Authority at all but has all the Authority of Heaven and Earth against it whereas a wicked Popish persecuting Law tho as it is wicked it cannot command our Obedience yet as it is a Law it may dispose of our Civil Rights If Queen Maries Laws were no Laws because they were wicked persecuting Laws why were they repealed why were they not declared to be null from the beginning I know the Protestants in her time and in Queen Elizabeths time before they were repealed disputed the validity of them and would not allow them to be of any Force or Authority as appears particularly from Mr. Hales Oration to Queen Elizabeth Fox Vol. 3. p. 997 978. But their Reasons were because the Parliaments were not legally constituted Queen Maries first Parliament was of no Authority because as his words are the Commons had not their free Election for Knights and Burgesses for she well knew that if either Christian men or true English men should be elected it was not possible that to succeed which she intended and therefore in many places divers were chosen by force of her threats meet to serve her malicious affections Also divers Burgesses being orderly chosen and lawfully returned as in some places the people did what they could to resist her purposes were disorderly and unlawfully put out and others without any order of Law in their places placed For the which cause that Parliament is void as by a President of a Parliament holden at Coventry in 38 H. 6. appears And the third Parliament he says was void because the Writs of Summons were contrary to a Statute Now these were needless and frivolous Exceptions if a wicked persecuting Law were no Law without any more ado And I desire no greater Advantage in a Civil Question than to reduce an Adversary to this Absurdity of making no difference betwixt Laws and no Laws 6 thly That Non-Resistance of illegal Violence is the best way to secure the publick Peace and Tranquility and the best way for every man's private defence for self defence may involve many others in blood and besides exposes a man's self That is to say when the publick Peace is violated in an high manner the best way to secure it is quietly to suffer it still to be broken further a man's best defence is to die patiently for fear of being killed and when Murtherers are broke loose the only way to prevent the effusion of more Christian Blood is to let them alone Now in opposition to this Doctrine I shall only remember our Author that if there had not been a Defence made against the Irish Cut-throats in Forty One though they had the impudence to pretend the King's Commission there had hardly been a Protestant left but the pestilent Northern Heresie had been throughly extirpated in that Kingdom 7 thly Another Reason is Because Non-Resistance is certainly the best way to prevent the change of a Limited into an Absolute Monarchy Now this is so far from being true that on the other hand absolute Non-Resistance even of the most illegal Violence does actually change the Government and sets up an Absolute and Arbitrary Power in the shortest way and by the surer side For a Prince whom the Laws themselves have made Absolute has thereby no more than a Right aud Title to an Absolute Subjection but Non Resistance puts him into the actual Possession of it Our Author himself has made this out beyond all contradiction for pag. 44. he says That Non-Resistance is as perfect Subjection as can be paid to Sovereign Princes and pag. 115. he calls it The only perfect and absolute Subjection we owe to Princes Now the most perfect and absolute Subjection that can be paid erects the most absolute Government that can be devised For those words are of Eternal Truth which we read in pag. 63. of this Book For Authority and Subjection are Correlates they have a mutual respect to each other and therefore they must stand and fall together There is no Authority where there is no Subjection due and there can be no Subjection due where there is no Authority And is not this as bright and as evident a Truth There is no absolute Authority where there is no absolute Subjection due and there can be no absolute Subjection due where there is no absolute Authority I shall now briefly run over his Scripture-proofs so far as they concern this second Case For if he had multiplied his Texts of Scripture to shew that Kings are Irresistible I should have had nothing to say to it because the Law has made our King so but if the Law had not made him so all his Texts would never have done it as I have instanced in the Kingdom of Poland For the Scripture does not erect new Polities as St. Chrysostom long since observed nor does the Gospel bar or
does the 13 th of Eliz and says the Subjects of England must be Compelled and shall be Compelled to march out of the Kingdom if those that are Commissionated by the King shall think fit For though these have no Power to Compel yet the Subjects of England are bound in Conscience to know their Duty and their Drivers and to supply this lack of Legal Power by the inward Impulses of their own Spiritual and never-failing Passive Obedience and must either go out of the Kingdom upon this Occasion or go to the Devil for their wicked and rebellious Refusal It likewise repeals all the Legal Limitations which have ascertained Penalties for the several Offences committed against the Laws As for Instance in this Act whereas the Law says That the chief Commissioned Officer upon the place may imprison Mutineers such Souldiers as do not their Duties and shall and may inflict for Punishment for every such offences any Pecuniary Mulct not exceeding five Shillings or the Penalty of Imprisonment without Bail or Mainprise not exceeding twenty Days The Doctrine of Passive Obedience makes nothing of these Legal Restrictions and says that Men must submit to perpetual Imprisonment or to be hanged for such Offences or for no Offence at all if those that are Commissioned will have it so I humbly submit it to the Wisdom of our Legislators when they shall be assembled in Parliament Whether they will endure to have all their Laws thus used and suffer them to be put into a Bottomless Bag as the Poets say Iupiter disposes of Lovers Vows of a boundless and endless passive Obedience But because some Men have moved another Question Who shall be Judg when there is an Insurrection Rebellion or Invasion and consequently whether there be occasion or not according to Law to imploy the Militia and to draw them forth into Actual Service it is fit to say something to it To which I answer That the Law has judged already and determined the matter to our hands and all English-Men know as well as if they had the Opinion of all the Judges that going peaceably to Market or to their Parish-Church is neither Insurrection Rebellion nor Invasion But I have long since observed that those who would inslave Men either under an implicit Faith or a blind Obedience are very pert in putting such Questions The Scripture is the Rule of Faith but who shall be Iudge of the sense of it And when you have once allowed them that point of an Absolute Judg then presently an Apple shall be an Oyster Bread shall be Flesh and Blood and Bones Pig shall be Pike and a Dog shall be a Catawimple Now I humbly conceive there is no need at all of constituting a Judg to resolve that the Barbar's Bason is not Mambrino's Helmet when none but a Madman who is bent upon seeking Adventures and is ready to pick Quarrels with all Mankind will say it is As to the third Act concerning the Militia 15 Car. 2. c. 4. I shall only take notice of one Clause of Indemnity in these Words And it is further declared and enacted That all and every Person and Persons which since the five and twentieth day of March one thousand six hundred sixty and two have acted or done any thing in the dismantling of any Cities or Towns or demolishing of Walls and Fortifications thereof or relating thereunto shall be and are hereby indempnified and saved harmless Now this was long after the Militia had been declared to be in the King yet these Persons having exceeded their Legal Powers stood in need of an Indemnity by Act of Parliament which had bin vain if the King's Command or their own Commission would have justified them and born them out in it I come now in the 2 d place to produce some Reasons to prove the Lawfulness of defending our selves against Illegal Violence which is a Truth so obvious and so agreeable to the common sense of Mankind that even those Men who set themselves to oppose it do oftentimes assert it unawares and give unanswerable Reasons for it I shall therefore first set down those Concessions which the Force of Truth has extorted from this Author and 2 dly add some other Arguments to them 1 st No Man wants Authority to defend his Life against him who has no Authority to take it away p. 69. But no Man whatsoever has any just and legal Authority that is any Authority at all to take it away contrary to Law. p. 190 191. And from these premises it is easy for any Man to infer the Conclusion 2dly He that resists the Vsurpations of Men does not resist the Ordinance of God which alone is forbidden to be resisted But Acts of Arbitrary and Illegal Violence are the Vsurpations of Men. Therefore c. These again are our Author's Doctrines the former p. 128. l. 15. the other p. 211. l. 11. as likewise 212. l. 22. he acknowledges that the assuming of an Absolute and Arbitrary power in this Kingdom would be Vsurpation tho he says at the same time that no Prince in this Kingdom ever usurped such a Power which is notoriously false for Richard the 2 d by name did not to mention any other 3 dly A 3 d Argument which this Author furnishes us withall is this p. 164 165. The Reason why we must submit to Governours or Subordinate Magistrates is because they are sent by our Prince and act by his Authority and we must never submit to them in opposition to our Prince Now nothing is better known in this Kingdom than that those who commit Illegal Violence do not act by the Princes Authority for as our Author says p. 190. he himself has no just nor legal Authority to act against Law and therefore we need not submit to them in such Acts. Nay farther according to this Author we must never submit to them in this Case because they are in opposition to our Prince for they act against the Peace of our Soveraign Lord the King his Crown and Dignity as the Law has evermore interpreted such Acts. 4 thly Our Author p. 126. has these Word Every Man has the Right of Self-Preservation as intire under Civil Government as he had in a state of Nature Vnder what Government soever I live I may still kill another Man when I have no other way to preserve my Life from unjust Violence by private Hands Now the Hands of subordinate Magistrates imployed in acts of Illegal Violence are private Hands and armed with no manner of Authority at all of which this is a most convincing Proof That they may be hanged by Law for such Acts which no Man can or ought to suffer for what he does by Authority They are no Officers at all in such Acts for Illegal Violence is no part of their Office. This is sufficient to shew that this Author holds so much Truth as would have led him to his own Conviction if he had but attended to the immediate consequences of it instead of blending it with a great many Falshoods and after he has answered his own Arguments I shall desire him to do as much for these which follow 1. No Man can authorize himself But in acts of Illegal Violence if a subordinate Magistrate have any Authority at all he must authorize himself For it is a Contradiction to say the Law authorizes him to do an Illegal Act as our Author well observes p. 195. and it is as false to say that the King who can do no wrong can authorize another to do it In the great Conference of the Lords and Commons 3 o Caroli concerning the Contents of the Petion of Right the Law was held to be That if the King command a Man to do Injury to another the Command is void Actor fit Author and the Actor becomes the Wrong-doer That is he acts of his own Head and authorizes himself 2 dly The Illegal Violence of Subordinate Magistrates cannot be more Irresistible only by being more Criminal than it is in other Men for that would be to make a Man's Crime to be his Protection But Illegal Violence done by subordinate Magistrates is not only as inauthoritative as if it were commited by private persons but likewise more criminal as being done with a face and colour of Authority and under pretence of Law making that partaker of their Crime violating and blemishing the Law at once I might multiply such Arguments but if this Author will please to give a full and clear Answer to these only I here promise to be of his Opinion FINIS Pag. 196 197 c. Pag. 196. Page 54 55 c. Pag. 193 194 195. Page 192. Page 191. P. 200. â—age 202. Page 205 206. Page 212. Pag. 32. Pag. 41. Pag. 61. Page 79. Ephemeris Parliam