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A46961 Remarks upon Dr. Sherlock's book intituled The case of resistance of the supreme powers stated and resolved, according to the doctrine of the Holy Scriptures written in the year 1683, by Samuel Johnson. Johnson, Samuel, 1649-1703. 1689 (1689) Wing J839; ESTC R32984 24,921 80

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Advice and Consent of the Lords Spiritual and Temporal and Commons in Parliament Assembled and by the Authority of the same That the King 's most Excellent Majesty his Heirs and Successors shall and may from Time to Time as occasion shall require issue forth several Commissions of Lieutenancy to such Persons as his Majesty his Heirs and Successors shall think fit to be his Majesties Lieutenants for the several and respective Counties Cities and Places of England and Dominion of Wales and Town of Berwick upon Tweed which Lieutenants shall have full Power and Authority to call together all such Persons at such Times and to arm and array them in such Manner as is hereafter expressed and declared and to form them into Companies Troops and Regiments and in case of Insurrection Rebellion or Invasion them to lead conduct and imploy or cause to be led conducted or imployed as well within the said several Counties Cities and Places for which they shall be Commissionated respectively as also into any other the Counties and Places aforesaid For suppressing all such Insurrections and Rebellions and repelling of Invasions as may happen to be according as they shall from Time to Time receive Directions from his Majesty his Heirs and Successors And that the said respective Lieutenants shall have full Power and Authority from Time to Time to constitute appoint and give Commissions to such Persons as they shall think fit to be Colonels Majors Captains and other Commission-Officers of the said Persons so to be armed arrayed and weaponed and to present to his Majesty his Heirs and Successors the Names of such Person and Persons as they shall think fit to be Deputy-Lieutenants and upon his Majesties Approbation of them shall give them Deputations accordingly always understood that his Majesty his Heirs and Successors have Power and Authority to direct and order otherwise and accordingly at his and their Pleasure may appoint and commissionate or displace such Officers any thing in this Act to the contrary notwithstanding And that the said Lieutenants respectively and in their Absence out of the Precincts and Limits of their respective Lieutenancies or otherwise by their Directions the said Deputy-Lieutenants during their said respective Deputations or any two or more of them shall have Power from Time to Time to Train Exercise and put in Readiness and also to Lead and Conduct the Persons so to be armed arrayed and weaponed by the Directions and to the Intents and Purposes as is hereafter Expressed and Declared Here you see all is Regulated and Limited and the Lieutenancy have no other Powers nor Authorities nor can execute them but by the Directions and to the Intents and Purposes expressed and declared by Law. Consequently The Lieutenancy have no Power to raise Insurrections or Rebellions or to assist Invasions for that is directly contrary to the Intent and Purpose of this Act which is In Case of Insurrection Rebellion or Invasion whereby occasion shall be to draw out the Militia into Actual Service to imploy these Forces for suppressing all such Insurrections and Rebellions and repelling of Invasions as it is frequently repeated in this Act. Nor Secondly have they Power to act contrary to the Directions of these Acts as for Instance to search for Arms in the Houses of Persons judged to be dangerous without a Constable or Parish-Officer nor to search in Villages or Country-Towns other than within the Bills of Mortality between Sun-setting and Sun-rising nor have the Commissioned Peers Power to imprison a Peer where he is expresly excepted from that Penalty The rest of this Act is spent in charging the Quota's and Proportions of Men and Arms in setling Pay for the Souldiers and in declaring what Powers and Authorities shall be executed in all Cases relating to the Militia And to the Persons concern'd we leave them only taking notice of this Oath which is directed by the Act to be administred to all Officers and Souldiers in the Militia in these following Words I A. B. do declare and believe that it is not lawful upon any pretence whatsoever to take Arms against the King And that I do abhor that Traiterous Position That Arms may be taken by his Authority against his Person or against those that are Commissioned by Him in pursuance of such Military Commissions But as I said before neither are the People of England enslaved by this Oath For as for the first Clause It never was lawful upon any Pretence whatsoever to take up Arms against the King for that in other Words is to levy War against Him. And as for the first part of the Position to be abhorred That Arms may be taken by the King's Authority against his own Person it was always Traiterous Non-sence and fit to go along with the other Proposal in the Oxford Expedient of inthroning the Name of a Prince but banishing his Person 500 Miles off under Pain of Death And so the other part of the Position That Arms may be taken by the King's Authority against those who have received Authority from the King in the Execution of that very Authority is Stuff as ill put together as the other for it makes the King's Authority to supplant and destroy it self And therefore the renouncing and abhorring of such Positions can never be interpreted to be parting with our English Liberties which having been all along preserved by our Ancestors at a vast Expence both of Blood and Treasure must needs be presumed to be something that was more valuable than barbarous Nonsence But because there are many Men who like Trouble-all in Bartholomew-Fair take two or three Words under the Hand of a Magistrate to be a sufficient Warrant for any thing and think all to be Commissions which are so called whether they be so or no it will be necessary to take into Consideration this last part of the Oath and to shew 1. What a Commission is And 2. Who act in Pursuance of such Commission 1. A Commission is the Legal Appointment of a Legal Person to execute or exercise some Legal Power or Authority And therefore the first thing requisite to a Persons being Commissionated is that he be Legally appointed So Dr. Falkner commenting upon this Clause of the Oath by a Commission understands a Commission regularly granted Book 2. chap. 1. Sect. 6. But though as he says that be the true Sense of the Clause yet it is not the whole Truth For tho a Commission may be issued in due Form of Law and be regularly granted yet the Incapacity or Disability of a Person to receive a Commission or the Illegal Powers of the Commission it self may render it void 2. The next thing requisite to a Persons being Commissionated is that he be a Legal Person For First a Person may be uncapable by Law of being Commissionated as he that was not a Natural-born Subject of England was uncapable of being an High-Commissioner Or Secondly A Person may be disabled by Law from having a