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A41882 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 justice of peace, explaining the extent of its obligation : being a case universally seasonable, in regard to righteousness, peace, and the prosperity of this nation. 1688 (1688) Wing G1672; ESTC R43213 15,063 84

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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
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