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
This I take to have been his Native Judgment and whatsoever his Adventitious Practice might be upon the Scene-altering there are none but must confess both alike favourable at the time of his Declaration to his Loving Subjects which is not so many Years past as to be out of our Remembrance rightly according to a Mans Conscience not erring intollerably is instead of Vice and Ill-doing I do ask How can the Justice be bound by his Office to do that which does prevent the Institution it self But let us suppose a Justice of Peace who is of the mind that the Dissenters are ill Men and their Conventicles not to be endured I pray let me see this Justice as Zealous also against Prophaneness Swearing Drunkenness and Debauchery of all sorts which are Offences against the Law and alike Punishable by him or else if the Man be so Hot for Restraining Meetings but Cold for Repressing Vice I can hardly think that what he does is done meerly out of Conscience of his Oath There is a Law That a Nonconformist may not abide within Five Miles of a Corporate Town What now if his business brings him thither and he cannot possibly live else Is this a piece of Evil-doing unto which the Ruler should be a Terror Suppose an Informer should come to a Justice of Peace and Swear against a Brewer for Brewing with Hops There is a Law made against That as I have taken it up though it may not be in the ordinary Book of Statutes which pretends only to Collect those which are fit for use and the Justice Swears He will do his Office after the Statutes of the Realm I will ask now Upon what account can any equal Justice dismiss such a Brewer and not Punish him upon that Complaint but he may upon the same dismiss a Nonconformist who is accused of being in a Corporation notwithstanding his Oath If a thing be not Evil it is against Righteousness to Punish it No Law but must give place to Righteousness no Oath can bind against it I would put it here to the question Whether the not coming within Five Miles of a Corporation as the Brewing without the Ingredients of Beer be matters of that Nature as ought to be brought within the Sanction of a Law any more than that a Man shall not make Water against a Wall Quod non habet rationem publici commodi non potest proecipi lege humana I would make it a Moot Case at the Inns of Court as well as a Probleme in the Schools What is unreasonable methinks should be against Nature and cannot be commanded for a Law seeing Laws are grounded upon Reason I will not be so bold as to averr That the Execution of such an Act does Clash with Magna Charta Nullus liber homo capiatur imprisonetur aut disseisietur de tenemento vel libertatibus utlegetur exulatur aut aliquo modo destruatur nisi per legem Terrae But if it does but clash with that which ought to be the end of every Commandment The end of the Commandment is Charity it will be more certainly enough to take off the obligation from the Conscience See Dr. Taylor Duc. Dub. l. 3. c. 1. r. 3. But I must advance a step farther I do not apprehend only That when the Execution of a Law will not consist with the Law of Nature or God's Word that is with Religion and Moral Good but when it will not stand with that Political Good which the Law intends the Magistrate is not in that case to observe it For when the King and his Justices are bound to see the Execution of the Laws they are not to be look'd on as Blind Brutish Executioners of them but that they must judge of them on necessity so far as concerns their own acting about them The King must judge whether the matter be good for his passing the Law. The King and Justices must judge whether it be still good as to the Execution Nay every single Man must Judge of the Laws made so far as concerns his own Obeying them seeing If he be bound to do nothing that is ill he must likewise be bound before he does any thing to satisfie himself whether he does ill or no as is very honestly said though in an adverse Book Entituled Toleration Discuss'd which came out about the same time with the Book at first intimated but not named By the way We must upon necessity observe here the Case being brought on to this state That the King as well as the Justice is concern'd in it There is therefore the Positive and Negative Power of the King and there are matters Civil and Ecclesiastical It is true That the Government of England is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a Government Regulated by Laws and that the King can Positively do nothing but according to Law But there is this other thing to be known and considered also That the great Law the Supream Law in all Polities is the Common Good. And in the use of that Power which is Negative or in Suspending his own Act which the not permiting a Process in his Name or the granting a Nolle prosequi I think is no other in the Execution of his Government at least in matters Ecclesiastical wherein he hath all that Authority given him by the Statute as the Pope ever had a Prince is never to be said Not to Govern according to Law when he does only give Preheminence to That which is the Greatest the Weal of the Community Salus Populi Suprema Lex esto And thus much being said in referrence to the King Let any one that please reason what will follow in regard to the Justice who is but an Officer I suppose under Him to act in his stead and in his Name If the Magistrate then to go on whether Supream or Subordinate does judge that such or such a Law be good and good to be executed that is That the Execution of it will tend to the Publick Good which is intended in it as in all Laws it must be and that it is not inconsistent with Religion or Morality in which case the Superiour Law does vacate this then is he to look to himself and what he hath Sworn knowing that God will not hold him Guiltless that beareth the Sword and much less him that taketh his Name also in vain But if he judge sincerely in his Conscience That the Execution will not be for the Good but rather Hurt to the Government and the People though otherwise the thing be not unlawful I do apprehend the Execution of his Office in this case does lye in the Non-Execution of that Law if the Higher Powers be contented and he shall do his Duty by leaving such work undone I have heard that some Judges in their Charge to the Jury have given Directions to Prosecute the Dissenter upon One Statute of the Queen and not upon some Other which in effect is a suspending that Law at
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