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 SAMVEL IOHNSON.

London; Printed for the Author, and are to be sold by Richard Baldwin, 1689.

To the Right Honourable WRIOTHESLY Lord RVSSEL.

My Lord,

YOur Lordship has the largest Inheri­tance of Honour of any Englishman be­sides, and your very early Years promise to the World, that you will rather improve than waste your Patrimony. I hope [Page] your Great Father will Live in You, and that there never will be want­ing a Great Lord Russell in Succession, which is the only way wherein Mor­tal Men can stay any while here upon Earth. That You may follow Him in his Piety, in his Devotedness to his Religion and Countrey, in his Integrity, Wisdom, Magnanimity, Constan­cy, and all the Parts both of a Christian and a Nobleman: And that [Page] You may be the Joy and Delight of your Countrey (as He was,) but Never their Grief, is the Hearty Prayer of

My Lord,
Your Lordship's Most Humble and Most Obedient Servant SAMUEL JOHNSON.

THE PREFACE.

I Have Published these Papers, which I had not seen for above five Years before, to rid my Hands of the baffled Cause of Non-Resistance, and to offer my Service to do as much for some Men's new-fashioned Loyalty, which is in election likewise to be Adopted for Church-of- England-Doctrine, as the other was. It consists in being Discontented with the present Government, in loathing our late and wonderful Deliverance, and in hankering after Egypt again; in refusing to swear Allegiance to the King, and in effect forbidding him to be King without their leave: And after all it lies hid in lurking [Page ii] Scruples, and in Reasons best known to Themselves. Now till we are worthy to know to whom these Persons think themselves under Engagements, whe­ther to the late King, or to the Prince of Wales, or to Tyrconnel, or to what Foreign Prince or Potentate it is, And for what Reasons they are not free to take the present Oaths, it is impossible to say any thing in particular to them. For the Errors and Windings of Igno­rance and Interest are intricate and endless: And the Reasons of a self-willed Obstinacy, which is in it self an unreasonable Principle, must needs be Incomprehensible. If any Man had told me seven Years ago, that the Do­ctrine of Passive Obedience should be maintained by such Arguments as I have since met with, I could not have believed him: For no Man, who has used his Thoughts to Evidence and Co­herence, could possibly foresee or fore­stall those Arguments. And therefore till these Reserved Persons will please to let their Scruples see the Light, and bring forth all their strong Rea­sons, [Page iii] they must enjoy the Priviledg of being Vnanswerable.

But in the mean time we are able to Prove, if the Nation wanted any Sa­tisfaction in that Point, That King William (a Prince of God's sending, and whom He have in his especial keep­ing!) is the Rightfullest King that ever sat upon the English Throne. For he is set up by the same Hands which made the First King, and which here­after will make the Last, and which have always unmade all Tyrants as fast as they could: And the Realm has not chosen him like a Persian King, by the neighing of an Horse, or by some light Accident; but in the wisest way, and upon the most weighty and valuable Considerations. For if he had not come, there had not been a Kingdom for him to Govern; England had now been a Wilderness of howling Irish, a Rendevouz of French Apo­stolick Dragoons, a Nest of Priests and Iesuits, and any thing but a Kingdom. So that he is a Prince who Governs his Own Kingdom, which he first saved [Page iv] from Perishing; and though Conquest never was a Title, yet Redemption is. In such Cases Men used heretofore to become Slaves to their Deliverers: Now this indeed is a thing impossible for English-men, but they never had such a Temptation to it before. The least they can do, is to make him a Pre­sent of their Lives and Fortunes, not in foolish and flattering Addresses, but in real Services; and to perpetuate his Benefits to this Nation to the World's-end, by passing them into such advantageous Laws for the Publick, as could not be had in other Reigns.

We are able to prove likewise, That if the Realm has a Right to provide themselves of a King when they have none, much more they may do so when they have one, who has made himself a thousand times worse than none. One who was long since known to be a pub­lick Enemy to this Kingdom, and had utterly unqualified himself for the Go­vernment, and forfeited his Remain­der in the Crown, by rendring himself uncapable of the Regal Office. For [Page v] we knew before-hand that he was not ca­pable of taking the Coronation-Oath, with any other Intention than to break it; and that he wanted to be let into the Government, only to spoil and sub­vert it. And therefore in Pursuance of the Ancient Rights of the Realm, (whose Consent is the Foundation of all Government, and who never made any Establishment of the Crown for the Destruction of the Nation, nor ever intailed the Government but upon the Terms of the Government,) He was Excluded by no less than three Succes­sive Houses of Commons: Which was such a Caveat entred by all the Counties and Boroughs of England against his Succession, as never was against any other. This had passed into an Act of Parliament, had it not been for the mean and indirect Practices of some Persons, who owed their Native Coun­try better Offices, than to bring the Calamity and Vengeance of a Popish Successor upon it. After this Successor, with the help aforesaid, had paved his Way to the Throne upon the Ruins of [Page vi] the Franchises of most Corporations, and upon the Heads of the Best Men in England, of a sudden, when for many Years before the King was to out-live the Duke, on the other Hand the Duke out-lives the King, and makes himself King. But if he had been a Rightful King when he took Possession of the Crown (as he was not, but a publick Enemy) he has since that time broken the Fundamental Contract, or Covenant of the Kingdom, or Coro­nation-Oath, (for they are but several Names for the same Thing) with that Perjury and Perfidiousness as never any Prince did before him. I will not men­tion his smothering of all the Laws against Popery and Priests, whom he ought immediately to have apprehended, prosecuted, and hanged, if he had ta­ken the Oath in Good Faith, which ac­cording to the Constitution he was bound to do. For according to ancient Custom he was to be Adjured not to meddle with the Crown, unless he would take his Oath, sine Fraude & malo in­genio, and mean Honestly. Neither [Page vii] need I say any thing of his holding Correspondence with the Foreign Ty­rant, Vsurper, and publick Enemy of this Kingdom, by sending a pompous Embassy to Rome, and by obtruding a 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 [Page viii] 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 [Page ix] 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 [Page x] 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 [Page xi] 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 [Page xii] 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 [Page xiii] 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, [Page xiv] 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 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 [Page xv] 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 [Page xvi] 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 [Page xvii] 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 Over­ruled. Their best and their truest Plea is this, That they never Dreamed of the Prince of Orange's [Page xviii] 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 [Page 2] 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.

[Page 3]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: Pag. 196, 197, &c. 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, Pag. 196. 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 [Page 4] 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 [Page 5] 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.

[Page 6]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 [Page 7] 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, [Page 8] 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 [Page 9] 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 [Page 10] 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 [Page 11] 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 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 [Page 12] 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, Page 54, 55, &c. 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 [Page 13] 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.

[Page 14]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 [Page 15] laboured of any in his Book. Pag. 193, 194, 195. 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 [Page 16] 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 o [...] Law, are legal, and are presumed to be every way right, and as they should be, and free from Error, til [...] the contrary appears in some Highe [...] 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 [Page 17] 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 [Page 18] 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, Page 192. 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 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, Page 191. 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.

[Page 19]4 thly. We must not defend our selves when we are persecuted to Death for our Religion contrary to the Laws of Eng­land, P. 200. 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 [Page 20] 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, [...]age 202. 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 [Page 21] 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 [Page 22] 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, Page 205, 206. 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 [Page 23] 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, Page 212. 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 [Page 24] 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?

[Page 25]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 abolish any Politick Laws, as Luther's constant Position was, which Bishop Bilson thought was undeniable.

In the Old Testament his two Ex­amples of Non-Resistance are, David, and the Iews under Ahasuerus; which are the untowardest for his purpose that he could have pitch'd upon. For as for the former of them, if the Duty of Passive Obedience may be practised by a Subject at the Head of an Army, and if to decline engaging the King's Army only when it is Six to One, [Page 26] (which always, at the least, was the odds between Saul's: Pag. 32. Forces and Da­vid's) be an Example of Nonresi­stance, I am sure it is such Passive Obedience, and such Nonresistance, as if it were acted over again in the Highlands of Scotland for half the time, that it was in the Wilderness of Zìph, would occasion new Ser­mons against Rebellion, even in the same Pulpit where the substance of this Book was preach'd.

The other, he says, was as Famous an Example of Passive Obedience as can be met with in any History; Pag. 41. and yet it amounts to no more than this, That the Iews being doomed to ut­ter Extirpation by a Law, and deli­vered up as a Prey to their Enemies; thinking a Defence either unlawful or impossible (for the Scripture does not say which) did look upon them­selves as lost men, till they afterwards had procured a Law, which in effect reversed the former, by publishing it to all People, That the Iews might [Page 27] stand for their Lives, to destroy, to slay, and to cause to perish all the Power of the People and Province that would assault them, both little ones, and wo­men, and to take the spoil of them for a prey, Esth. 8. 11. upon which they made a vigorous and successful De­fence against their enemies, who were so hardy as to take no warning by this Law, but continued malici­ously resolved to destroy the Iews, though they were thus expresly threatned that they must do it at their utmost peril. And may not those men then be as Famous Exam­ples of Passive Obedience, who, if the Laws were against them, would rea­dily submit; but having the Laws on their side, shall defend themselves against the Illegal Violence of any evil disposed persons, that never were, nor ever could be, authorized to destroy them?

As for St. Peter's Case in the New Testament, it was the Resistance of Lawful Authority, Pag. 61. and therefore just­ly [Page 28] condemned by our Saviour. For the apprehending our Saviour was not an act of unjust and illegal vio­lence, as our Author there says; but was done by proper Officers, by ver­tue of a Warrant from the Chief Priests and Elders (the Lords Spiri­tual and Temporal among the Iews) who were aided by the Roman Guards for fear of a rescue.

As this Author says, Page 79. Our Saviour is our Example in not resisting a Law­ful Authority; but what is that to the resisting of those that have no Autho­rity? And yet if our Saviour had pra­ctised Non-resistance towards persons having no Authority, it had not been binding to us, no more than his not appealing to Caesar hindred St. Paul of his appeal.

In a word, There is not a Case or a Text, which he has argued from, in Scripture, which he has not per­verted and abused.

[Page 29]I shall answer the Arguments used in this Question, which are taken out of the Acts concerning the Militia, and which are mentioned by this Au­thor, p. 111, 112. by giving the Rea­der a particular and distinct view of those Acts: whereby it will appear that we are not enslaved by those Acts, neither are the Subjects hands tied up from making a legal defence against illegal Violence.

There are three Statutes concern­ing the Militia. The first, 13 Car. II. cap. 6. which was an Interim or Tem­porary Provision till the Militia Act could be perfected, Entituled, An Act declaring the Militia to be in the King, and for the present ordering and disposing the same. The second is 14 Car. II. cap. 3. to establish the Militia; Entituled, An Act for Or­dering the Forces in the several Coun­ties of this Kingdom. And the third is an Explanatory and Supplemental Act; Entituled, An Additional Act for the better ordering of the Forces in [Page 30] the several Counties of this Kingdom; 15 Car. II. cap. 4.

The two former of those acts have the very same preamble, in these words. ‘Forasmuch as within all his Majesty's Realms and Dominions, the sole Supreme Government, Command and Disposition of the Militia, and all Forces by Sea and Land, and of all Forts and Places of Strength, is, and by the Laws of England, ever was the undoubted Right of his Majesty, and His Royal Predecessors, Kings and Queens of England; And that both, or either of the Houses of Parliament cannot, nor ought to pretend to the same; nor can, nor lawfully may raise, or levy any War Offensive or Defen­sive against His Majesty, His Heirs, or lawful Successors; And yet the contrary thereof bath of late years been practised almost to the Ruine and Destruction of this Kingdom; and during the late usurped Go­vernments, many evil and Rebelli­ous [Page 31] Principles have been instilled into the minds of the people of this Kingdom, which unless prevented, may break forth to the disturbance of the peace and quiet thereof.’

This preamble consists of five Clau­ses, of which the three first are con­cerning matter of Law, and the two last concerning matter of Fact.

In the first Clause there are these two things evidently contained. First, That the Militia is in the King by Law. Secondly, That the Militia's being in the King, is no new Power, but was ever the undoubted Right of all the Kings of England. Con­clusion; Therefore, unless the peo­ple of England, were ever Slaves un­der all former Kings, they are not made Slaves by this Declaration.

The two next Clauses say, That both, or either of the Houses of Parliament, cannot pretend to the sole Supreme Government, Com­mand, [Page 32] and Disposition, of the Mili­tia, Forces, Forts, and Places of Strength.

Nor can raise or levy any War against the King; But neither is it here said, that the King can or law­fully may raise or levy any War against both, or either of the Houses of Parliament, or any of his Liege Sub­jects.

The two last Clauses are concern­ing matter of Fact; in these words, And yet the contrary thereof hath of late years been practised; That is, the Houses did pretend to the sole Su­preme Government, Command, and Disposition of the Militia, Forces, Forts; and did raise and levy War against the King.

And during the late usurped Go­vernments, many Evil and Rebellious Principles were instilled into the minds of the People; such, I suppose, as asserted the Militia to be in the Par­liament, &c.

[Page 33]As to the Body of the first Act, it is all of it either repeated in the second, or else superseded by it, and therefore we are next to consider what is enacted in the 14 th. Car. 2. cap. 6. And immediately after the Preamble before recited, there are these Words. ‘Be it therefore De­clared and Enacted by the King's most Excellent Majesty, by and with the 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 [Page 34] 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, [Page 35] 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, [Page 36] 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 [Page 37] 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 [Page 38] 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 [Page 39] 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 [Page 40] 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 Commission, by being convicted of some Offence against the Laws, which is punished by such a [Page 41] 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 [Page 42] 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, [Page 43] 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 [Page 44] 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 [Page 45] 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 [Page 46] 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 [Page 47] 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!

[Page 48]But though the last mentioned Proviso was twice Enacted, yet comes the Pulpit Law and utterly repeals it (as it 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, & [Page 49] 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, [Page 50] 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 [Page 51] 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.

[Page 52]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.

[Page 53]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 [Page 54] 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.

[Page 55]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, Ephemeris Parliam. 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 [Page 56] 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.

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