The Defense of the Nonconformists Plea for Grace, Part · Chapter 27
CHAP. XXVII.
ABout declaring it unlawful, on any pretence whatsoever, to take Arms by the King's Authority against any Commissioned by him.
§ 1. Here you will prove (in your proving way) that it meaneth only [against such as be justly and legally commissioned in the due pursuance of their Commission.] Before I answer you, I will give you my reasons for the contrary.
1. The Act of Militia seemeth to me to give another sense of the whole matter: Read it and judge.
2. This Subscription, and other like Professions, were purposely imposed for the renunciation of the late Parliament Arms. But in your sense what will it have done to satisfie or oblige any man in that or the like case, when they profest the same thing, and said, that it was only unjust and unlawful Commissions, and an unlawful pursuit that they resisted? Be their words true or false, this was their pretence, and they would in the heat of the War have subscribed to what you say.
3. This was made and imposed to keep men from the like for the time to come: But this would not keep them; for they would take it.
4. Are you ignorant what striving there hath been in Parliament to have got the word [Lawfully or Legally] commissioned in, and it could never be obtained? (save that not long ago it was carryed once in a Grand Committee of the House of Lords only, very many years since this Act was made.) Some say They had reason not to express it, though they meant it, lest it should be abused. I answer, Then they had reason to desire not to be so understood. And then we cannot, nor ought, not so to understand them against their wills; and the non apparere, and non esse of their sense is all one to us.
5. They knew that it was this that would herein have satisfied dissenters, and tended to the Concord which they professed to desire; and yet they would not yield to any such limitation or exposition.
6. There were such Reasons brought against your sense as these in the House. 1. No resisting Arms are lawful. 2. If Subjects be made Judges whether the King's Commissions be lawful or not, it it is no restraint of Rebellion at all. For it's as easie to say, They are unlawful, as to say, We may resist them though lawful, and far more easie. Who will not pretend it?
7. Non est limitandum aut distinguendum de lege sine lege: But in so great a business as this, do you think our Governours will not take it for a heinous thing, for such as you or I to put in the word [Lawful] into Subscriptions and Oaths, which so many great men did so long and deliberately study.
8. A Papist or Jesuit will take it in your words; for he will say, That no Commission against the Pope's Countermands, or his Authority, or Canons are lawful.
§ 2. Now to your proofs; 1. You say, [The Act it self implieth it; for else, what use is there for Laws and Parliaments? The King may do what he will: He is free to violate his Coronation Oath, and set up Arbitrary Government by a Law.]
Ans. Did you ever read Bishop Taylor against Resistance in his Ductor Dubitant. who despaireth of proving any thing in the world, if he cannot prove that? Have you read Dr. Hearne, Mr. Digs, Mich. Hudson, Mr. Welden, Dr. Arnway, &c? you are answered by many.
1. That the King may not do any such thing lawfully.
2. But if he do it, he is answerable only to God.
3. And that the Subject hath no remedy but prayers and tears. Yet it followeth not, say they, that Laws or Parliaments are vain: For by them the King governeth as far as he please, and they are his instruments.
§ 3. Your second Reason is, The calling in the the King's Indulgence, as contrary to Law, sheweth it.
Ans. Did they that declared it contrary to Law, declare that men may resist it by Arms?
§ 4. 3. You say, [The Iudges at Westminster unanimously agree upon this sense and exposition of the Law, and their common practice no less.]
Ans. I will give you a Lawyer's Fee if you will prove it. When, and how did they ever declare any such Agreement? What practice is it that you mean? Do they commonly resist unlawfully Commissioned Souldiers by Arms? Or declare for it. 2. But if this were true (which I believe not, whatever their secret judgment may be) it followeth not the Parliament which made this Law was of that mind. 3. Your assertion is raw (That the Iudges are made the publick Expositors of Laws, made by King and Parliament.) There are two sorts of Exposition of Laws: One is but limited to a particular Case and Person, in order to the applicatory Sentence for or against that Man: And so the Judges are Expositors. The other is Universal, so as to oblige all the Subjects as the Law it self doth, so that they must understand the Law, antecedently to their Obedience. And this is proper to the Law-giver: For the sense of the Law is its Essence: And Judges are not the Law-makers. Common Politicks might have taught you this.
§ 5. 4. You say [The Parliament's proceedings against Chancellor Hide and the Earl of Danby, shew their sense.] Ans. 1. It was not the same Parliament that prosecuted them both. 2. What did the Parliament to any such purpose? Is impeaching a Delinquent, taking Arms against the King's Commission, if unlawful? You say, [They mean not to unhinge the Right of the Subject, the Priviledge of Parliaments, to make void all Oaths, Bonds, Engagements of all the legal authorized Iudges, Mayor, Magistrates, Constables, Officers of the Kingdom.] Ans. You are a bold Man if you dare say that all these are made void, unless the King's unlawful Commissions may be resisted by Arms. You are for the Bishops resolving your Doubts: I pray you go ask the Bishops that had a hand in making the Act, (Bishop Morley, or such other that came not in since) whether you have hit of the true meaning of it?