The English Nonconformity Under King Charles II and James II, Chapter 39 – Chapter 40
Chap. XXXIX. Point XXXVI. Of Subscribing and Swearing against the Position as Traiterous, of taking Arms ly the King's Authority against those that are Commissioned by him in Pursuance of such Commission.
L.
I Am sure you can have nothing against this, unless by forced Exposition of the words.
M.
I am sure that I abhor all forced Expositions, and all Treason, Rebellion and Sedition. But here, because you are a Lawyer, I will come to you only as a Client or Learner, intreating you to resolve all the common Objections, that I may do what I do in Truth, Judgment and Righteousness.
L.
I doubt not but I shall easily resolve them all.
M.
1. Do you not believe that the first Clause, that it is unlawful to take Arms against the King upon any pretence whatsoever, doth extend also to this taking Arms against any Commission'd by him on any pretence whatsoever?
L.
No doubt of it: For this of not taking Arms against those Commission'd by him, is but Expository of the former, not taking Arms against the King. Else Men that fight against his Army may say, they fight not against the King. And can the King make War without an Army.
M.
I believe you are in the right. 2. I ask you, what is meant by the King's Authority? Is it not by his Laws that are the highest Acts of his Authority?
L.
There is, no doubt; but what's done by Law, is done by the King's Authority.
M.
3. How are we to know the King's Commission?
L.
By his Seal.
M.
I never heard of many of the Parliaments Army that ever saw any sealed Commission of those they fought against: and would that excuse them?
L.
No, because it was notorious that the King owned the War.
M.
But suppose that any of his Soldiers came to take free Quarter, or Horses, or Plunder, or to possess any Man's House or Lands, how shall we know that they had Commission for these? And may they be resisted till they shew their Commissions?
L.
No; because it will hinder the King's Service.
M.
4. What Seal must it be that must make a Commission?
L.
Either the Great or Little Seal.
M.
5. Is it possible for the Law and a Commission to be contrary?
L.
Some say No, because it is no Commission, if it be contrary to the Law. And some say No, because it must be supposed that the King will grant no Commission contrary to Law. And some say Yea; But when they are contrary, the Commission is to be obeyed against the Law. And some say Yea; And that the Law is to be obeyed against the Commission.
M.
But if you are of so many Minds, how are Doubters resolved, what to Swear and what to do?
1. If you say, It's no Commission that is contrary to Law, who shall be Judge when it is contrary to Law? If every Subject be Judge, it is as easie to Rebel, and say the King's Commission is illegal, as it is to deny all the Authority of his Commissions?
L.
The Iudges and Courts must judge what is Legal.
M.
If the Judges, yea, or the Parliament shall judge the King's Commissions illegal, will that make it lawful for the Subjects to resist them.
L.
I dare not say so. Therefore we must come to the later Opinion, that the King himself is Iudge, and that it is Legal eo nomine, because it is his Commission, and that Commissions suspend all contrary Laws. Tho' I know many abhor this, that would not have the King's Will to be above all Laws, and Rule to be Arbitrary.
M.
But suppose it be so, the Subjects know the Laws to be the King's by Promulgation: How shall they be sure that Commissions are not counterfeit if they be contrary to them? Must every Fellow be believed that produceth a Commission? may it not be counterfeited?
L.
The King's Officers that keep his Seals must be trusted by us, seeing the King trusteth them.
M.
1. Then the King's Officers are set above all Laws and Judicatures, as well as the King. 2. And why then are Judges Sworn not to be moved from Justice by the Great or Little Seal? 3. But must we trust every Man that shews a Seal, that he did not counterfeit it?
L.
I confess that the Laws are most Publick and certain Notifications of the King's Will. But it's easie to raise more Doubts than the wisest man can answer.
M.
Is it not possible for two Commissions to be contrary? what if one Man have a Patent for Life to be Lord Admiral, or Lieutenant of the Tower, or the like, and another come with a Commission to put him out and take Possession; which must be obeyed?
L.
He that hath the last Commission. The former may not resist him: For the later nullifieth the former.
M.
Is it not then in the Power of the Keeper of the Seals to depose the King at his pleasure, by sealing new Commissions to Conspirators to seize on his Garisons, Guards, Treasure, Magazines, Forts and Navy?
L.
It must be taken for granted that the King will give no Commission against himself.
M.
But his former Officers are not himself, and if they must resign to new Commissioners, how know they but it is the King's Will?
L.
I tell you we must trust those that the King trusteth.
M.
Then the question is, whether it shall be in the Power of a Lord Keeper to depose the King, or betray the Kingdom to whom he will, because the King trusteth him with the Seal; Or in the Power of a Parliament to judge whether a Commission be Legal, or whether Laws or Commissions be of greater Authority.
L.
There is no end of answering absurd Suppositions: It is not to be supposed that the King will do wrong, or so far trust untrusty Men.
M
1. We must suppose that a Parliament may do wrong. 2. Izaakson and other Historians say, That King Iohn made over his Kingdom to the Pope, and offered it to the Mahometan King of Morocco, to help him against his Lords. 3. Is it not possible that a Queen Mary, or a Charles the Ninth of France might do what they did. 4. Have not many Kings been ruined by trusting Traitors.The Story of the King of Cappadocia and his Brot…, that conspired with some Nobles to depose him, and take his Kingdom, and how the Senate of Rome detected the Plot, and defeated it by the help of Cicero, then Proconsul there, is worth the reading in Cicero's Epistles. Did the King of Portugal's Brother and Lords answer the trust reposed in them, when they Deposed and imprisoned him? Is not History full of such Examples? Who deposed the Emperor Ludovicus Pius, but his trusted Clergy and Servants? Who deposed the Empeperour Henry 4. but his own Son? and his Clergy and Lords? Abundance of the Greek Emperours were so used, and some English and Scottish Kings.
L.
Some body must be trusted; and if they be Traitors, who can help it?
M.
But shall all entrusted Lord-Keepers or Lord Privy-Seals be so far encouraged to Treason, as to tell them, If you will depose the King, who can help it? We are all Sworn not to resist you?] How stands this with our Oath of Allegiance to the King?
And is not the King's life and welfare the interest of the Kingdom? and is he not an Enemy to the Kingdom who destroyeth the King? And do you think that one Lord-Keeper is fitter to be trusted with the Safety of the Kingdom, than a Parliament and all the Courts of Justice? When was there a Lord-Chancellor more Trusted and Honoured than Sir Edward Hyde Earl of Clarendon, who had long been faithful to the King? And yet neither King nor Parliament thought that he was more to be trusted with the Safety of the King and Kingdom, than the Parliament was: Else they had not Banished him.
L.
A Fool may ask more Questions, than a Wise man can answer; and find Knots that no one can untye.
M.
And are all we Fools that never Studied the Law, fit to Answer all those Questions by an Oath, which you that are a Lawyer cannot Answer by Discourse? will you become abler to Answer them, when we have Sworn them? If you were at a loss about a Law Case in Westminster-Hall, would you set all the Country and City Housholders that are Ignorant, to decide it by Swearing which side is right? were it not wiser to cast lots to determine it? And have those Men Humanity and Conscience, and do they believe there is a God, that will Swear that of such Law Cases, which Lawyers profess to be too hard for them, and which they are disagreed in as a common Controversie in all Lands.
And I pray you, why are Nations so sollicitous to have Laws for their Security, if a Chancellor be above them all, and by a Commission may cast them off at his pleasure?
L.
We do not say the Chancellor may do it, but the King.
M.
Doth not the Chancellor keep the Seal? and must we not take them for the Kings Commissions which he sealeth.
L.
If you know that the Commission be notoriously against Law, you may suspect that the King consenteth not, and may stay till you enquire of him whether it be his Act and Will?
M.
But 1. If one come with a Commission to take possession of the King's Treasure, Magazines, Garisons; Navy, &c. and attempt it by force, may he be resisted by force till the King's Mind be enquired of? If not, he may depose the King and seize his Strengths before we can come to enquire of the King. All have not access to the King. If it were the Garison of New-Castile, Berwick, Carlisle, &c. it will be too late to send to the King. But if such Commissioners may so long be resisted, then how can we Swear that upon no pretence whatsoever his Commissioners may be resisted by his own Authority?
2. And if a Highway-man shew a Commission to take my Purse, he will not stay till I know whether the King consent to his Commission.
L.
You stretch the sence of the Subscription and Oath further than the Parliament intended it. Do you think that if half a Dozen or more Irishmen had come into the Parliament House, and shewed a Commission Real or Counterfeit to kill them all, Lords and Commons, that they would not have defended their Lives with their Swords? And do you think then that ever they meant to bind all the Subjects against that which they would do themselves.
M.
And do you think that we should all Swear to that which they never meant to bind us to? Is there any limitation in the words? Or can any words be devised more to exclude exceptions than [not on any pretence whatsoever.] But self is near men, and is not so concerned in other mens cases as their own. For my part, I believe that they meant plainly and universally as they speak, tho' they might forget their own case: My proof is from the express words of the Militia Act, where they determine that neither the whole Parliament or part, hath any Power of offensive or defensive Arms against the Kings Commissioners: Much less have any single Persons.
L.
Do you think that ever they intended to destroy all mens Property, and defence of Life or Goods, and to repeal all the Laws that bind Sheriffs by the Posse Comitatus to suppress Riots, and to execute the decrees of the Courts of Iustice for Possessions or Dis-possessions, tho' any should shew Commissions to the contrary, and to overthrow the Iudges Oaths.
M.
I can no way judge what they meant, but by what they did. I find they have absolutely denied all right of defensive Arms in the Subject or Parliament, and that's all that I speak of: From whence I must needs suppose, that their sence was, that all men have Propriety in Estates, Wives, Children and Lives, and that the King ought to Govern them by Law, and wrong no Man, and that Judges ought to do right by Sentence, tho' the King forbid them. And that Sheriffs and Justices must ordinarily execute the Law: But if the King by force restrain them, or give Commission to any Subject by force to violate any Law or Sentence, or to take away any Mens Lives or Estates, it is not lawful by defensive Arms, for any Sheriff, Justices, or any others to resist. This is plainly the sence of the Militia Act, and of our Oaths.
L.
I pray you let us end this tender Controversy.
M.
I have yet a few more doubts to be resolved.
Politicks being the Foundation of Iuris-prudentia, I doubt not but you have studied Politicks: I pray you tell me why all Politicks placing a Republick in the predicament of Relation, do make the bonum publicum to be its essential terminus in the definition.
L.
Because it is so indeed; it being no Civitas or Respublica that is not for the Common good; and therefore they make it the difference between a King and a Tyrant, that a King ruleth for the Common good, and a Tyrant for his private Ends and Interests.
M.
But by your leave I think that distinction ill and dangerously uttered: For every man hath some culpable selfishness; and also the Kings Self-interest is Lawfully intended: For Commonwealths called Kingdoms being at first Constituted by Contract, no doubt there was necessary the Consent of both the Contracting Parties: None can be King against his Will. And do you think any Man would take a Crown only for the good of others, without security for his own just Interest, Honour and Prerogative, without which he cannot well Govern? Therefore I think that those Politicks too loosly describe Tyranny, by selfinterest, and can prove no man a proper Tyrant in Exercitio (distinct from an Usurper) but him that seeks the destruction of the Commonwealth, whose good he is bound to preserve.
But I further ask you,
Do you think the Law of Man, or a Commission can abrogate the Law of Nature?
L.
No Man ever affirmed it: For the Law of Nature is Gods Law; yea his first and most Fundamental Law.
M.
I will not deny it as to the stable Laws of Nature, tho' I think that Nature it self hath some mutable Laws, where the Nature of the matter is mutable. But then I would further know, whether to defend the Life of your self, Wife or Children against injurious Assault be any part of the Law of Nature.
L.
Experience resolveth that; what Man will not defend his Life that can? yea what Beast, or Bird, even the most harmless will not use such weapons as Nature hath given them, Horns, Feet, Teeth, &c.
M.
But Man hath Reason to rule natural inclinations: And sure a Malefactor if he could, should not defend his Life against Justice, I think not so much as by running away: Nor many single innocent Persons defend their Lives by a publick War, because a War is more hurtful to the Commonwealth than his death is: And the Common good is better than a single Persons, or a fews, and to be prefer'd.
But I next ask, whether the Body of a Kingdom have by Gods Law of Nature a self-defending power against its notorious assaulting Foes?
L.
Do you think any man doubts of that? May not the King and Kingdom defend themselves against Invaders? If one man may defend his Purse or Life against another, a King and Kingdom is more worth than one man: You can hardly name one principle in the Law of Nature more undoubted, than that Kingdoms have a right to defend themselves if they can.
M.
And may they not defend themselves, against Usurpers and Rebels, and Traytors at home, as well as against Forreign Foes?
L.
To deny that is Treason: How else should we defend the King? Was not Jack Straw, and many a Rebellion lawfully resisted? and did not the Lord Mayor of London Lawfully kill Wat. Tyler? and so of any other in his case.
M.
But what if the Irish took on them to rise by the Kings Commission, and shew'd a Counterfeit of it, was it lawful for the Protestants to have resisted them to save their Lives and Cities?
L.
They should have sent to the King to know whether that Commission was Counterfeit or not.
M.
But before they could do that, Dublin had been lost, and all their Lives and Estates: And the two hundred thousand that were Murdered were not restored to Life again, when it was notified that they belied the King, and that they had not his Commission.
L.
It was notorious by the nature of the case that they b…lied the King, and had none of his Commission, because it was so greatly ogainst his own Interest.
M.
Will you allow any Countrey to resist an Army that shew the Kings Commission, if they are confident, or can prove that it is against his Interest?
L.
He is the Iudge of his own Interest, when the Case cometh before him: Till then a doubtful, or at least a certain Commission may not be resisted: You would entangle the Case with difficulties that seldom fall out; but are you against resisting all known Commissions?
M.
You know that the Oaths and Subscriptions extend to all cases, and against any pretence whatsoever, not excepting rare Cases: What I am for or against I'll tell you more anon. But I ask further, tho' I am bound by the Fifth Commandment to believe that the Irish belied the King, and that the Scots belied him, who in their Book called Truths Manifest affirm that He Commissioned the Irish by the Scots broad Seal, which was then in his possession in Scotland; do you think if the Scots could have proved what they affirm, that it had been lawful to have resisted the Irish, and defended the Protestants Lives and Cities in Ireland?
L.
I will not answer such dangerous questions.
M.
But must all ignorant men then Subscribe and Swear to what you cannot, or dare not answer.
But I further ask you, about not resisting Commissions on any pretence whatsoever; what was the sence of the old Greek Philosophers and Orators in that cas…?
L.
You know they were almost all bred up in Aristocratical or Democratical Republicks; and therefore no wonder if they are against us in this and more.
M.
What was the sence of the old▪ Roman Orators, Philosophers and Historians as to this point?
L.
They also were hatcht under Popular Government, and tho' the later sort magnifie such excellent Monarchs as Augustus, Vespasian, Titus, Adrian, Antoninus Pius and Anton. Philos. and Alexander Severus, yet it is no wonder that they were too much for resisting and deposing such as opprest the Commonwealth.
M.
What was the sence of the Ancient Bishops and Clergy herein.
L.
They were long for patient suffering: But it is no wonder that when they grew worldly and strong, they not only resisted, but deposed Emperors and Princes.
M.
I pray which way go the Papist Casuists in this case of resistance.
L.
You cannot doubt of that when you know their Councels Laws for deposing Kings on Excommunication. And what wonder when they go on that false Supposition, that the People give the Prince his Power for their own good, and may take it from him if he turn it against them to the hurt of the Common-wealth.
M.
I pray what say Politick Writers, Papists and Protestants in this case; I mean the Eminent ones, such as Bodin, Althusius, Arnisaeus, Tholofanus, Besoldus, Choquierius, Menochius, Liebenthalius, Contzen, Koningh, Timplerus, Willius, Berekringer, and such others.
L.
They commonly run one way, founding Power in the People, as being the Majestas Realis, and giving the King's and States a derived Majestatem Personalem, which being for the Common good, they may resist when it would destroy it. They took their Politicks by Learning from Aristotle, Plato, Cicero; and such Ancients, and no wonder if they follow them.
M.
And I pray you which way go our famous Historians in this Point, such as Commines, Iovius, Guicciardine, Pontanus, Sleidan, Thuanus, Besoldus, Iohnston, Fregius, and our English Math. Paris, Henry Huntington, Mat. Westminster, Malmsbury, Hoveden, &c.
L.
You know they liv'd in times when Civil Wars were so frequent, and Princes so bad, and one pulling down another, that it's no wonder if they praise some resisters. But if you read those of our Age that lived in quiet Times and under good Princes, such as Cambden, Speed and Baker, you will find no such thing.
M.
I pray which way go the famous Civilians herein, such as Gothofred, Hottoman, Cujacius, Wesenbcchius, Pacius, Duarenus, and such others?
L.
You know that the Civil Law is fetcht from the Romans, and it's no wonder if it run in their strein.
M.
I pray which way go the Canonists?
L.
You know they are Papists, and set up the Pope's Laws above the King's: But our English Canons do not so.
M.
I pray which way go our late Protestant Lawyers, such as Cook, and Littleton, and the like?
L.
They are all for Loyalty, and for the Preeminence of the Law; and yet for the King's Prerogative.
M.
I find some of the greatest Lawyers, that have defended Monarchy, such as William Barclay and Grotius, do name many Cases, in which it is lawful to resist: What think you of their Writings?
L.
I will be no judge of them.
M.
I pray what think you of those great Prelatists that write, as Bishop Bilson, and Ri. Hooker, and Ier. Taylor do, and that joined with Abbot and the Parliament against Dr. Laud, Sibthorpe and Mainwaring: Which of them think you was in the right?
L.
You put too many Questions. I will answer no more.
M.
And must we Ignorant Men swear that all these aforesaid were deceived, and knew less than we?
Verily Sir, It seems a bold Oath for so great a Number of unlearned Men as are put upon it, and for us that are unlearned in the English Laws.
L.
But I doubt all these hard Questions are but raised as dust to hide some Principles of Rebellion? What is your own judgment, and how will you give Security for your Loyalty?
M.
They that think my Oath Security, take me for so honest, as that I will not be Perjured. And if so, I have already taken the Oaths of Allegiance and Supremacy, and an Oath of Fidelity as the King's Chaplain in Ordinary (tho' never called to exercise it.) And I have fully in a large Volume, called, A second Plea for Peace, declared my Political Principles, which after all thoughts I stand to; And no one hath given me a word of Exceptions against them to this day, after so many years, but some in meer Malice tell me of my Aphorisms revok't, without taking notice of this.
I here repeat that I am ready to engage to the utmost, that I renounce all Rebellion, Treason and Sedition, and all Principles tending thereto; that I am for as much Power of Princes and Obedience of Subjects, as any Text of Scripture speaks for, or as is given or asserted by any General Council, or the Confession of any Christian Church that I have seen, except what is ascribed to the Pope and his Substitutes; And I hold it unlawful to take Arms at all against the King; that is, against either his Authority, Person, Rights or Prerogative; or against any lawfully Commissioned by him, yea, or unlawfully, except in such Cases as God's Law of Nature, or the King himself by Law or contrary Command shall bind Men to resist.
L.
And so you will suppose that God's Law of Nature bindeth you in some Cases to resist: And will not all Rebels plead that Law?
M.
Dare you say that there is no such Case? King Iames writeth, that a King may not make War against his whole Kingdom? If Ten Irishmen pretend a Commission to Kill all the Parliament and Protestants in the Land, or to seize on the King's Garisons, or if King Iohn give his Kingdom to the Pope, ask Hooker, Filson or Parliaments, what the Law of Nature saith to these Cases.
Chap. XL. Point XXXVII. Of Assenting and Consenting to the Damnatory Clauses of Athanasius's Creed.
L.
I Hope you will not quarrel with the Creed.
M.
I take the Creed called Athanasius's (tho' the Author is unknown) to be an excellent Explication of the Doctrine of the Trinity: And could wish that it were more used and learnt of all. But I am not so far to judge other Men, as to conclude all Men certainly damned for ever that are not so well skilled in that Mystery, as to believe every word there written.
L.
I have heard Learned Men say, That the Assent and Consent is not to be extended to the Damnatory Clauses, but only the Doctrinal Articles.
M.
They that can make Laws and Oaths speak or mean what they list, need not stick at any thing. Is not the Damnatory part a part of the Book of Common-Prayer, and contained in it?
L.
But they prove thus, that it meaneth no such Consent or Approbation. The Liturgy requireth you to read the Apocrypha, and yet not to believe all things in it to be true; For, say they, divers things in Tobit are evidently false: And so tho' it bind you to use and read Athanasius's Creed, it binds you not to believe all in it to be true.
M.
This Cheat is too gross to deceive a School-Boy with. Is Athanasius's Creed a real part of the Common-Prayer Book, contain'd in it, or not?
L.
Yes, no doubt; we there find it both contained and prescribed Verbatim.
M.
Is the Apocrypha any part of the Common-Prayer Book, and contained in it, or not?
L.
If there be any Sentences out of it there inserted, those are part; else the Apocrypha is no part of the Book: It is only the Order to read it that is a part.
M.
Is not this a palpable Deceit, to argue that we are not bound to Assent and Consent to that which is contained in the Book, because we are not so bound to that which is not contained in it?