Christianity a Doctrine of the Cross, Doctrine · Chapter 6
CHAP. VI. Of the unlawfulness of Resistance, on such Invasions of Rights, by our own Laws.
TO all this, which I have hitherto Discoursed, from the Obligations, both of Jews, and Christians; I shall now Thirdly, In the Thrid Place, Note from our own Laws, how little Ground there is with us in these Realms, to take up Arms against our Sovereigns for any Rights, because of their being Legal; or for Religion, because of its being taken into the Law of the Land. For those very Laws, which establish our Religion, and particularly the Act of Uniformity, forbid this way of Defence, and declare it unlawful on any Pretence whatsoever, to take up Arms against the King.
This Declaration was made, upon occasion of the Great Rebellion begun in 41. and for preventing any ones falling into the like again. And therefore, by any Pretence whatsoever, it must more particularly include all those Pretences, which were given out for taking Arms at that time. And those Pretences, as may be seen from the Votes and Declararations of that Parliament, a brief Account whereof is given in the View of the late Troubles, were, the †Vid. p▪ 96, 97, 98, 99.Preservation of Liberty and Property; of Religion and Laws; of the Privileges of Parliament, who are the Conservators of all our Rights; and for ‖P. 70, 71.88, 90.keeping out of Foreign Forces, which the King was said to be endeavouring to bring in, to inslave this Kingdom. Which Pretences, are the best that can be invented for Forcible Defence, and so, as oft as they are bent on change, will probably be made use of, by Men of like Minds in latter Ages.
Indeed, so far as Words and plain Declarations can do it, our Law seems to have taken all the Care the Wit of Man can take before hand, to prevent all Recourse to this way of Defence against our Lawful Sovereigns, by leaving none in this way to be our Defenders, or capable to pretend a Power of making use thereof. If any could list Armies against the King, not only in Defence of private Rights, but of the Laws, or the very Constitution it self, when the Kings chance to break in upon them: It would certainly be the two Houses of Parliament. But the Act about the Militia 13. Car. 2. c. 6. and 14. Car. 2. c. 3. declares the Power of the Militia, so much contested by the Parliament in King Charles the First's time; yea, and that on this very Pretence, that they might therewith Defend the Laws and Liberties against him: to be solely in the King. And that neither one, nor both the Houes of Parliament, can, or lawfully may, Levy any War, either Offensive, or Defensive, against him. So that take even the most Defensible Rights, which seem best to deserve a War; and put them into their Hands, who have the best Claim to be their Defenders: and yet tis plain by this Act, that they are not to defend them against the King, by Levying War, or Listing Soldiers.
Tis true, our Parliaments are taken into the Government, and have a share in the Highest Acts, as making Laws. Whence some have argued, that upon the Princes Breaking in upon the Legislative Power, the Parliament may take Arms against such an Invader, as one Sovereign may against another. This Inference, is directly against the Act last mentioned, which declares they have no Power against him, either for any Offensive, or Defensive War.
But to clear this Point, this Share of theirs in the Legislation, as I conceive, is not a Sovereign's, but a Subject's Part. They are called in to consult, and with Authority of Negative, upon all Laws to be imposed on them: which is a great Security, indeed, of their being well-governed, and bound to nothing but what is for their Benefit, no Law being to be made or repealed, without their own Consent. But this Liberty of consulting, and Authority of Negative, is still under the King the only Sovereign; nor on equal Terms with him, as two Independant Sovereigns. Agreeably, we find the Stile in the Acts so often is, Be it enacted by the King our Sovereign Lord, with the Assent of the Lords Spiritual and Temporal, and of the Commons in this present Parliament Assembled, and by Authority of the same. As 37. H. 8. c. 4. & 25. H. 8. c. 11. & 19. H. 7. c. 18. & 23. & 3. Edw. 4. c. 4. & 7. Edw. 4 c. 3. & passim. Or, our Lord the King, by the Advice and Assent of the said Lords Spiritual and Temporal, and at the Request of the Commons in this Parliament Assembled, and by Authority of the same, hath Ordain'd and Establish'd. &c. 12. Edw. 4. c. 8. Tho the King is not Absolute, without Rules in Governing; nor alone, without Partners in Legislation: yet is theirs only a Subjects Part, not a Coordinate Sovereigns; and he alone is Supreme, both in Legislation and Execution.
For our Law, and Church too, fixes all the Sovereignty of the Realm solely in the King. The Kings Majesty hath the Chief Power in this Realm of England &c. unto whom the chief Government of all Estates of this Realm whether they be Ecclesiastical or Civil in all Causes doth appertain;†Art. 37. Say the 39. Articles of Religion. He is the only Supreme Governor, of this, and all other his Realms, in all Temporal things, as well as Spiritual, says the Oath of Supremacy. His Realm recognizes no Superior under God, but only his Grace, says Stat. 25. H. 8. c. 21. His Parliaments, when they meet, both sit, and Act, only as his Subjects, not as his Compere Sovereigns, he not having Parem in Regno suo, as *l. 7. c. 8.Bracton says. For by order of Law, they were to take the Oaths of Supremacy and Allegiance; professing by those Solemnities of Religion, that he is the sole Sovereign, and that they, whilst acting there, are only his Subjects. When, during their Session, they make to him any Addresses, they Stile themselves his Majesties most Loyal, and Dutiful Subjects. Yea, in Acts and Statutes themselves, they have often used the same Stile; calling, as him, their Gracious Leige Lord and Sovereign; so themselves, his Humble, Loving and Dutiful Subjects, in those Acts of Legislation. In all Humble manner shew unto your most excellent Majesty, your Majesties most Dutiful and Loyal Subjects, the Lords and Commons &c. says Stat. 12. Car. 2. c. 30. We your Majesties most Faithful and Loyal Subjects, the Lords and Commons &c. says Stat. 1. Jac. c. 1. We your Majesties most Loving, Faithful, and Obedient Subjects, the Lords Spiritual and Temporal, and Commons &c. representing the three Estates of this Realm, (so bearing only the Part and Place of Subjects in that Representation,) says Stat. 1. Eliz. c. 1. and the like may be seen in the Acts under Q. Mary, as in Stat. 1. Mar. Sess. 2. c. 1. under King Edward 6. as Stat. 1. Edw. 6. c. 14. and K. Henry 8. as Stat. 37. H. 8. c. 4. &c. 17.
By all which, I conceive it plainly appears, that the two Houses sit with the King in Parliament, and concur in making Laws, not as Coordinate Powers, that are equal to him; but as Subordinate under him: not in Place of Sovereigns, but of Subjects under him their sole Sovereign. So that if any Parliaments head Insurrections against our Kings, they are Wars of Subjects still against their Sovereigns, and such as they neither can, nor Lawfully may make, no not in their own Defence, as the Statute says.
But ‖Thoughts of a Private Person about the Justice of the Gentlemens undertaking at York. p. 9, 10.23.some Appeal from the Letter of these Laws and Legal Declarations, to the Equity of them; and think, tho the Letter of the Law condemns resisting Subjects, that the Equity thereof will acquit and justifie them.
This Plea of Equity, against the Letter of these Laws and Legal Declarations, is for excepting some particular Cases, from being meant and comprehended in the general Terms used therein: and that is by way of Presumption, that the Makers of those Laws and Declarations would have excepted them, had the Cases been foreseen, or particularly put to them. But there is no Place for presumptions of a thing, against express Declarations to the contrary; or for supposing such exceptions in Laws, that say themselves they do not except any Cases. And this the foresaid Declarations do in this point of Resistance; declaring it to be unlawful, to take up Arms against the King on any Pretence whatsoever. Yea being made with a particular Eye against these Pretences, of Invasion of Laws, Religion &c. So that they must needs be understood to comprehend, and not to except them, as I noted before.
Besides, Military Resistance of Sovereign Powers stands forbid, by the Letter, not only of our Laws, but also of Nature and Scripture; the Fifth Commandment, and other Scripture Precepts, calling indispensibly for Subjection and Obedience, (which bars all such Resistance,) to Sovereign Princes, from all Persons, and at all times. And there is no pleading Equity, to exempt any Cases, from the Generality of their Expressions. For there is no urging Equity, against Natural Duties. In mere Positives, or in things of mere Human Obligation, it may have more Place. But in Matters of intrinsick Goodness, and Natural Obligation, it has none. They are standing Rules, that admit of no exception, and the Plea of Equity must always, and only be for the keeping, but never for the breaking of them. No Man must ever pretend Equity, for leave to commit Murder, or Adultery, or to Steal, or to Rebel, or to Transgress any other Law of Nature. For the main care of Equity, is to make these Duties inviolable; and so the Argument to be drawn from thence, is in every Case to Act according to them, but in no Case to Act against them.
The Pretence for Equities exempting some Cases from the Prohibitions of Resistance, is for the safety of Subjects, because say *Id. p. 2.12. &c.some, no Man can owe so much Duty to his Prince, as not to have a Salve for his Safety especially for his Life. But what a Man owes, or is oblig'd to by the Law of Nature, not only to his Prince, but to the meanest Fellow-Subject, or to any of Mankind, is without any such Salvo, even for Life, and he may not transgress such Natural Duty towards them, tho it were to save his Life. It not being lawful to Steal, or Murder, or commit Adultery, or Transgress any other Natural Duties against our Neighbours, no not when we are the most put upon it, and tempted thereto to save our selves.
I add, whatever People spurr'd on by a desire of Revenge, may vainly fancy in Favor of their own Passions, that Equity sets more by Submission in all Cases, than by this desired Liberty of Resistance. Its first Precept about this Matter is, whatever the Governor be, to have Government kept up; which is by holding on Submission, that is always cast off by Resisting. And this, not only in Regard to Gods Authority, whereto it calls for Justice and Submission, tho in an evil Prince but also in Care of the Subjects own Good. Which amidst all the hazards Men may think the Doctrine of Non-Resistance to be attended withal, is much more, and much safer, in this Constancy of Submission and Non-Resistance; than it would be in the contrary Liberty of Resisting and running to Arms, on the foresaid Pretences.
Lastly, that Equity doth not exempt from this Non-Resistance is plain, because it is a general Principle, and what exemption it gives would be General: under all Governments, absolute as well as limited, and in all times and Places, one having as much Claim to Natural Equity, as another has. And so, there would have been Exemption thereby under the Roman Emperors, fancied (tho without Ground) to have been absolute and arbitrary Governors; and in the Primitive Scripture Times, as well as under our Kings, and in this present, or the preceding Age. Whereas, our Blessed Saviour, and his Holy Apostles and the Primitive Saints, plainly admit of no exemption under those Emperors.†Id. p. 15.22. And the Managers of this Plea own there was none, nor allow any Liberty of Resisting, under any absolute and arbitrary King.
They ‖Id. p. 12, 23. And Inquiry into the Measures of Submission to Supreme Autority. Art. 14.appeal likewise, from these Declarations of our Laws, to the Nature of our Constitution, and the end of our Frame: and think, it will justifie that Resistance, which these Sayings and Declarations of Law Condemn.
But as to our Constitution, thereby the Supremacy is fixed solely in the King; and therein is an express denyal of all Coercive Power over him; and a Declaration or Maxim, that he can do no Wrong, what he doth, being by Ministers, and they only, and not he, being accountable in any Court here for the same. All which, leaving neither Fault imputable to him to deserve it, nor Autority in any others to Try and Judge him for the same, must needs bar all Forfeitures of the Crown. The whole power of the Militia, or of Listing Soldiers, the Law declares to be only in him. And loudly asserts the unlawfulness, and Treasonableness, of all Levying War against him. Nay, that even the Parliament themselves, as I noted, have no Power to make any War, either Offensive or Defensive, against him. And in a Government of this Frame, owning one irresistible Sovereign, and thus carefully excluding all taking Arms against him, I do not see whence any should hope to fetch this Liberty of Resisting.
And as for the end of that part of our Constitution, which lies in securing our Liberties and Properties; that is plainly with limitation, and so far only, as they can be secured to Subjects continuing Subjects, i.e. in Consistence with Submission, which is thrown off by Military Resisting. They are to be secured thereby to the Subjects of these Realms, so far as they can be secured, under a Sovereign and irresistible Prince, (as our Constitution makes ours to be,) and by Men keeping to their Duty and Obedience.