Touching our Present Impositions of Loyalty and Obedience, Chapter 4
CHAP. IIII. One peculiar case farther arising out of several late Acts [wherein that Position of taking Arms by the Kings Authority against his Person, or any Commissionated by him, is required to be renounced and abjured as Trayterous and to be abhored] taken into consideration, in regard of the Consciences of so many that are concerned.
HAving ventured thus far, I proceed to what follows. The Laws of this Realm, it is to be acknowledged according to what hath been spoken, are made by mutual consent, by the King and Parliament, and the Authority of both; and hence it is, that the King singly is sub lege, when some other absolute Monarchs in a pure State, and Despotical Government, are Lords over their Laws, as over their own Wills. Upon this Foundation it follows, that if the Law, and the Kings grants or Commissions clash, the Law must take place, because the one is but his single Will, but the other is his Will joyntly, with his whole people in their Representatives the Parliament. Put then this case: The Sheriff in execution of the Law, hath Power to raise the County against any that resist him; The King in some concernment, upon some cause forbids the execution, yet he proceeds; The King Commissionates some Officers to withstand his proceedings; he raises the County upon them, and for all that executes his charge. The question will be, whether he be justifiable herein or no? How deep this draws, I leave to the Considerate and Wise. If he be justifiable, then is there a taking Arms according to Law, that is in the Kings name, or by his Authority, against those that are Commissionated by him: and how then shall such an Oath be sworn, or Subscription be subscribed, which yet is imposed upon the Lievtenants and their Deputies of the Counties in one Act; on the Aldermen or Burgesses of Corporations in another: on all Deans, Canons, Prebendaries, Ministers, School-masters, or others, that have any Ecclesiastical promotion, in the Act of Uniformity; and on the Non-Conformists that live within 5 miles of a Corporate Town, in the Act of Oxford?
It is not for me, here to be peremptory and definitive, in a positive determining the Sheriff justifiable or not: but upon supposing of either (to wit, that it may be he is not, it may be he is,) I shall be more sure and safe in the resolution of the matter.
The reasons to justifie the Sheriff do lie in the foundation mentioned: But there appears against him the Militia Acts. An Act declaring the sole right of the Militia to be in the King. An Act for ordering the Forces in the several County of this Kingdom. For asmuch as the sole command and disposition of the Militia, is, and by the Laws of England, ever was, the undoubted right of his Majesty, 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 him, and yet the contrary hath of late been practiced, Be it declared and Enacted. In these Acts, and another as I remember, the sole Power, Command and Disposition of the Arms of the Nation is placed in his Majesty; and the word Sole as well as Supreme is used purposely for exclusion of the Parliament, that it lies solely in him, and not in the Parliament, or any deriving from them. It seems then, that the Law, which is the Act, or Acts of Parliaments, is not the Fountain of Power in the business of the Militia. It seems then (I say by way of reasoning, it seems) that a man who acts herein, is not to be Governed by the Law, but he must be justified by the Kings command. It seems then, that the Power which the Sheriff has in raising Forces for execution of the Law, must be under the check and controul of the King, seeing in his hands the sole command and disposition of those Forces, as all else in the Realm do lie. It seems then, that the Personal Will of the King, which must indeed (according to the Foundation mentioned) give place to his Legal Will in other things, in the matter of Arms must have the predominance, ot rather it must be held, to be all one with his Law, and absolutely to be obeyed. This I shall suppose first.
It may be Objected, There are some Statute, or Statutes, which in the late times were pleaded for resisting evil Cousellours, and Commissioned Officers, and the bringing Delinquents to punishment, notwithanding any Letters under the Great Seal or Little Seal, in the like or the same words. I Answer, I dare not take upon me so much skill in these Statute books, as I desire caution, and refer such Statutes to the more Learned in the Law, and what was said to them, by the eminent of the Kings party. It suffices me to produce these Militia Acts, wherein the sole right of Arms is declared to be in the King, and consequently the latter Statutes taking place of all former (whereof yet they are made but the interpreters) the Conscience is I take it in point of Law to rest satisfied therein; for whatsoever might be pretended or supposed to be Law before, this is declared to be Law now, and what, ought ever (as the Acts account) to have been held so to be. It is a Maxime in the Law of Parliament (says my Lord Coke) quod leges posteriores, priores contrarias abrogant.
I will not conceal where indeed does lie the most grievous difficulty. I A. B. do swear, or subscribe, it is not lawful to take Arms against the King; and I abhorr the Position of taking Arms by the Kings Authority against his Person, or any Commissionated by him. It is absolutely unlawful I apprehend to take Arms against the King himself, or against any Commissionated by him for the execution of the Laws, or his Legal Will: but if he should Commissionate any to execute his pleasure or Private Will against the Law, here will be the question that is sore. Put the cases over I pray, as to them, put before as to the King, What if any Commissionated Officers should come to destroy Magna Charta, or the peoples Liberty, to kill the Country and take their goods, might neither Courts, Justices, Sheriffs, or People, resist defensively, yea and bring those Subjects to punishment? I will not give a positive answer to this question, there is no need always to do so. Nevertheless I will offer so much readily to it, as may give the conscience satisfaction in reference to the words premised, which here alone is that I make my task. I will suppose then, that it is not lawful on any pretence whatsoever to take Arms against the Kings own Person, his Government, or Laws: so that the first part of the words may be admitted on the account of what hath been said. And as for those Commissionated by him, it is in a second part, or clause, where the position to be renounced, is the taking Arms by the Kings Authority against such. Now I will suppose likewise, when the command and disposition of the Militia is declared to lie solely in the King, that it is not justifiable by Law to take Arms against those that bring his command in their Commissions, because according to the express words, as they appear, it is a flat contradiction thereunto. If it were lawful then for the whole people, when not for a part, to rise defensively, when not invasively, against any Subject or Subjects, when upon no terms against the King himself, in case of extremity for necessary preservation: this was not to be done by the Kings Authority, as justifiable by the Law of the Land (when the Militia Acts have declared the Law to be otherwise,) but if it were warrantable to be done, it must be by the Law of Nature, upon which they were to stand. I say not the point so stated is justifiable by the light of Nature, I meddle not with it, I need not: But I say if it were, I should the rather discard the unsound pretence of taking Arms by the Kings Authority, or by his Laws, which would not hold against such, when there was the Authority of God in the Law of Nature, to justifie the same.
You may say to all this, It is not in the Power of the Parliament to give away the Militia to the King, but it must remain where it is placed by the Constitution of the Nation. I answer, If the Constitution of the Land be such that it places the Militia in the Parliament, and not in the King alone, there are few I think read in Politicks, will affirm that any Act of Parliament can rise higher then the Constitution. Nay, if any Law or Laws be made by a Personal Sovereign which do overthrow the Constitution, by vertue whereof, or rather according to which, he holds the Power he hath from God, such a Law, or Laws are destitute of Authority, and ipso facto null and void. The whole business therefore lies in this, whether the Constitution of our Land hath placed the right of the Militia in the King alone, or not? And here I know I am on the safer side. I confess according to the principles of Policy, it is a thing very agreeable, that where the Power of Legislation is lodged, there should be the Power of the Militia, that the Laws may be rendered of force; and where the Militia is placed, there should be the Power of the Purse, because the one can command the other, This is therefore the handsomer notion I have said before, yet if it hath so pleased any Community in their framing their Constitution, for reasons to themselves, to place these matters otherwise, who can say to these Potters, why have you framed your Clay thus? And what if the Founders of our State have seen it good that they would not have their Laws made, nor Estates touched, without their own consent in their Representatives, and yet in the business of making Peace and War (where present Counsels and Expedition is necessary often times, that it cannot wait such a preparation as that) they thought it best to dispose the Power thereof altogether in the Prince, who can say any thing to contradict the same? I confess it is not in the Power of the King and Parliament to make our Constitution, no nor to alter it; they are the peoples Representative to Parliament-purposes, not to that purpose, but it is in their Power to declare it; this is not only in their Power, but this I take it, is their Office. And though there be no declaration can be valid in apparent falshood, because truth is greatest, and must overcome all things: Yet when its impossible to evince the contrary, the declaration of our Superiours that are in Authority over us, must be obligatory, both because of the fifth Commandment, and also because otherwise we must be at an endless loss in the case. There be some to this purpose will tell us that the division of the Regaliae in our State, to wit, the placing the Militia in the King, the Purse in the Parliament, and Legislation in them both, is agreeable to the Lawyers. I undertake not that, but I may be apter to believe, then disprove them; and when I suppose as readily as any, that in the Constitution of a State, it is very suitable to Politicks to lay these jura Majestatis or prerogatives together, and make them inseparable, and consequently that those persons who have placed the Sovereignty of our State in King and Parliament joyntly on that account, have spoken tightly according to the rules and reason of those who write of such things: Yet when we come to the point of fact, whether it be so in the Constitution of our State indeed, or no, this is certainly another matter; and I may not argue, this or that seems most agreeable to my reason to have been done, seeing the question is only what is done? Wherein we must at last either have recourse to some records which are authentick to the contrary, or else sit down in that which is next of credit hereunto, the declaration of Parliament about the same.
I will add, if it could be proved that this was part of the Constitution of the Realm, that the people might defend their rights against any that invaded them, saving harmless the Kings person, yet must this Position (in the words expressed) be discarded still. I make it good. The Constitution of a Nation we are to know once for all (whatsoever the Civil or Common Lawyer may call Constitution) is in Politicks nothing else but this, to wit the Original agreement of the people, how, and in what manner, they would be Governed, when at first they framed their Commonwealth: and if it could be proved then, that the Community of England agreed or consented not to be Governed by King, or by a King and Parliament, but on these terms, that they would defend their rights against either, if they were invaded by them, then must not their taking Arms in that case be by the Kings Authority or Parliaments either, or by vertue of any Law proceeding from them, but by the Authority of the Community who framed the Constitution, and by vertue of that Mother-law, upon which, as above theirs, the personal Sovereignty of King and Parliament both depends. But now in regard this is not a thing possible to be proved, seeing we have not a Coppy of that original agreement, so as what is essential and naturally consequential to Parliaments we may suppose to belong thereunto, but otherwise we have nothing but the footsteps of the Laws which have successively passed in our Parliaments to insist upon, and they having now declared the right of the Militia, not barely to be, but ever to have been in the Prince alone, we are to conceive of this Grand Charter, which is Magna Major, (and time hath eaten the words out) to have been accordingly; and not to have been contrary without Testimony or probation.
If we look over our Nation, the first time we hear of it with any truth is under the Romans. Then came the Saxons and divided it into an Heptarchy; then one of those Kings prevails over the rest and reduces it into one Kingdom; afterwards came the Danes for a lesser season; and then William the Conquerour, and so we continue. Now where I pray, or in whose time shall we lay the Constitution of our Nation, I mean, when was it, or at what time, that we are to account that it was formed? Shall we lay it in William? I think not, because though he was called the Conquerour, he pretended a good title, and altered not the Foundation of our State, but only added some Laws, which any Prince in an orderly way may do. For Canutus, or the Danes, they did less as to any alteration of the Constitution then the Norman. As for Egbert, who I think it was that reduced the Heptarchy, he did I account but restore the ancient Monarchy, and though he changed the name into England, the Government in the kind none can suppose but the same. For the Romans they left us in a Monarchy, and found Princes here, and if we look beyond them, we must come up to those persons who at first in our Island resolved upon Government, and that they would have a King. The Government of this Kingdom by a royal Sovereign hath been as ancient as History is, That usage so practiced (says Jenkins) makes a fundamental Law. And here indeed does the prime constitution take his root: but who will say this is ours, or that ours is this? Who can tell us this first British agreement; and declare us the Instrument of it? If you will have it laid by Egbert, we are as much in ignorance also, what the Nation consented to when they came in entirely to him. If we had that perfect body of Law Edward the Confessor drew up, it might happily tell us something. But if then you desceud below the time of the Conquerour to find our Constitution out, where shall it be placed? Will you have it lie in Magna Charta? That must not be, because Magna Charta, and charta de Forest or the like, were the grants of our Kings, and the Constitution is that supposed Law of Laws and greater charter from whence the Prince himself holds his rights as the people their liberties, and must be therefore another matter. Shall we go then to the Statutes of the Realm? Nay, these are all Acts of the personal Sovereign, which suppose the Sovereign before, and consequently they do not give the royal Power, or make the State, but they declare that Power. The Lex that made him is long agoe out of books, the Lex that declares him supposedly according to that Lex that made him, does as it seems, in two or three Acts (which are the latest, and therefore must stand, till contraried or reversed) declare so much to be and ever to have been the right of the King (I mean the Militia acts cited) as no person can take Arms upon any pretence whatsoever against him, or on pretence of his Authority against such as are Commissionated by him, without contradiction (I suppose) to that declaration, and consequently the Constitution, as it stands now declared, is for the premises, and prays to have costs.
It is time for me after this to come to the supposition on the contrary in the case proposed. Suppose the Lawyers should determine that the Sheriff were to be justified notwithstanding the Militia Acts. There is an harmony, or reason of Law in general, to wit of all the Laws together which concern the Government in its administration, which have a mutual habitude and relation as they consist with one another, that may be very near a definition of the Constitution in some mens apprehensions. The Sheriff in our Land according to his office hath the Authority for executing the Law in his County, and so may in the name of the King raise the force of it to that end. If the Militia now does so lie in the King, that he may command off those Forces and dispose them at his pleasure, then is his Authority frustrate, and insufficient to its end. Consequently that harmony, which I take it, they mean, by reason of Law, is broke, and the Law is made inconsistent with it self, because the office of the Sheriff, and the sole command of the Militia in the King, cannot both stand together (as it seems) in this point. I must confess moreover I am very tender in this matter. Here is a Position of taking Arms by the Kings Authority against his Person, and against those that are Commissionated by him, is to be abjured. It is not (I know) for serious persons to wallow any words in so solemn a thing as an Oath without chewing, and much less to be willingly ignorant of what the considerate have against it, who in pondering the matter will I suppose see quickly, that by the Kings Authority, is all one as, by the Law: and when they are content perhaps to subscribe that they abhorr taking Arms in the name of the King, or upon pretence of the Law, against his Person, because the Law is conceived to preserve still his Sacred person inviolable, yet they may not be able to say so as to those Commissionated by him, because they conceive their Commission maybe illegal and that the Kings Authority issued out according to Law is to be preferred before that which is issued out only by Commission. For my part I believe it could not be the intent of the Parliament as to the Major part, in these Oaths or Subscriptions, to advance the personal command or Commission of the King, above Law, I mean in genere to do so, which were to change the Government, from Royal or Regal, into Lordly or despotical. I shall offer it therefore as a matter of special verdict at the Bar of the most skilful in reason and Law, whether there be any case possible of taking Arms by the Kings Authority in his Commissions (Note, I speak only in the matter of Arms) can be put so, as that the Authority of the Law, may be said thereby to be opposed? If it may, the Case in conscience remains to be answered. But I question it, because the Will alone of the King in the whole business of the Militia (the sole Power thereof being in him by these Acts) as it seems, must be Law, or equivalent with Law, when in all other cases, not of the Militia, the Law is certainly above, and more then his single Will, and consequently hath place of his Commissions. Power is a right to command; That right in any Subject, does lie only in the Will of the Supreme. Well, if the sole Power of Arms lies in the King, then must the Sheriff's Power to raise Arms in such and such cases he is authorized to, be nothing else but the Kings Will that he should do it. The Sheriff now raises Arms in his name, one comes and forbids him in his name, and shews his Commission. Here, is not the Sheriff gon, seeing the King is Master of his own Will, and can reverse it? If you say it is not his Will alone, but the Law that gives him his Power to act in the case, I ask, how then does the sole Power of the Arms lie in the King, when it seems that it is the Law he pleads for his taking Arms, which is not the Kings Will alone (or his sole Will, which he opposes,) but the Will and Act of his Parliament with him? I will come to a conclusion therefore, and leave the question. It is enough for me in the issue, if the Conscience be resolved as to a lawful submitting to the injunction, though the question be unresolved. I say thus then, either the Sheriff is to be justified, or he is not. Let these determine that will and can. If he be not, then is all objection vanished at the Militia Acts, the doubt and scruple is over, and we have done. If he be to be justified, then do I say that the Militia Acts must on necessity receive such a construction as that we are to conceive that the King and Parliament who passed them intended not to include any consequences of such a Nature as the disabling the Sheriff from executing the Law in the case supposed would come to, when they thought only of preventing illegal practices in all Insurrection and Rebellion. That is as much as to say, they intended to prevent any future War between King and Parliament, by declaring the sole Power of the Militiato be in the King, but they never intended it should be destructive in the least (in any case supposed or to be supposed) to the good and wholsome Laws of the land, which do empower any Officers for the execution of law and justice, or preservation of the liberties of the Kingdom. And if this be their meaning (which removes all that is grieveous) and we may so interpret them, then must they in the imposing these Oaths and Subscriptions mentioned be construed also in the same, and no other meaning, and according to their meaning are they to be taken. I draw this up, either it was then their meaning by the repeated declaration of their Acts to exempt all cases of the Militia, even that of the Sheriff insisted on (supposing it put) from the dispose of any but the Kings personal Will: or it was not their meaning. If it was their meaning, then is that to be held for Law, and the Conscience hath nothing left to object in these Oaths or Subscriptions mentioned: If it be not their meaning, these Oaths and subscriptions must be taken (that is sworn, and subscribed) only according to their meaning, and so the difficulty is resolved.
I pass with this advertizement. There is a strict, scrupuled sense (N. B.) of the impositions of our Superiours, wherein if a man be extreme to mark every word or thing that can be thought or said according to the rigour of it, there is no flesh living able to abide any of them: or there is a larger, customary, allowed sense of such words or things, when not only those that conform to them do take them in the same, but those that are scrupuled at them do suppose and verily believe that the meaning of the Imposers was no more then they can currantly together with others yield unto. And in this construction I profess (where there is any such) both that the Conscience ought to lay down her scruples, and all impositions that were, are, or shall be, must be taken. Talis interpretatio in ambiguis eligenda est, ut evitetur inconveniens & absurdum. And Excessivum omne (says Sr. Edward Coke) in jure, reprobatur.