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A46961 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 Samuel Johnson. Johnson, Samuel, 1649-1703. 1689 (1689) Wing J839; ESTC R32984 24,921 80

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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 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 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 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 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 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 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 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
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 which always at the least was the odds between Saul's 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 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 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 and therefore justly 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 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 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 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 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 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. 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