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an extraordinary and temporary ordinance, assume those arms where, with the king is intrusted, and perform the king's trust: And, though such ordinance of theirs is not formally legal, yet it is eminently legal, justified by the very intent of the architects of the govern, ment, when, for these uses, they committed the arms to the king. And no doubt they may command the strength of the kingdom, to saTe the being of the kingdom: For none can reasonably imagine the architectonical powers, when they committed the power of govern, ment and arms to one, to preserve the frame they had composed, did thereby intend to disable any, much less the two estates, from preserving it, in case the king should fail to do it in this last need. And, thus doing the king's work, it ought to be interpreted as done by his will; because, as the law is his will, so that the law should be pre. served is his will, which he expressed when he undertook the govern, ment; it is his deliberate will, and ought to be done, though at any time he oppose it by an after will, for that is his sudden will, as Dr. Fern himself, Sect. i. doth teach us to distinguish.
Jn what cases the other Estates may, without, or against the King's Personal consent, assume the arms of the kingdom?
Whether it be lawful to take up arms against the Magistrate, per. verting his power to a wrong end?
Whoever were the authors of that book lately pnblished, stiled, 'Scripture and reason pleaded for defensive arms,' have laid new and over-large grounds for resistance. Two assertions they endeavour to maintain: First, 'Those governors (whether supreme, or others) who, under pretence of authority from God's ordinance, disturb the quiet and peaceable life in godliness and honesty, are far from being God's ordinance, in so doing, Sect. iii. Secondly, this tyranny, not being God's ordinance, they, which resist it even with arms, resist not the ordinance of God.' Hereon, Sect, iv, They free christians, even in the Apostle's time, and so under the Roman Emperors, or any other government, from a necessity of passive subjection in case of persecution ; affirming, that the christians, in those first persecu. tions, had they been strong enough, might have used arms for defence against the tyranny of their emperors. Their ground is from the reasons used by the apostle, Rom. xiii. where he commands subjection, and forbids resistance to the higher powers, because they are God's ordinance, his ministers, for praise to well doers, for terror to evil doers. But I must profess myself to dissent from them in this opinion, conceiving, that the apostle, in urging those reasons drawn from the ends of power, doth intend to press them to subjection, by shewing them what benefit comes to men by authority in its due use; and not to shew them how far they are bound to be subject, and in what cases they may resist: For, had he had such ft Cleaning at that timp, when the governors did altogether cross those ends of their ordination, he had taught them rather a doctrine of resistance, than subjection. Shall we conceive, that he would press Subjection to powers in the hands of heathens and persecutors, if he had not intended they should passively be subject unto them, even under those persecutions? Rather I approve the received doctrine of the saints in ancient and modern times, who could never find this licence in that place of the apostle, and do concur with Master Burroughs, professing against resistance of authority, though abused:
* If those (saith he, in his answer to Dr. Fern, Sect, ii.) who have
* power to make laws, make sinful laws, and so give authority to
* any to force obedience, we say, here there must be either flying, 'or passive obedience.' And again: 'We acknowledge, we must
* not resist for religion, if the laws of the land be against it.' But what do they say against this? In making such laws against religion, the magistrates are not God's ordinance; and therefore to resist is not to resist God's Ordinance: As an inferior magistrate, who hath a commission of power for such ends, is resistible, if he exceed his commission, and abuse his power for other ends; so princes, being God's ministers, and having a deputed commission from him to such ends (viz. the promotion of godliness, peace, and justice) if they pervert their power to contrary ends, may be resisted, without violation of God's ordinance. That I may give a satisfactory answer to this, which is the sum of their long discourse, I must lay it down in several assertions.
First, I acknowledge, God's ordinance is not only power, but power for such ends, scil. the good of the people.
Secondly, It is also God's ordinance, that there should be in men, by publick consent called thereto, and invested therein, a power to chuse the means, the laws and rules of government conducing to that end; and a judging, in relation to those laws, who be the welldoers, which ought to be praised, and who the evil doers, who ought to be punished. This is as fully God's ordinance, as the former; for, without this, the other cannot be performed.
Thirdly, When they, who have this final civil judicature, shall censure good men as evil-doers, or establish iniquity by a law, to the encouragement of evil-doers; in this case, if it be a subordinate magistrate that doth it, appeal must be made (as St. Paul did) to the supreme; if it be the supreme, which, through mistake, or corruption, doth miscensure, from whom there lies no civil appeal, then, without resistance of that judgment, we must passively submit. And he, who in his own knowledge of innocency, or goodness of his cause, shall by force resist, that man erects a tribunal in his own heart against the magistrate's tribunal; clears himself by a private judgment against a publick, and executes his own sentence by force against the magistrate's sentence, which he hath repealed and made void in his own heart. In unjust censures by the highest magistrates, from whom there is no appeal, but to God, the sentence cannot be opposed, till God reverse it, to whom we have appealed. In the mean time we must suffer, as Christ did, notwithstanding our appeal, 1 Pet. ii. 23. and so must we, notwithstanding our appeal, 1 Pet. iv. 19. for he did so for our example. If an appeal to God, or a censure in the judgment of the condemned, might give him power of resistance, none would be guilty, or submit to the magistrate's censure, any further than they please. I desire those authors, before they settle their judgment in such grounds (which, I fear, will bring too much scandal) to weigh these particulars: First, their opinion takes away from the magistrate the chief part of God's ordinance, scil. power of definitive judgment of laws and persons, who are the good, and who the bad, to be held so in civil proceedings. Secondly, They justify the conscience of papists, hereticks, and grossest malefactors, to resist the magistrate, in case they be persuaded their cause be good. Thirdly, they draw men off from the commands of patience under persecution, and conforming to Christ and his Apostles, in their patient enduring without verbal, or real opposition, though Christ could not have wanted power to have done it, as he tells Peter. Fourthly, They deprive the primitive and modern martyrs of the glory of suffering, imputing it either to their ignorance, or disability. Fifthly, It is a wonder, that since, in Christ's and his Apostles time, there was so much use of this power of resistance, they would by no express word shew the christians this liberty, but condemn resistance so severely. Sixthly, There is, in the case of the parliament now taking up arms, no need of these offensive grounds, religion being now a part of our national law, and cannot suffer, but the law must suffer with it.
1. When arms ought not to be assumed.
Now to the proposed question I answer, First, Negatively, scil. J. It ought not to be done against all illegal proceedings, but such which are subversive and unsufferable. Secondly, Not publick resistance, but in excesses inducing publick evils. For to repel private injuries of the highest nature with publick hazard and disturbance, will not quit cost, unless in a private case the common liberty be struck at. Thirdly, not when the government is actually subverted, and a new form (though never so injuriously) set up, and the people already engaged in an oath of absolute subjection; for the remedy comes too late, and the establishment of the new makes the former irrevocable by any justifiable power, within the compass of that oath of God: This was the case of the Senate of Rome, in St. Paul's time. Secondly, affirmatively: I conceive three cases, when the other estates may lawfully assume the force of the kingdom, the king not joining, or dissenting, though the same be by law committed to him: First, When there is invasion actually made, or imminently feared, by a foreign power. Secondly, When by an intestine faction the laws and frame of government are secretly undermined, or openly assaulted: In both these cases, the being of the government being endangered, their trust binds, as to assist the king in securing, so to secure it by themselves, the king refusing. In extreme necessities, the liberty of voices cannot take place, neither ought a negative voice to hinder in this exigence, there being no freedom of deliberation and choice, when the question is about the last end: their assuming the sword, in these cases, is for the king, whose being (as king) depends on the being of the kingdom; and, being interpretatively his act, is no disparagement of his prerogative. Thirdly, in case the fundamental rights of either of the three estates be invaded by one or both the rest, the wronged may lawfully assume force for its own defence: because else it were not free, but dependent on the pleasure of the other. Also the suppression of either of them, or the diminishing of their fundamental rights, carries with it the dissolution of the government: And therefore those grounds, which justify force to preserve its being, allow this case, which is a direct innovation of its being and frame.
Where the Legal Power of Final Judging in these cases doth reside, in case the three Estates differ about the same?
The Question stated. Determination of the Question.
In this question (for our more distinct proceeding) some things are necessarily to be observed: First, That we meddle not here with the judicature of questions of an inferior nature, viz. Such as are betwixt subject and subject, or the king and a subject, in a matter of particular right, which may be decided another way, without detriment of the publick frame, or diminution of the privileges of either of the three estates. Secondly, difference is to be made even in the questions of utmost danger. First, For it may be alledged to be either from without, by invasion of foreign enemies, or by a confederacy of intestine subverters, in which neither of the three estates are alledged to be interested, and sot he case may be judged without relation to either of them, or detriment to their privileges. Here I conceive a greater latitude of power may be given to some to judge without the other; for it infers not a subordinating of any of the three to the other. Secondly, Or else it may be alledged by one or two of the estates against the other, that, not contenting itself with the powers allowed to it by the laws of the government, it seeks to swallow up, or intrench on the privileges of the other, either by immediate endeavours, or else by protecting and interesting itself in the subversive plots of other men. Thirdly, In this case we must also distinguish betwixt, First, Authority of raising forces for defence against such subversion, being known and evident: Secondly, and authority of judging and final determining, that the accused estate is guilty of such design and endeavour of subversion, when it is denied and protested against. This last is the particular in this question to be considered; not, whether the people are bound to obey the authority of two, or one of the legislative estates, in resisting the subversive estates of the other, being apparent and self-evident? Which I take in this treatise to be clear. But, when such plea of subversion is more obscure and questionable, which of the three estates hath the power of ultimate and supreme judicature, by vote or sentence to determine it against the other? So that the people are bound to rest in that determination, and accordingly to give their assistance, eo nomine, because it is by such power so noted and declared.
For my part, in so great a cause, if my earnest desire of publick good and peace may justify me to deliver my mind, I will prescribe to the very question; for it includes a solecism in government of a mixed temperature: to demand which estate may challenge this power of final determination of fundamental controversies arising betwixt them, is to demand which of them shall be absolute. For I conceive, that, in the first part hereof, I have made it good, that this final utmost controversy, arising betwixt the three legislative estates, can have no legal constituted judge in a mixed government: For, in such difference, he who affirms, that the people are bound to follow the judgment of the king against that of the parliament, destroys the mixture into absoluteness. And he who affirms, that they are bound to cleave to the judgment of the two houses against that of the king, resolves the monarchy into an aristocracy, or democracy, according as he places this final judgment. Whereas I take it to be an evident truth, that, in a mixed government, no power is to be attributed to either estate, which directly, or by necessary con* sequence, destroys the liberty of the other*
Dissolution of the Arguments, placing it in the King; and of the arguments placing it in the tvso Houses.
Yet it is strange to see how, in this epidemical division of the kingdom, the abettors of both parts claim this uncoucessible judgment. But let us leave both sides, pleading for that which we can grant neither, and weigh the strength of their arguments.
First, Dr. Fern lays down two reasons, why this final judgment should belong to the king: I. Monarchy, says he, Sect. V. settles the chief power and final judgment in one. This position of his can be absolutely true no where, but in absolute monarchies: And, in effect, his book knows no other than absolute government. 2. Seeing some one must be trusted in every state, 'It is reason, says he, Sect. V. the highest and final trust should be in the highest and supreme power.' I presume by final trust, he means the trust of determining these supreme and final disagreements: And accordingly I answer, it is not necessary that any one be trusted with a binding power of judicature in these cases; for, by the foundations of this government, none is, yea, none can be trusted with it; for to in