A discourse concerning supreme power and common right at first calculated for the year 1641, and now thought fit to be published / by a person of quality.

OBJECTION V.

Object. 5. Well, but if it be not lawful to comply voluntarily with an Ʋsurped Pow∣er, by which I may be said to give it coun∣tenance and reputation, may I not yet act under it in things good or indifferent in their own nature, when they are command∣ed under a Coercive Penalty; and that for the preservation of my self and Posterity, which the Law of God, Nature, and Nati∣ons oblige to?

Answ. A Passive Submission to the pre∣sent Power may in some such Cases be lawful. For I am not bound to tempt a Temptation, nor, with the Porpus, to seek and hunt the storm, where it may be honestly avoided; self-preservation being so natural, as by instinct it catch∣eth at any thing, that may but stay or support it; as a Hop for want of a Pole will clasp and embrace a Nettle to stay it from falling. But here we must be cautious, and distinguish between the acting of a Magistrate and other inferior Employments, which perhaps may be preparatory only to some Administrati∣ons of Justice, or yet of less importance. Yet in case of Magistracy we must di∣stinguish

between Causes Criminal and meerly Civil. For,

1. In Causes Criminal, where Blood is by the Law required to expiate the Of∣fence, I conceive it wholly unlawful to act, in that they must derive their Com∣mission for it from them, who have a just Power of conveying it by Divine Commission and the known Laws; or else they do not take but wrest and force the Sword out of God's hand: and he that so sheds mans blood with it, by man shall his blood be shed; in that he doth it without any lawful call, with∣out which no man can act but in a pri∣vate capacity; and then it were mur∣der in any to kill a Murderer: and he that as a Magistrate will do a thing that requires the just Influence of Supreme Power to make it lawful, doth tacitely own that Power to be in him or them from whom he derives his Power to act. Especially in the Method of proceeding against Malefactors in Criminal Causes, where the frame of the Inditement and reading the Commission must be under∣stood an owning a just Power to be in them from whom they derive theirs; in that no private person or Community of men, unless combined into a lawful Go∣vernment, ever had the Power of Life

and death in them. For it is by that Power only men justly suffer; (not the Law, which is only a Regulation of the exercise of it;) so as any man may press the desert of death against a Wicked Ma∣lefactor by the Law, as preparatory to Sentence and Execution, but must not be active in the latter without a just Com∣mission, in that all men ought to act in a lawful posture and subordination only. For if the Power Originally be invalid, it cannot derive a just one, by vertue of which men may operate; no more than a sulphurous Spring can send forth a sweet stream; for, with Aristotle, Quod deest in causa deest in effectu.

2. In cases meerly Civil, between Party and Party, I am something doubt∣ful how to determine, if compelled to accept of a place of Judicature; though perhaps in some Cases I may be morally bound (from the Object it points at) to act, without any outward force upon me, in the name (not vertue) of the Usur∣per, where the thing is intrinsically good, or hath the countenance of ancient and known Laws, but never to the countenan∣cing or upholding of the Power; so as I may act under, but not for it in such cases. And in others, when I have re∣fused and resisted it, as far as I can with

safety to my Person and Fortune, I con∣ceive I have taken off all matter of just scandal of giving any countenance to the present Power, and rather shew my dis∣approving of it; when force and com∣pulsion only hath determined my choice, and that only to a submission, in reve∣rence to the Power that is upon me, (but not to any just Authority in the Imposer, which Conscience would ob∣lige unto.)

Nor do I in this consider my self vest∣ed in any just capacity for the doing a∣ny distributive Justice, so as to force a Conscientious Submission from any to my Determinations, but only as an Ar∣bitrator to mediate a just end of differen∣ces, which the necessity of the times (all other Channels, by which Justice as a stream should derive to us, being wholly obstructed) enforces all men to a volun∣tary and free submission unto.

And therefore with these Limitations it may perhaps be lawful, so as neither by Oath or Acting, I own the exercise of the Supreme Power as just in them that assume it, nor endeavour to coun∣tenance or support it; which Cautions all Callings of men, especially Commis∣sioned Officers, are to observe under an unlawful and usurped Power, that pos∣sesses

only an usufructuary and guber∣native one to rule, without any just pro∣priety in the Legislative Power, to which none can pretend, but such as are com∣missioned by God according to his re∣vealed Will, and possess their Titles by a lawful and civil Right. For in an un∣lawful posture of subordination none can have a just Power derived. Though (as I said) perhaps in some cases, where I am morally bound to a thing intrinsically good, I may act in the name (not Pow∣er) of the Usurper. Neither do those abused Textsp 1.1 oblige us further; for God cannot breath hot and cold in the same words, i. e. countenance Rebel∣lion under a pretence of lawful Obedi∣ence.

3. Lastly, For other inferiour em∣ployments; in things absolutely in their own nature lawful, men may, as an Act of Submission under a Power, comply passively; (though no Beam of any just Power appear in the Person command∣ing;) so as it be involuntary, and with a publick owning the dislike of it.

Nay there may be perhaps a voluntary and yet lawful acting in some such Capa∣cities in things of, an inferior nature, when men do it rather by permission of than commission from the Usurpers of the

Supreme Power, having their Call only from the ancient and known Laws of the Kingdom, as Constables, Bailiffs, &c.

Notes

• p 1.1

  Rom. 13. 1 Pet. 2.13.