special matter they cannot well discern or judge I have therefore been particular herein as well to shew into what cause Annot. not only both Houses conjunctly but every particular Member in either have a right of being as also since Non datur progressus ad infinitum the Parliament being a body compounded of heterogenial or dissimilar parts if they sever or divide into what Subjects may ultimately with good conscience resolve their faith and obedience And no question it is better any thing should be Law then that every thing should be lawful And that is the greatest slavery where Subjects know not where to pay their obedience and from whence to expect protection but where different Factions shall with equal right or injury impose their lusts and wills for Laws to their Fellow-subjects The Jurisdiction of Parliament is so transcendent that it maketh inlargeth The Jurisdiction of Parliament diminisheth abrogateth repealeth and reviveth Laws Statutes Acts and Ordinances concerning matters Ecclesiastical Capital Criminal Common Civil Martial Maritime and the rest It may make Daughters and Heirs apparent of a man or woman during the life of the Ancestor Com. Lit. 110. adjudge an Infant or Minor of full age attaint a man of Treason after his death it may Bastard a Child that is Legitimate it may make a Bastard Inst 2 par 36. Legitimate A Parliament was called before the Conquest Michael Sinoth Michael By what other names called Gemote Ealsa Witenage Mote that is to say the Great Court or Meeting of the King and of the Wise men sometime of the King with the Council of his Bishops Nobles and wisest of his people The French call it Les estates and L'assemble des estates the Parliaments in France are no other Inst par 1. 110. a. then our Courts of Kings-Bench Common-Pleas Exchequer and Chancery in England The Germans call it a Dyet And Inst 4. p. 2. it was antiently called Witenage mote Conventus sapientum Commune concilium regni Generale concilium regni Concilium regni Assisa generalis Tully calls it Consessum Senatorum à considendo c. Object But it may be it will be objected That though the King be principium caput finis Parliamenti and that every Member as well as both Houses have their original right and sitting there from him and that though Laws of right ought to pass in Parliament at the rogation request or petition of the Commons by the counsel and advice of the Lords yet the Kings of the Nation have long since divested themselves of this power and have granted the Lords and Commons a concurring power in the making of Laws or by custom and usage it hath been so time out of mind and so ought to be observed as a Law To the first I say Kings reign by a higher then any humane law and Ans 1 therefore no act of any King can divest himself or successor of any attribute due to him or his successor And if Kings actions did oblige themselves or successors then were this Crown not free but subject to the Pope because King John made it so But I deny the assertion for it is false that ever any King of this Realm did ever grant the Parliament or either House a concurring power of making Laws with him For the second No usage prescription or custom can take place Ans 2 where there are records or proofs to the contrary Whether we cannot give proofs enough to the contrary judge good Reader David's calling all the Lords of Israel the Lords of the Tribes the Lords of the Companies that ministred to the King by course the Captains over thousands and over hundreds and the Lords that had the oversight over all the substance and possession of David and of his sons with the Chamberlains and all the mighty and all the valiant and all the active men unto Jerusalem to consult concerning the building of God a house 1 Chron. 28. 1 2. was a Parliament So was that Convention of Solomon's Inst 4 par 3. Ibid. 2 Chron. 2. and that Convention of the Israelites Judg. 20. 11. Ego Inas Dei gratia Westsaxonum rex exhortatione doctrina Cenredes patris mei Heddes episcopi mei Erkenwaldes episcopi mei òmnium Aldremannorum meorum Seniorum sapientum regni mei multaque congregatione servorum Dei sollicitus de salute animarum nostrarum statu regni mei constitui rectum conjugium recta judicia pro stabilitate confirmatione populi mei benigna sedulitate celebrari nullo Aldremanno vel alicui de toto regimine nostro conscripta liceat abolere judicia was an Act of Parliament Proem par 9. Reports Edwardus rex admonuit omnes sapientes suos qui fuerint Exoniae ut investigarent simul quaererent quomodo pax eorum melior esse possit quà m ante fuit was an Act of Parliament by Edward King Alfreds son Ibidem Haec sunt instituta quae Edgarus rex consilio sapientum suorum instituit were Acts of Parliament Ibidem Hoc est consilium quod Etheldredus rex omnes sapientes sui condixere ad emendationem pacis omni populis apud Woodstock Haec sunt verba pacis prolocutionis quae Etheldredus rex omnes sapientes ejus cum exercitu firmaverunt qui cum Anulano Justino Guemundo Stigrani filio venit Et haec instituerunt Etheldredus rex Sapientes ejus apud Habam were Acts of Ibidem Parliament Edmundus rex congregavit magnam Synodum Divini ordinis Seculi apud Londonum civitatem in Sancto Pasch solenni hae sunt institutiones quas Ed. rex episcopi sui cum sapientibus suis instituerunt apud Culinconam c. paulo post Ego Edmundus rex mando praecipio omni populo senior ' junior ' qui in regione mea sunt qui investigans investigari cum sapientibus Clericis Laicis were Acts of Parliament Ibidem Haec sunt statuta Canuti regis Anglorum Danorum Norvegar ' venerando sapientum ejus consilio ad laudem gloriam Dei sui regalitatem commune commodum habita in Sancto Natali Domini apud Wintoniam c. were Acts passed in Parliament Ibidem Rex Canutus an regni sui 5. per 130 annos ante copilationem decretorum quae an Dom. 1150. fuer ' copilat ' anno 7 pontificatus Papae Eugenii tertii ante copilation ' aliorum Canon ' quorumcunque cunctos reg ' sui praelat ' proceresque ac magnates ad suum convocans Parliam ' in suo publico Parliam ' persistentibus personaliter in eodem Wulstano Adelnodo archiepisc ' Ailwino episc ' Elmehamense aliis episcopis ipsorum suffragan ' septem Ducibus cum tot Comitibus nec non diversorum monaster ' nonnullis Abbatibus cum quamplurimis gregariis milit ' ac
his tail for his Second Ground is That the nature of Man reacheth not to the perfection of Government But what does our Author here mean by Freemen if by Freemen he understands men free to do what they list then our Author leaves them as he found them and has done nothing at all but if these Freemen be subject to their Trustee so far as he apprehends it fit and necessary for the good of the Commonwealth then I believe we shall finde them as very slaves as any our Author Ground 9. makes So that after all this ado our Author has made a multitude of slaves or he has made nothing at all And thus hath our Author endeavored to shew why men desire to live in Community viz. By having nothing common at all The Eighth GROUND Of the Authority given to an Absolute Governor and of Vnder-sorts of Government Author NOw comes our Author with a dog in a line his Absolute Governor tyed up to certain Laws and Limits which he has no right to transgress Observ What is this our Authors Absolute Governor Why the Roman Dictator was worth ten of this for he had power of life and death of disposing of all Offices at his own will and pleasure without the controlment of any either Senate or People Consul or Tribune and this power to continue during the exigence and danger of the Commonwealth Yet so far was the Dictator from being an absolute Governor that he was the while but a Minister of the Peoples which was plain in Fabius Maximus for Plutar. in vita Fabii Liv. lib. 22. though he were chosen Dictator yet during the danger of the Common-wealth the People made Minutius equal to him And so was the Athenian Archon who though chosen for Ten years and called a Judge and chiefest of power in the Commonwealth yet as Bodin observes cap. 8. fol. 80. de repub was not the Majesty of the Commonwealth in him but he a Provider and Procurator of the People and was bound to give an account of his Government And the reason why the Dictator and Archon were not absolute Governors is plain because this power was not immediately in them from God but delegate and constituted from another And any power that makes any thing may alter it for Unumquodque dissolvi potest eo ligamine quo ligatum est Well but let us see what manner of beast our Authors Absolute Governor is Why our Author tells you he is an Absolute Governor but restrained and tied up to certain Laws and Limits Which is a contradiction and impossible for in being absolute he is freed from all Laws and Limitations And now I will tell our Author that if his absolute Governor be tied up to any humane Limits or Laws he has so little power that it is impossible for him to protect and defend his rational people For suppose the Laws he is restrained to be as many as are contained in the body of the Civil Law our Statutes and all the Acts and Ordinances made since 1641. and twenty times more yet would not this be sufficient for an absolute Governor For all these are finite and mens actions are infinite and therefore Enemies may find out such ways to invade this free people as this absolute Governor cannot find in his Laws where he has power to oppose them and so this rational freeborn people must be left destitute if any Enemy may be found who can outwit them and find a way to oppress them out of the Laws and Limits which they have given their absolute Governor And who will desire any greater advantage against another then to have him look always one way or what Enemy desires more against another then against such a one whose absolute Governor is tied up to certain Instructions and those known to themselves And Laws are things which must be in esse And how can any man tell to day what may happen to morrow but Princes must to morrow and next day and every day steer their course according as the wind and storms shoals and deeps c. represent themselves which no man can possibly foresee Well let us see what the restriction of any one thing in the Supream Prince may bring upon himself and Subjects Let us look upon a King of England after the Act of Parliament De tallagio non concedendo an Act of Parliament is the Act of the King in Parliament As when the Lords and Commons present any Bill to the King and he passes it this is an Act of Parliament which is no more a Law of the Lords and Commons then the Laws passed at the Petition or Rogation of Coelius Cassius Sempronius c. were the Laws of Coelius Cassius and Sempronius And let every King expect that whatsoever the Subject can get of the King by hook or crook he will hold that as fast as the King shall any flower he leaves in his Crown Well then if Edward the First will not pass this Law he gets not a groat of his Subjects in England towards the relief of his oppressed Subjects of Aquitain in France which Sir Edward Coke in his Comment upon this Statute observes Well then the Scots in the year One thousand six hundred and forty having-transgressed all Laws of God and Humanity as well as the Borders and Bounds of their own Countrey raise Arms the second time and make an invasion upon us and seise upon Berwick and Newcastle but though the Kings hands were tyed up yet the Divine Vengeance of Heaven shall overtake them and their Countrey by a hand they could so little fear as I believe few of them knew whether there were any such or no. And now oh you who have not forced all mankinde from Humane brests come and stand amazed with horror for the most deplorable condition of the most Pious the most Religious the most Just the most Chaste Vertuous and Serenest Prince that ever swayed the English Scepter and not to be parallel'd by any Countrey whatsoever The Scots having invaded this Nation to treat with them a second time was too too much an indignity for their Natural Soveraign besides it was an affront not to be endured by the Englishmen That their Countrey must be made a prey to such Locusts and Caterpillers whensoever they will pretend grievance in Kirk and Discipline To restrain them by force it could not be without raising money By this Statute the King they say can raise none but by Parliament and to call a Parliament in this mad conjuncture of times was judged by himself and Council to be a means to increase the power of the Scots by the Parliaments joyning with them to the endangering himself and his Posterity Well then what is to be done what stand still and look on while these hungry Vermine devour and make a prey of his afflicted Subjects No the King to make his goodness appear above his own danger calls a Parliament where not deceived in his
and for the reason De terra vero Salica nulla portio haereditalis mulieri veniat sed ad virilem sexum tota terrae haereditas perveniat Bodin de rep p. 745. 13. For the authority of it the learned do not agree by whom it was The authority of it by D'-Avila made nor whether any French King ever made any such or not D'avila in the beginning of the first book of the Civil wars in France recites the most probable conjecture which is That the French when they left their habitation to seek fresh quarters sate down at the river Sala which divides Misnia Westward from Turingia and there forsooth did agree to choose themselves a King and did make Constitutions which should be fundamental and unalterable ever after and those Constitutions being made at the river Sala are called Salique Laws 14. There is no story of Guy of Warwick Amadis de Gaule or the Dun How probable Cows rib but is of as much authority and probability as this For can it be imagined that a company of Rogues and Thieves going to rob and thieve at Gads-hill should agree at Greenwich to make unalterable Laws for their government and succession before they were possessed of any thing and what they make their Laws of is nothing but what they shall rob and cheat other men of 15. But Bodin will not undertake to tell by whom or when it was made Bodin's opinion it is strange you will say that making up his discourse almost of Histories he hath nothing to say for this he only saies it is not new as many men think but engraven in the most ancient tables of the Salians in these words De terra vero salica c. ut supra So Bodin names neither by whom nor when Para. 12. this Salique Law was made Did ever man infer so fondly that because the Salian women did not inherit therefore the French Crown cannot descend to women But mark now if this be a consequence The women of the Land of Salia do not inherit and therefore no female can inherit the French Monarchy then if the men of the Land of Salia will alter this constitution the descent of the French Monarchy is altered by an Act of the men of Salia for Cessante ratione legis cessat lex and sublata causa tollitur effectus In their contest with the Popes the Kings of France say they hold their Crown of God whereas if Bodin says true they hold it by a Law written in the Tables of the Salians I can say no more for the authority of this Law unless I should repeat the same things again out of De Serres and other learned French Historians 16. This Law cannot be altered by the King and Estates general The eternity of it I had thought that only the Laws of Nature had been unalterable It is a rule that Unumquodque dissolvi potest eo ligamine quo ligatum est And if this Salique Law be a constitution of Man by that power which made it a constitution by that power it may be altered 17. De terra vero Salica nulla portio haereditatis mulieri veniat sed ad virilem The reason of it sexum tota terrae hereditas perveniat Now let any man that is in his wits or understands any thing of the nature of a Law judge whether there be any shadow of reason in this For a Law is the rule or direction of him who does govern to be observed by them who are governed How then can the Crown of France descend according to the customs of the Salians if the French Crown be not subject to the men of Salia and they had given the King and his successors this unalterable Law of not descending to the female but where this country Salia should be I could never find so much as the name in any Geographer or Historian ancient or modern Sure the Romans so curious in searching and describing of Countries would not have overseen it especially the Emperor Julian warring so long in those parts of Germany not above sixty years before they suppose Pharameund departs out of Salia for to seek better quarters in Gaule 18. The two main parts of the Salique Law are That the Crown shall The two main parts of the Salique Law descend to the next heire male and if the heire be ana infant that the next Prince of the blood who is a Major shall during his minority be his Guardian and Regent Yet Bodin is fearful that the Salique Law was not bar enough against our Ed. the third being never before heard of saies Hailâ—n he saies pag. 745. Whenas the controversie concerning the Crown of France was between Philip Earl of Valoys and Ed. the third King of England Philip defended the Salique Law by the Voconian which ordained by the consent of the Fathers and Princes that in that controversie no man should use the authority of forrain Lawes but every one should study for his profit the Salique Law But when the question was 1563 whether Charles the ninth were a Major at fourteen years of Age currant or compleat the Parliament of Paris would have taken upon them to decide it when Charles sends them word I do not mean that you should deale in any thing but with the administration of good and speedie justice to my subjects understand hereafter that you are not confirmed in your offices by me to be my Tutors or Protectors of my Realm nor Governors of my City of Paris as hitherto you have perswaded your selves Besides Charles the seventh Anno 1420. was adjudged to banishment and unworthy to succeed in any of the signories of France by all the Courts of the Parliament of Paris And so about 7 years since was the Prince of Condi and so was Henry the forth by all the three Estates at the general assembly at Bloys Anno. 1588. So that is is evident that this immutable Law is not so inviolably kept by the French themselves when it does not serve their turn How should the Voconion Law oblige against Ed. the third and not the Acts of Parliament of Paris and general Assembly at Blois oblige against Charles the seventh and Henry the fourth for ubi eadem est ratio ibi idem est jus 19. There cannot be a more imprudent act then to make any one Ward The imprudence of the Salique Law to him who is his next heire especially to a Crown which frees any one from all attainders what then can be more imprudent then this part of the Salique Law which gives the pupil King into the hands of the next heire who murthering him makes way for himself to the Kingship By our Country Laws no man could be Guardian to the person of a Ward but the next of blood to whom the inheritance could not descend But this part of the eternal Law has not of late been observed by the French Nation whereas the contrary hath been
cum populi multitudine copiosa ac omnibus adhuc in eodem Parliamento personalit ' existent ' votis Regiis unanimiter consentientibus praeceptum decret ' fuit quod Monasterium Sancti Edmundi c. sit ab omni jurisdictione episcopor ' com' illius ex tunc imperpet ' funditus liberum exemptum c. Illustris rex Hardicanutus pred' regis Canuti filius haeres success ac sui patris vestigior ' devotus imitator c. cum laude favore Aegelnod ' Dorobornensis nunc Cantuariensis Alfrici Eborac ' episcopor ' aliorumque episcopor ' suffragan ' nec non cunctorum regni mei mandanorum principum descriptum constituit roboravitque praeceptum were Acts of Parliament Ibidem Rex Eldredus convocavit Magnatos Episcopos Proceres Optimates ad tractandum de publicis negotiis regni And this was a Parliament Inst 4. p. 3. But none of these you will say have the obligation of Laws upon us Well let us see those Acts of Parliament which have and what is the difference By the way no Acts of Parliament are now nor these 400 years have had the force of statute-Statute-Laws in England but those made in Henry the Third's time and since And what was the first and great Act of Magna charta but Henry by the grace of God King of England Lord of Magna Charta an Act of Parliament Ireland c. We have granted to God and by this our present Charter have confirmed for us and our heirs for ever That the Church of England shall be free and shall have all her whole rights and liberties inviolable We have granted also and given to all the Freemen of our Realm for us and our heirs for ever those Liberties underwritten to have and to hold to them and their heirs of us and our heirs for ever Note this great Charter which made the Church and Nota bene Kingdom of England the most free in the world was a free and voluntary act of an English Monarch in Parliament And all that violation and destruction of all those happy Grants and Concessions both in Church and State have been made by a cursed conspiracie of a factious and seditious company of men falsly and most injuriously arrogating to themselves the name of Parliament without and against the Kings good mind and pleasure Charta Foresta was Henry by the grace of God King of England Lord of Ireland Duke of Normandy and of Guyen c. We will that all Forests which King Henry our Grandfather afforested shall be viewed by good and lawful men c. Statutum Hiberniae was nothing else but Henry by the grace of God King of England c. To his trusty and welbeloved Gerard son of Maurice Justicer of Ireland greeting Commanding him to cause the Customs recited in the Act and used in England to be proclaimed and streightly kept and observed in Ireland Statutum de Anno Bissextili was The King unto the Justices of the An. 21. H. 3. Bench greeting c. The Statute intituled Assisa panis cervisiae was An. 51. H. 3. The King to all to whom these presents shall come greeting We have seen certain Ordinances c. Stat. de Scaccario The King commandeth that all manner of Bailiffs Sheriffs An. 51. H. 3. and other Officers as well Justices of Chester c. Statutes made in the Parliament at Marleborough wherein the King An. 52. H. 3. made these Acts Ordinances and Statutes underwritten which he willeth to be observed for ever firmly and inviolably of all his Subjects as well high as low Statute of Westminster the first were the Acts of Edward the son of An. 3. Ed. 1. Henry c. by his Council and the assent of Archbishops Bishops Abbots Priors Earls Barons and all the Commonalty of the Realm c. the King ordained and established these Acts underwritten which he intendeth to be necessary and profitable unto the whole Realm First the King willeth and commandeth that the peace of Holy Church and of the Land be well kept and maintained in all points and that common right be done to all as well poor as rich without respect of persons c. Statutes made at Gloucester where our Soveraign Lord the King for An. 6. Ed. 1. the amendment of the Land and for the relief of his people c. hath provided and established these Laws underwritten willing and commanding that from henceforth they be firmly observed within the Realm Statute of Rutland hath no other title then The King to his Treasurer An. 10. Ed. 1. and Barons of the Exchequer and to his Chamberlains greeting c. Articuli super Chartas were Grants in Parliament made by the King An. 20. Ed. 1. at the request of the Prelates Earls and Barons assembled in Parliament Note the Commons are not so much as named in these Acts of Parliament The Statute of Quo Warranto made at Gloucester and Statute de Protectionibus An. 30. Ed. 1. An. 33. Ed. 1. made at Westminster the King only speaks Stat. de conjunctim Feoffatis The King unto all to whom these c. An. 34. Ed. 1. greeting And after the recital of the things contained in the Act it is said In witness of which thing we have caused these our Letters Patents I my self being Witness at Westminster Statute of Amortising of Land made by Ed. 1. only the King speaketh Ordinatio pro statu Hiberniae made 17 Ed. 1. the King speaketh by the assent of his Council Statute Ne Rector prosternat arbores in coemiterio only the King speaketh and neither Council nor Parliament mentioned An. 35 Ed. 1. Statute for Knights hath no other title then Our Lord the King hath An. 1. Ed. 2. granted c. And Stat. de frangentibus prisonam 1 Ed. 2. hath nothing to create it a Law but The King willeth and commandeth and neither Parliament nor Council named in either of them Articuli Cleri made at Lincoln the King and his Council are named An. 9. Ed. 2. The Statute of York was made by the King by the assent of the Prelates An. 12. Ed. 2. Earls Barons and Commonalty there assembled So that in these three Kings reign although the King did enact them in Parliament yet the manner was different almost in all In Ed. 3. his time was the form of enacting Laws truly defined and An. 1. Ed. 3. much used by him and the subsequent Kings At the Parliament holden at Westminster King Edward at the request of the Commonalty and by their Petition made before him and his Council in the Parliament and by the assent of the Prelates Earls Barons and other great men assembled at that Parliament hath granted c. In the next Parliament holden at Northampton the Laws are made by An. 2. Ed. 3. him and by the assent of the Prelates Earls Barons and other great
men and all the Commonalty assembled in Parliament Statutes made at Westminster were enacted by the King his Prelates An. 4. Ed. 3. Earls Barons and other of the same Parliament at the request of the Commons Statutes made at Westminster The King by the assent of the Prelates An. 5. Ed. 3. Earls Barons and other great men of the Realm at the request of his people granted and established c. Statutes made at York were enacted by the King in Parliament upon An. 9. Ed. 3. the Petition of the Knights Citizens and Burgesses Statute of Money made at York was enacted by the King with the An. 9. Ed. 3. assent of the Prelates Earls and Barons and the Commons not so much as named Statutes made at Westminster were made and established by the King An. 10. Ed. 3. with the assent of the Prelates Earls Barons and other Nobles of this Realm and at the request of the Knights and Commons Statutes of Purveyors made at Westminster were enacted by the King An. 10. Ed. 3. with the assent of the Prelates Earls Barons and also at the request of the Knights of the Shires and the Commons by their petitions put in the said Parliament Statutes made at Westminster were to the honor of God and of Holy An. 14 Ed. 3. Church by the assent of the Prelates Earls Barons and other assembled at Parliament And see almost all the Acts of Parliament in Ed. 3. his time after in Rich. 2. Hen. 4. Hen. 5. Hen. 6. Ed. 4. Rich. 3. the King always made the Law and the Lords Spiritual and Temporal did assent at the instance request or petition of the Commons or by the King with the assent of the Lords and Commons which was not or but rarely used unless in Rich. 2. his time In Hen. 7. his time the Commons got to have their assent as well as the Lords in passing Laws And this manner of passing Laws continued generally until Edward the Sixth's time where they were sometime made by the King with the assent of the Lords Spiritual and Temporal and Commons in Parliament and sometime by the Parliament But the form of enacting Laws by the King and the Lords Spiritual Temporal and Commons assembled in Parliament was seldom or never used before Queen Maries time So that it is as clear as the Sun at noon-day That a King of England Sessions of Parliaments do not derogate from Regal Power by the ancient usages of this Nation is as free and absolute in the Session of Parliament as out And the Act of a King in Parliament is the free and voluntary Act of an absolute Monarch for the Act of the King in Parliament passed by the assent of the Lords Spiritual and Temporal and at the Petition of the Commons is not less the act of the King because it is so passed unless a man will deny that my Will being a faculty of my Soul cannot imperate an act if it takes information from my Understanding or Reason Reason and Understanding being in proportion to the Will as Counsel is to a Law King Charles of Sacred memory commends to his Son the then Prince of Wales in his last Letter and Admonition to him though for his own particular he had little Reason God knows so to do the frequent use of Parliaments as the best means by which Laws may be received of the Subjects and diffused to all parts of the Nation and to hold a right understanding between the King and his Subjects But as nullum medicamentum est idem omnibus nay the same Medicine at one time may kill the same person which at another time may cure him And that thing which at one time may be a very probable reason of an action at another time may be none at all or quite contrary to Reason So in Reasons of State that may be a very probable reason at one time which may be none at all or perhaps destructive at another time As Henry the Third had great Reason of State to form a House of Commons and endue it with large priviledges to secure himself against a stubborn and rebellious Nobility But King Charles had not the same Reason of State to indulge the House of Commons contriving the destruction of himself the Church and Nobility Laws and Liberties of this Nation Edward the First had great Reason of State to call a Parliament and to pass the Act De Tallagio non concedendo for otherwise as the state of affairs then stood he could neither get money to assist his Friend and Ally the Earl of Flanders nor relieve his distressed Subjects in Aquitaine oppressed by the French King which Sir Edward Coke in his Comment upon this Statute observes but King Charles had not the same Reason of State to call the Parliament in 1640. who instead of assisting their natural Sovereign against a Rebellious Rabble of Mungrel Hebrides and Lysisks give them Three hundred thousand pounds to be exported out of the Kingdom for their Brotherly assistance Edward the First had great Reason of State to pass the Statute of Mortmaine when as men were so superstitiously given that no man thought he could merit Heaven if he gave nothing to the Church whereby such large Revenues accrued to the Church that the third part of the Revenues of the Nation was in Church-mens hands who pretending exemption from the Temporal Power if some remedy were not taken the King would probably be left destitute of means to protect himself and his Subjects yet is there not now that Reason of State when in a Sacrilegious age all the Patrimony of the Church goes to wrack and ruine and men of Badges of Sacriledge make marks of Saintship It were endless to enumerate how Reasons of State vary with the times It must suffice that there be means always in the Supream Power to remedy and cure the maladies and mischiefs of State as they arise and represent themselves Yet it is a remarkable thing That they who oblige Kings and Supream Powers to their own Laws will never be obliged by either their own or any Laws of God if ever the Supremacy comes to be vested in them and let any man shew me in Five hundred years one time wherein the Kings of England did alter the Laws out of Parliament and I will shew him an hundred times in seven years where men arrogating to themselves the name of Parliament have altered the Laws without the King They who oblige Supream Powers to Humane Laws the Conditions must oblige God too to such things as is contained in those Laws and Conditions or else it is impossible for Powers to protect their Subjects But Corruptio optimi est pessima there were never so vile things done as have been by Parliaments or by men calling themselves so Sir Edward Inst 4. page 37 38. Coke being always mightily in love with Parliaments gives instances but in two viz. Thomas Cromwel Earl of
Essex and Edmund Earl of March the true and undoubted Heir of the Crown of England both condemned unheard and without tryal in Parliament when as he might have instanced twenty Sir Thomas Seimer Admiral of England and Brother to the Protector Anno 1549. the third year of Edward the Sixth was condemned to death unheard by a Law in Parliament Henry the Third after all the Acts of Grace of Magna Charta Charta de Foresta c. instead of means Good Governors are the Preservers or enlargers of the Government Parliaments have ever been the bane of the greatness of the English Monarchy given him by Parliament for the recovery of his right of the Dutchy of Normandy usurped and taken by the French King from his Father King John and the Dutchy of Guienne and Earldom of March the year before usurped and taken from him by the French King had all the exercise of Regal Government taken from him and given to the Twelve Peers by the * Insanum Parliamentum Mad Parliament whereof ensued the Barons Wars to the destruction and confusion of so many English-men as nothing but a Parliament could have done Henry the Fourth in the first year of his usurped Reign had the Crown entailed upon him and his Heirs in Parliament from whence ensued all the Wars of the Houses of York and Lancaster At a Parliament holden Anne Dom. 1470. begun at Westminster 26 November the Crowns of England and France were entailed upon Henry the Sixth and the Heirs male of his body lawfully begotten and for want of such Heirs unto George Duke of Clarence being the yonger Brother of Edward the Fourth the undoubted Heir of the Crown of England whereby a double injustice was done first to Henry the Sixth excluding his Heirs general then to Edward the Fourth to prefer his yonger Brother Clarence before him in case of want of Heirs male to Henry the Sixth See the Factious Conspiracy of the Commons together with the consequence against the Duke of Suffolk Speeds History Henry 6. p. 675. Para. 47 48. The Parliament in the First of Richard the Third his Reign though a bloody Usurper presented a Bill for the entailing the Crown upon his Heirs Ann. 1 Hen. 7. Nor was the Act of Parliament less injurious which entailed the Crown upon Henry the Seventh and the Heirs of his body he having no colour of title to it but in right of his Wife and because he suspected his title and reigned in his own right to the wrong of his Wife and after her decease to the wrong of his Son Henry the Eighth in the eleventh year of his Reign he got an Act of Parliament to pass which should protect all Subjects who should assist the King be he so by right or not for the time being So that other offences should be punished but he that perpetrates the highest villany by invading a Crown should be protected by Law Henry the Eight by authority of Parliament an 1533. Bastardized Queen Mary and so soon as he had cut off Anne Bullens head by authority of Parliament Bastardized Queen Elizabeth smally to his credit one would think Add hereunto the ridiculous yet cruel Act of Hen. 8 his Headship of the Church So that a stranger being one day in Smithfield and seeing one burnt for denying the Six Articles and another hanged for denying his Headship cried out Bone Deus quo modo hic agunt vivi hic comburuntur Papistae ibi suspenduntur Antipapistae The bloody Laws passed in Parliament in prosecution of the Six Articles in the time of Henry the 8. and the bloody Parliamentary Laws for Religion in Queen Mary's reign c. and all those Sacrilegious Acts made in the reigns of Hen. 8. and Ed. 6. and sure no man can imagine such horrid acts could be perpetrated but by Parliaments Nor have the General Assemblies in France who were wont to be assembled once or twice a year demeaned themselves much better then the Parliaments in England but in stead of providing good Laws fell into such Factions and used such affronts to the Regal power that Lewis the Eleventh a most subtile and cunning Prince was wont to say It was time to put the French Kings horce de page out of their minority and from being Pages any more and so he did And since his time they have been rarely convented in France For since the General Assembly at Bloys anno 1587. by Henry the Third where the famous Duke of Guise was killed there hath been but one anno 1614. in the fourth year of the reign of Lewis the Thirteenth and that succeeded so ilfavoredly that there is no probability of ever being another 4. Besides the general and particular Customs and Acts of Parliament there are almost infinite Corporations Colledges and Companies who have divers and sundry priviledges which are granted by the Kings Letters Patents and are observed as Laws and to all intents and purposes have the effect of Laws 5. But in all Maritime cases the Kings of England being Soveraigns of the Narrow Seas whatsoever Grotius says to the contrary and all actions done upon a Navigable river are judged by the course of Civil law and so the Probate of Wills and Letters of Administration are determinable by the Civil law Judge Jenkins a learned Gentleman and a stout Champion for the Laws of this Nation in the first page of his Lex terrae divides the Laws of this Nation into three grounds or species viz. 1. The Customs 2. Acts of Parliaments and 3. Judicial Records and that the two latter are declarations of the former touching Royal government so that he makes Custom to be the ground of Royal government and Acts of Parliament to have but a declaratory power of the Common Law touching Royal government and Judicial Records to be equivalent to Acts of Parliament In all which he is most manifestly mistaken For first there are an exceeding many Acts of Parliament which have no manner of dependence or affinity with the common-Common-Law and so cannot be declarations of it nay there are many Acts of Parliament which are so far from being declarations of the Common-Law that they do annihilate it and create other things in lieu thereof as the Statute of West 2. cap. 1. called the Statute de donis conditionalibus annihilated all the Conditional estates in Fee at common-Common-Law and created estates in Tail in lieu thereof At common-Common-Law no Lands or Tenemers were deviseable by Will but the Acts of 32 34 H. 8. create a power of devising Lands and Tenements in Fee by Will and Tenants at Common-Law might choose whether they would attorn to any Grant of the Lord but now the Lords Grant is good without it by 27 H. 8. cap. 10. Sir Ed. Coke com on Lit. sect 574. says Stat. 32. H. 8. takes away the reason of the common-Common-Law so that that cannot be a declaration of what it takes away the reason It were tedious
to instance the Acts of Parliament which give one Jointenant a power to compell the others to sue a Writ of Partition which was denied at common-Common-Law and right of Entry where they were put to their Cui in vita c. It may suffice that in no Kings reign there have not been Acts of Parliament which have been so far from making declarations of the common-Common-Law that they have made manifest alterations in it And as the common-Common-Law hath no force nor reason against an Act of Parliament so hath no particular Custom any force or reason against it for no man can prescribe against an Act of Parliament and all Lands in Gavel-kind were particular Customs but taken away by Act of Parliament And many Acts of Parliament have not declared the Succession of the English Diadem according to the usual custom thereof but made manifest alteration thereof as in the Succession of Hen. 4. 5. 6. Rich. 3. Hen. 7. 8. which being unjust and the cause not depending upon Humane laws ought not to be obeyed Nor secondly is that a less error that Judicial Records are equivalent to Acts of Parliament for they are so far from being equal to Acts of Parliament that in truth they are no Laws but Inferences and Conclusions which are deduced from Laws For there is not any Judicial Record which is not unjust if it cannot truly and ultimately be resolved in some general or particular Custom Act of the Parliament or grant of the King So that Acts of Parliament the Common Law Particular Customs and Prescriptions and Royal Grants are as Axioms Postulata or Principles in Arts or Sciences and Judicial Records Reported Cases and Yearsbooks are Inferences Conclusions or Sciences deduced from Acts of Parliament the Common Law and particular Customs of this Land or Concessions of the King Touching Royal Government Royal Government being the ordinance of God and from the Law of Nature is paramount to all Humane laws and the prime and efficient cause of them they cannot therefore declare the cause so as to create any obligation of what they are but the effects and from whence derived We have thus far treated of the means by which the Kings of this Nation have until 1640. governed and preserved their Subjects internally But because it is the office of Kings to preserve their Subjects as well from foreign force as internal broil there is yet something wanting of which we have not treated viz. The power of making War and Peace and maintaining Alliance and Traffique Of these in regard they refer to Foreign powers and jurisdictions and are not subject to the Laws of the Nation we shall forbear to treat only affirming that it is necessary that at all times this power must be so vested in the King that at all times he may have the aids and assistance of his Subjects in prosecution of the Ends aforesaid The end of the Third Book The Contents of the Fourth Book HAving thus far treated of all created Rights and the causes of all Laws and created Powers and Vertues and these being previous and necessary to all Justice and Obedience We in this Book descend to treat of Justice in the first Chap. as the most eminent and noble of all Humane vertues it being that which not only conserves private Families but all Nations and Kingdoms in unity peace and society and demonstrate it neither to be in Geometrical proportion as Plato would nor Arithmetical proportion as Zenophon held nor in Harmonical proportion as Bodin taught Nor is that corrective and distributive Justice which Aristotle affirmed to be in Arithmetical and in Geometrical proportion The Second Chap. treats of Obedience and shews how that it necessarily proceeds and yet is different from Justice The Third Chap. treats of Judgment and shews how it differs from Law and Justice The Fourth Chap. treats of Equity and shews how it differs from Judgment and how necessary Courts of Equity as well as Judicature are THE FOURTH BOOK CHAP. I. Of Justice 1. JUstitia est habitus animi communi utilitate Cicero's definition of Justice servata suum cuique tribuens Societatem conjunctionis Humanae munifice atque aequè tuens Justice is a habit of the Minde common utility being conserved giving to every one their right and bountifully and equally Cicero lib. 1. de legibus defending the Society of Mankinde Et Justitia est quae suum cuique distribuit Justice is that which does distribute to every man what is his right Where he says That Justitia est obtemperatio scriptis legibus we will shew that is not properly Justice but Obedience onely 2. Justice is the upright doing of an act conserving Society in that Quid sit Justitia formality as it is commanded or permitted by him who by right may command or permit it Justice is the doing of a just action the doing of a just action is the upright doing of any act as it is commanded or permitted by him who by right may command or permit it preserving Peace and Society I say Justice must have these two properties viz. upright doing that is abstraction from all affections of love hate or self-interest and the Law or Command of him who by right may command or permit such an act Other actions proceeding from Wisdom Reason Experiment or Discourse c. are prudent profitable c. but none are just or honest actions which cannot be truly and ultimately resolved into the Law or Command of him who by right may command or permit such an act So Quotuplex that Justice is twofold either commanded or permitted 3. Injustice is the abuse or falsifying the Law or Command of him What is Injustice who by right commands to the hurt or prejudice of another As a Law preceding and Integrity are inseparable incidents to Justice so Hypocracy seeming just and yet abusing or falsifying a Law and the damage of another or more are incidents inseparable to injustice 4. Let us see who may by right command and who are obliged to do God commands by highest right in conformity to their Laws and Commands I say God by highest right ought to command all the created things in Heaven and Earth and all Creatures are chiefly and absolutely obliged to do whatsoever he commands without any reasoning or disputing why he so commands For the earth is Psal 24. 1. Job 41. 11. Psal 50. 12. the Lords and all that therein is the compass of the World and all that dwell therein And whatsoever is under the whole Heaven is Gods and the World is mine and the fulness thereof All Gods commands therefore have a like and equal influence upon all his Creatures all Creatures as compared to him are alike vile and between him and them is no proportion To abuse then or falsifie any Law of God or Nature to the hurt or prejudice of another is a sin of injustice in all Gods Creatures and
shall retain in service see or livery any person which shall forbear to goe to some usuall place of Divine service by the space of a moneth shall forfeit for every such moneth he knowing the same the summe of ten pounds This Act shall not extend to punish any person for maintaining relieving or harbouring his Father or Mother wanting without fraud any other habitation or sufficient maintenance or the ward of any person committed by authority to the custody of any by whom they shall be so relieved maintained or kept The Sheriff or other Officer upon lawfull Writ Warrant or Processe to him awarded to take or apprehend any Popish Recusant standing excommunicated for recusancy may break open the house where any such person excommunicated shal be or raise the power of the County for apprehending such person Every offence committed against this Act may be heard and determined before the Justices of the Kings Bench and Justices of Assize And all offences other than Treason shall be enquired heard and determined before the Justices of Peace in their next Generall and Quarter-sessions No attainder of Felony by this Act shall extend to forfeiture of Dower or corruption of blood The Defendant in any action commenced or brought against him by virtue of any thing in this Act may plead to the generall Issue by an Evidence that shall prove his doings or proceedings warrantable by this Law This Act nor any thing contained therein is said not to extend to take away or abridge any authority or jurisdiction of Ecclesiasticall censures No person shall be charged in any penalty by force of this Act which shall happen for the wifes offence in not receiving the Sacrament during her Marriage nor any woman shall be charged with any penalty for not receiving during Marriage In all cases where the Bishop or Justices of Peace by virtue of this Act may take of any Subject not a Nobleman this oath above mentioned The Lords of the Privie Councell or any 6 of them where of the Lord Chancellor Lord Treasurer or principle Secretary to be one have authority to require the same at any time of any Noble-man or Noble-woman being above the age of 18. years and if such Noble-man or Noble-woman other then the woman married refuse the same they shall incurre the penalty of a Premunire Where any person shall pass out of the Cinque-Ports or any member thereof to any parts beyond the seas to serve any foreign Prince State or Potentate the Lord Warden of the Cinque-Ports for the time being or any person by him appointed have power to take bond and minister this oath to such passengers If any man discover any Recusant or other person which shall entertain or Stat. Annn. 3 Jac. cap. 5. relieve any Jesuit Seminary or Popish Priest or shall discover any Mass to have been said and the persons which were present and the Priest or any that were present within three daies shall not only be freed from any penalty but shall have the third part of the forfeiture of all such summes of money goods and chattels which shall be forfeited for such offence if the forfeiture exceed not 150 l. if it doth exceed 150 l. then the discoverer to have 50 l. and the discoverer after conviction of the offendor shall have a certificate from the Judges or Justices of Peace before whom such conviction shall happen to be directed to the Sheriffe or other Officer that shall seize the goods commanding him to pay the same accordingly No Popish Recusant shall come into the house where the King or the Heir apparent shall be unlesse commanded by the King or by Warrant from the Lords of the privy Councell upon penalty of one hundred pound the one moity to the King the other to the discoverer who will sue for the same in any Court of Record where no Essoine Protection or Law Gager shall be allowed All convicted Popish Recusants dwelling in London or within five miles within three moneths after the Session of Parliament shall depart out of it and not dwell within ten miles and deliver up their names to the Lord Major if they dwell in London and if such Recusant shall dwell within ten miles of London to deliver up his name to the next Justice of Peace within fourty dayes after the Session of Parliament upon the penalty of one hundred pounds the one halfe to the King the other to him who will sue as aforesaid All Recusants which shall dwell or remain in London or within ten miles thereof shall within ten dayes after indictment or conviction depart out of the said compass and deliver up their names to the Lord Mayor In case the said Recusant shall dwell in any County within ten miles of London then within ten daies after conviction or indictment shall give up his name to the next Justice of peace the person offending shall forfeit one hundred pounds the one halfe to the King the other to the Informer as aforesaid Tradesmen Recusants who have no other habitation may continue within London and the compass of ten miles This Act repeals that branch of the 35 Eliz. cap. 2. touching licence of Recusants to remove or pass above five miles from their place of abode The King or three or more of the Privy Councell under their hands may licence a Recusant to travell out of the compass of five miles So may four Justices of Peace of the County with the privity of the Bishop of the Diocesse in writing or of the Lieutenant or any of the Deputy Lieutenants the party taking his corporall oath that he truly informes them of the cause of his journey and making no causless stayes No convict Recusant shall practise the Common Law as a Councellor Clerk Atturney or Solicitor nor shall practice the Civill Law as Advocate or Proctor nor practise Physick nor be an Apothecary nor shall be Judge Minister Clerk or Steward of any Court nor keep any Court nor shall be Register or Town-clerk or other Minister or Officer in any Court nor shall bear Office as Captain Lieutenant Corporall Sergeant Auncient-bearer or other Office in Camp Troop Band or Company of Souldiers nor bear any office in any Ship Castle or Fortresse of the Kings upon penalty of one hundred pounds to be forfeited as aforesaid No popish Recusant convict or having a Wife convict shall bear any publick office in the Common-wealth Every married woman being a Recusant convict her husband not being convict shall forfeit 2. third parts of her Joynture and Dower during her life and be made uncapable of being Executrix or Administratrix to her husband Every Popish Recusant convict shall be deemed as a person excommunicated so long as he continues not conformable and not come to Divine service and receive the Sacrament and take the oath appointed by this Parliament in the first chap. Yet such Recusant may sue for such of his Lands Tenements c. and for the profits thereof which are not
JUSTICE VINDICATED From the False FUCUS put upon it BY THOMAS WHITE Gent. Mr THOMAS HOBBS AND HVGO GROTIVS AS ALSO ELEMENTS OF Power Subjection Wherein is demonstrated the Cause of all Humane Christian and Legal SOCIETY And as a previous Introduction to these is shewed The Method by which Men must necessarily attain ARTS SCIENCES By ROGER COKE LONDON Printed by Tho. Newcomb for G. Bedell and T. Collins at the Middle-Temple-Gate Fleetstreet 1660. To the Kings most Excellent Majesty CHARLES II. By the Grace of GOD KING of GREAT BRITAIN FRANCE and IRELAND Defender of the Faith IF it were not unbecoming confidence Most Eminent of Kings in Hugo Grotius who at most did owe Your Illustrious Uncle Lewis the Thirteenth but a topical and temporary obedience to dedicate his Book De Jure Belli Pacis to him founded upon such feigned and inconsistible principles because written for Justice Then will it not ill become a natural Subject of Your Majesties who by all divine and humane laws owes an indelible character of obedience to Your Majesty to implore Your patronage of Justice founded upon the true and genuine causes Nor is there any attribute of Justice which Grotius there ascribes to Your Uncle but is as properly or more due to Your Majesty For if Lewis were just because above any thing which might be spoken he did honor the memory of the great King his Father by imitating him how just then is Your Majesty when as not all the storms of adverse fortune in Your Father or Self could ever any ways shake the constant veneration You have always paid his Saintlike memory by imitating him whereas prosperity did almost ever fill the sails of Your Uncle and his great Father If he were just because he did instruct his Brother by all means but most by his own example then is not Your Majesty less just who by all means but most by Your own Example hath so well instructed Your Brethren that they in all respects answer the dignity of their high extraction and whose eminent Virtues have attained such a height of perfection that they are justly celebrated all over Christendom with admiration If he were just because he did adorn his Sisters with highest matrimonies yet certainly it was rather the felicity of his fortune then acts of his justice that he was by the marriage of his Sisters allied to all the greatest Hereditary Princes of Christendom how just then is your Majesty who hath so adorned Justice and Piety that as being by nature wedded to these though born one of the greatest Princes of the Western world You have preferred them before the enjoyment of Three Kingdoms If he were just because he did call back the almost buried Laws and opposed himself to a Generation making haste into worse Who then can express Your justice who hath recalled our buried and almost forgotten Laws and who with most manifest danger yet by Providence miraculously preserved for your Subjects deliverance did oppose your self against the Tyranny of the most perverse generation of men that ever pretended to be Christians If he were not only just but also clement whenas he took from his Subjects who by ignorance of his goodnes had transgressed the bounds of their duty nothing but the liberty of sinning nor did force their consciences differing from him in Religion Let the world then judge and admire your justice and clemency who of your own accord does refer the most perpetrated villany committed in the sight of the sun upon the person of your Royal Father not by your Subjects ignorant of his and your goodness but by those who had known his clemency and goodness and in the worst of their wickedness needed not have despaired of his favor to those of your Subjects neither convened nor elected by your authority And are so far from taking any thing from your peccant Subjects more then liberty of sinnng that you admit of a restitution to those of your Subjects who by such undue means had invaded the sacred patrimony of Gods Church and your Crown And though these things were committed upon pretence of Religion yet so tender is your Majesty that you will force no mans conscience not of these men And if it were justice and mercy in your glorious Uncle in the prosperity of his fortune to relieve oppressed people and Princes by his authority then was it no ways less justice and mercy in your Majesty that in the adversity of your fortune you did by all means endevour by your authority to relieve the oppressed and distressed Princes and people of Christendom To You therefore Great Sir being the Fountain and Centre of Justice in these your rightful Dominions in the lowest posture of humility do these Observations and Elements presume to offer themselves though not upon any confidence of themselves or Author but because wâ—â—ten for and in defence of Justice To You Sir who by an indifferent administration of just received and known Laws and moderating the severity of them Your Majesty being their Moderator as well as Arbitrator where it becomes impossible for your Subjects to fulfil them or inconvenient to Your self or Subjects in rigor to execute them if it be not your Subjects fault shall not less under God confer peace and happiness to all sorts of them then the Sun by its effluence does diffuse life and light to all the various creatures of the Universe This is it which in time will reduce your wandring Subjects to the secure and known paths of their Allegiance out of which they have gone astray This is it which will secure you from the imputation of Tyranny and convince your adversaries that it is not your fault in governing but theirs in disobeying if hereafter they bring upon themselves the miseries and calamities of another Civil war And this is that which will evidence to the world that then your adversaries became enemies to your Royal Father and Self when they first trod under foot the established and received Laws of their Country and that it is and always was the desire of Usurpers who having no just title but new Oppression to introduce more new Inventions of their own in place of the old Laws This is it which after your Majesties gracious Act of Oblivion for crimes past will so settle the minds of your Subjects that in the known ways of their ancestors they may expect favor and protection from your Majesty This is it which will so genuinely and equally support your Majesties Title that as it is so derived from the loins of innumerable Royal Ancestors as no man can shew where it began and so clear that in the world no man presumes to stand in competition with You so is it supported by received Laws of that continuance that they have lost their first original I presume not Sir to say this of mine own head to advise your Majesty much less have any diffidence of your Majesties governing your Subjects
Nor was that less abhorrent to me which men in this factious age beg for a Principle viz. That all men by Nature or the Law of Nature are in a like equal condition and that the Laws of Nature are eternal and immutable even by God himself And yet by a continued violence upon these eternal and immutable Laws men should every where in the world live in Society or in the mutual offices of commanding and obeying Yet did not I so confidently resolve these things as to exclude what I could argue against them I therefore did suppose in my self a company of such men as were in a parity of condition yet could I never conceive it possible that ever any Civitas or Supreme power could be derived or created by them For either this Civitas must be superior to the Cives or People that made it or not If it were not superior to it then could it not govern or rule them for dominion is always placed in the superior part If superior to it then was the Creature or Instrument superior to the Cause and Creator which is most absurd Nor was it to me less monstrous to imagine that any thing could give or transfer that to another which it self hath not but this people or multitude who should make this civitas had neither Jus vitae or necis nor Property seperately nor conjunctly they could not therefore endue another with that power which none of them nor all of them together had and without which there can be no supream power which may protect and defend Subjects But I did not insist onely upon this but supposed that the cives could make a civitas which should be superior to them and endew it with a power which none of them nor all of them had yet was I no less perplexed then before who these cives which should make this civil Pact should be and who should be subject to it If onely those be the cives who made this civitas and they onely subject to it then were Women and Children who were none of the cives that made this civitas free and independent from it Nor could all the people or multitude of both Sexes and all Ages in such an imaginary state be the cives which must constitute this civitas by virtue of the civil Pact For many must necessarily be so yong as not being compotes mentium they could have understanding sufficient for the doing such an act And if no Laws oblige Men to their Pacts and Contracts done under such an age then sure it must be unreasonable that Children and Infants should be obliged to their act if they then did it or therefore obliged because others had done it upon whom they had no dependence Well but suppose these men in such a condition to be qualified to do such an act yet did another doubt arise which I could no ways salve viz. Who should define at what age the Men should be who should constitute this civitas Well I went yet further I supposed it granted That it should be agreed at what age Men in such a condition might give up their wills and constitute a civitas yet was it not in reason probable that this civitas should be of one days continuance For being formally constituted of such individual cives it could not be of any longer continuance then the cause Sublata causa tollitur effectus but the next day some of the cives would be probably dead and others grown up to be of age who were none of those individuals which did constitute the civitas Well but I supposed the cives who made Formae rerum sicut numeri consistunt in indivisibili They could not therefore be the cives that did constitute the civitas and by consequence no such could remain as the civitas this civitas to be immortal and no posterity yet could not I in reason expect it to be of any continuance for cujus est velle ejus est nolle and not onely all just and legal actions but all Arts and Sciences may truly and ultimately be resolved into their first Principles without any diminution to them The People therefore constant in nothing but inconstancy could not in reason be expected constant and obedient to their Creature the civitas onely and yet so in nothing else Besides I always did believe and yet do that all Mens Pacts and Wills must be conformable to the Laws of every place and where they are against them then do they oblige no further then to Repentance Much more therefore ought all mens Wills and Pacts to conform and submit to the Laws of Nature and never transgress that and that all Pacts and Acts of mens Wills made against it oblige to nothing but Repentance Nor is there any thing more abominable then to conceive that the Acts of mens Wills should irritate the Law of Nature which they say is immutable by God Hence it is I conceive that Mr. Hobbs will not have all men to be of a like and equal condition lege naturae but jure naturae and therefore most absurdly makes jus naturae to be contrary to lex naturae and yet oftentimes in his Preface and Cap. 8. Art 10. confounds jus with lex and that the Acts of mens Wills to make them in a better estate then God hath made them should be the Law of Nature or of God Whereas on the contrary If no man that ever was born in the World which was not a Posthumus King but was born in subjection not onely to his Parents or as a Servant in a Family but to something superior to these then cannot the will of that man nor all the men in the World alter or make that man in another condition then that whereof neither any act of his will nor the will of any man else was the cause But yet did not I conclude things onely as I was an intellectual or rational Creature but being a Christian I submitted all my Reason and Understanding to the most high Authority of sacred Scripture in those plain places which admit of no Controversie where both in the Old and New Testament the first causes of supream Power are owned to be Gods Ordinance Rom. 13. By God Kings raign and Princes decree Prov. 8. Justice and there can be no power but from above Joh. 19. 11. And all power is in relation to something subject to it But because I would not seem to see only with mine own eyes I desired yet to be better informed of these things and from whom better then Mr. Hobbs and Hugo Grotius Men no doubt of as eminent learning and parts as any this last Age hath produced these Men both derive their civitas from such Principles as is before spoken of viz. From the Pacts and contracts of Men in a parity and equal condition but so far was I from being convinced that if I understand them aright I was amazed to see such inconsistible
should have disputed without an Adversary for me But when he makes all men Jure naturali which is superior and the cause of all Laws of Nature to be equal and in a parity of condition and every man by his own natural right to have a power over every man and to kill and destroy them whensoever it seems good unto him and yet without any sin and that this State is only to be cured by the Laws of Nature of his own making although he would have them to be Divine Laws and contrary to Natural rights is such a monstrous Paradox and absurdity as I wonder any Ingenuous man should assent to it Under the title of Empire he is not less wild and extravagant in his concessions to the thing be it King or Court created by Do or Dedi and not Dabo or Faciam For he makes it not only Soveraign Judge of all Ecclesiastical as well as Civil causes but also impossible to command any thing contrary to the Law of Nature Yet he makes the Law of Nature the Law of God and this Creature of creatures to be so infallible that it is impossible to command any thing contrary to it It is not worth the examining what he would have under the title of Religion for men say the man is of none himself and complains they say he cannot walk the streets but the Boys point at him saying There goes HOBBS the Atheist It may be therefore the reason why in all his Laws of Nature he allows no place for the Worship and Service of GOD. But it is time to examine the particular Articles upon which this Body De Cive is built 1. His marginal Note upon Art 3. Cap. 1. is Homines naturâ aequales esse inter se Observ There is no one Proposition in the world more false then this nor more destructive to all faith and truth of Sacred History For whereas he says that by nature Men are equal to one another if the Scriptures be true that God made Adam an Universal Monarch as he says as well over his Cap. 10. art 3. Wife and Children as other Creatures and that since Adam God did never create any Man but the species of Mankind was continued by generation and that as he says Primogeniture is preferred by the Law of Cap. 3. art 18. Nature which Cap. 3. Art 29. is immutable then it is impossible that Cap. 4. art 15. since Adam any two Men in the world can be equal where God does not make them so Indeed if Mr. Hobbs had been an Athenian who stiled the Men of Observ 2. Attica 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Men of the same Land or a Peripatetick who held that Men and the other things of the World were from Eternity as well as the World or an Egyptian who held that from the example of divers creatures generated out of the river Nile Men at first were generated from equivocal generation or that Men had sprung out of the ground fungorum more there might have been some small semblance for his opinion 2. His Argument to prove the Natural equality of all Men is Aequales sunt qui aequalia contra se invicem possunt At qui maxima possunt nimirum occidere aequalia possunt Ergo Homines natura aequales inter se His minor Proposition is no where proved and I am sure contrary Observ Gen. 9. 6. to what God says Whoso sheddeth mans blood by man shall his blood be shed for in the image of God made he man 3. Nature hath given to every Man a Right to all things Cap. 1. art 10. Observ What thing is mine naturali jure as he says or lege naturali is mine so that it is impossible it should be aliened or made anothers by any act of my will or the will of all the men in the world For natural causes do not depend upon voluntary humane actions and therefore the natural right which Nature has given to every man remains still with every man 4. Filium in statu naturali intelligi non posse Annot. art 10. Observ And therefore from Adam to our Saviour could there be no such natural state For S. Luke cap. 3. gives a Genealogie of Adams sons and sons sons to our Saviour And since I do not think Mr. Hobbs can shew that ever there was such a state in the world 5. The state of Man in Nature is hostile And cap. 8. art 10. he says Art 12. Men in the state of Nature may kill one another so often as it seems good unto them And therefore he must invent and seek to make himself in a better condition then God hath made him and that forsooth is by seeking Art 15. cap. 1. Observ Peace which he says is the first Law of Nature Is it not strange that a thing invented and made by the wit and will of Man and that contrary to the state and condition in which God hath made Man should here prove to be a Law of Nature which is the Law of God And is not more strange that God hath made Man upright and he hath Observ 2. Eccles 7. 27. sought out many inventions and yet Man should have need of Mr. Hobbs his help to invent and make him in a better state then God hath made him or else he says his conservation cannot be long expected Art 15. Neither is it possible in such a state where all men may kill one another Observ 3. and where all things are alike and common to all men that men should make any pacts or contracts one with another For besides that where men have nothing proper there men cannot make pacts or contract for any thing also where there is no precedent humane Law obliging there cannot any man be obliged or bound to any thing by his pact or contract for to be bound is in relation and must presuppose something which does bind but if nothing binds me but my Will which is a contradiction I may unbind me when I will for my Will is free I deny that any man or any company of men can will any thing to be Observ 4. a Law to themselves For Omnis potentia activa est principium transmutandi aliud And therefore the act of no mans Will can have a power or obligation upon himself and by consequence cannot any man or company of men will or make another who shall give them Laws for Nemo potest transferre id in alium quod ipse non habet 6. Legem naturalem esse dictamen rectae Rationis Cap. 2. art 1. Observ Wold any man think that these Critiques and pretended Masters of Reason did either understand Reason or Logick If Lex naturalis be dictamen rectae Rationis I ask of Mr. Hobbs what is the reason of it If it be a prime cause or principle then by the authority of Aristotle Eth. lib. 6. cap. 3. 6. does it constitute the
the Father may alter them and the Son sell them Primogeniture being so sacred a thing that Esau was said to be a despiser of his Gen. 25. 34. birthright that he set it at a price to save his life and being due by the Law of Nature he could not transfer it to Jacob by any act of his yet was it just with God because he despised it to transfer it to Jacob. 17. The submission to the will of one Man or one Council then becomes the Cap. 5. art 7. will of them all when every one of them obliges himself by pact to one another not to resist the will of this Man or this Council to which he hath submitted himself Observ Here is nothing to pass or to be transferred from one Man to another and therefore here can be no pact and here I would fain know how to bind and to be bound can be the same thing which Mr. Hobbs here makes But every Man binds himself forsooth and therefore every Man may when he will disoblige himself for unumquodque dissolvi potest eo ligamine quo ligatum est 18. The Right of punishing is then to be understood to be given to any one Cap. 6. art 5. when every one doth covenant that he will afford no help to him who shall be punished Observ What power of life or death is here any more then if a company of Men contract one with another that they will afford Mr. Hobbs no relief if another Man will kill maim or punish Mr. Hobbs that then this Man hath a power over Mr. Hobbs his life and person and this Right forsooth he will call gladium justitiae Art 6. 19. Having made the Temporal power to have its origination from the Inventions Pacts Wills and policies of Men he makes it Judge of all Cap. 6. art 11. Doctrins and Opinions of Faith and this from convenience for saies he If one may command any thing upon pain of Temporal death and another forbids it upon penalty of eternal death it will follow not only innocent Citizens may be punished but the City it self be dissolved for no Man can serve two Masters Observ I would know how this granted could Christianity be preached when the Temporal Laws every where did forbid it Our Savior saies Whoso hateth not Father and Mother and Wife and Children and Brethren St. Luke 14. â—6 St. Math. 10. 28. and Sisters yea and his own life he cannot be my Disciple And if Temporal powers command any thing contrary to the Laws of God we ought not to feare them that can kill the Body but are not able to kill the Soul but rather to feare him who is able to destroy both Body and Soul in Hell 'T is true indeed no Man can serve two Masters who may with equall Right command the same thing but a Man may serve two Masters who do not with equal Right command the same thing as a Tenant who owes Homage to his Lord is the Lords Man of life and limb and of earthly worship and ought to be true and faithful to him saving Littleton Hom. cap. 1. the Faith he owes to his Soveraign Lord the King and so every servant ought to obey his Master in all things which do not contradict Gods nor his Country-Laws and so ought every Man to submit himself to Temporal powers in all things if they be not repugnant to Gods Laws And let any Man see whether the whole scope of this Article be not to make all Faith and Religion as well as Society a meer invention and policy of Man and humane constitution and Creature of a Creature nor is the danger he makes so much to be feared for Ecclesiastical Powers have nothing to do with Secular jurisdictions 20. There are some doctrines held he saies by which Citizens are impowered Annot. art 11. Cap. 6. to deny Obedience to the Civitas and to fight against Supreme Princes and Powers and that by Right yea it behoves them and this belongs to the power which many do attribute to the Prince of the Church of Rome in aliena Civitate and to the power also which Bishops otherwhere out of the Church of Rome ascribe to themselves Observ I do not know nor did ever hear that any Bishops out of the Church of Rome did ever ascribe to themselves this Power Nor are there any Bishops in the Western Churches of Christendom out of England Ireland Sodorensis Episcopus and the Isle of Man if those in Scotland were not which is a question and sure this Hierarchy never challenged any such Power But why does this Man take such care for peace and quiet when as by his own principles he justifies all the actions of the League in France against Henry the fourth for Henry the third never gave nor sold the French Monarchy to Henry the Cap. 9 art 13. fourth nor did the Duke of Mayne and his party upon the death of Henry the third oblige themselves by pacts one to another that the will of Henry the fourth should be the will of them all 21. It is most manifestly false and contrary to the practice of the Cap. 5. art 9. whole world where Men are not condemned to slavery that servants have Cap. 8. art 5. no property against their Masters for where servants are not slaves they may both sue or implead and be sued or impleaded nay they may sue their Masters for Debt or not performance of Covenants c. 22. Where he makes the Fathers power not to arise from Generation but Cap. 9. art 1. that Art 7. Children are subject to their Father no otherwise then Servants are subject to their Masters is so wild and groundless an opinion that it is not worth an answering 23. It is he saies a seditious opinion that Faith and Sanctity are not acquired Cap. 12. art 6. by reason and study but alwaies supernaturally infused and inspired and yet he saies Cap. 18. Art 4. prope finem There is but one way to Science i. e. by definitions but this way to Faith does hurt Observ How these two are consistible I do not understand 24. Jus is contrary to Lex Cap. 14. art 2. prope finem Observ Therefore by the 4. Axiom lib. 1. Euclid Jus naturae is contrary to Lex naturae By Art 1. cap. 4. Lex naturalis est Lex divina And therefore by Art 2. cap. 14. Lex divina is contrary to Jus divinum which is most abominable Blasphemy Nay he says * Cap. 8 ar 10. and oftentimes in hi. s Preface Jus divinum positivum is the Scripture and here Lex divina positiva to be the Scripture So that he makes contraries to signifie the same thing Observ Lex naturae cannot be contrary to Jus divinum nor different but only in this Jus divinum is an absolute right in God to will or command any thing to be a Law of Nature and
Right or Law ab hac Grotius juris significatione flowed another larger which he saies a little after consists in discerning what delights or hurts us and in judging how things should be wisely distributed Observ What is there in this which is proper to Man does not every other Creature by an instinct in nature which God has given instead of reason discern much better then any Man does what thing delights and hurts them and all oviparal creatures more wisely distribute to their young ones then the wisest Man can to his Children He defines jus naturale to be Dictatum rectae rationis indicans actui Lib. 1. cap. 1. para 10. alicui ex ejus convenientia aut disconvenientia cum ipsa natura rationali inesse moralem turpitudinem aut necessitatem moralem ac consequenter ab auctore naturae Deo talem actum aut vetari aut praecipi The Law of nature is the dictate of right reason shewing to any action from its convenience or disconvenience with Rational nature that there is in it a Moral turpitude or a Moral necessity and consequently such an act is commanded or forbidden by God the Author of Nature Observ Would not any man after all this adoe expect that Grotius had defined something But if definitio be exclusio aequivoci then is that no definition which may signifie one thing as well as another and if humane actions convenient or disconvenient with Rational nature may be prudent and profitable aswell as Just and Moral then is there not in every action convenient and disconvenient with the Rational nature a Moral turpitude or necessity and so every such action is not the Law of Nature and so neither commanded nor forbidden by God But I forgive Grotius in this not having defined any thing less equivocally as also his every where confounding jus with lex in regard the Romans Civilians and generally Lawyers do so yet thus much I do affirm that if jus and lex according to Calepine do differ as Genus and Species or at least as the cause and effect for it is impossible there should be lex lata where there was not jus legislativum superior and the cause of the Law then he which writes of these things must distinguish and define them or he shall never write clearly or be clearly understood in any thing which he writes of them But though he makes jus naturale to be dictatum rectae rationis viz. a liberty or abstinence to every Man to do or not do whatsoever is reasonable Lib. 1. cap. 1. Parag. 10. to him and that this jus is the Law of God and unalterable by God himself yet without giving any reason for it he saies Sciendum est praeterea c. It is to be further known that natural Right or Law does not only act concerning those things which are above a Mans will but concerning many things which follow a mans will So Dominion which is now brought in use mans will brought in But being brought in it is wickedness in me to take against thy will that which Natural law or right Jus naturale shews to be of thy dominion Observ So that his Principles before were either equivocal or obscure And here is one which signifies contradictory and impossible things These things therefore granted and being the easie and known Principles upon which Grotius laies his foundation and so plain and perspicuous as no exception nay not so much as equivocation can be taken against them any of them or any part of them Sure he shall not need much to use the help of Geometry to build a most exact and noble Structure which shall not only be a Land-mark but also a Sea-mark for all Kings and Common-wealths now and hereafter to govern and steer their actions by tam per mare quà m per terram as well by Land as Sea but also a secure Rule for Subjects to continue their obedience until they pretend a necessity for rebellion if otherwise they cannot find some relief out of such popular Orators as Cicero Demosthenes Cleon c. which Grotius shall esteem of like weight with any testimony of Scripture It is a most pleasant thing to see the excellencie of Truth in her pure and simple nakedness how plain easie and beautiful she appears whereas Falshood with all the art learning and industry of man is still rendred more perplext confused and dark by how much is added to it And therefore to what a volume here has Grotius increased his Jus Naturale Sometime it is Jus divinum voluntarium jus divinum jus humanum jus humanum voluntarium jus gentium jus civile jus latius patens jus arctius patens jus constitutum jus immutabile jus commune jus gladii jus divinum perfectius jus belli solenne jus belli minus solenne jus precarium jus revocabile jus usufructuarium jus temporarium jus armorum movendorum magistratuum minorum jus naturae pro certo statu jus rectorium jus aequatorium jus superveniens regis jus externum jus internum jus exterorum supervenienti dominio jus pignoris jus retentionis jus servitutis jus luendi pignoris jus transeundi jus morandi jus habitandi jus habendi loca deserta jus reductive jus restrictive jus gentium improprie jus derelictum jus quaesitum jus feciale jus externum efficax jus reale jus inventionis jus primi occupantis jus proprietatis jus possessionis jus dominii jus herile jus paternum c. Whereas if he had made use of that plain and short Sentence which the greatest Glory of all the Heathen Roman Emperors professed he learned Alex. Severus of the Christians Quod tibi fieri non vis ne feceris alteri it would have signified infinitely more then is contained in all the confused obscurity which he imposes upon the world in this Book De Jure Belli Pacis founded upon this false and feigned Principle of the Original right and power of the People from whence he derives all power in Government For art thou a Subject thou wouldest not willingly any man should forceably or fraudulently take any thing which the Law has given thee from thee Do not thou so by another Is he a King he would not have his Subjects wronged by another Let not him wrong another Kings Subjects If one Subject does another wrong the Law is open he who is wronged may have relief by Action or Complaint not by Arms. If one King does wrong to another he who is wronged has God and his sword to defend himself and do justice upon his Adversary And whether the doing or not doing such a thing be wrong or injury is every King and not Grotius Judge and God the Judge of every King It is true that in all Faculties whatsoever and in all Arts and Sciences men must use Terms to express what they conceive by any general Notion and Thesis Et ab universalibus ad particularia ratiocinando oritur scientia and must alter their Terms
as they proceed from one thing to another and add to them in the specifications of them for Omnis additio probat minoritatem But no man who desires to be understood or who desires to understand himself will undertake such a task as Grotius here does to compile a Volume upon such contradictory equivocal and obscure Principles For Conclusio sequitur deteriorem partem And if any part of a Proposition be but probable though the Sillogism be made in the clearest Mood yet the Conclusion is no more And any man may much better thus reason then Grotius does A right-lined Figure is that which is comprehended under right lines and that which is comprehended under three right lines is a right-lined Triangle Sciendum praeterea c. It is to be further understood Right-lined Figures are not only such as are contained under right lines but may serve for many other things besides So Spherical Figures as they are now used by Astronomers the invention of man has found out but being found out these right-lined Figures may serve for them also for Spherical and right-lined Figures have many things common to them both as when they are cut transverse they are cut to right angles and in Spherical and right-lined Triangles two sides is more then the third howsoever taken and in both the sides have the same proportion one to another that their opposite angles have nor are they in any thing contrary one to another Yet if any man shall take a Spherical and right-lined Triangle for the same thing as Grotius does Jus Naturale which he makes to signifie Community and Property in the same Principle which are contrary one to another I make no doubt but he might compile as big a Volume and almost as little to be understood as this De jure Belli Pacis Well but let us see why Jus Naturale is immutable by God himself Note Grotius every where almost confounds Jus with Lex and here he takes Jus Naturale for Lex Naturae For Although says he the power of God is immense yet some things may be said to be to which it does not extend it self because those things so said are only said and have no sense which may express the thing but are repugnant to themselves So that twice Two should not make Four cannot be effected by God Observ It is true that God cannot make contradictory things and things repugnant to agree and to be the same But this is nothing to Grotius his purpose for a Similitude proves nothing nor is there any analogie between the things propounded by Grotius For though things simply necessary be If Lex lata had any obligation upon the Legislator then were the Creator obliged and subject to the creature than which there is nothing more blasphemous immutable by God yet the Law of Nature is the Law of God and therefore being a creature of God's it cannot have any obligation upon God but being the Law of God given to Mankind it is immutable by them and God might if it had pleased him have given something else for the Law of Nature to Mankind Both Grotius his Positions therefore in this Section are manifestly false absurd and blasphemous viz. That the Law of Nature is immutable by God himself And That Usus communis is Jure naturali and yet mutable by the will of Man And if I be demanded to shew an example that God is not obliged to the Law of Nature or that the Law of Nature is not immutable by God I say Jus suum cuique tribuere is from the Law of Nature yet did the Children of Israel borrow Jewels of gold of silver and raiment of the Ex. 12. 15 16. Egyptians and all such things as they required of them and spoiled them by not making restitution without any violence upon the Law of Nature because God commanded them nay they had sinned and disobeyed God if they had not done it And so by the Law of Nature every Father is obliged to preserve and nourish his children yet because when God commanded Abraham to offer up and kill his son Isaac Abraham was obedient to God and would have done it God takes it for the highest act of Abrahams faith and swears by himself That in blessing he would bless him and in Gen. 22. 17. multiplying he would multiply his seed as the stars of heaven c. Yet can no man borrow with a resolution of not-restitution nor any Father put his Son without cause to death where God does not command though all the world should command it without a violence upon the Law of Nature Nay I say the Laws of Nature being eternal there was never any time when men ought not to give every man his due and so by consequence no time when Grotius his Usus communis was since Men were born but ever since Men were in the world Dominion and Property have been Cain had his Gen. 4. 3 4. Fruit of the Tillage of the ground and Abel had his Flock and the Firstlings of his Flock neither of which could be if Grotius his Usus communis had been Object But you may say Property presupposes humane Laws which must give it and humane Laws must happen in succession of time And that therefore before these humane Laws were there could be no Property and by consequence all things were common and undivided Sol. For the satisfying of this doubt we must consider that God in the Creation only created one Man and out of him made Woman and that ever since no Man was ever made but the species of Mankind hath been continued by generation I grant that all things were common to Adam except the forbidden fruit but no Man that was ever born into the world and not a Posthumous King who was not born in subjection to humane Laws Nor did ever Adam derive this Legislative right which he had over his Wife and Children by any Pact Contract or Submission of his Wife and Children but had it from God because he was first made 1 Tim. 2. 13. It is therefore manifestly false which these men beg That by Nature all Men are equal and that the will of Man brought in Dominion Nor do these men shew out of any sacred or prophane History that ever Dominion was brought in by Man or that Men had things common and undivided among them Well but Grotius having in this Paragraph in a tedious unsignificant Lib. 1. cap. 1. para 10. thing defined the Law of Nature so as it may signifie any thing and made it the Law of God and that thing which hath quite routed this Law of God out of the world and set up another thing in stead of it to be the Law of Nature and made the Law of Nature to be immutable by God himself and yet to continue but for a certain season thinks he hath not so perspicuously done this but that a certain Image of mutation may
law of Nature All Ecclesiastical right is by divine positive institution By the 5. Propos it is not from any Humane law therefore by the 1. Notion it is by Divine positive law or institution 7. By the 2. Notion all Humane laws are made by men but it is impossible Jus primi occupantis is not from any humane law by the 4. Notion that men should make laws where no men are therefore cannot Jus primi occupantis be from any Humane law 8. This right of first possession not being only due before Gods revelation Nor from divine positive laws of himself in the Scriptures but also where they are not believed or received it cannot be by the 4. Notion from Gods divine positive laws 9. All Right by the 1. Notion being either from the law of Nature It is from the law of nature or some Divine positive or Humane law and this right by the 7. Propos not being from any Humane law and by the 8. Prop. not being from Divine positive laws it is by the 1. Notion due by the law of Nature It is proved lib. 3. cap. 11. that Subjection is natural and therefore no Annot. natural Subject can put himself out of the power of his Soveraign And by consequence this right of first occupying or finding by any Subject or Subjects is the right of the Soveraign in whose power such Subject or Subjects are and such Subjects are the Instruments of occupying or invention by which this right does accrue to the Supreme Power 10. Jus Gentium is a right which every Nation hath to send Ambassadors Jus gentium is from the law of nature to mediate Peace with any other although in publick hostility with them And this right not being topical but general by the 3. Notion it is from the Law of Nature 11. The Usufructuary right which separated persons for Gods divine The right which separated persons for the worship and service of God have to tythes is from the law of nature worship and service have to Tythes is not only general and therefore by the 3. Notion due by the Law of Nature but also being due and yet by no Humane Law and being due as well where Gods positive Institutions are not believed and received as where they are This right by the 1. Not. is due from the Law of Nature and by consequence the detaining of them by the Laity is a violence upon the Law of Nature for no Humane Law can dispence with the Law of Nature 12. The right of Subjects is either an Usufructuary right or a right Jus subditorum twofold Proprietatis or Usufructuarium is from humane laws of Propriety Jus Proprietatis is when any Subject or company of Subjects have by some Law a right to any individual thing excluding all other but him from whom this right is derived viz. the Supreme Power of the place An Usufructuary right is when any man or men have no right of Property to the thing but only a right to the profits arising from it as a Parson Vicar Judge and Fellows of Colledges have no Property in the Parsonage or Vicarage-house or glebes Judges place or Fellowships of Colledges And these rights neither being due from any Law of Nature nor any Divine positive Law are by the 1. Notion from the Temporal or Humane Laws of every Nation 13. Jura sanguinis nullo jure civili dirimi possint Nor is Primogeniture The right of Primogeniture is due by the Law of Nature only preferred where Gods revelation of himself in the Scriptures are received but where they are not received Their right therefore of Primogeniture is from the Law of Nature 14. It is true that Divine Laws oblige all men alike and so Humane No Divine or Humane laws give Right or Property to any man quà homo but quà talis Laws oblige all Subjects alike But the Right or Property created by Divine or Humane Laws by the Definition is in some man or men excluding all others but him or them from whom it is derived Right or Property therefore being such a mans excluding all others it cannot be where it includes all men either as Men or Subjects Thus the Legislative right is from the Law of Nature but every man as man hath not this Lawgiving right So Jus primi occupantis is from the Law of Nature but every man is not Primus occupans And so the right of Primogeniture but every man is not First-born c. And so Gods divine Laws in the Scriptures oblige all men alike but yet do not they give to all men alike the right of Preaching the Gospel Administration of Sacraments c. but only to such separated persons so qualified And so Humane Laws oblige all Subjects alike but they do not give Right or Property to all alike but to one man or more excluding all other 15. That is Right or Property which is such a mans or mens excluding How Community and Right or Property differ others That is Community which is common to one man as much as another as the Common Road the Air or Sea-water c. CHAP. II. Of Laws 1. AS in all Arts and Sciences there must be some Axioms and Principles Introduction which must prove those Arts and Sciences and these must be first granted and be the reason of those Arts and Sciences and yet no reason can be given of them before any man can deduce any thing from thence for no mans Reason can work upon nothing So in all just and legal actions there must always be some Law given which is superior to the Agents reason and the reason that such an act is just or legal and where there is no Law there can neither be Justice nor transgression It is not therefore the will or fancy of any Agent that makes any action just or legal but the doing of it in conformity to the precept of him who by right commands or permits it which makes it just and legal Et oportet neminem Regula sapientiorem esse legibus And if private mens wills judgments or reasons should be the rule of their actions what one Subject is there of a thousand that would be content with that condition wherein the Law has placed him It is not therefore what I or another judge fit or desire but the directing our actions in common to the rules and precepts of our Superiors by which we may hope to enjoy peace and unity and be before God Angels and Men truly accounted just and virtuous 2. All Laws may be divided into Divine Humane Ecclesiastical or Division of Laws Despotical 3. All Divine Laws are twofold either Natural engraven in the Divine Laws how manifold minds of all Mortal Men whereby they are to worship one God and by all just means to preserve peace with Men or supernatural viz. extraordinarily revealed by God in the Old and New Testament
4. All Divine Laws are created and derived from that divine and From whence all Divine Laws are derived eternal Right which was inseparably in God before any such Laws were created by him 5. Humane Laws are threefold viz. Secular Temporal or Civil such are the Laws of every Country or Gamacal viz. the Laws of the How manifold are Humane Laws Husband or Paternal viz. the Laws of Parents to their Children 6. All Humane Laws are derived from that Right or Power which From whence derived the Law of Nature creates in supream Powers Husbands and Parents 7. They are called Humane Laws because they are made by Men Why called Humane Laws who by the Law of Nature have a Right to make or create them 8. All Ecclesiastical Laws are derived from that Right or Power From whence Ecclesiastical Laws are derived which by divine positive institution our Saviour Christ left to his Church to continue untill his second coming again 9. Ecclesiastical Laws are so called because they only relate to the discipline of the Church and worship and service of God Why so called 10. Despotical Laws are derived from the Right or Power Despotical Laws from whence derived which every Master of a Family hath over his Servants which Right or Power is created by Secular or Temporal Laws of the place where the Family is 11. Two things must necessarily precede every Law or it hath no What must precede every Law Obligation viz. the Legislative Right and the Declaration of it So that Jus divinum is one thing and Lex divina another and Jus naturale is one thing and Lex naturae another And so is Jus Humanum and Lex Humana and Jus Ecclesiasticum and Lex Ecclesiastica And he that will confound these things cannot possibly ever write clearly upon the subject 12. Humane and Despotical Laws are vindicative or oblige to corporal What Laws are vindicative punishment in this world 13. Only Humane Secular Temporal or Civil Laws are distributive and create property among Men in their Estates What Laws are distributive 14. Neither Divine nor Ecclesiastical Laws are vindicative but oblige in Conscience only What Laws are neither distributive nor vindicative * How Men come to be punished Temporally for not observing Ecclesiastical Laws 15. Although Ecclesiastical Laws as we shall prove in the next chap. bind in Conscience only and therefore cannot impose any Corporal mulct or punishment yet the Secular Laws do as if a Man be excommunicated he shall have no advantage or relief in any plea by the Common Law a Lit. vil sect 201. and by the Common Statute Law whoso is adjudged an Heretick or Blasphemer shall be burnt yet neither Common Law nor Statute Law take cognisance of either Excommnication Heresy or Blasphemy before the Statute of the 2 H. 5. 7. In curia Christianitatis id est Ecclesiae in qua servantur leges Christi cum tamen in foro Regio servantur Leges mundi saies Linwood who saies moreover b Com. Stat. de circumspecte agatis That the Probate of Wills and Testaments de consuetudine Angliae not de jure communi belong to the Court-Christian But whether Linwood saies true or not Hen. 8. began by the Statute Law to encroach upon the Rights of the Church and by confounding the jurisdictions both of Church and State making himself head of both has opened such a gap to let in all Schisme and dissention that the Common-Lawyers and Statute-Laws have upon the matter devoured all Church-rites and power nor are either the Common or Statute-Laws now in much more esteem then the Ecclesiastical Nor is it less then a Divine judgment upon those men who have so extravagantly attributed both powers to be in the King Between Supreme Head and Supreme Governor I understand no difference for if the Supreme Governor hath not supreme power or right of command then necessarily must such a Governor be an Usurper or unjust Invader in words only but indeed in their practice have denied him the exercise of the one or the other power and ascribed them both to themselves and Courts subordinate to the King That these men I say should be themselves and all the Courts in as little esteem as Ecclesiastical Rites and Constitutions and the King God knows upon what account for no colour of pretence was ever yet so much as reasonably pretended violently restrained from the exercise of any either Ecclesiastical or Civil power among us Here do not I admit of Mr. Hobbs his division of Civil Laws into Sacred Annot. and Secular Did ever man before hear of Sacred Civil Laws Sacred Laws are those Civil Laws he says which belong to Religion that is Cap. 14. art 5. the Ceremonies and Service of God and are called Ecclesiastical Secular Laws are those he says which are wont to be called Civil by a general name For though Ecclesiastical Laws be made by Men and therefore not Sacred as he says yet is the power by which they are made from Divine positive institution and therefore cannot have any right or power from Civil or Secular sanctions which at highest cannot amount to more then Humane 16. A Law differs from Counsel as my Understanding differs from How a Law differs from Counsel my Will my Will is that which imperates all my actions my Understanding informs my Will whether the doing or not not doing such an act be good or bad just or unjust reasonable or unreasonable A Law is the declared will of him who by right commands Counsel the reason advice or discourse of them to whom he who by right commands refers any thing to be debated who are usually called the Council whether the willing or passing such a thing into a Law will be probably convenient or inconvenient either to him or his Subjects CHAP. III. Of Virtue 1. THat Virtue is not always placed in a mean between two extremes Introduction Virtue is not fited always in a mean between two extremes and those extremes to be Vices according to the opinion of the antient Philosophers I do subscribe to Mr. Hobbs cap. 3. art 32. de Cive And that from the reason he there gives viz. that Fortitude in a good cause is a virtue although it be in the extreme Nor does quantity in giving be it much little or indifferent make Virtue but the cause of giving To these may be added Gratitude and Patience Justice and Obedience which are not placed between any extremes But if I assent to Mr. Hobbs in this I cannot less dissent from him where cap. 3. he makes Virtues to be the Laws of Nature and cap. 2. art 1. the Law of Nature to be the Dictate of Right reason For 2. Virtue is the doing or forbearing any action as it is dictated by What is Virtue Right reason from the Law of a Superior or from some Notion known to
accounted Abrahams faith St. James 2. 23. That he would have offered up Isaac though by the law of nature Abraham should have preserved his sonne and so God ceased the motion of the Sun and Moon upon Joshua's prayer Jos 10. 12. And caused the same to go retrogade ten degrees upon the prayer of Hezekias and Isaiah 2 Kings 20. 11. It is true that nothing less then that power which made a Law can alter it the Laws therefore of God whether positive or natural have an eternal and immutable obligation upon all the men in the world but whatsoever power may make a Law that power may alter it Divine Laws therefore whether positive or natural cannot have any obligation upon God but he may alter them when he pleases CHAP. VI. The Obligation of Divine and Humane Laws upon the Consciences and Persons of Men. 1. COnscience comes of con and scio to know together with reason Conscience or some law Conscientia est animi quaedam ratio lex quâ de recte factis secus admonemur Conscience is a certain reason or law of the Mind whereby we are well or ill advised of our deeds The laws therefore of Man may not only be violated by doing contrary to them but by consenting to them As he which does contrary to that he thinks though the doing of the thing be just yet 't is unjustly done by him for whatsoever is not of faith is sin Rom. 14. 23. 2. The affirmative precepts of God they do semper obligare yet they The obligation of the laws of God do not oblige ad semper As when he commands us to pray continually it is not to be expected a man should be always in the act of prayer but so to live as he does nothing which may indispose him from praying But Gods negative precepts do not only always oblige but oblige ad semper too for there is no time at all wherein it is lawful for a man to kill to steal to commit adultery c. Deut. 5. 17 18 19 20 21. negative in all instances 3. Ecclesiastical laws do oblige in Conscience If thy brother shall neglect Ecclesiastical laws oblige in conscience to hear thee tell it to the Church but if he neglect to hear the Church let him be to thee as a heathen man or Publican Mat. 18. 17. And the Scribes and Pharises sit in Moses chair all therefore whatsoever they bid you observe and do but do not after their works for they say and do not Mat. 23. 2 3. If then by the law of our Saviour the Jews were to observe and do whatsoever the Scribes and Pharises commanded them because they sate in Moses seat sure with as much or much more reason ought Christians to observe and do whatsoever the Church which our Saviour Christ himself hath planted doth command them 4. My kingdom is not of this world Joh. 18. 36. God sent not his Son In conscience only into the world to judge the world but that by him he might save the world Joh. 3. 17. And O man who has made me a Judge or divider amongst you If then our Saviours kingdom were not of this world if God sent not his Son to judge the world and if our Saviour were not a Judge among men then cannot the Church of Christ have any power from Christ in the kingdoms of the world nor to judge the world nor to be a Judge or divider among men 5. Ecclesiastical laws according to the usage and custom of England To what things Ecclesiastical laws have reference relate to Blasphemy Apostacie from Christianity Heresies Schisms Holy Orders Admissions Institution of Clerks Celebration of Divine Service Rights of Matrimony Divorces general Bastardy Subtraction and Right of Tythes Oblations Obventions Dilapidations Excommunication Reparation of Churches Probate of Testaments Administrations and Accounts upon the same Simony Incests Fornications Adulteries Sollicitation of Chastity Pensions Procurations Appeals in Ecclesiastical cases Commutation of Penance which are determined by Ecclesiastical Judges 6. So that there is a mixt Conusance in the Ecclesiastical Judicature All things determinable by Ecclesiastical Judges are not meerly spiritual viz. of things meerly Spiritual by which they are impowered to judge and take conusance of and that by no humane power but only as they are impowered and sent by our Saviour and are only his Ministers viz. the taking conusance of Blasphemy Excommunication Heresie Holy Orders Celebration of Divine Service c. And this Ghostly power the Church and Ecclesiastical persons had before ever Temporal powers received the Gospel of Christ or were converted to Christianity And also after it pleased God that Nations and Kingdoms were converted to Christianity and that Kings did become nursing fathers and Queens nursing mothers Isa 49. 23. to Gods Church then did Kings cherish and defend Gods Church and endued it with many Priviledges and Immunities which ere while was persecuted by them or other Powers but yet could not these Immunities or Priviledges divest them of that Ghostly power which our Saviour by divine institution gave his Church It is true no question but that originally not only all Bishopricks and their bounds and the division of all Parishes and the conusance the Church hath of Tythes of Probate of Wills of granting of Letters of Administration and Accounts upon the same the right of Institution and Induction and the erection of all Ecclesiastical Courts c. were all originally of the Kings foundation and donation and that to him only by all divine and humane laws belongs the care and preservation of all his Subjects none excepted in all causes And therefore not only all those things which relate to the extern peace and quiet of the Church although exercised by Ecclesiastical persons but all those priviledges and immunities which the Church or Churchmen have in a Church planted which the Primitive Christians and Apostles had not in the persecution of the Church when planting are originally Grants of Kings and Supreme Powers and so Temporal or Secular Laws but in regard they accidentally have reference to the Church and are exercised by Ecclesiastical persons they are not improperly called the Kings Ecclesiastical Laws And sure either ignorance of this or faction hath made men run into two contrary extremes one That Kings have no right to their Crowns but in ordine ad bonum spirituale and so cannot be Kings or That all power and jurisdiction in all causes is from the King and so cannot there be any such thing as Christian faith Religion or any Ghostly power left by our Saviour with his Church to continue to the end of the world which every Christian man de fide ought to believe and submit to before any Temporal Law or Power in the world Object But beeause Ecclesiastical laws have not infallibility affixed to them if they command any thing repugnant to Divine laws do they then oblige Answer No for God
another if the other accepts of any thing in acknowledgement that he will do that thing both parties are obliged by the Law or upon the giving or doing of one party the Law obligeth the other 4. Absolute promises receive their obligation from a precedent or Wherein a bare promise and a Contract differ present consideration or condition as if for a benefit received or any present consideration I promise c. Contracts from a subsequent as if I promise to another that if he will do for or give me or another such a thing that then I will do for him or give him such a thing this being a conditional promise or contract upon the performance of the others consideration or conditions being subsequent to my promise I am obliged by Law to performe my promise made to him and therefore ex nudo pacto non oritur actio for I am not obliged by any act of the other to performe any thing All contracts are made by words of the futuretense as si aliquis dederit aut fecerit dabo aut faciam 5. A contract differs from a meere obligation in this a single obligation Wherein a Contract differs from a single obligation is when one or more for such a sum of Mony Lands Houses c. had and received from another acknowledgeth him or themselves liable to such a penalty to the other if they perform not such a condition as is specified in the obligation A Contract or Pact is when both or all parts are obliged to performe All Promises Vows Contracts and Obligations ought to be only of Annotat. things in possession and that are mens so as by an act of their wills they may be anothers as they are theirs and therefore where any man hath a meere right to any thing this being a shadow another having the substance or as our Lawyers say A chose in Action he cannot by any Contract or otherwise alien his right to another but he can only release it to him in possession otherwise the right remains still in him notwithstanding any Contract c. that he would alien it And I would gladly be satisfied how Mr. Hobbs in the generation of his Civitas can make meere rights to be tranferred and aliened by the Pacts of men and those natural rights too This being granted Mr. Hobbs may by his Contract with another Man make himself no Man but a Horse or an Asse notwithstanding that by nature he is a Man 6. Every Oath is either a calling God to witness that what a Man testifies is true or false or else a speech added to a promise whereby the What is an Oath promiser does renounce Gods mercy if he performs not what he promises But if a Man Promises Vows Contracts or swears to do any thing which is unlawful he ought not to performe it for it is ill done to promise c. but worse to do any thing unlawful 7. A League is when two or more do mutually give their faith to Foedus how different from a Pact observe such conditions as are agreed between them and herein it differs from a Pact or Contract A Contract or Pact is when there is a precedent humane Law obliging the parties contracting to performe all the conditions specified in the contract A league is where there is no humane Law obliging but only the Law of Nature And therefore all stipulations made by Princes one with another are confederacies or leagues not Contracts or Pacts because there is no precedent humane Law obliging them to performe their leagues 8. A Gift is what I do give to another so as it is mine do and Donum though a gift be alwaies in the present or preterperfect tense yet the Habendum may be in the future as if I make a lease freehold or create a State in taile to one and grant the reversion to another and his heires here though the deed or gift be in the presenttense yet the reversion or Habendum is in the future But no Man can give another any thing but what depends upon his will and is his so by some positive humane law that by his giving he may so make it anothers For whatsoever is mine by the Law of Nature cannot be aliened or made anothers by my Will nor by the Will of all the Men in the world for it is impossible natural causes and relations should be dissolved by Mans Will 9. Feoffment is derived of foedum a Fee quia est donatio foedi and this A Feoffment is the most ancient and necessary Conveyance which is used by the Common Law that is that Law which concerns tenures and estates used only here in England and this deed or conveyance is either of absolute estates of corporeal inheritances absolutely passed to another by livery and seisin made according to the intent and purport of such Feoffment he which conveys such estate of inheritance being called the Feoffor he to whom such inheritance is conveyed is called the Feoffee or of absolute estates of inheritance which are not corporeal as Advousons Commons rents issuing out of lands which do lye in grant and do not pass by livery and seisin but by delivery of the deed or feoffment 10. Do or dedi as our Lawyers say which implies a warranty to A Estates-Taile and his heirs for ever makes a Feoffment Do or Dedi to A. and the heires of his body lawfully begotten or to A. and the heires male or female of his body lawfully begotten or to A. and the heirs male or female on the body of such a Woman or to a Woman and the Heirs of her body lawfully begotten or heirs male or female of her body lawfully begotten by such a man creates a state taile and he which creates such an estate is called Donor he to whom such estate is granted Donee 11. Do or Dedi to such a man or woman for term of either of their Freehold lives or to such a man or woman during the life of another creates a freehold 12. Do or Dedi or concedo or concessi to such a man if he shall live so Lease long an estate for years or to such a man and his heirs for such a term reserving or not reserving such a rent or service creates a lease In both the latter he who gives is called Lessor he who takes Lessee and humane Laws oblige as well to gifts as contracts For natural Laws oblige in conscience only but men are obliged by mulcts and corporal punishments to contracts and gifts So that in most proper speaking In every gift it is the Law which gives the property to another by an act of the Donors will and the Donor is the instrument by which the Law conveys the property of any gift to another 13. Humane Laws therefore obliging men to the performance of No Law or Legislative Right arises from any Pact or Contract their Pacts Contracts and Gifts
est animal rationale that to command and to obey is natural And to this does the highest Philosopher give testimony Imperare parere non solum ex numero rerum Pol. lib. 1. cap. necessariarum sunt verumetiam ex utilium statim ab ortu primo nonnulla inter se distiterint alia ut parerent imperio alia ut imperarent And the highest of Roman Orators and Lawyers Cicero who says Sine imperio neque Lib. 1. de legibus domus ulla neque civitas nec hominum universum genus stare nec ipse denique mundus potest Besides we see in all seditious men and assertors of Liberty who will not be subject to rightful Governors that none of them could ever yet attain to make men any where in a parity of condition but by a propense natural disposition when they have cast off the obedience due to others they fall to command and obey among themselves But this not having any foundation but from themselves Men being naturally ambitious of commanding and impatient of subjection it is Gods judgment upon them that they rarely continue long in peace but are obnoxious to continual seditions and confusions 3. All powers being from God and Gods ordinance mediately or immediately To command and to obey is Gods ordinance and from the law of nature Rom. 13. and Power being in relation must refer to something which is subject to it Power therefore and Subjection are the ordinance of God But by the antecedent proposition the offices of commanding and obeying viz. of Power and Subjection are natural To command therefore and to obey is Gods natural ordinance or from the Law of Nature If then to command and obey be no humane artifice or invention but natural Annot. and Gods ordinance then is it most sensless for men to beg it for a principle That all men are by nature in a parity and free condition and that the will of man brought in the Powers and obedience due to them in use now in the world against Gods ordinance and that freedom wherein by nature originally all men were 4. If to command and obey as Supreme powers and Subjects had been To command and obey as Supreme powers and Subjects is no humane artifice or invention an humane artifice or invention then was there a time when men lived out of the offices of commanding and obeying as Supreme powers and Subjects and were introduced by men But there was never any such time recorded in sacred or prophane history or that they were invented or introduced by men To command therefore and obey as Supreme powers and Subjects is no humane artifice or invention It is the silliest thing in the world for men to dream of a Golden age in which Annot. all things were alike and common to all men and that men lived promiscuously in a parity or equal condition and never tell when that time was or who lived therein And to say that thâ—â— Dominion and Subjection now in use Mans will brought in and yet never tâ—â— who any where in the world did ever introduce it And sure if this commanding and obeying were brought in by the wills of men against that natural right and law wherein God hath made man it could not possibly continue at all times and in all places of the world but that somewhere men would return to their own natural liberty 5. a To command and to obey as Supreme powers and Subjects is natural If all things be either artificial or natural and the offices of commanding and obeying as Supreme powers and Subjects be not artificial then these offices of commanding and obeying as Supreme powers and Subjects are natural 6. b To command obey as Supreme powers and Subjects is Gods ordinance and due from the law of nature That Supreme power is Gods ordinance and that Subjects must needs be therefore subject to it the Apostle says expresly Rom. 13. But by the precedent proposition they are natural They are therefore Gods natural ordinance or due from the Law of Nature 7. c To command obey as Husband and Wife is natu-ral This Aristotle in chap. 5. lib. 1. Pol. proves Besides these offices not being topical but universal no where created by any humane Law and due as well where Gods revealed ordinance in the Scriptures is not received as where it is they are natural or due by the law of Nature To command and obey as Parents and Children is from the Law of Nature 8. The mutual offices of commanding and obeying as Parents and Children not being from any Humane law but being due in all places as well where Gods revelation of himself is received as where not are natural or due from the law of Nature 9. God having created Man not only different from other creatures of How many ways the offices of commanding and obeying are caused from the Law of Nature this orb as intellectual and rational but also as sociable viz. living in conversation and subordination for extra societatem vivere neminem He hath given by the law of Nature to some the power or right of commanding and others he hath subjected to such powers But he hath created these powers divers ways viz. either upon supposition of some mutual act of the parties commanding and obeying or upon supposition of some act of the parties commanding or without supposition of any act of either the parties commanding or obeying First I say the Law of Nature creates these offices of commanding and obeying upon supposition of some act of the parties commanding and obeying As Matrimony is the mutual act of the Husband and Wife I A. B. take thee D. E. to be my wedded wife and I D. E. take thee A. B. to be my wedded Husband by this act of the Husband and Wife God by the Law of Nature gives the Husband a power or right of command over the Wife and subjects the Wife to the Husband Or Secondly upon supposition of some act of the parties commanding As the Parents power arising from generation the Parents must be supposed to generate before they can have a power or right of command Or Thirdly upon supposition of no act either of the parties commanding or obeying as in all rightful Hereditary Monarchies these offices are as much due from the Law of Nature before any act of the parties commanding and obeying as after 10. Gods Ordinance to Man being either that Law or Ordinance All commanding and obeying which God hath ordained is not from the Law of Nature which he has ordinarily engraven in the hearts of Men or his gracious goodness extraordinarily revealed in the Scriptures and Gods revelation of himself by Moses and Prophets by our Saviour the Apostles and Evangelists was extraordinarily and supernaturally given to them by Gods especial grace nor could Men by any natural means attain to the belief of it All offices therefore of power and
subjection to them which are created by Gods will so revealed are not created by the Law of nature 11. All offices which are created by Divine Law whether by the Law All offices of commanding and obeying are not Gods ordinance immediately of Nature or by divine positive institution being from higher then humane causes are indelible and cannot be aliened transferred or communicated by any humane act for ejus est nolle cujus est velle and therefore cannot the power and obedience of Parents and Children of Husband and Wife of King and Subjects be aliened dissolved communicated or transferred but the offices of Masters and Servants of Magistrates and those subject to them are alienable communicable and transferrable and sometime are and sometime are not they are not therefore from any immediate ordinance of God either positive or natural But the offices of commanding and obeying as Masters and Servants and Magistrates and those subject to them are but temporary and determinable by the laws of him that made them therefore not Gods ordinance 12. Humane laws create Magistrates power two ways Immediately How many ways power and subjection happens by humane laws to Magistrates and those subject to them as when Supreme powers which are the fountain from whence all Temporal laws are derived constitute any Magistrate giving him jurisdiction over the inhabitants of any place or when the Laws or Higher powers enable such men to nominate their Magistrate there the Nominators are the instruments by which the Law does transfer this Magisterial power 13. The mutual offices of power and subjection between Masters and How many ways humane laws create the power and subjection of Masters and Servants Servants happen two ways either created by the contract or pact of the Master and Servant and we have before shewed that all pacts and contracts receive their obligation from Humane laws as the means by which Humane laws do create these offices or else without any pact or contract of the parties commanding and obeying as in the cases of Slavery where prisoners are taken in war or men condemned thereunto for some offence or of Apprentiship where children are bound for such a term by the Laws of their Country or Parents And I do grant Mr. Hobbs Grotius and White that this power and subjection Humana voluntas introduxit but not the parties obeying as they most senslesly feign but the Supreme powers or the parties commanding And where they are not so created all men are originally free I do much wonder at those men who make all Supreme or Regal power to have Annot. its origination from the consent and aggregation of many families For they not only confound the Masters power with the Fathers which in the nature and cause we have already shewed and shall more fully hereafter in their proper Chapters shew but also make the Masters power to be from the Law of God and Regal power to be a Humane institution whereas the contrary is true in both And what it is should move men to imagine that after Adam's and Noah's posterity dilated themselves into many families that they should give Adam and Noah more power then God gave them I am sure no such thing or the least probability thereof appears in Scripture or that after Adam's and Noah's deaths their Posterities became free and independent from all Government which was no body can tell when brought in by the Pacts of Men or by consent and submission of Families to it 14. That power or right of command which God jure divino hath as All power and subjection from what causes solely and absolutely over all his creatures as the Creator first and efficient Cause of them and therefore by highest right all obedience is chiefly due to them before any creature in all things Or else power and subjection are caused from the Laws of Nature or from the Law of God revealed in the Scriptures or from Humane positive Laws All Society which is not contained in these causes is Tyranny in the party commanding nor is any obligation in Conscience to such Commands from the party commanded Having thus far treated of the Causes of Power and Subjection conjunctly we shall hereafter in their several Chapters treat of them severally and more at large And we insist more largely hereon in regard these Powers and Subjections are either so confounded in their Causes by other men or such wild things begged for Principles that so far as I understand no ingenuous man should grant CHAP. II. Of Regal and Magistrates power 1. THere is no question but one of Mans chiefest happinesses in this Introduction life consists in the contemplation of God in his works to contemplate the Heavens and the Earth the workmanship of his hands and the admirable order and motion of them all being by him so made and created Nor is God less seen in the generation and birth of Man and other creatures then in the creation of the Universe And as admirable is the preservation of every Man as his generation For abstracting from the internal cause Spiritus intus alit totamque infusa per artus Virg. Aen. 6. prop. fin Mens agitat molem How God does renew and preserve every Man and every part of Man by a perpetual motion viz. the Systole and Diastole of the Blood If a Man considers his outward preservation not only from the violence of other creatures who are of much more force then himself but also from the force and violence of his own kind for were he not restrained Homo homini lupus And what are the People in general but a sudden rash and furious Beast carried hither and thither upon every wild fancy raging to have this thing done and presently lamenting because it is done He must needs As the Athenians did in their sentence on Socrates and the Captains at the Fight at Arginusae confess there is no power under heaven which can restrain the raging of the sea and the madness of the people The Psalmist therefore Psal 77. when he calls to mind the works of God and his wonders of old Thou thundrest from heaven thou shakest the earth thou dividest the sea and at last as the greatest wonder of all he says Thou leadest thy people like sheep by the hands of Moses and Aaron It is not therefore from any pacts and inventions of Man that he may hope for any security but by submitting himself to what God hath ordained for his preservation 2. Upon a survey taken in Scripture how often Christi Domini are Regal power cannot be created by the People used they are found to be thirty three two of which are spoken of the Patriarchs one of our Saviour and all the rest of Kings only Once of our Saviour Luk. 2. 26. twice of the Patriarchs Psal 105. 15. and 1 Chro. 16. 22. all the rest to Kings only and expresly And though others were anointed yet none
but our Saviour Patriarchs and Kings were the Lords anointed Nor is Gods anointed peculiar to them not the material anointing and the receiving and believing Gods revelation of him-self in the Scriptures is essential to the making of Gods anointed here but all rightful Kings are so whether they be materially anointed or believe Gods revelation of himself in the Scriptures or not For not only Cyrus was not Isa 45. 1. materially anointed and an unbeliever yet Gods anointed but Nabuchadnezzar also a cruel persecutor and destroyer of Gods people But Lam. 4. 20. God calls them Mortal Gods too Psal 82. 6. And is it not strange that our Saviour should say No power can be but from above data desuper and that Joh. 19. 11. Men should be so impudent as to affirm that there is no power unless data de subter and that against all sense and reason as well as faith For it is impossible that any Power should be superior to the cause of its being or that any thing should give that to another which it self hath not How then can an imaginary rout of Men give a power of life and death and of creating property which not any of them nor all of them together have to another 3. Humane Laws being the accidents or effects of Regal Power they Regal power not made by Humane laws cannot be superior to give or create a being to the cause Regal Power therefore cannot be made or created by Humane Laws 4. That in Regality as well as in Subjects estates jus proprietatis The possession or exercise of Regality does not create Regal power possessionis have been divided and Regal power usurped and exercised by them who had no right thereunto is not only testified by infinite Authorities out of prophane History but also many times in Sacred Writ as in the cases of Absolom Adonijah Athaliah c. It is true indeed that there is no visible power under Heaven but only Mens Consciences that can judge between an Usurper and a rightful Prince Yet ought men principally to have a care how they offend herein for God no where denounces a more dreadful sentence nor shewed a more terrible judgement then upon such Rom. 13. Men Num. 16. And if in Regality possession alone did create a just title then were summa injuria summa justitia it being no question the highest injury to invade the highest authority or dominion of another 5. If possession conjoyned with the submission and acknowledgement Possession with the Subjects acknowledgment and submission does not create Regal power of the Subjects did create regal power or right of command which Kings have over their Subjects then were the dominion of Theeves and Pirates where others submit to them just and Jeroboams title good to the kingdom of the Ten Tribes nor the Children of Israel Rebels but true Subjects after they had quietly submitted themselves to Jeroboam But this is false for God does denounce them Rebels to the house of David unto this day 1 Kings 12. 19. And Jeroboam himself a Rebel after he was quietly 1 King 12. 19. possessed and acknowledged by the Ten Tribes 2 Chron. 13. 6. It is a very remarkable thing that the Subjects of this Nation although Annot. pretending to be Christians have against all rules of Christian Faith placed all power in Government to be from the people and their obligation to it to be from their own submission to it and have by their often forswearing themselves to this and that Government not only habituated themselves into a belief that there is no such thing as right or power in Government but only possession but also taken away all Religion and Obligation of an Oath in things lawful and indifferent God no doubt permitting it that they who would not stand and be protected by his ordinance and institution should fall into all infidelity and perjury and never be true to any thing they sweare to and set up instead of it 6. If the Law of God or Nature did create Regal Power by the acknowledgement The Law of God or Nature does not create Regal power by the submission or any act of the Subject or submission of Men thereunto or that Subjects were the essential instruments by which Regal Power was originally created and yet is continued in the world then were not Men only free from Regal or Higher Powers before they did submit thereunto but also free to make whom they would their Prince and so by consequence there can be no such thing as Hereditary Monarchy in the world which for many Hundred nay Thousand years where God was not pleased to reign himself immediately over his peculiar people was in the old time the only Government in the world For above 3000 years after the Creation was neither Aristocracy Democracy or Elective Monarchy ever heard of in the world and yet Hereditary Monarchy is in above 19 of 20 parts in the world the only Government Nor would any Government that ever was or is in the world grant this liberty to any one born in their dominion but upon resisting it or renouncing it whether he ever submitted to it or not proceed against him not as an Enemy but as a Rebel and Traitor To suppose therefore that Subjects acknowledgment and submission is previous the essential means by which God does create Regal or Higher Powers is upon the matter to give the Lye to all the Powers and Governments that are or ever were in the world 7. None of these things therefore but some higher cause must create Regal power and that Regal Power is the Ordinance of God the Apostle Regal Power is the Ordinance of God and created by the Law of Nature saies expresly where he saies Rom. 13 that he which resisteth the Higher or Regal power resisteth the Ordinance of God And that this is not Gods Ordinance only to them who receive and believe his revelation of himself in the Scriptures is evident by his ordaining of Hazael Cyrus Nabuchadnezer c. and to put all out of question the Apostle here calls Higher or Regal Power Gods Ordinance and at that time whenas there was no King in the world which did receive the Scriptures for the revealed word of God Besides Kings reign by God c. Pro. 8. 5. and that Kings reign by God not only where he is believed as having extraordinarily revealed himself in the Scriptures Job in the state of nature long before the Job 3. 6 7. Moral Law was given by Moses saies Reges in solio collocat in aeternum Regal power therefore is Gods Ordinance and from the Law of Nature 8. Regal power being Gods Ordinance and created by the Law of Adam had Dominion over all Creatures and not as Father Husband or Master of a Family Nature there was never any time wherein Men were borne out of subjection to it not but that the Laws of Nature
King comes to be in the exercise of another Kings power he is subject to that King so long as he continues in the exercise or dominion of that King By more reason therefore ought the Subjects of any Prince to be in subjection to Supreme powers so long as they continue in the exercise of their power whether it were by Conquest or not Besides God hath ordained Supreme powers for mens preservation not their destruction And there must be some visible power upon earth which may put a period to and decide differences or they will be endless But there is no power under heaven but their sword that can put a period to the differences of Princes what therfore in such case the sword decides ought to be obeyed and the conquered Subjects nay Princes who come into the dominion or exercise of anothers power ought to be subject to it so long as they continue therein God therefore pronounceth Zedekiah a Rebel against Nebuchadnezzer But this reason cannot 1 Chro. 36. 13. hold for Subjects against their Soveraign where the Law may decide their Regal power cannot be transferred nor communicated by any humane or voluntary act differences and where by no Law of God or Man they are permitted to take the sword 26. Cujus est velle ejus est nolle No power less then that which made any thing can alter it But Regal power is Gods ordinance therefore nothing less then the power of God can alter transfer or communicate it Yet is the exercise of it subject to violence As Gravia sursum levia deorsum feruntur yet may a man by violence throw a stone upward and depress smoke from ascending without altering the nature of either So though Regal power cannot be transferred nor communicated by Man yet is the exercise of it not only subject to violence and usurpation but also being voluntary may be suspended by Supreme powers themselves without any diminution of the power or right of exercise of it When therefore Subjects or Enemies do unjustly invade and possess the Dominion of another this possession does not divest the right or jus ad rem of that other but only suspend the exercise of the others power or right during such usurpation So may a King by a league or peace with others by his act suspend the exercise of his power in any place unjustly usurped from him by others yet without diminution of his power or right to that place But this act cannot oblige his Successor nor himself after such term but they have a just cause of war if it be noâ— restored Having thus far treated of the efficient or final cause of Regal power it is time to descend to the Attributes of it CHAP. III. Of the Attributes of Regal power and incidently of the Power of Magistrates 1. WHo hath the Supreme power hath the sword of Justice to punish The sword of Justice is his who hath the Supreme power them who transgress Laws and endeavour to cause sedition He is the Minister of God to thee for good but if thou do that which is evil be afraid for he beareth not the sword in vain for he is the Minister of God a revenger to execute wrath upon him that doth evil Rom. 13. 4. And Gods rod in his hand Exod. 17. 9. 2. The end of all Government is either to preserve the governed inwardly The power of making War and Peace belongs to the Supreme power in peace or to defend them from the outward violence and opposition of others In vain therefore should Government be if he who hath the Supreme power may not as well defend Subjects from the violence of others outwardly as to preserve them from factions and feditions within And this power God gave to Moses Joshuah David and all the Kings of Judah nor can any King be a Supreme Prince without it nor the governed in a probable condition of hoping for preservation from it 3. Judgment is the determining of a good or bad action which cannot All Judgment is with him be in any who is subject to another What therefore could be a more subtile temptation of the Devil to our first Parents then to tell them Gen. 3. 5. that by eating the forbidden fruit they should be like to God knowing good and evil Solomon as the most requisite thing prays to God that he would give him an understanding heart that he might be able to judge between good and bad 1 King 3. 9. And The King by judgment establisheth the land Pro. 29. 4. And Give the King thy judgments O God and thy righteousness to the Kings Son that he may judge the people according to right and defend the poor Psal 72. 1 2. 4. The right of making Laws is with him The Scepter shall not depart Jus legislativum penes eum from Judah nor a Lawgiver from between his feet until Shilo come Gen. 49. 10. Submit your selves therefore to every ordinance of man for the Lords sake whether it be to the King as Supreme 1 Pet. 2. 12. And this is the onely visible means by which Subjects may become safe rich and happy 5. In punishment Equals cannot judge Equals much less can Inferiors That he does all things without punishment judge Superiors But a Supreme Prince cannot have an Equal much less a Superior therefore a Supreme Prince cannot be punished If a Supreme Prince might be punished for any thing he doth then cannot he do any thing but he will be liable to punishment for so doing For what property can he give to one which will not offend some other Nor did the veriest Thief or Murderer ever suffer punishment but some of his Comrades would seek revenge and if they might would punish the Lawgiver Besides who shall judge his Prince If any one then every one may Let no man therefore be hasty to go out of his sight nor stand in an evil thing for he doth whatsoever pleaseth him Where the word of a King is there is power and who shall say unto him what doest thou Eccles 8. 3 4. The Lord forbid that I should do this thing unto my Master the Lords Anointed to stretch forth my hand against him seeing he is the Lords Anointed 1 Sam. 24. 6. It may seem to some that this unlimited power of doing any thing Annot. with impunity will only beget a confidence in Kings of doing what they list without ever taking care of their duty in preserving their Subjects from intestine broils and factions and from the outward force and violence of their Enemies whereas more narrowly looked into no men are so subject to care and have their wills less then they For private men if they do any thing in their passion their fame and fortunes are alike neither much removed from their persons few take notice of it But they who are set in high place all men take notice of their actions In the greatest Fortune therefore is the
Temporal Dominions and therefore may punish disturbers of the peace of the Church as well as the State Yet when the Temporal Magistrate shall arrogate to himself a power which our Saviour only left to his Church and make all Ecclesiastical rights and constitutions depending and subordinate to the Civil whereby the Enemies of our Church have taxed our Religion not for Christian but Parliamentary no doubt but it is a crying sin and I wish there had never been any such thing among us 19. And as God is to be obeyed before men in all things which concern Or the Laws of Nature Faith and Religion so in the observance of the Laws of Nature is God to be obeyed before men As if a King commands me to dishonor my parents this can be but a Humane law but to honor my parents is a law which God hath written in my heart and therefore ought to be preferred If a King commands his Subjects to dishonor him or to deny obedience to him this is but a Humane law whereas by the law of Nature I ought to honor and obey my King I therefore ought not to obey such a law Amurath the Second of that name King of the Turks upon a Vow resigned his Kingdom to his son Mahomet yet upon the League made by Uladislaus King of Pole and Hungary with other Christian Princes against him he resumed his Regal authority and so kept it until his death And so might Charls the Fifth if he had pleased nor was Philip any other then an Instrument of his Fathers during his Fathers life The King makes a Law giving the succession of the Crown from the right Heir This ought not to be received for Princes inherit by a higher Law then Humane 20. The King commands a Judge to pervert Judgment the Judge Or to pervert Judgment ought to give true Judgment for all Humane Laws in peaceable times ought to be â priori and proclaimed that all men after such a time should observe them This verbal command of the King wanting this formality and it being impossible for the Judge to observe both these commands he ought notwithstanding this verbal command to give Judgment according to Law The King when there is no necessity or publick danger commands me Quaere who am no publick Executioner without any Judicial sentence to put a man to death for which he can make no compensation As Davids commanding Joab to murder Uriah although we find David only reprehended and punished therefore yet sure if Joab had not fulfilled Davids wicked command he had not sinned But you may object Who shall judge whether this thing commanded be repugnant to Gods Majesty Mans faith Religion or the Law of Nature the King or the Subject I say though the Subject hath not an equal right of judging with the King whether this thing should be a Law or not yet every Subject hath a Conscience as well as the King which must dictate Whether Kings divest themselves of Regality by commanding what they ought not to him whether he ought to do or not to do such a thing 21. But if the King commands things contrary to Gods Majesty and Divine Laws ought he not to be obeyed in those things which do not contradict them It is so mad and wild an objection as it is scarce worth an answering unless a man will affirm that my doing of an act which I ought not to have done does divest me of Humane nature or that a Fathers or Masters commanding his Son or Servant what he ought not doth annihilate the relations of Father and Son Master and Servant or that Humane acts may dissolve Humane relations A Prince therefore ought to be obeyed in those things which he ought to command as Prince although he command such things as he ought not 22. It may be it will be objected That Temporal punishments being Though inflicting punishment for not observance the usual concomitants for not observing Humane Laws a good and conscientious man may be punished for what he ought not to have done I say his case is the same with his Lords and Saviours and all those blessed and glorious primitive Christians and Martyrs who suffered for the testimony of a good conscience Nor hath God made Heaven so easie a prize that it should be always won easily and delicately but many times by suffering and martyrdom 23. It is the most usual thing with seditious men before they enter Whether Princes ought to be resisted where they are not to be obeyed into open sedition to prepare mens mindes with certain Cases wherein Princes commanding things derogatory to Gods Honor or the Subjects Liberty that then in the preservation of themselves and Gods honor they ought to defend themselves from the raging Tyrannie of Princes and to be sure that whatsoever they command these good men will judge contrary to Gods Honor and the Liberty of the Subject It is worth the while if a mans patience will give him leave to look back upon the thing calling it self Parliament how after they had made the King grant whatsoever they could think might be beneficial to the Subjects though I might be sworne they never intended as plainly appeared afterward the good benefit or liberty of the Subject what pious ways they invented to make themselves great and so good a Prince nothing and odious to his Subjects As the demanding of six men holding intelligence with his Subjects who had been in open hostility and rebellion against him an affront not to be endured by any King to an ordinary and Legal Trial this was not only denied but Voted a Breach of the Priviledge of Parliament whenas the Priviledge of Parliament extends not to so much as breach of the Peace much less to Treason They pretend though most falsly that in case of extreme danger and necessity the Militia is in the Parliament meaning themselves excluding the King And then create Dangers and write Letters how great Fleets of Danes Swedes Hollanders c. were seen at Sea It must be from Westminster then for there were the Letters written and the Fleets never since heard of Then permit if not command the most insufferable affronts and indignities that ever were offered to Majesty yet if the King but offers to increase his Guard this is Voted no less then a raising of War against his Parliament and Subjects whilst all the while against the Lex consuetudo Parliamenti Inst par 4. 14. without any cause moving them they maintain an illegal Rout of men for their Guard and go armed themselves Nay what needs a man instance particulars All the Kings commands in prosecution of the Laws were Voted breaches of the Priviledges of Parliament and the Liberties of the Subject We will therefore shew that this Assertion is not only contrary to all Faith in both Testaments but also destructive to all Humane Society 24. There is no man sure will deny but
although no man can hope to preserve any thing which he hath but as he and what he hath is secured by that Power which gives him property which Power must be preserved by every mans life and fortune or else no man can hope to enjoy any thing he holds by that Power and the paying of Taxes is to maintain others who are to expose themselves and their lives in defence of what he and his fellow-subjects enjoy Yet are none of these things considered by the greatest part of men but as Mr. Hobbs observes The raising of Taxes makes men fire as those who are in Cap. 12. art 9. the disease called Incubus or as we say ridden with the Night-mare which rising from the stomach makes men think they are invaded oppressed and suffocated with great weight Which thing they who seem to themselves to be oppressed with all the weight of the City are prone to sedition and men declining in their fortunes will not spare though the fault be in themselves to impute their declining condition to the payment of the publick Taxes nor will avaritious rich men fail to pretend poverty and seek by innovation and sedition to prevent them 23. Honos est in honorante Honor is nothing else but the opinion of Passionate desire to punish Subjects especially where many are peccant moves to sedition anothers power joined with goodness Majesty does never appear so amiable as when arrayed in Clemencie whereas he who rigorously executes his power will be hated and servilely feared by them who otherwise would honor and willingly obey him It were the most easie and natural thing in the world to govern well if the violent and rigid execution of Laws against all offenders would cure the maladies of State nay Subjects ought to be preserved though peccant where the pardoning may appear an act of grace not remisness and the example not encourage others to the like offence Punishment ought always to look forward never backward that is Princes in punishing ought by the example to deter others from the like offence not to take pleasure in punishing any who hath offended him I will avenge the blood of Jezreel upon the house of Jehu and will cause to cease the house of Israel saith the Lord Hos 1. 4. How should God avenge the blood of Jezreel upon the house of Jehu whenas Jehu did nothing but what the Lord commanded him The reason is given that Jehu took pleasure in executing so dreadful a judgment upon his Masters house Weak and indisposed bodies are killed never cured by violent physick nor will Patients ever seek to Physitians who they fear will rather kill than cure them Princes who by violent and cruel ways do govern suppress yet nourish a fire which breaking out will hardly be quenched Yet it is sometime the fate I dare not think through the fault of most serene and clement Princes to suffer death and martyrdom from the sensless rage and fury of their seditious Subjects If then the insite piety of the most devout religious and best of Princes adorned with all the excelling virtues of Patience Temperance Chastity Justice Mercy love and tender care of his Subjects Magnanimity in Adversity Moderation in Prosperity could not secure Innocent Majesty from the violence of unnatural Subjects sure Peace and happiness may by other men be endeavored and prayed for in the next World but it can scarcely be hoped for in this If there were neither Heaven nor Hell no hope of bliss or fear of Annot. punishment hereafter yet sure so much Morality should be harbored in humane breasts as not causelesly to offer violence or injury to them of their own kind How much more unnatural ingrateful and inhumane then is it for Subjects against all Oaths of faith and allegiance not only not to make any restitution of those things which they hold of their Prince before they attempt any thing against him but also to imploy them all to the destruction of that Person and Power by whose grace and favor they enjoyed them And if that Monarchy be Tyranny as Libertines affirm and that all power is from the People then ought they not in reason to condemn it in the cause and allow it in the effect and rob the People of so great a part of their original right by retaining their Estates which were all mediately or immediately holden of the Crown If Regal power be unjust and usurped in the cause then cannot any act of it be just or legal and so by consequence all these famous Assertors of Liberty do unjustly and illegally hold their Estates which are nothing but Concessions originally from the Crown and do unjustly usurp them from the People from whom originally all power is derived And where these men complain so much of unjust illegal and arbitrary power of a Prince let any man shew where ever after they had usurped Regal power they made Justice Law Equity or Reason but only their Rage and Will the rule of their Actions and Laws 24. It is a vain thing to expect that Subjects will long be governed in By what degreâ—s and from what causes thâ—â— Nation became miserable peace where either they are not governed by force of Arms as the Turks English Scots Irish and Low-Dutch are or where the Subjects have not that estimation of their Prince that by his power they are protected in their lives and estates and from him do claim whatsoever may be called theirs and do not unite themselves in a Religious Unity which is the chiefest bond of Peace or Publique Form and Communion of serving God For both in Church and State there must be some one thing to which all Subjects must indifferently submit themselves or it is impossible there should be any decision of their differences in either Where men therefore will not indifferently submit themselves to the just and legal established Government in Church and State there necessarily must men whatever they pretend or hope for be forcibly governed by Arms or they will infinitely destroy one another It is true indeed that Henry the Eighth who being of all mortal men the most unfit for a Churchman ascribed to himself the Headship of the Church and having converted to his own use so great a part of the Church-lands the veneration which men retained of the Church became vile and contemptible and the Crown lost the chief support thereby The Crown thus left almost without support it descended to a Child in whose Aristocratical reign not only the Chantries and divers other Religious Houses were given by the Parliament and Bishops to the King but almost all things Sacred became a prey to the ravenous Courtiers Queen Mary endeavored to have had restored all to the Church again but the lands being incorporated into particular mens estates it was not in her power After her Queen Elizabeth by Act of Parliament so stopt the precipice of things that what was left in the Church
might not be aliened or made worse by the Possessor yet so that she left a gap open for herself and her Favorites to prey upon it which was after shut by King James and with great care secured by King Charls All this while grew up a Faction in Church and State which became the ruine of both For not only in the Church the Publique Liturgy Communion or Religion was vilified and defamed but the Governors reviled with all opprobrious names of Tyrannical Antichristian c. It is true the Majesty of the King was not so openly reviled yet was it insensibly daily undermined by them in which they were much assisted by a company of half-headed Lawyers who in all Assemblies distilled this doctrine into ignorant men That the Law was above the King and that they had Property against him in their estates and goods Whereby not only Citizens and Great places became generally inclined to this new doctrine of the Teachers and Lawyers but the Country-Gentleman thought himself independent from the King both in his life and estate the Yeoman cared not for the Gentleman and as little regarded the King so that the veneration of the Royal Name became every day more contemptible and despised all honor and reverence due to the King Church was converted unto these Patriots of their Countries Liberty and New Lights Nor could the Church relieve the Crown although the Governors were well-affected towards it being by all the Faction more hated than the King became despised until in the end the chief Governors both of Church and State not only became Victims to the rage and lust of seditious men but the Revenues of both a prey to their avarice And now what is left for this miserable Nation to expect having forfeited all Piety and Allegiance to Gods Church and his Anointed but after all this consumption of the Blood and Publique and Private Revenue of the Nation and having lost all Reputation and Commerce abroad for the future to be Turk-like governed by armed and hungry Soldiers without any probable hope of Redemption Object It may be it will be here objected That though poor and contemptible Princes be rarely long obeyed especially where their Subjects are opulent yet had the Church never so great veneration both for power and piety as when in the Primitive times it was poor whereas afterward when it became rich and mighty it did degenerate into many vices and heresies and lost much of estimation and piety which it had in its poverty Answ I grant that God did by his grace and power originally by a company of poor men and Fishermen against all the greatness of worldly power miraculously plant a Church and that those poor men sent by God were supernaturally inspired by his grace which not their poverty was the cause of their piety and sanctity and that they were so highly honored by primitive Christians yet sure when God hath supernaturally planted his Church it cannot be in reason expected he should preserve it always by miracle And sure those are very ungrateful men not to contribute ordinary means for the preservation of what God hath extraordinarily planted Nor is there any thing more vain then to imagine that men are better for being poor or that according to the ordinary course of things they will not be by men in general esteemed vile and contemptible who are so Nil habet infaelix paupertas durius in se Juveual Quâm quod ridiculos homines facit CHAP. VI. Of the Fathers power 1. UNumquodque resolvitur in id ex quo componitur Dust shall return to the Introduction earth as it was and the Spirit to God who gave it Eccle. 12. 7. It is not the good will and pleasure of the All-prepotent God that only the individuals of one age should see the greatness of his Majesty and power therefore he was pleased to create man as well as other Creatures in this inferior or be in a * If Adam had not been created in a Mortal State the Sacrament of the Tree of life had been a vain institution mortal state yet he endewed him generativa facultate that though he does dye in his person yet he should live in his posterity and as one generation passeth away so another commeth but the earth abideth for ever Eccle. 1. 4. 2. There is nothing more evident then that in perfect Creatures of The power of Parents alike over their Children which man is the most perfect that God is the prime and efficient cause or God working by naturall causes the Sun is the efficient cause and Male and Female the Instrumental Sol per hominem generat hominem See Harvey de generatione Animalium Cap. 33. Man and Woman therefore being the means whereby God does renew the species of Mankind and all Creatures having power over themselves in all things wherein they are not restrained by some natural or humane Law and every Child being alike part of either of his Parents the Power of Father and Mother is alike over their Children and so by consequence the subjection and obedience of every Child is alike due to Father and Mother And to honor thy Father and thy Mother is the First precept of the second Table of the Decalogue 3. Man and Wife being but one person and the Husband being the Why in Matrimony the power is in the Father head of the Wife and the Wife being in the power of the Husband the Husband hath the power and command as well of the Children as of the Mother yet the piety and observance of Children to their Mother is as much due as to their Father 4. Grotius cap. 5. art 2. de jure belli pacis out of Arist pol. 1. cap ult Grotius his opinion of the Fathers power eth 5. cap. 10. distinguisheth the Fathers power over Children into three times viz. 1. The time of their imperfect judgment 2. The time of their perfect judgment 3. The time when they are out of the Fathers family In the first all the actions of the Children are under the command of the Parents In the second time whenas judgment is matured by age and are of the family they are subject as part of the family In the third when he is matured by age and out of the family the Son is in all things 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 of his own right Yet he says and truly parag 5. The Fathers power so follows the Fathers person that it can never be pulled off nor transferred to any other for the Fathers power arising from generation is due to him by the Law of Nature and so always the same if not aliened by the act of God And therefore * Confuted Quando Ubi make no alteration in the Fathers power for it is the same when the Son is an Infant and when adult when he is part of the family and when not 5. Where the Law of Nature gives a
power which God hath given Fathers and Husbands by the law of Nature 7. The Husband being the head of the Wife she is in all respects of law The Wife has nothing proper against her Husband deemed civiliter mortua nor can take or purchase any thing during the coverture but whatsoever is given to the Wife is ex facto the Husbands Yet Marriage being a Sacrament by the institution of our Saviour and Ephes 5. 25 32. a Mystery of Christ and his Church and so the cognisance thereof due to the Ecclesiastical power the Church upon the penalty of Ecclesiastical censure may compell the Husband to allow his Wife Alimony if without sufficient cause he shall refuse to cohabit with her 8. If Poligamy had not been lawful before our Saviour Christs time Poligamy was lawful before our Saviour then had our Saviour been illegitimate being descended of Bathsheba when David had many other wives Nor can the argument drawn from the necessity of propagating Mankind take place when David reigned for there never was in so small a Continent so great a number of people as the Israelites were when David reigned as appears by the Number which Joab took and for which David was punished with so great a pestilence If it were before the divine law of our Saviour lawful every where for Annot. Men to have many Wives I do wonder why Mr. Hobbs cap. 17. art 8. de Cive says That our Saviour made no laws but the institution of the Sacraments which are Baptism and the Eucharist And if Matrimony be a Civil institution as he affirms then Poligamy is lawful for all Christians who are in subjection to the Turks c. where by the Temporal laws it is permitted and the Kingdom of Congo rejected Christianity for no other reason but because they were not allowed plurality of wives which Mr. Hobbs could easily have dispenced with I do challenge Mr. Hobbs to shew any one instance where ever in the Christian world before all things ran riot here in England since 1642. the Temporal power took cognisance of Marriage 9. Matrimony is the act of two free persons viz. neither precontracted What Matrimony is nor married nor within the degrees prohibited by God Levit. 18. of different sexes capable of performing the end of marriage mutually taking one another for Husband and Wife I N. take thee D. to be my wedded Wife I D. take thee N. to be my wedded Husband But this must be done publiquely and Banns of both parts publiquely pronounced three Holidays or a Licence procured from the Ordinary for dispensation with all the rites and solemnities injoined by the Church or else the Church takes no cognisance of it 10. Where the Matrimony is subsequent to the allegation there the Whether Matrimony be dissolvible Vinculum is dissoluble As if one man marries another mans Wife or a Husband his Wife living marries another or if the parties contracting or marrying be within the degrees forbidden by God or if either party were Lev 18. precontracted or frigid these necessarily preceding the Matrimony do dissolve the bond But where the matter or allegation is subsequent to the Matrimony there the bond of Matrimony cannot be dissolved but only a Divorce upon just cause is grantable to separate the Complainant à mensa à thoro The reason why in this latter case the Matrimony cannot be dissolved is because Marriage being an institution of God it is in the cause superior to any Humane law or act and so by consequence cannot by them be dissolved And indeed in proper speaking where the Matrimony is subsequent it is rather not done then dissolvible the persons marrying being personae incapaces for such an action 11. The Holy Ghost Ephes 5. 25 c. shews the duty of Husbands The duty of Fathers and Husbands And Cato though no lover of women did think it sacrilege in the Husband to strike his wife Plut. vita Caton cens No question the right and careful education of Children is the onely means by which Parents may hope to have any comfort of them here or hereafter for Train a child in the way when he is young and he will not depart from it when he is old says the Preacher Nor can Parents expect to have their Children virtuous if they be vitious themselves for with what face can any Father condemn his Child for any thing which he allows in himself Besides there is nothing ill which naturally Youth doth not more suddenly apprehend then Men therefore Maxima debetur puero reverentia si quid Juveval Turpe paras And ill habits are soon gotten by Children if they be not carefully observed and restrained and hardly if possibly left when they are Men. CHAP. VIII Of Domestical power 1. THere are three sorts of Families either by Affinity or Alliance How many sorts of Families there be or by Consanguinity or a Legal or Houshold-Family Of such a Family and of its Cause and Jurisdiction we shall in this ensuing Chapter treat 2. A Family is not the cohabitation of divers persons in one house A legal family is not the cohabitation of divers persons in the same house for then Inmates and Travellers c. were subject to the power of the Master and Host Besides subjection cannot be where it depends upon the will of the Subject when he will he may choose whether he will obey But it is evident that Inmates and Travellers may when they will cease their subjection by leaving of the house 3. A Family is contained in the mutual offices of commanding and What a legal family is obeying of several persons under one head in the same house And the same head may be of divers Families as when a Master keeps servants in two or more different houses 4. A Family may consist of Paterfamilias who is Father and Husband Of what persons a family in the largest sense is compounded and the head or commanding part of the family of Wife Children and Servants who are the obeying part of the family or of the Mistress of the family who commands and of Children and Servants who obey 5. But because a Family may consist where as parts of the Family In the more proper sense there is neither Father nor Mother Husband nor Wife nor Children A Family is properly where several Servants obey the same Master or Mistress in the same house 6. Servants are twofold either voluntarily serving with their consent Of Servants first given such as are those servants who for such wages serve their Masters for such a terme or where they serve whether they give consent or not as where men are slaves or apprentices The power which the head of the family has over his Servants is called potestas herilis or despotica the Masters or Mistresses power We speak first of Masters power over Servants serving for wages 7. It is impossible that any
man can oblige or subject himself to any The Masters power does not arise from the Servants subjecting himself man or creature by any Act of his will for no Act of any mans will can have any power of himself Omnis potentia activa est principium transmutandi aliud every active power is the cause of alteration in another body the Act therefore of a mans will can make no obligation in his body who does will it Besides it is against all rules of relation that to bind and to be bound can be in the same thing therefore it is much more absurd to suppose the whole man should be obliged by a part of himself that is by his will Add hereunto that if a man be obliged to his will then is the most wilful man the most just man and every man is obliged to do any thing because he hath willed it then which there is nothing can be more immoral and destructive to all society with mankind 8. If the Masters power did arise from the Servants subjecting himself to him which is an Act of the Servants will then an Act of the Servants Nor from the Masters accepting his Servants submission Annot. will may have a power and obligation upon his Master which is absurd for this makes the Master to obey his Servant Yet in usual speaking voluntas is confounded with conatus as wee say that God did accept Abrahams will for the deed in that he was willing to have offered up his son Isaac whereas in proper speaking God did will or command Abraham to offer up his son and Abraham did obey that is receive or accept Gods will and did endeavor not will for it had been unnatural and murder in Abraham to have willed without cause the death of Isaac to have done it when God restrained him and so God was pleased to accept of Abrahams endeavor to have pleased him And so when any servant does endeavor to do his Masters will though he be not able to perform it yet ought the Master to accept it because he does what he can not to do any act of his own will but to perform an act of his Masters 9. But suppose the Declaration of the Servants will does evade into The Masters power does not arise from the Servants promise his promise given to his Master yet cannot the Masters power arise from thence because men are obliged to the performance of their promises by the Law of nature only and that Law does oblige only in Conscience but the Masters power obliges to corporal punishment I say therefore that no Masters power arising from any Act of the Servants will or promise nor from the Masters acceptance no Regal power can arise from the Princes acceptance of their Subjects submission for a great family is a kingdom and a little kingdom is a family saies Tho. Hobbes cap. 8. art 1. de Cive 10. If the Masters Power did arise from the Law of Nature then were The Masters power does not arise from the Law of Nature the power of a Master over his servant eternal and incommunicable but the contrary of this is evident in all places of the world for there is no place where the Power of Masters is not only dissolvible by the Laws and consents of the Master and Servant but where it is not slavery there the Masters power is terminated to years moneths weeks daies or houres c. which expiring the relations of Master and Servant are dissolved the Masters power therefore is not from the Law of Nature 11. If the Masters power did arise from Divine positive institution Nor by Divine positive institution then where Gods revelation of himself in the Scriptures is not received and believed have Masters no power over their Servants But this is evidently false for not only before Gods revelation of himself in the Scriptures had Masters every where power or dominion over their Servants but also every where in the world Masters have power over their Servants as well where the Scriptures are not received as where they are The Masters power therefore does not arise from Divine positive institution 12. Nascitur servus says Aristotle most truly There was no man that From whence the Masters power does arise was ever born in the world unless a posthumous King but was born in a threefold subjection first to the Laws of God secondly to the Laws of his Parents and thirdly to the Laws of his Country And the Laws of every Country obliging men to the performance of their pacts and contracts the Law of the place is the efficient cause by the Contract of the Master and Servant being the instrumental causes of the Masters power and not only gives the Master a power over his Servant but also obliges the Master to perform all his promises specified in the Contract to his Servant It is evident therefore that where there is no precedent Humane Law Annot. obliging there cannot be any Family for the Law by the Masters Contract with his Servant gives him the power over his Servant All Grotius his Government then founded upon the Contracts of Men is utterly false and by consequence no one true Proposition can follow from thence Yet truly it is an error pardonable in him who with his first milk sucked in this Popular principle No question but he was a man as eminent in Humane learning as any man of this last Age and I doubt not but of a sincere and peaceable disposition It is the excellency of Truth that it is plain and easie to be perceived whereas Falshood with all art and learning is rendred more obscure by how much more is added to it And it is strange for a stander by to see what monstrous absurdities Grotius runs into to uphold his fabrick For he makes God at the Creation and Flood lib. 2. cap. 2. par 2. to give Mankind a natural right viz. all men alike over all things and this natural right to be immutable by God himself and yet without giving lib. 1. par 10. any reason for it he makes it mutable by the will of man and Dominion which he there says was brought in by the will of man he says is Jus naturale too So Jus naturale does signifie that which God gave to mankind and Jus naturale does signifie that which mans will brought in contrary to what God gave to mankind then which what can be more absurd But Mr. Hobbs cap. 2. art 9. makes a Contract the act of two or more Annot. 2. mutually transferring their rights and a Pact to be when one or both is trusted and he who is trusted does promise that he will perform and supposeth the Civitas institutive to take its first being from the Pacts of men Which will not help him for such Pacts as well as Contracts receive their obligation from precedent humane laws And therefore all his book de Cive which is
derived from this begging the question is false Indeed Mr. Hobbs is no question a man of most exquisite parts and learning and possibly might have a peaceable intention in making the Civitas the Judge of all matters of faith as well as manners But sure many things in his generation of it can never consist as his making Jus and Lex contrary one to another his making the Legislator to depend upon the Citizen for without his consent and proper pact either express or understood the Legislative right can be conferred upon none And yet he says Wherefore doest Cap. 12. art 3. thou call him Tyrant whom God hath made King His making the Civitas to receive all power from the pacts and wills of men and making the Civitas Head of the Church and Judge of Faith makes the power of the Church and all Faith to be a thing invented and to receive their beginnings from the wills and pacts of men then which what can be more destructive to Faith and Religion But for our Author Tho. White Gent. he is not worthy the name of a learned rational nor honest man 13. Slaves are born or made so Slaves born are the children of such Slaves as were so Slaves made so happen two ways For being condemned for some crime committed against some humane Law and therefore by the Condemned persons Law condemned to it Where the Law condemns it is the will of the Supreme power which condemns and therefore not the will of the Slave that makes it so I deny therefore that where the Law does not make Slavery any man can make himself a slave to another nor can any man use another as a Slave where he is not made so by Law Or else Slaves are Prisoners taken in War There is no man will affirm Prisoners by War the taking of another man prisoner gives the taker a power over the others life for then all men falling into the hands of Thieves and Pirates the Thieves and Pirates have a power over their lives and so commit no murder in putting them to death But Slaves from being made Prisoners is when there is competition between two Supreme powers and they give their Subjects power over all their Enemies which they shall take Prisoners It is not therefore the taking of another Prisoner which gives a man power over anothers life but a precedent humane Law which gives this power over those Enemies which any Subject shall take Prisoner and sure no man was ever taken Prisoner by an act of his will It is false therefore that Bodin says That a man may make himself a Slave of his own accord lib. 1. c. 5. p. 31. de repub a man may as well offer violence or kill himself and that a man bought for a price of Thieves and Pirates is a Slave to the Buyer for he is not made so by any humane law Nor can any act of force ever give another any power nor can any continuance of time make any thing good which originally was not so and therefore if all commands were originally from force as he affirms then are no commands now any better and so no difference Pag. 46. de rep between the commands of Thieves and Pirates and of Fathers and Kings Although a man lawfully taken prisoner by another be in his power Slavery moderated so as it is in the Takers power to have taken away his life and so an act of grace in granting it yet the Law which originally gave this power may moderate it as here in England the Law hath restrained the Lord from killing or maiming his Vilain Slaves have nothing proper against their Master 14. Apprentices are when the Father or Mother do oblige a Child Apprentices for such a term to serve such a Master and this act is binding because by the Law of Nature the Father hath an absolute power over his Children But because of the impotencie of Children who cannot by reason of their youth and want of art and experience do any thing which may at first compensate their diet and clothes if the poverty or negligence of parents be such that they cannot or will not procure a Master for their Children and where Children are Orphans they may be bound and compelled to serve Apprentiships in such manner as is prescribed by the publique humane Laws of the place 15. Neither naturalis nor delegata potestas can be communicated nor What power is alienable aliened But acquisita potestas as the power of Masters over their servants and slaves may be sold aliened or otherwise given away And therefore Guardian in Chivalry may give or sell to another the Guardianship of his Ward but Guardian in Socage cannot for his is delegata potestas 16. The Master of every family deriving his power from the humane The Masters power restrained to humane laws Caveat laws of every place his power is restrained to the laws of that place therefore ought he not to command his servant any thing which is against the laws of the place When I say by humane laws such a thing is to be done or not done I always except those laws which God did give to the Israelites and peculiar only to them when he pleased immediately to reign over them which laws did supply those humane laws by which his Vicegerents do procure peace among us CHAP. IX Of Ecclesiastical power THat there is a GOD who is the Author of all good past present By the light of nature God is to be worshiped and to come and that He is to be worshiped and adored not only for the present past and future blessings in this world but also in hope of eternal happiness in the world to come is so naturally ingraffed into the minds of all men that not scarce one man compos mentis in an That there is a God and this God to be worshiped and served is innate in the minds of all men Plato Euthyphro requires as the first axiom of all virtue age did ever deny it It is no wonder therefore if men attaining to such a height of impiety as to sell their inheritance in Heaven unjustly to purchase possessions upon Earth do always make the specious pretences of Religion and Reformation as the easiest way to work upon the giddy and inconstant multitude carried hither and thither with every wind of doctrine the Exordium of all their Enterprises for Quoties vis fallere plebem Finge Deum 2. But how they should worship him aright from the imperfect use of The difficulty of pleasing God from the light of nature their reason prejudiced by their appetitions and affections is not to be imagined For to worship and serve God not according to the will and pleasure of God is superstition and not to worship God is atheism It is therefore an impossible thing without the special assistance of Gods grace that men should not fall either into superstition
or at least ought to be a Presbyter but every Presbyter is not a Bishop For St. Paul saies Against an Elder or Presbyter receive not an accusation but before two or three witnesses 1 Tim. 5. 19. But equals cannot judge equals therefore Timothy as a Presbyter could not judge a Presbyter therefore he should judge him as being Bishop and so by consequence Presbyters are subject to the judgment of Bishops that is in Episcopal jurisdiction Besides Bishops have power of ordination of Presbyters in every City 1 Tit. 5. 1 Tim. 5. 22. but it is no where found that ever Presbyters did ordain Bishops It is not therefore Ecclesiastical practice only that is the universal practice of all Christians in all ages untill John Calvin but the institution of our Saviour by which Bishops do excell and govern Presbyters It was after the destruction of Jerusalem that Episcopi Presbyteri caepere appellari Pontifices sacerdotes as the most learned Estius observes and that the name of Priest is not a Jewish Distin 24. l. 4. pag. 35 36. word is evident for Melchisedech was not a Jew and yet a Priest and our Saviour a Priest for ever after the order of Melchisedech 11. What St. Paul in the end of his Epistle to Timothy calls Bishop of An Apostle and Bishop the same the Ephesians St. John Revel 2. 1. calls Angel of the Church of the Ephesians So St. Paul and St. John understand the same thing by Angel and Bishop but Angelus and Apostolus are the same and therefore Episcopus and Apostolus are the same But what need that be proved by deduction which the Apostle Gal. 1. 19. expresseth For James was none of the twelve yet being Bishop of Jerusalem St. Paul testifies him to be an Apostle Besides it is evident Episcopatus is the office as well of an Apostle as a Bishop Act. 1. 20. There is therefore no difference between an Apostle and a Bishop only Apostles constituted by our Saviour had their function universal whereas the Bishops or Apostles ordained by the Apostles had but a Topical function that is the exercise of their power was restrained to their City or Diocess And all Ecclesiastical writers do affirm that St. James did preside in the Council of Jerusalem although St. Peter with other of the Apostles were Members of it 12. Our Saviour having promised the ghostly power of Confirmaion Ordination The Power of Bishops which Priests have not c. to be with his Church to the end of the world and the power of Ordination Confirmation and Excommunication being bequeathed only to the Apostles the power of Ordination Confirmation and Excommunication descend only to the Apostles successors viz. Bishops rightly ordained 13. Not the voice and letter but the genuine and true sense of the Of the interpretation of Scriptures Word of God is the Canon of Christian Doctrine for the minde cannot be governed by Scriptures unless understood It is necessary therefore that Scriptures be interpreted before they be made a rule It will therefore follow that either God hath left a Power which may interpret Scripture or else that God hath revealed himself to Men without sense or meaning but the latter of these is most false and blasphemous therefore it is true that God hath left a power upon earth which may interpret the Scriptures 14. If the Scriptures were as Arts and Sciences which are derived from The Scriptures cannot be interpreted by themselves that is one place by another higher Principles or Axiomes which though they cannot be proved but are as Aristotle calls them indemonstrable propositions yet are so clear and manifest that no exception can be taken to them then indeed the Scriptures as well as Arts and Sciences might be proved one place by another untill they were resolved to their first Principles which though granted cannot be proved But it is far otherwise with the Scriptures for there is no Scripture which is not of like Authority with any other every Scripture being the Word of God one place of Scripture therefore cannot be interpreted by the consequents which may follow from another any more then the consequents which follow from Quae eidem sunt aequalia inter se sunt aequalia may be interpreted by Omne totum est majus sua parte 15. There is no prophesie of the Scripture of any private interpretation Not all they who do translate the Scriptures are the intepreters of them 2. Pet. 1. 20. It is not therefore every one who can translate the Scripture out of one language into another with his own private conceptions upon them which renders them to be interpreted by him What then hath God revealed himself to mankind in general without sense or meaning No it does not follow for as in temporal Laws no man can interpret them but he that made them either by himself or them whom he shall constitute yet every man may by his reason and discourse direct his own actions in conformity to those Laws but if he shall do any act upon misconstruction or interpretation of his own his mistaking the meaning of the Law shall not excuse him So private men may endeavor to direct their actions accordingly as they suppose God hath directed them in the Scriptures yet if upon their own heads they undertake to interpret the Scriptures although in order only to their own actions their misunderstanding the Scriptures shall never excuse any unjust act 16. Every Law of God is the Word of God but every Word of God is not the Law of God as Jacob went into Egypt is the Word but not the To whom the Authority of the interpretation of Scripture doth belong the Law of God The Scriptures contain Political Historical Moral and Natural things which are not rules of the mystery of Christian Faith and Religion Those things which concern Morality and Temporal power and Government our Saviour made no alteration in them for he saies St. Matth. 5. 17. Think not that I am come to destroy the Law or the Prophets I am not come to destroy but to fulfil And therefore quid est homicidium quid furtum quid sit meum vel tuum c. belongs to the Temporal power as much since our Saviour as before and truly I do not think I should do the Church of England any wrong if I should with Lindwood affirm that not only the Probate of Wills but also the cognisance of Tithes was in the Church ex consuetudine Angliae but those things which relate to mysteries of Christian faith as our Saviors being the Son of God took humane nature upon him and was born of a Virgin preached repentance died upon the cross for the sinnes of the world rose again the third day c. God to make his power known by the preaching of a few mean men and Fishermen and from the mouths of babes and sucklings all Temporal power not only not permitting but
have reference to Subjects who are born Diversity in Hereditary Monarchies for in Aristocracies and Democracies there neither is or ever was any original right or power in them but their Conventions do necessarily depend upon an antecedent act of them or the major part of them to meet at a certain time and place Where therefore such Assemblies are dissolved sine die they are totally dissolved however this dissolution happens nor does any man owe them obedience any longer but his or their title who next possesseth is good enough against them and all others who cannot make a superior or more just claim Nor can this have any reference to men born in Elective Monarchies for the Election depending upon the wills of men viz. the Electors who originally had no right of Election any Possession brought in against such Election by the will of man is title equivalent to it nor do Subjects in conscience owe obedience but to him who is possest or can make a superior claim by a true descent from him against whom no just title can be taken 10. Bodin in his Republique makes a Quaere Whether it were better Wherein consists the liberty of the Subject for Subjects ro be governed by few Laws with a reservation in the breast of the Judge or some special Court to redress extraordinary abuses which cannot be comprehended in the Laws or so to multiply Laws that no man should be punished where he could evade the Laws And determines for the former and the reason he gives is That Laws be they never so many are finite but mens actions are infinite and therefore though never so many Laws be made yet may men find evasions out of them to abuse and wrong other men whereby this multiplicity of Laws will rather ensnare other men than avoid the end for which they were intended It is a folly much incident to Englishmen that they place not only Freedom in serving many Masters but Liberty in many Laws Let any man take a survey of the statute-Statute-Laws and Ordinances made since Henry the Eighth his dissolution of Monasteries to this year 1660. and see if they be not four times more than all the Acts made before only to the liberty of the Lawyers Fees for the ensnaring of the Subjects it being no doubt the greatest liberty of the Subject to be governed by few Laws and these the same in all places if it were possible 11. The power of Parents being from the law of nature Childrens Of subjection of children to parents subjection to them is due from the law of nature Solon having written the Athenian laws being asked why he did decree no punishment upon him who should kill his Parent answered There was no man so detestable as to think to do such an act He therefore did wisely not to make any law against that which was never heard of lest by doing so he should not so much forbid as admonish Children to it And what a curse did Canaan contract upon himself for but discovering his Fathers nakedness Gen. 9. 25. And no question Gods blessings and cursings are never more efficaciously pronounced than out of the mouths of Parents And To honor thy father and mother is the first Precept to which there is a promise of reward annexed viz. That thy days may be long in the land c. 12. Although the power of Masters over their Servants be created by Of servants to their masters positive humane laws and therefore subjection of Servants to their Masters is caused by humane laws Yet does not this exclude the obedience and subjection which is due from Servants to their Masters by the law of nature and Divine positive laws but Divine laws do include the subjection due from Servants to their Masters in thesi or general and the laws of every Country ex hypothesi or particular As Thou shalt not steal is from the law of Nature but that the doing of such a thing is Theft depends upon the particular laws or usages of every Nation And no question but Servants generally when the Apostles wrote were no other than Slaves over whom their Masters had not only absolute dominion of whatsoever was theirs but also power of life and death and that by no consent or submission of theirs And if such Servants ought to count their Masters worthy of all honor how 1 Tim. 6. 1. much more ought Servants to thank God and willingly to serve and honor such Masters who not only command over them not against their consents but also command such things as they may easily perform 13. Although this subjection be last in expression yet it is first in Of subjection to Ecclesiastical powers intention For if this subjection or obedience had not been due before any obedience to Temporal commands how could the Primitive Christians have met in dens and caves in daily Prayers and Breaking of bread whenas Temporal powers did not only not permit but forbid it Nor did God ever shew such terrible vengeance upon any disobedience and presumption as he did upon Corah Dathan and Abiram Num. 16. and their Competitors although their pretences were very fair forsooth That all the multitude were holy every one among them and the Lord was among them and Moses and Aaron did lift up themselves against the congregation of the Lord They though none of the tribe of Levi nor separated persons could offer sacrifice and burn incense to the Lord as well as Aaron or any Priest And no doubt but spiritual crimes are in their kind much worse and displeasing to God than carnal whatsoever offenders do pretend And let us see what manner of men these pretended Reformers are which teach otherwise and consent not to the wholsom words even to the words of our Lord Jesus Christ and to the doctrine which is according to godliness They are proud knowing nothing but doting about questions and strife of words 1 Tim. 6. 3 4 5. from whence cometh envy strife railings evil surmisings perverse disputings of men of corrupt minds and destitute of the truth supposing that gain is godliness from such withdraw thy self O my soul enter not into their secrets 14. In all Humane Society or Society which is created by the law of Diversity Nature viz. of Supreme Powers and Subjects of Husband and Wife of Parents and Children the relations are indissolvible only by God in those individual persons in whom the offices are nor can they be aliened transferred either by any act of themselves or any power else All Society created by Humane laws or Legal Society is alienable not only by the act of God and by the Laws which created it for Unumquodque dissolvi potest eo ligamine quo ligatum est But also by the act of the Master and Servant for Omnis consensus tollit errorem Christian Society does differ from either Humane or Legal for though the cause of Christian power be by Divine positive
those that are Deciners elswhere to enquire of the offences personal and of all the circumstances of offences done in those Hundreds of the wrong done by the Kings or Queens ministers and of the wrong done to the King and the Commonalty But this ought not to be done by Bondmen or Women but by the Oath of Twelve Freemen The County-Court which the Sheriffs hold from moneth to moneth County-court sec 9. or from five weeks to five weeks according to the greatness or largeness of the County Of Court-Barons and Hundred Courts Court-Baron c. sec 10. The other mean Courts are the Courts of every Lord of the Fee c. Pipowders sec 11. Courts of Pipowders And that from day to day speedy Justice be done to Strangers in Fairs and Markets as of Pipowders according to the Law of Merchants Court of Admiralty The King hath soveraign jurisdiction upon Admiralty sec 12. the Sea Courts of the Forrest The Kings Ministers of his Forrests have Courts-Forest see 13. power by authority of their office to swear men without the Kings Writ for safeguard of the peace and the Kings right and the common good c. He treats of the Professors of the Law as Counters who are Serjeants and Pleaders Of Attornies Of Ministers of Justice as Viscounts Coroners Escheators Bailiffs of Hundreds c. And also by the antient Kings Coroners were ordained in every County and Sheriffs to keep the Peace when the Earls were absent from their charges and Bailiff in lieu of the Hundredors c. Of the Prerogatives of the King as of Deodands Alienation to Aliens Teeasure found Wreck Waif Estray Chattels of Felons and Fugitives Honors Hundreds Soakes Gaoles Forrests chief Cities chief Ports of the Sea great Manors These held the first Kings as their right and of the residue of the Land did enfeoff the Earls Barons Knights Serjeants and others to hold of the King by Services provided and ordained for defence of the Realm It was ordained that the Knights Fee should come to the eldest by succession of heritage and that Socage Fee should be partable between the Male-children and that the Liege-Lords should have the Marriage He treateth in the first Chapter of Crimes and their divisions of the crime of Majesty of Fausonnery of Treason of Burning of Homicide of Felony of Burglary of Rape c. In the second of Actions of Judges of Actors c. In the third of Exceptions dilatory and peremptory that is Pleas to the Writ and in Bar c. of Trial by Juries and by Battel of Attaints of Challenges of Fines c. In the fourth of Judgments and therein of Jurisdiction of Process in criminal causes and in Actions real personal and mixt So as in this Mirror you may perfectly and truly discern the whole Body of the Common Laws of England Thus far Sir Edward Coke Mr. Lambert in his unfolding the difficult things and words in his translation of the Saxon Laws says King Alured when he had made a League with Guthrun the Dane having followed the most prudent counsel given by Jethro to Moses first divided England in Satrapias Centurias Decurias He called Satrapiam 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which signifies to divide He called Centuriam 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and Decuriam 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is a company of Ten men and by those names they are called to this day And that no man might be ignorant the Decuria did consist of Ten men whereof all of them were pledges that every one should be forth-coming to any Action in Law and if any one did any damage the other were bound to make it good and from hence the other nine were called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is Free-pledges we in the Pleas of Courts call them Francos plegios The tenth man 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 called the Decurio or Tithingman by which name he is most known to the Eastern English at this day Others call him 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 others call him 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is the first or chief Surety or Pledge The Kentish men call him Borsholder corruptly for 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is the first Surety Centuria or a Hundred was made up of ten Decuria's as one Hundred is made up of ten times ten This viz. Hundred the men beyond Trent called by another name not unknown to the common people 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Wapentac Alured then further ordained That every man of free condition should be enrolled in some Hundred and be conjoined into some Ten-men company That of lesser businesses the Decurions or Court-Leet might judge and if any weightier matter were it should be deferred to the Hundred or County-Court Lastly that the Alderman and Sheriff I take it he calls them Senator Praepositus should compound the most difficult Suits and of greatest moment in that frequent Convention from all parts of the Shire or County And what the manner of judging was King Etheldred in the fourth Chapter of his Laws which he enacted in a full Senate or Parliament at Vanatnigum 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Woodstock expounds almost in these very words In all and every Hundred let there be Assemblies and that Twelve elderly men of free condition together with the Sheriff Praeposito be sworne that they will not condemn the Innocent or absolve the Guilty So that Mr. Lambert seems to be of opinion that the Common-Law had its origination from King Alured or Alfred who was King of all England and a most victorious pious prudent and glorious Monarch about the year of our Lord 890. And from a most deplorable condition by reason of the Danish invasion and robbery reduced it to a most quiet calm and laid that foundation upon which the body of the Common-Law is since builded But whosoever was the first Founder and Establisher of them certain it is they were antient and Laws which better suit to the nature and disposition of English-men then any other that are or ever were in the world would do 2. As those general Usages or Customs which are generally observed Particular Usages are called the common-Common-Law so there are almost infinite particular Usages Prescriptions and Customs in several parts of this Nation which are observed as Laws by the Inhabitants of those places and to all intents and purposes have the effect of Laws 3. statute-Statute-Laws are Acts of Parliament which are neither general Statute-Law nor particular Customs but are Laws made by the Kings of this Land in Parliament upon sundry and diverse occasions according to the then occasions as they represented themselves For although all innovations are dangerous and therefore if it were possible no doubt it were best that humane Laws as the Laws of Nature might be immutable and eternal but as God hath created all things transitory and nothing in this world the same the next
all Humane Laws and their rightful Superiors There neither is nor ever was any Government in the World good or bad just or unjust that did ever permit subjects without authority from it to take up arms And by our Countrey-Laws If any man levy war to expulse strangers to deliver men out of prison or against any Statute or any other end pretending Reformation of their own head this is a levying war Nota. against the King because they take upon them the Royal Authority which is against the King Inst 3. p. 9. 10. All Stipulations Oaths Promises c. made by Subjects against All Oaths Promises c. made against Prince or Laws are void Husbands by right may command their Wives their Prince or Laws are void and not to be performed for they were Subjects and obliged to their Prince and Laws before they made such Oath Stipulation Promise c. 11. God is not onely the Author of Government and Obedience of Order and Society in Nations and Kingdoms but also in Man and Wife for being reasonable and sociable Creatures does imply a necessity of mutual commanding and obeying God first created man and by so creating him gave him the power and dominion over the woman It is therefore an act 1 Tim. 2. 13. Justice and injustice in a Wife of Justice in every Wife uprightly to fulfil the Law or Command of her Husband to the benefit of him or another he commanding nothing derogatory to the Laws of God or his Countrey and a sin of injustice in the Wife to falsifie or abuse any Law or Command of her Husband to the hurt or prejudice of her Husband or another 12. God is not less the Author of Power or Right of Command in Of Justice and injustice in Wives and Children Parents then in Husbands As therefore it is an act of Justice for Wives and Children uprightly to do any act which is commanded them by their Husbands and Parents they not commanding contrary to the Laws of God or their Countrey so it is injustice in Children as well as Wives to falsifie any Command or Law of their Parents to the hurt or prejudice of another 13. Suppose the Father and the Husband command the Wife contrary Whether the Wife ought to obey the Father or Husband things whereby it becomes impossible that the Wife should serve both Which ought she to serve I say the Husband For though the Fathers power be from God and so inseparable by any act of Man yet is not God obliged to his own Laws but may give that which he gave the Father to another And Matrimony being an Institution of God in Paradice and the Husbands power from the Law of Nature that is from God the Wife becomes subject to her Husband retaining notwithstanding her piety and observance which is always due to her Father 14. All Societies that is all companies of Men whether of Master Masters of Families by right command their Servants Cicero lib. 1. de leg and Servants of Father and Children of Husband and Wife of King and Subjects are contained in the mutual Offices of commanding and obeying It is true that Cicero says Cum dico legem à me dici nihil aliud intelligi volo quam imperium sine quo nec domus ulla nec civitas nec gens nec hominum universum genus stare nec rerum natura omnis nec ipse mundus potest Where therefore the Laws of Nature are not sufficient there must be a supply of Humane Laws Object We have shewed before that the Power or Right of Command which Kings have over their Subjects which Husbands have over their Wives which Parents have over their Children is from the Law of Nature that is from God immediately I say they command by the Law of Nature For all right of command which is not from any Humane Law is from the Law of Nature but Kings Parents and Husbands have a right of command and not from any Humane Law they have it therefore from the Law of Nature Sol. But though Masters of Families have a right of command over their Servants yet formally they do not command by the same right that Kings Fathers and Husbands do For I deny that ever any Master of a Family had his power from any Law of God I except the Israelites or Nature but that ever since there were Families the Masters or Mistresses of the Families derived and had their power or right of command over their Servants from their Countries Laws If Adams Family be objected I say that Adam commanded not as Master of a Family onely but as a Universal Monarch not onely over all the Creatures irrational that God had made but also over his Wife and Posterity as King and not as Father and Husband onely For no Father or Master of a Family can create any property in his Son or Servant nor had ever any Subject who was not an Israelite property from any Law of God or Nature But it is evident that Cain had property in the Fruit of the Gen. 4. 3 4. Ground and Abel in his Flocks they therefore derived it from Adam as King 15. Since Humane Laws are necessary for the conservation of all Of Justice and injustice in Servants Societies of Men and the Masters power not being contrary to any Law of God or Nature the Master of every Family hath right of command over his Servants by the Laws of his Countrey he commanding nothing repugnant to the Laws of God or his Country It is therefore Justice in every Servant uprightly to execute such commands of their Masters and injustice to falsifie or abuse such commands to the hurt or prejudice of another 16. Suppose the Father makes his Son a Servant for every Father hath Whether the Son ought to prefer the commands of of his Father or Master the same right over his Childes person that a King hath over his Subjects and the Father and Master command the Son contrary things Which shall the Son serve I say the Fathers power being from the Law of Nature and so inseparable by any act of Man the Son ought to serve the Father but the Father being as much in the power of his Soveraign as the Son in his Fathers the Father shall make good to the Master whatsoever he shall be damnified by such command the Laws of the Fathers Countrey obliging Subjects to perform their Contracts 17. Suppose the Master command contrary to the Laws of God or his How far the Servant owes his Master subjection Country and the Servant executes such command shall this excuse the Servant No for being a Servant does not free him from the obligation of the Laws of God or his Country as a Subject Well but if the Master commands upon corporal punishment for the Masters power obligeth to corporal punishment to do something contrary to the Laws I answer That jus vitae necis which Masters had
over their Servants is generally restrained every where as well among Mahumetans as Jews and Christians where men are of the same faith So that Masters cannot put their Servants to death as Masters for any crime If they otherwise punish them unjustly the Servants have their remedies by the Laws of their Country Object 1 But who shall judge whether this be contrary to the Laws of God or his Country the Master or the Servant I say not the Servant Object 2 But if the Servant may not judge yet has he not a Conscience as well as his Master I answer That Ignorance and an ill-set Conscience excuseth no more from doing what he ought and Servants actions in general ought to be done about the Masters persons or affairs in which it is a very hard matter for the Master to command any thing contrary to the Law of God or his Country But if the Master does command his Servant to do any act in prejudice to another if it be not so much as the Master cannot make satisfaction as to kill or maim another the Laws do make a favorable construction of what is done by the Servant as Servant and punish the Master as commanding and not the Servant as doing in order to such commands In a Masters commands to a Servant is usually implied a Warranty which secures the Servant for doing what he commands him 18. It is Injustice in any man to tell another that he gave such a price Injustice in Commutation for such a commodity whenas he gave not so much thereby to deceive another who believes him and gives him thereafter to a greater value then the thing is worth I say this is a sin of injustice in the Seller for in Lying he did falsifie the Law of the God of Truth to the damage of the Buyer 19. In Justice commanded no man ought to do more or less but to the Of permissive Justice in a King utmost of his power ought to do what is commanded him in that formality as it is commanded In Justice permissive it is not always so but the utmost or rigid exacting of what is permitted is highest injury As a King is permitted to execute his Laws but the rigid executing of all Laws against all Offenders at all times without any consideration of inability or other circumstance of person time or place is highest injury to his Subjects For it is impossible though Laws should be general and not respect the persons but the good of the Subjects that all Laws can at all times be alike observed by all Subjects And therefore though it be permitted to a King to execute all his Laws or else he should have none to be executed yet in the execution of them he ought to weigh circumstances of person time and place whether it were the malice or defence of the person offending or whether he were able to fulfill such Law or not c. Or otherwise Summum jus est summa injuria 20. As a King so ought not a Subject rigidly to exact of another In a Subject whatsoever is by Law permitted him at all times As a Tenant by sterility of the year inundation of waters c. is so damnified that he is not able fully to satisfie his Landlord but to his utter ruine I say in such case the Landlord ought to remit of what by rigor of the laws he might justly take Or if in such case the Landlord shall rigidly exact his utmost due to his Tenants ruine when it is not the Tenants fault such exaction such summum jus est summa injuria A man is permitted to sue any man for triflings tres passes of pedibus ambulando c. yet if upon all occasions a man shall sue every man that steps out of the footpath such a man will be counted a wrangling knave and such suing summa injuria Yet is not the Law in fault but the men for if it were not permitted to men to exact their rents and sue for small trespasses then would no Tenant pay rent nor should any man be secure of enjoying what he is possest of 21. It is true that Aristotle says That he is a just man that keeps the laws Who is a just man Eth. lib. 5. cap. 2. 3. and that he is an unjust man who commits contrary to laws and that therefore one Justice contains all other virtues God having made Man as well a sociable as reasonable creature and a free Lord of all his actions whose will may freely imperate his actions not as it is with irrational creatures whose objects determine their actions as he pleaseth neither did ever yet in this world any man do any act virtuous or vitious but it was freely in his own choise whether he had done it or not And by making him sociable made him more excellent then the other creatures of this orb We do not therefore look for Justice in so large a sense as Aristotle here takes where every particular or personal virtue may be taken for Justice 22. We take that virtue to be Justice which conduceth to the preservation The excellency of Justice of Society for other personal virtees as Temperance Chastity Frugality c. although not as virtues yet may they be found in other creatures which is only proper to Man and wherein Man does excell all other creatures And no question but that the meanest Servant uprightly and conscientiously performing the trust and command which his Master commands him is as just and honest a man as the greatest man whatsoever 23. Nor is it less true that Aristotle says That he that commits any Who is an unjust man thing against the Laws is an unjust man and so the commission of any thing against the Laws is a sin of injustice and every sin a sin of injustice But by reason of humane frailty it is very difficult if not impossible for the most just man not to be an unjust man where injustice is taken in such a latitude And in this sense the most just and righteous Subject that ever was stands in need of Gods mercy and the Kings But the injustice we look for we take in a more restrained notion not every unlawful act done upon ignorance or passion c. but where men premeditately and wilfully make the laws of God or man a cloke and pandar to shelter and hide their unjust and illegal actions They that tread under foot all Sacred and Civil sanctions intended for the conservation of peace and society among men to set up themselves above all laws of God or man and to make way for their own lusts in stead of Divine and Humane laws They who the Prophet David says imagine mischief as by a law Such men such actions are Psal 94. 20. most properly unjust men and acts of injustice 24. Injustice differs from Injury only in agencie and patiencie in him How Injustice differs from Injury who does and in
where the person of the buyer is not to be considered whether greater or lesser richer or poorer but an equal value or price is and to be taken by the vendor for such a commodity be the buyer rich or poor Distributative Justice consists he says in Geometrical proportion and is Distributative referred to the dignities and merits of men so that here men ought to respect the person and the quality of him to whom any thing is attributed or given 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 more to him who is more worthy and less to him who is less worthy 37. It is true indeed That if in Promutation a man sets such a value Corrective Justice examined upon such a thing and does not respect the person or quality of any buyer that then such vendor does equally to all sellers and in exchanging observes Arithmetical proportion But if it be true as it is that he says That he is a Eth. l. 5. c. 2 3. just man that keeps the Laws and that there be no Law which sets a price upon what thing the seller exchanges or sells to another then it cannot be a sin of Injustice for any vendor not to observe this Arithmetical Rule which Aristotle propounds in Promutation 38. Nor is it less true That if a Prince in conferring honor or otherwise Distributative Justice examined rewarding a man for any merit or great service done to him or his Countrey gives more honor or reward to such a man then to another deserving less then such a Prince does a prudent action and observes Geometrical proportion in it but what is this to Justice For if there be no Law commanding such a thing then cannot the not doing of it be a sin of Injustice nor is it properly a sin of injustice not to reward or repay benefits but of ingratitude Grotius Lib. 1. Para. 8. disputes against the opinion of Aristotle That Grotius his opinion of Justice Justice is properly distinguished into Arithmetical and Geometrical proportion but Paragraph 9. where he should declare what Justice is he onely confounds Jus Lex Justitia and instead of setting down what Justice is which he neither does here nor any where else that I know of he forsooth divides Jus into Jus naturale voluntarium which may signifie either of them or both together hum drum Community and Property the Law of God immutable by God himself and yet mutable by the will of Man In the Dedication of this Jus Belli Pacis he makes Lewis the Thirteenth to be just because he does by imitating him honor the memory of his Father yet do I think there were scarce ever two men more unlike and just because he does by his example instruct his Brother and just because he gave his Sisters great Portions just because he inflicts no great punishment upon his rebellious Subjects sure never man took Mercy for Justice before and just because he allows his Subjects Liberty of Conscience CHAP. II. Of Obedience 1. OBedience is the accepting of the Law or Command of him who Obedience what by right commands when I by no act of my will put any obsticle whereby such Law or Command may be executed or received 2. Obedience differs from Justice as a part differs from the whole Obedience How Obedience differs from Justice is implyed in Justice Patience is onely necessary to Obedience but Agency to Justice Every just man must be an obedient man but the converse do not always hold That every obedient man is a just man As a Prince commands such a man to be a Justice of Peace c. in such a Town or Division he is received by them of the Town or Division This is an act of Obedience in them of such a Town or Division not of Justice because they are Patients onely and not Agents 3. Disobedience is the refusing to accept the Law or Command of How Disobedience differs from Injustice him who by right commands Injustice is the counterfeiting Obedience to Laws and yet abusing them to the prejudice of another As he who by right commands me to do such a thing if I refuse to do it This is a Sin of Disobedience If I undertake to do it and instead of upright doing of it I abuse it to the prejudice of any man this is a Sin of Injustice 4. Obedience is not only a virtue in it self but also the first and only The Excellency of Obedience Introduction to all virtues Theological and Moral For not only in Moral virtues I must subject my will to the rule and precept of him who by right commands but also in Theological virtues my will must be the patient and admit of Gods grace as the prime and efficient cause before it be possible that I should be qualified to do any virtuous action either Theologicall or Moral and God being all good and a lover of Man and hating nothing Philanthropos that he hath made freely offers this his grace to all men and it is mans fault and stubbornness that he refuses to admit of this grace of God without which nothing can be good nothing can be just or virtuous without which no man can reasonably hope for any Temporal happiness in this world or eternal Beatitude in the world to come 5. It is not alwaies the doing or abstaining from what is commanded Gods Grace only is the true and efficient cause of virtue in men or forbidden which is virtue but only the ingenuous and upright doing or abstaining from that which is commanded or forbidden as it is commanded or forbidden by him who by right may command or forbid I say that Ingenuity integrity and abstraction from all affections of profit pleasure love hate feare c. are essential to all virtues for if the doing or forbearing any action proceeds from any of these causes then is not that action virtuous but profitable pleasant lovely hateful fearful c. Jehu did what God commanded him in executing Gods judgements upon Ahabs posterity but not doing uprightly what God commanded him in that formality as God commanded him but if ye be mine and will hearken to my voice take ye the heads of your Masters Sons and come to me to Jezreel to morrow 2 Kings 10. 6. by this time and then instead of pittying so great a calamity upon so many young Princes insulting over them he in derision saies to the people Ye be righteous behold I conspired against my Master and slew him but who slew all Vers 9. these hence it was that God said I will avenge the blood of Jezreel upon the Hosea 1. 4. house of Jehu say Interpreters But it was a virtue in David to forbear the killing of Saul whenas he could have done it and was promised by God to be King after him and in Jehodajah to preserve Joash although by danger of his life It was not virtue in Amnon to abstain
from the company of Tamar whenas he hated her because he had abused her but it was in Joseph that he refused to accompany his Mistress whenas he might have securely enjoyed her Nor is it any virtue for any man to do or forbear any thing for feare of punishment for so horses dogs and other irrational creatures will do or not do many things for feare of stripes which are commanded or forbidden by their Masters Nor is it any virtue in a Judg to pronounce true judgment if he be hired thereunto by any reward or bribe Where therefore neither worldly pleasure profit love feare hate nor any sublunary thing but it may be loss to all these do not move a man to the doing or not doing of what in conscience he ought to do or forbear there nothing less then Gods grace and power in such a man can be the true and efficient cause of such an action 6. It is a most admirable thing to consider how notwithstanding all Why only Man can do virtuous Actions the various natures dispositions and events of things this one Providence foresees and provides for all created things in the whole universe until she brings them all to their designed end Nor does this providence foresee and provide for all things from an eternal and fatal decree impelling all actions of all creatures For then there could be no such thing as good or bad men but God were the efficient cause of vice as well as virtue in men but by a mean foresight or knowledg does often determin necessary effects from contingent causes Which does not only plainly appear from very many places of Scripture as that the men of Keilah would have delivered David if he 1 Sam. 23. 12. had not escaped thence that God would have destroyed Niniveh within forty daies if the men had not repented that God would have gathered the children of Jerusalem together as a Hen gathereth her Chickens but Matth. 23. 27. they would not that if the mighty works had been done in Tire and Sidon which were done in Chorazin they had repented in dust and ashes c. Matth. 11. 21. but also all Gods promises and cursings upon men do depend upon their obedience or disobedience to what he commands And however this rigid opinion of Fate and the eternal determination of all things be asserted by the Stoicks yet do not I think that the most wicked man that ever was did ever attribute any wicked action to any such cause but pretended conscience pleasure profit or his own will never Gods It is true indeed that God hath made man in flesh and blood and so prone to desire many things which he ought not But though diverse men do naturally affect and desire things they ought not yet God hath so made every man a free Lord of all his actions that there is no man but may chuse whether he will do or not any thing to the attaining of his appetitions and affections And mans excellency above other creatures consists in this that his actions are not determined by his objects as other creatures are but he may freely do this action as it is moved in him from the appetition of pleasure profit pride c. or abstain from it as he apprehends it forbidden by him who may forbid And so may any man freely do or endeavor to do any thing which he ought to do though to his temporal disadvantage but this having no Temporal motive must proceed from Gods grace which no creature upon earth can do but only man only man therefore can do virtuous actions CHAP. III. Of Judgment 1. JUdgment is the definitive of him who by right commands permits What is Judgment or forbids a thing either by himself or instrument whether any thing be done conformable to a Law commanding permitting or forbidding it 2. Herein judgment differs from a Law A Law is the declared will of How it differs from a Law him who by right commands permits or forbids a thing together with a penalty annext for not observance after some reasonable time fixt whereby the obliged may take notice of such declaration Judgment is the sencence of him who so commands forbids or permits whether such an act were an omission or transgression of any Law so declared 3. Justice is the upright doing of any just or legal action conformable to the Law of him who by right commands Judgment is the discerning of How Judgment differs from Justice a good or bad action 4. All judgment must necessarily be the act of three persons at least What persons are necessary in Judgment viz. the Judge the accuser and the party accused or as we say the Judge the Plaintiff and Defendant 5. The end or ratio finalis of Judgment is either to determine differences The end of Judgment or punish offenders CHAP. IV. Of Equity 1. EQuity is twofold either a remission or moderation of the Laws How manifold is Equity when the execution of Laws will rather kill then cure a distemper in the Subject as when many Subjects either upon passion or being seduced have so far transgressed Laws that they have forfeited by Law their lives and estates yet in such case are not supream powers rigidly to exact all which the Law gives them but it is equity so to punish the principal Authors and other Subjects that others may be deterred from the like and the generality offending preserved So where the Law commands upon penalty and it becomes impossible for the Subject to perform as it ever was and will be there it is equity to remit the penalty Where therefore the Law obliges a Tenant to pay his Landlord such a Rent yet if by inundation of waters sterility of the season c. it comes to pass that the Tenant by no fault of his either cannot or it will be the ruine of himself and family to pay it there it is equity in the Landlord to remit or moderate what by Law he might justly exact Or secondly a supplement of the Law in cases wherein things in conscience ought to be done yet for want of some formalities or niceties they cannot in strictness of Law be exacted 2. Equity is when with a sincere intention men although it be to How Equity differs from Judgment their prejudice endeavor to please God Judgment a giving sentence according to Laws 3. In Courts of Judicature the Judges proceed according to the declared The necessity of Courts of Equity Laws and ought not in judgment to vary or swerve from them but proceed as they are impowred by Law and their Commission and Laws are made usually ad terrorem rather to affright men then to punish all offenders which Laws were they not moderated it were impossible for all men to subsist under the burden of them nor is there any man but has need of Gods mercy and the Kings Courts of Equity therefore are as necessary
vero Regi prout ipsa feret facti ratio satisfacito aut graves sceleris admissi poenas rex ipse repetito Christiana siquidem fide imbuti regis est Deo illatas graviter pro facti ratione ulcisci injurias If any one entred into Holy Orders or one living with him be imposed upon or cheated in those things which belong to his estate or life then let the King himself unless he can procure it otherwise be to him in place of Patron and Kindred but the Cheator shall make the King satisfaction according to the valure of the fact or the King himself shall take great punishment of the wickedness committed for it is the part of a King endued with Christian religion severely to punish injuries according to the quality of the deed offered to God 10. For the proving of this Sir Edward Coke in the Proeme to the The antient common-Common-law did not admit of Appeals to Rome in cases Spiritual sixth Part of his Reports cites an Act of Parliament made 10 H. 2. an 1164. where it was enacted As concerning Appellations if any shall arise from the Archdeacon they must proceed to the Bishop from the Bishop to the Archbishop and if the Archbishop do fail in doing Justice it must lastly come to the King that by his precept the controversie may be ended in the Archbishops Court so that there ought not to be any proceeding further without the assent of the King And that this among many other might not taste of innovation the Record saith This recognition or record was made of a certain part of the customs and liberties of the Predecessors of the King to wit of Henry his Grandfather and of other Kings which ought to be observed in the Kingdom and held of all for the dissentions and discords often arising between the Clergy and our Soveraign Lord the Kings Justicers and the Peers of the Realm And all the Archbishops Bishops Abbots Priors Clergy with the Earls Barons and all the Nobles c. have sworne and assuredly promised in the word of mouth in one consent to keep and observe the said recognition toward the King and his heirs in good sooth without evil meaning for ever 11. The Revenue of Danegelt was first enacted because of Pyrates The Kings before the Conquest by their own authority did impose Taxes upon Church-lands For infesting the Country they did persist as much as they could to the devastation of it And to repress their insolence the yearly return of Danegelt was enacted viz. Twelve pence for every Hide of all the Country Mr. Selden in lib. 2. cap. 4. Analecton Anglobritannicon fol. 77. makes a Hide of land to be as much as could be tilled by one plough in a year Mr. Lambert in the Laws of King Edward fol. 128. makes a Hide to be one hundred acres of land to maintain them who should resist the irruption of the Pyrates when they met them But from the Danegelt every Church should be free and quiet and all land which was in the dominion of the Church wheresoever it lay paying nothing at all in such redemption for men did more confide in the prayers of the Church then in the defence of arms But if Lex vult non supervacaneum then is it clear that the Church-lands were liable to be taxed by the King for it had been a supervacaneous thing to have excepted the lands of the Church in this Law if the lands of the Church had not been liable to have been taxed at all And to manifest more clearly that the exemption of Church-land from Taxes was a meer concession of our Kings take the Stat. of Ethelulph the successor of Egbert written Analect Angl. lib. 2. cap. 4. pag. 77. with his own hand Our Lord reigning for ever Whilst that we see perillous times in our days the fire of war the taking away of our goods together with the cruel depredations of our destroying enemies and barbarous Pagan nations do lie upon us the multiplied tribulations do afflict us even to utter destruction Wherefore I Ethelulph King of the West-Saxons with the councel of the Bishops and my Princes giving wholsom councel and the only remedy have consented I have determined that every portion given to the holy Church whether of either Sex serving God or to miserable Lay-men always the tenth Mansion where it is least or the tenth part of all Goods be made for ever free that it be safe and defended from all secular services yea from the Kings greater or lesser tributes or the taxations which we call Winterden and that it be free of all things for the forgiveness of our souls and sins to serve God alone without Expedition building of Bridge and fortifying of Castle 12. If King Ethelbert were obliged to S. Gregory for the Conversion At what time the Pope first usurped jurisdiction over the Crown of England of the English Saxons to the Faith Prince Edgar Athelin was smally beholding to Pope Alexander 2. For Edgar being Grandson to Edmund Ironside and the undoubted Heir to the English Monarchy after the death of Edward the Confessor Alexander not only allows the Conquerors pretensions to the Crown of England but interdicts all those who should Speed fol. 405. par 27. See the effects of the Popes curse Speed fol. 415. par 2. oppose him So that though Harold were an Usurper yet was his Holiness his Interdiction as much against the undoubted Title of Edgar as against Harold Nor were all titles of rights and interests of the English Monarchy ever perfect and compleat from that time until they were all united and perfected in King James 13. How far the Britanick Churches were from any dependence upon At what time the first contest hapned between the King Pope about the investiture of Bishops the Church of Rome we have already shewed And so free were the Churches of England under the Saxon Kings before the Conquest that before the Appeal of Anselm Archbishop of Canterbury to Pope Paschal 2. scarce any Appeal was ever made to Rome but that of Wilfreds which was overruled by the King and Church So that for near a thousand years after the Conversion of the Britains and Saxons to the Faith although by means of S. Eleutherius and Gregory the Great we do not find any thing which may prove the superiority of the Roman Church over either the Britanick or English And how strange a thing the investiture of the English Bishops by the Pope was to the King and Kingdom of England appears by the Letter of Paschal to Anselm in answer to Anselm's Significasti Reges De Elect. Pet. cap. 4. Regni Majores admiratione promotos c. You have signified to me that Kings and Nobles were moved with admiration that the Pall was offered to you by our Ministers upon condition that you should take an Oath which they brought you written from us And the King not only opposed
Item Whereas Commissions be newly made to divers Justices that 6. they shall make enquiries upon Judges of the holy Church whether they made just proces or excessive in Causes Testimentary or other which notoriously pertaineth to the cognizance of holy Church the said Justices have enquired and caused to be Indicted Judges of the holy Church in blemishing of the Franchise of the holy Church That such Commissions be repealed and from henceforth defended saving the Article in Eyre such as ought to be No Scire facias shall be awarded against a Clerk for Tythes Item Whereas Writs of Scire facias have been granted to warn Prelates 7. Religious and other Clerks to answer Dismes in our Chancery and to shew if they have any thing or can any thing say wherefore such Dismes ought not to be restored to the said Demandants and to answer as well to us as to the party to such Dismes That such Writs from henceforth be not granted and that the proces hanging upon such Writs be annulled and repealed and that the parties be dismissed from the Secular Judges of such manner of Pleas saving to us our right such as we and our ancestors have had and were wont to have of reason In witness whereof at the request of the said Prelates to these present Letters we have set our Seal Dated at London this 8th of July the year of our Reign of England 18. of France the 5th In the Reign of Ed. 3. 16 Ed. 3. tit Excom 4. An Excommunication by the Archbishop albeit it be disannulled by the Pope or his Legats is to be allowed neither ought the Judges to give any allowance of any such sentence of the Pope or his Legat. It is often resolved that all the Bishopricks within England were founded In the Reign of Ed. 3. by the Kings Progenitors and therefore the Advousons of them all belong to the King and at first they were Donative and if that any incumbent of any Church with cure die if the Patron present not within six moneths the Bishop of that Dioces ought to collate to the end the Cure may not be destitute of a Pastor if he be negligent by the space of six moneths the Metropolitan of that Dioces shall confer one to that Church and if he also leave the Church destitute by the space of six moneths then the common Law gives to the King as Supream within his own Kingdom and not to the Bishop of Rome power to provide a competent Pastor for that Church The King may not onely exempt any Ecclesiastical person from the Jurisdiction 17 Ed. 3. 23. of the Ordinary but may grant him Episcopal Jurisdiction And thus it appears there the King had done of antient time to the Arch-Deacon of Richmond This resolution is not grounded upon any Custom or Law but onely upon a particular fact of a King à facto ad jus non valet argumentum All Religious or Ecclesiastical Houses whereof the King was Founder are by the King exempt from Ordinary Jurisdiction and onely visitable and 20 E. 3. Excom 9. 19. Ed. 3. corrigible by the Kings Ecclesiastical Commission This resolution too is onely grounded upon matter of Fact and what man will warrant all the Facts of Kings not to be repugnant to the Laws of God and man Yet shall not these men in other things of much less moment allow the Kings Proclamations to be Legal nor any thing less then the Commons Law or Acts of Parliament The Abbot of Bury was exempted from Episcopal jurisdiction by the Kings Charter This is nothing neither but matter of Fact 20 Ed. 3. tit Excom 6. The King presenteth to a Benefice and his presentee was disturbed by one who had obtained Bulls from Rome for which offence he was condemned 21 Ed. 3. 40. fol. 40. to perpetual imprisonment c. Tythes arising out of any parish the King shall have for that he having the Supream Ecclesiastical jurisdiction is bound to provide a sufficient Pastor 22 Ed. 3. l. 1. Ass pl. 75. that shall have the cure of souls of that place which is not within any parish And by the common Laws of England it is evident that no man unless he be Ecclesiastical or have Ecclesiastical jurisdiction can have inheritance of Tithes The King shall present to his free chappels in default of the Dean by 27 Ed. 3. fol. 84. lapsin respect of his supream Ecclesiastical jurisdiction And Fitz Herbert saith that the King in that case does present by laps as Ordinary Fitz nat Br. 34. Au Excommunication under the Popes Bull is of no force to disable any man within England and no suit for any cause though spiritually rising in 30 Ed. 3. lib. Ass pl. 19 c. this Realm ought to be determined in the court of Rome In an Attachment upon a Prohibition the Popes Bull of Excommunication of the plaintiff was adjudged insufficient 21 Ed. 3. tit Excom 6. 33 Ed. 3. tit Agel de Roy. 38 Ass pl. 20. Reges sacro Oleo uncti sunt Spiritualis jurisdictionis capaces A Prior which is the Kings Debtor and ought to have Tithes of another spiritual person may chuse either to sue for substraction of his Tithes in the Ecclesiastical court or in the Exchequer Fitz Herbert in his N. B. fol. 30. holceth that before the St. 18 Ed. 3. Cap. 7. the right of Tithes were determinable at the temporal courts at the election of the party And the courts of divers Manors of the Kings and other Lords in antient times had the probate of last Wills and Testaments and it appeareth by 11 H. 7. fol. 12. That the probate of Wills and Testaments did not appertain to the Ecclesiastical courts but that of late time they were determinable there The King by his Charter did translate Canons secular into regular and 38 Lib. Ass pl. 22. 46 Ed. 3. Proem 6. religious persons Nicholas Moris elected Abbot of Waltham which was exempt from ordinary Jurisdiction sent to Rome to be confirmed by the Pope who not having regard to the said Election gave to the said Nicholas the said Abby with all the said Spiritualities and Temporalities the Bull was adjudged against the Laws of England and the Abbot for obtaining the same was fallen into the Kings mercy whereupon all his Possessions were seised into the Kings hands Where the Abbot of Westminster had a Prior and Covent who were Regular 49 Ed. 3. lib. ass pl. 8. and mort in Law yet the King by his Charter did divide that Corporation and made the Prior and Covent a distinct and capable body to sue and be sued by themselves It was Enacted by the whole Parliament That as well they who obtained St. de 25 Ed. 3. de Provisoribus provisions from Rome as they that put them in execution should be out of the Kings Protection and that a man might do with them as enemies to the King c.
It was afterwards in open Parliament by grievous complaint of all the St. 25. Ed. 3. Commons of this Realm shewed that the grievances and mischiefs aforesaid did daily abound to the great damage and destruction of this Realm more then ever before viz. that of late the Bishop of Rome by procurement of Clerks and otherwise had reserved and did reserve daily to his collation generally and especially as well Archbishopricks Abbeys and Priories as all other dignities and other benefices of England which were of the Advowry of people of the holy Church and gave the same to Aliens as well as to Citizens and taketh of all such benefices the first fruits and many other profits and a great part of the treasure of this Realm was carried away and dispended out of the Realm by the Purchasers of such graces and also by such privy reservations many Clerks advanced by the true Patrons which peaceably holden their advancements by long time were suddenly put out Wherefore the said Commons did pray the said Soveraign the King that since the right of the Crown of England and the Law of the said Realm was such that upon mischiefs and damages which hapned to this Realm he ought and was bound of the accord of his people therefore to provide remedy and Law c. The said King Ed. 3. seeing the mischiefs and damage aforesaid c. and forasmuch as he was bound by his Oath to see the same to be kept as a Law of this Realm though that by sufferance and negligence it had been sithence attempted to the contrary also having regard to the grievous complaints made to him by his people in divers his Parliaments holden heretofore willing to ordain remedy for the great damage and mischiefs which had hapned and daily did happen to the Church of England by the said cause by the assent of all the great men and the commonalty of the said Realm to the honor of God and profit of the said Church of England and of his Realm did order and establish that the free election of all Archbishops Bishops and all other dignities and benefices electory in England should hold from henceforth in the manner as they were granted by the Kings progenitors and founded by the ancestors of other Lords and that all Prelates and other people of the holy Church which had Advowsons of any benefices of the Kings gift or of any of his progenitors or of other Lords and Donors to do divine service and other charges thereof ordained should have their collations and presentments freely as they were enfeoffed by their donors and in case that reservation collation or provision be made by the Court of Rome of any Archbishoprick Bishoprick Dignity or other Benefice in disturbance of the election collation or presentments aforesaid That at the time of the avoidance that such reservations collations and provisions ought to take effect the said Ed. 3. and his heirs should have and enjoy for the same time collations to the Archbishopricks and other dignities elective which is of his Avowry such as his Progenitors had before that free election was granted since that the elections were first granted by the Kings progenitors upon a certain form and condition as to demand license of the King to chuse and after the election to have his Royal assent and not in other manner which condition not kept the King ought by reason to resort to his first nature Upon complaint made by the great men and commons it was assented St. 27 Ed. 3. and accorded by the King great men and commons aforesaid that all the people of the Kings Allegiance of what condition that they be which shall draw any out of the Realm in plea whereof the conusance pertaineth to the Kings Court or of things whereof Judgement were given in the Kings Court or which did sue in any other Court to defeat or impeach the Judgments given in the Kings Court should incur the danger of a Premunire Made to confirm the Acts made the 25. and 27. years of the said Kings Reign but those that made those good Laws against such capital offenders St. 28 Ed. 3. Cap. 1. 2. 3. 4. were cursed defamed and reproved by such as maintained the usurped jurisdiction of the Church of Rome against which an especial Act of Parliament was made by the King and his whole Realm prohibiting thereby such defamations and reproofs In the Reign of Richard the second Against an Incumbent of the Church of England another sueth a provision 12 Rich. 2. tit Jurisdict 18. in the Court of Rome and there pursueth until he recovereth the Church against the Incumbent and afterward brought an action of account against him as receiver of divers sums of money which in troath were the oblations and offerings which the Incumbent had received and the whole Court was of opinion against the Plaintiff and thereupon he became nonsuit It is declared by that Parliament that the Crown of England hath been St. 16 R. 2. Cap. 5. so free at all times that it hath been in subjection to no Realm but immediately subject to God and none other and that the same ought not in any thing touching the Regality of the same Crown be to the Bishop of Rome nor the Laws and Statutes of this Realm by him frustrated or defeated at his will to the perpetual destruction of the King his Soveraignty Crown and Regality and of all his Realm And the Commons in that Parliament affirmed that the things attempted by the Bishop of Rome be declared against the Kings Crown and his Regality used and approved in the time of all his Progenitors In the Reign of H. 4. H. 4. fol. 9 It is resolved that the Popes Collector though he hath the Popes Bull to that purpose hath no jurisdiction within this Realm and there the Archbishops and Bishops c. of this Realm are called the Kings spiritual Judges By the ancient Laws Ecclesiastical of this Realm no man could be convicted of Heresie being high-Treason against the Almighty but by the Archbishop Fitz. nat B. 269. Candries Case and all the Clergy of that Province and after abjured thereupon and after that newly convicted and condemned by the Clergy of that Province in the general councel of the convocation but the St. of 2 H. 4. Ca. 15. doth give the Bishop of the Dioces power to condemn a Heretick and that before that Statute he could not be committed to the secular power to be burnt until he had once abjured and was again relapsed to thar or some other Heresie whereby it appeareth that the King by the consent of Parliament directed the proceedings in the Court Ecclesiastical in case of Heresie and other matters more Spiritual Well but suppose the King did so it proves nothing for it is but matter of Fact But it does not appear neither that this direction of the King by consent of Parliament did direct the proceedings in the
suffet imprisonment for six moneths without bail or mainprize And for the second offence shall suffer a years imprisonment and be deprived of all his spiritual promotions and for the third offence shall suffer imprisonment during life It was Enacted that the Justices of Oyer and Terminer and Justices of Assize should have power and authority in the open and general Sessions to hear and determin the offences committed against this Act yet so that every Archbishop and Bishop had liberty to joyn and associate himself to the said Justices of Oyer and Terminer or to the Justices of Assize All books called Antiphoners Missals Grails Portuasses Primers in Latine An. 3. 4. Ed. 6. Cap. 10. or in English and other books used for service in the Church saving such as are set forth by the Kings Authority shall be clearly abolished All Images graven painted or carved taken out of any Church or Chappel and the aforesaid books shall be defaced or openly burnt Such form and manner of making and consecrating of Archbishops and Anno 3 4. Ed. 6. Cap. 12. Bishops Priests and Deacons and other Ministers of the Church as by six Prelates and six other men of this Realm learned in the Law of God by the King to be appointed and assigned or by most of the number of them shall be devised for that purpose and set forth under the Great Seal before the first of April next coming shall be lawfully exercised and used and none other An Act for uniformity of Prayer and administration of the Sacraments An. 5. 6. Ed. 6. Cap. 1. in the English Tongue and that every person upon every Sunday and Holiday having no lawful cause to be absent do resort to his Parish-Church and they which refuse are to be punished by the censure of the Church and that all persons who shall be at any other common prayer or Sacraments shall for the first offence suffer Imprisonment for six moneths without bail or mainprise for the second Imprisonment during a whole year and for the third Imprisonment during life All the Sundays of the year the Feast of our Lord Jesus his Circumcision of the Epiphany of the Purification of the blessed Virgin of St. Matthew An. 5. 6. Ed. 6. Cap. 2. the Apostle of the Annunciation of the blessed Virgin of St. Mark the Evangelist of St. Philip and Jacob the Apostles of the Ascension of our Lord Jesus Christ of the Nativity of St. John the Baptist of St. Peter the Apostle of St. James the Apostle of St. Barthelomew the Apostle of St. Matthew the Apostle of St. Michael the Archangel of St. Luke the Evangelist of St. Simon and Jude the Apostles of All Saints of St. Andrew the Apostle of St. Thomas the Apostle of the Nativity of our Lord of St. Stephen the Martyr of St. John the Evangelist of the holy Innocents Munday and Tuesday in Easter-week Munday and Tuesday in Whitson-week are to be observed and kept for Holy days and none other And that every even or day next going before any of the aforesaid days of the Feasts of the Nativity of our Lord of Easter of the Ascension of our Lord Pentecost of the Purification of the Annunciation of the blessed Virgin of all Saints and of all the Feasts of the Apostles other then the Feasts of St. John the Evangelist and Philip and Jacob shall be kept for fasting days and none other Archbishops Bishops in their Dioces and all other having Ecclesiastical or Spiritual Jurisdiction may enquire of every person offending in the premises and punish every offender by censures of the Church and enjoyn him such penance as by the spiritual Judge shall be thought meet This Statute does not abrogate abstinence from flesh in Lent and Fridays and Saturdays or any day appointed to be kept by vertue of an Act made the second and third Ed. 6. Cap. 19. When any Holy day happens on the Munday the fast of that day shall be kept upon the Saturday immediately before and not upon the Sunday A view of the Reformation of Ed. 6. and of the lawfulness of it That the Book of commom Prayer Administration of the Sacraments The Reformation made by Ed. 6. was not meerly a civil sanction and other rites and ceremonies of the Church after the use of the Church of England was framed and composed by the Archbishop of Canterbury and certain of the most learned and discreet Bishops of the Land assembled to that purpose by the King is clearly expressed in the Preface to the Act of the 2. 3. Ed. 6. Cap. 1. The right that Christian Kings have to call and assemble Synods It is no new thing for Kings to assemble the Bishops and Church to redress and reform errors Councels and Convocations for the redress and reformation of errors and corruptions in the Church is properly the subject of another Treatise but that the Kings and supream Powers before Christianity under the old Law from Moses to Maccabees did always use it and that the first great Nicene Councel the second general Councel at Constantinople the third at Ephesus the fourth at Calcedon the fifth at Constantinople the sixth at Constantinople the seventh at Ephesus were all called by Christian Emperors is manifested by the Bishop of Winchester Andrews in the Sermon of the Right and Power of calling Assemblies nor were the general Councels convoked by Emperors but the Emperors and Kings did convoke and assemble Provincial and National Assemblies and Synods He shews that the Bishop of Syracuse in Sicily and Restitutus Bishop of London in Britain were summoned to a Synod in France by the Emperor Constantine ' Writ onely this was in the beginning of his Reign in the latter end of it in the thirtieth year of his Reign and the year before his death he called the Councel at Tyre and from thence removed it to Jerusalem and from thence called them to appear before himself at Constantinople After him Constans called one at Sardis Valentinian at Lampsacus Theodosius at Aquileia Gratian at Thessalonica Nay when the Emperors were professed Arrians even then did the Bishops acknowledge their power to call Councels came to them being called sued to them that they might be called came to them as Hosius to that of Arimine Liberius to that of Sirmium and that of Seleucia sued for them as Liberius to Constantius as Leo to Theodosius for the second Ephesine Councel Innocentius to Arcadius and sometime they sped as Leo and sometime not as Liberius and Innocentius and yet when they sped not they held themselves quiet and never presumed to draw themselves together of their own heads After the Empire fell in pieces and the Western Empire fell into the hands of Kings in Italy Theodoric called one at Rome Alaric at Agatha In France Clowis the first Christian King there called one at Orleans Childebert at Auvern Theodebert called another at Orleans and Cherebert at Toures And
Queen Mary to be born in lawful Matrimony and all sentences Stat. An. Pri. Cap. 1. sess 2. Mariae of divorce to the contrary repealed particularly the sentence of Thomas Cranmer Archbishop of Canterbury touching the Kings marriage with Queen Katherine and the two Acts of Parliament of the 25 H. 8. 22. 28 H. 8. 7. confirming the same A Repeal of the Statute of 1 Ed. 6. 2. made against such as speak unreverently St. An. Pri. Ma. sess 2. Cap. 2. of the body and blood of Christ and of the Statute of 1 Ed. 6. 2. touching Election of Bishops and the 2 Ed. 6. 1. concerning the uniformity of service and administration of the Sacraments and of 2 Ed. 6. 21. made to take away all positive Laws ordained against the marriage of Priests and of the 3 Ed. 6. 10. made for the abolishing of divers books and Images and of the 3 Ed. 6. 12. made for the ordering of Ecclesiastical Ministers and of the 5 Ed. 6. 1. made for the uniformity of common Prayer and Administration of Sacraments and of the 5 Ed. 6. 3. made for the keeping of Holy days and Fasting days and of the 5 Ed. 6. 12. touching the Marriage of Priests and legitimation of their children All such divine service and administration of Sacraments as were most commonly used in England in the last year of H. 8. shall be used through the Realm after the 20 day of December Anno Dom. 1553. and no other kinde of service nor administration of Sacraments It is Enacted That if any person or persons of their own power and authority after the 20. of December shall willingly and of purpose by open or St. An. 1 Mariae Sess 2. Cap. 3. overt word fact c. maliciously or contemptuously neglect vex or disturb c. any Preacher or Preachers licensed allowed or authorized to Preach by the Queens Highness or by any Archbishop or Bishop of this Realm or by any other lawful Ordinary or by either of the Universities of Oxford or Cambridge or otherwise lawfully authorized by reason of his Cure or Benefice c. in any open Sermon Preaching or Collation in any Church Chappel or Churchyard c. Or if any person shall wilfully disturb c. any Parson Vicar Parish-Priest Curat or other lawful Priest saying or celebrating the Mass or other divine service sacraments or sacramentals as was commonly frequented and used in the last year of H. 8. or afterward should be allowed and set forth or authorized by the Queen Or if any person shall contemptuously unlawfully or maliciously deface spoil abuse or unreverently handle or order the most blessed comfortable and holy sacrament of the body and blood of our Lord and Saviour Jesus Christ commonly called the Sacrament of the Altar being in any Church Chappel or other decent place or the Piece or Canapy wherein the same Sacrament is or shall be or pull down deface spoil or otherwise break any Altar or Altars or any Crucifix or Cross in any Church Chappel or Churchyard That then every such offender his ayders and abettors shall be apprehended c. by the Constable or Churchwarden of the place wherein the said offences shall be committed Which persons so apprehended c with convenient speed shall be brought and carried to any Justice of Peace within the said Shire c. where the said offence shall be committed and the said Justice of Peace upon due accusation shall forthwith commit the said person or persons to safe custody as by the discretion of the said Justice shall be thought meet and within six days next after such accusation the said Justice with other Justices of Peace in the said Shire City c. shall diligently examine the acts and offences aforesaid And if two of the said Justices of Peace shall upon examination finde the person or persons so accused guilty of any of the said offences by two sufficient witnesses or by confession the said Justices of Peace shall commit the person or persons so accused to the Gaol of the County City Burrough c. where the said offences were committed without bail or mainprize by the space of three moneths and further to the next quarter sessions to be holden in the said shire city burrough c. next after the end of the said three months which quarter sessions the party offending upon his repentance and reconciliation shall be discharged out of prison upon sufficient security for his good behaviour for one whole year but if he or they will not repent and be reconciled then to be committed again to the said Gaol there to remain until he or they shall repent and be reconciled for their offences If any person shall receive the offendor or disturbe the arrest he shall forfeit to the Queene her Heires and Successors for every such offence the summe of five pounds If any offendor bee not taken but escape hee shall forfeit to the Queene for every such escape five pounds The Justices of Peace Justices of Assize Justices of Oyer and Terminer all Mayors Bayliffs Justices of Peace within any City Borough or Town-corporate have power and authority to enquire into heare and determine the offences and misdemeanors aforesaid and to set fines and amerciaments therefore This Act doth not take away any authority jurisdiction c. of Ecclesiasticall Lawes then in force This Statute repeales all Statutes made against the Church of Rome particularly Anno 1 2 Phil. Mar. cap. 8. the Statute of 21 H. 8. 13. made against plurality of Benefices taking of Farmes by Spirituall men and non residence The Statute of 23 H. 8. 9. That no person shall be cited out of his Diocess wherein he or she dwelleth except for certain cases Stat. 24 H. 8. 12. That Appeals in such cases as had been proved in the See of Rome should not from henceforth be had nor used but within this Realm Stat. 25 H. 8. 19. entituled The submission of the Clergy to the Kings Majesty Stat. 25 H. 8. 20. concerning restraints of Payments of Primates and First-fruits of Arch-bishopricks Bishopricks to the See of Rome Stat. 25 H. 8. 21. concerning the exoneration of the Kings Subjects from exactions and impositions before that time paid to the See of Rome and for having licences and dispensations within this Realm without suing further for the same Stat. 26 H. 8. 1. concerning the Kings being supreme head of the Church and to have Authority to reform and redresse all errors heresies and abuses in the same Stat. 26 H. 8. 14. for nomination and confirmation of Suffragans within this Realm Stat. 27 H. 8. 15. whereby the King should have power to nominate 32. persons of his Clergy and Lay Fee for making Ecclesiasticall Lawes Stat. 28 H. 8. 10. Extinguishing the Authority of the Bishop of Rome Stat. 28. H. 8. 16. For release of such as then had obtained pretenced licences and dispensations from the See of Rome Stat.
28. H. 8. 7. for the establishment of the succession of the Imperiall Crown of this Realm that concerneth a Prohibition to marry within the Degrees expressed in the said Act. Stat. 31 H. 8. 9. authorising the King to make Bishops by his Letters Patents Stat. 32 H. 8. 38. concerning precontracts of Marriages and touching degrees of consanguinity Stat. 35 H. 8. 3. for ratification of the Kings Stile The corporall oath made in the Stat. of 35 H. 8. 1. that every Subject of this Realm should be bound to take against the power authority and jurisdiction of the See of Rome Stat. 37 H. 8. 17. That the Doctors of the Civill Law which were married might exercise Ecclesiasticall jurisdiction So much of that Statute of the first Ed. 6. 1. as contains certain Provisions Pains Penalties and Forfeitures for and against such as should by open preachings expresse words sayings writing printing overt-deed or act affirme or set forth That the King of this Realm for the time being is not or ought not to be the supreme head in earth of the Churches of England and Ireland nor of any of them or that the Bishop of Rome or any other person or persons other than the K. of England for the time being is or ought to be supreme head of the same Churches or any of them as in the said Act more at large may appear It is enacted that these clauses and other of the foresaid Act concerning the Supremacy and all and every branch article words and sentence in the same sounding or tending to the Derogation of the supremacy of the Popes Holiness or the See of Rome and all pains penalties and forfeitures made against them that should by any means set forth or extol the said Supremacy should from thenceforth be utterly void It did moreover generally repeal all clauses sentences and articles of every other Statute made since the 20 H. 8. against the supreme authority of the Popes Holiness or See Apostolick of Rome The Lords Spirituall and Temporall and Commons professing themselves reduced and received by their Majesties intercession to the unity of Christs Church and obedience of the Apostolick See of Rome and the Pope governing the same did make humble suite to their Majesties to be Intercessors that by authority of the Popes Holiness and by the ministration of Cardinall Poole by dispensation tolleration or permission respectively as the case shall require be abolished these Articles following and generally all others when any occasion shall so require may be provided for and confirmed 1. That all Bishopricks Cathedrall Churches Hospitalls Colledges Schooles and other such foundations now continuing made by authority of Parl. or otherwise established according to the order of the Lawes of this Realm since the Schisme may be confirmed and continue for ever 2. That Marriages made infragradus Prohibitos consanguinitatis affinitatis cognationis spiritualis or what might be made void propter impedimentum Publicae honestatis justitiae or for any cause prohibited by the Canons only may be confirmed and children born of those Marriages declared legitimate so as those Marriages were made according to the Lawes of the Realm for the time being and be not directly against the Lawes of God nor in such case as the See Apostolick hath not used to dispence withall 3. That institution of Benefices and other promotions Ecclesiasticall and dispensations made according to the form of the Act of Parliament may likewise be confirmed 4. That all Judiciall Processes made before any Ordinaries of this Realm or before any Delegates upon any Appeals according to the order of the Lawes of this Realm may likewise be ratified and confirmed 5. That the Lands and Goods of Bishopricks Monasteries Chanteries c. dispersed abroad to sundry persons by gift exchange purchase c. according to the Lawes of the Land for the time being shall so continue It was enacted that the title of supreme head of the Church never was nor could be attributed to by any King or Governor It was enacted that all Bulls Dispensations and Priviledges obtained before the 20 year of H. 8. or any time since of the See of Rome and not containing matter prejudiciall to the Imperiall Crown or Lawes of this Realm should be put in execution This Statute did restore the Pope and Apostolick See together with the Jurisdiction the Bishops had in the Realm to all the Authority they had before the 20 of H. 8. It is a very remarkable thing that this Statute does affirme that nothing done or moved in this Statute should be prejudicall to the Liberties of the Crown before the 20 of H. 8. and that the Statute of 24 H. 8. 12. and the Statute of 25 H. 8. cap. 20. which takes away all Ecclesiasticall Jurisdiction from the Pope and vests it in the King should be but declaratory of the ancient and common Law of this Land See Coke de jure Regis Ecclesiastico 28. a. b. 31. one of these must necessarily be false Thus did Queen Mary restore by Parl all the Papall Jurisdiction which Description of Queen Mary was exercised before the 20 of Henry the 8. and would have restored all the Abbey and Chantery Lands taken away by her Father and Brother had it been in her power but many alienations descents and purchases having been made of them she was not able to performe it being a Princess no doubt wondrous free from sacriledge zealous and constant in her Religion mercifull when her Religion was not concerned and just Her mercy appears in her not only pardoning all the Councell who had subscribed to her disinheriting but it was thought she would not have taken away the life of the Lady Jane although guilty of so high a crime as having actually invaded the Crown if the Duke of Suffolk her Father formerly pardoned by the Queens meer grace had not most unjustly and unthankfully excited her Subjects against her which together with Wiats Rebellion for her own security did necessitate her for her own security to execute her Her justice appears in this the Lord Sturton having been at variance with one Hargill and his Son Gentlemen knocked the poor Gentlemen on the head and after cut their throats and buried their bodies in a Pit 15. foot deep hoping this villainy would never come to light or if it did he assured himself of the Queens favour being zealously addicted to the Popish Religion which did him not good for the Queen abhorred and rejected all mention of Pardon for him only he had this grace that the other Murderers were hanged in a hempen but he in a silken halter Ecclesiasticall Lawes made in the Reign of Queen Elizabeth IT is declared that in the Reign of H. 8. divers good Lawes and Statutes Anno 1. Eliz. cap. 1. were made as well for the utter extinguishing of all usurped and forrein Powers and Authorities of this Realm and other her dominions and Countries as also for the restoring and
of them or by any Generall Councell wherein the same was declared heresie by expresse and plaine words of Scripture or such as should be determined Heresie by the high Court of Parl. with the assent of the Clergy in their Convocation This Statute revives the 23 H. 8. 9. 24 H. 8. 12. 25 H. 8. 20. 25 H. 8. 21. 26 H. 8. 14. 28 H. 8. 16. So much of the Act of the 32 H. 8. 38. concerning precontracts of Marriages and touching degrees of Consanguinity as by the 2 Ed. 6. 23. was not repealed the 37 H. 8. 17. the 1 Ed. 6. 1. This Act repeales the Statute of the 1 2. Ph. M. 6. the 1 2 Ph. M. 8 except those things touching the Premunire in the said Statute It repeales the 5 R. 2. 5. the 2 H. 4. 15. the 2 H. 5. 7. made for the punishment of Heresies by fire and faggot This statute repeales the statute of the first of Mary and the 2 and revives Stat. 1 Eliz. cap. 2. the statute of the 5 6 of Ed. 6. for the uniformity of Prayer and administration of the Sacraments with the alteration or addition of certain Lessons to be used every Sunday of the yeere and the forme of the Letany altered and corrected and two sentences only added in the delivery of the Sacrament to the Communicants If any Parson Vicar or other whatsoever Minister that ought or should say or sing Common-Prayer mentioned in the said Booke in such Cathedrall or Parish-Church or other places where he should Minister the same in such manner and forme as is mentioned in the said Booke refuse to doe the same or use any other forme or shall preach declare or speake any thing in derogation of the said booke or any thing therein contained or any part thereof and shall thereof be lawfully convicted according to the Lawes of the Land by the Verdict of 12 men or confession or notorious evidence of the fact shall forfeit to the Queene c. for the first offence the profits of one whole yeere next after such conviction of all his spirituall Benefices and suffer imprisonment for the space of six moneths without Bayle or Mainprize If any such person once convicted concerning the Premisses shall after such conviction offend and be thereof lawfully convict shall suffer imprisonment for the space of one whole year and be deprived ipso facto of all his spirituall promotions and that it shall be lawfull for all Patrons and Donors of such Spirituall promotions to present or collate to the same as if the person or persons so offending were dead If any person be convicted the third time of the premisses he shall ipso facto be deprived of all his spirituall promotions and shall suffer imprisonment during life Any person that shall offend and be convicted inform aforesaid concerning any of the premisses not being beneficiall or having any spirituall promotion shall for the first offence after such conviction suffer imprisonment for the space of one whole year without Bail or Mainprise and for the second offence after lawfull conviction shall suffer imprisonment during life If any person shall doe or speak any thing in derogation of the book of Common-prayer or disturb or interrupt any Parson Vicar or other Minister in any Cathedrall or Parshi Church or Chappel in the celebration of the Common-prayer or ministration of the Sacraments or shall compell or cause any other Service to be celebrated being thereof lawfully convict shall for the first offence forfeit to the Queen c. the summe of one hundred Marks and for the second offence the summe of four hundred Marks and for the third offence he shall forfeit all his Goods and Chattels and suffer imprisonment during life If any person shall for the first offence be convict of the premisses in form aforesaid and shall not pay the sum to be paid by virtue of his conviction that instead thereof he shall suffer imprisonment for the space of 6. moneths without Bail or Mainprise and he that shall not pay for the second conviction shal suffer imprisonment for the space of 12. moneths without Bail or Mainprise Every person shall having no lawfull or reasonable excuse to be absent diligently and faithfully endeavour to resort to the usuall places where Common-prayer and such Service of God shall be used upon Sundayes and other dayes appointed to be kept holy and there abide orderly and soberly during the time of Common-prayer Preaching and other Service of God upon pain of punishment by censures of the Church and twelve pence to be levied by the Church-wardens to those of the poor of the Parish by way of distress The Ordinaries and all other Officers Ecclesiasticall as well in places exempt as not exempt within their Diocess have power and authority by this Act to correct and reform and punish by Church censures all who shall offend within their Jurisdictions The Justices of Oyer and Determiner or Justices of Assise in open and generall Sessions have power to hear determine and punish these offences yet so that every Arch-bishop and Bishop in their severall Diocesses by virtue of this Act may associate or joyn themselves with the said Justices No person shall be molested for any offences abovesaid unlesse he be indicted at the next generall Sessions next after such offences are committed All Lords of Parliament for their third offence shall be tried by their Peers Chiefe Officers of Cities and Boroughs have the like authority to hear and determine the offences aforesaid as the Justices of Assize and Oyer and Determiner have Arch-Bishops Bishops their Chancellors Commissaries Arch-Deacons and other Ordinaries having any peculiar Ecclesiasticall Jurisdiction have by virtue of this Act power in their Visitations Synods and elsewhere within their Jurisdictions to enquire and take the accusations and informations of all the offences aforesaid and to punish the same by Admonition Excommunication Sequestration or Deprivation and other censures in like form as heretofore has been used by the Queens Ecclesiasticall Laws Any person offending in the premisses and punished therefore by the Ordinary having a testimoniall thereof under the Ordinaries Seal shall not for the same offence be convicted before the Justices and likewise punished for the first offence by the Justices he shall not again receive punishment of the Ordinary Such Ornaments of the Church and of the Ministers shall be reteined Anno 5 Eliz. cap. 1. and be in use as was in this Church of England by authority of Parliament in the 2 year of the Reign of Ed. 6. untill other Order shall be taken by authority of the Queen with the advice of the Commissioners appointed and authorised under the Great Seal of England for causes Ecclesiasticall or of the Metropolitan of the Realm It was enacted That whatsoever person inhabiting in the Queens Dominions who by word or deed should maintain that the Bishop of Rome had any authority or jurisdiction in any of the
School-master presuming to teach any thing contrary to this Act and being thereof lawfully convict shall be disabled to be a Teacher of Youth and shall suffer imprisonment without Bayl ot Mainprise for the space of a year No Ordinary or their Ministers shall take any thing for the allowance of any Schoole-master All offences aforesaid and all offences against the first Eliz. 1. 5 Eliz. 1. 13 Eliz. 2. c. are inquirable into by the Justices of peace and other Justices named in the said Act within a year and day after such offences committed Justices of Oyer and Terminer of Assiize of Goale-delivery in their limits Justices of Peace in their Quarter-sessions have power to hear and determine the offences aforesaid except Treason and Misprision of Treason Every person guilty of any offence against this Statute other then Treason Misprision of Treason which shall before he be indicted or at his Arraignment before Judgement submit and conform himself before the Bishop of the Diocess where he shall be resident and before the Justice of Peace where he shall be arraigned or tried having not before made like submission shall upon his recognition of such submission in open Assises or Sessions in the County where such person shall be resident be discharged of all the said offences The forfeitures of the moneys limited by this Act shall be divided into three equall parts whereof one third part to the Queen to her use another for the relief of the poor in the Parish where such offence is committed to be delivered by warrant of the principle Officers in the receipt of the Exchequer without further warrant from her Majesty the other third part to such person as will sue for the same in any court of Record in which no Essoin or Protection or Wager of Law shall be allowed He that shall forfeit such summes as are specified in this Act and be not able or shall not pay the same within 3. moneths after Judgement shall be committed to prison and there remain untill he have paid the said summes or conform himself to goe to Church He that usually on Sunday shall have in his house the Divine Service as it is established and be thereat usually present and not obstinately refuse to come to Church and shall at least four times in the year be present at the Divine Service in his Parish Church or in some open Church or Chappell of ease shall incur no damage nor danger by this Act. Every Grant Conveyance Bond Judgement and Execution of covetous purpose to defraud the Queen or any other person shall be holden utterly void Tryall of a Peer for any Treason or misprision of Treason by this Act shall be by his Peers This Act nor any thing contained therein is said not to extend to take away any or abridge the authority or jurisdiction of the Ecclesiasticall Censures for any cause or matter but that Arch-Bishops and Bishops and other Ecclesiasticall Judges may do and proceed as before the making of it All Jesuits made within or without the Realm since the Nativity of St. Stat. 27 Eliz. cap. 2. John the Baptist in the first year of the Queen shall within 40. dayes next after the Session of Parliament if they be not wind-bound depart out of England and other the Queens Dominions If any Jesuit Seminary Priest or other such Priest Deacon or Religious or Ecclesiasticall person whatsoever born within the Dominions of the Queen and made since the feast of the Nativity of St. John in the first year of the Queen or hereafter to be made by any Authority from the Church of Rome shall after the said forty dayes after the Session of Parliament other then in such speciall cases as in this Act is expressed be found in any of the Queens Dominions every such person shall be adjudged a Traitor All they which shall receive any such Jesuit or Priest after such time shall be adjudged a felon without benefit of Clergy If Any Subject of England then being or after shall be of or brought up in any Colledge of Jesuits or seminaries already erected or to be erected out of the Realm shall not within six moneths next after Proclamation in that behalf made in London under the broad Seal return into this Realm and within two dayes after before the Bishop of the Diocesse or two Justices of the peace of the County where he shall arrive submit himself to her Majesty and her Lawes and take the Oath set forth in the first year of her Reign That then every such person which shall otherwise return shall be taken and deemed as a Traitor Whosoever shall any wayes send relief to any Jesuit or seminary beyond the seas or give any maintenance to any Colledge of Jesuits or Seminaries shall incur the danger of a Premunire None during the Queens life shall send his or her Child or other person except Merchants or such only who serve in their Trade as Merchants or Mariners beyond the Seas without the Queens speciall licence or under four of the Councells hands upon the penalty of one hundred pounds Every offence committed against this Act may be heard and determined as well in the Kings Bench as also in any County within this Realm or any of the Queens Dominions where the offence shall be committed or where the offendor shall be apprehended This Act shall not extend to any Jesuit c. before mentioned as shall within the said 40. dayes or within 40. daies after he come into the Realm submit himself to some Arch-bishop or Bishop of this Realm or to some Justice of Peace within the County where he shall arrive and doe thereupon truly and sincerely before the Arch-bishop Bishop or Justice of Peace take the said Oath set forth the first of Eliz. and under his hand confesse afterward to continue in due obedience to the Queens Lawes made or to be made in causes of Religion Peers shall be tried by their Peers for any offence made Treason Felony or Premunire by this Act. Any person being a Subject of this Realm which shall after the said 40. daies know any such Jesuit or Priest c. and shall not discover the same to some Justice of Peace or Higher Officer within 12. dayes every such person shall be fined and imprisoned according to the Queens pleasure and every such Justice of Peace or higher Officer which shall not discover the same within 28. dayes to some of the Queens Councell or to the President or Vice-president of the Queens Councell established in the North or Marches of Wales then he or they so offending shall forfeit 200 Markes Such of the Privy Councell President or Vice-president abovesaid to whom such information shall be made shall thereupon deliver a note in writing subscribed by his own hand to the party by whom he shall receive such information testifying that such information was made to him All such Oaths Bonds and Submissions as shall be made by force of
convict shall be committed to prison without bail or mainprise untill they conform to come to Church and hear Divine Service according to Law and make such submission and declaration as in this Act is afterward declared and appointed If any person who shall offend as aforesaid shall not within three moneths after they be convicted conform themselves to the obedience of the Laws in comming to Church to hear Divine Service and in making such publick confession and submission as in this Act is appointed being thereunto required by the Bishop of the Diocesse or any Justice of Peace where the person shall happen to be or by the Minister or Curate of the Parish that in every such case every such offendor being thereunto warned by any Justice of Peace of the County shall upon his or their corporall oath before the Justices of Peace in the open Quarter-sessions or at the Assises abjure the Realm and all other the Queens Dominions for ever unless her Majesty shall licence the party to return and shall depart out of the Realm at such Port and within such times as shall be appointed by the said Justices before whom the said abjuration was made unlesse the offendor be letted by such lawfull and reasonable means as by the common Lawes are permitted in cases of abjuration of Felony and in such cases of let or stay then within such reasonable time after as the Common Law requires in case of Abjuration for Felony the Justices of Peace before whom any such abjuration shall be made shall cause the same to be presently entred into record before them and shall certifie the same to the Justices of Assizes and Goal-delivery of the said County at the next Assizes If any such offender which by the tenor of this Act is to be abjured shall refuse to make such abjuration and shall not goe to such Haven within such time appointed and depart out of the Realm or after such departure shall return without licence that in such case the party offending shall suffer as in case of Felony without benefit of the Clergy If any person offending against this Act shall before he be required as aforesaid to make such abjuration repair to some Parish Church on some Sunday or Festivall and then and there hear Divine Service and before Sermon or reading of the Gospell make publick and open submission and declaration in conformity to the Lawes according to this Act that then every such penalties inflicted by this Act be discharged The submission to be made is I A. B. doe humbly confess and acknowledge that I have grievously offended God in contemning her Majesties Godly and lawfull Government and Authority by absenting my self from Church and hearing Divine Service contrary to the Godly Lawes and Statutes of this Realm and in using and frequenting disordered and unlawfull Conventicles and Assemblies under pretence and colour of exercise of Religion And I am heartily sorry for the same and do acknowledge and testifie in my conscience that no other person hath or ought to have Authority over her Majesty And I doe promise and protest without any dissimulation or any colour or means of any dispensation That from henceforth I will from time to time obey and perform her Majesties Lawes and Statutes in repairing to the Church and hearing Divine Service and do my uttermost endeavor to perfom the same The Minister of every Parish where such submission and declaration shall be made shall presently enter the same into a book to be kept by every Parish for that purpose and within ten dayes after certifie the same in writing to the Bishop of the Diocess If any such offendor after such submission shall afterwards relapse and obstinately refuse to repair to some Church or usuall place of Divine Service or shall be present at any such Conventicles c. under colour of exercise of Religion contrary to her Majesties Lawes That then every such offendor shall lose the benefit he might have had by virtue of his Submission If any person shall hereafter relieve maintain or keep in his house or otherwise any person which shall obstinately refuse to come to some Church or usuall place of Common-prayer or shall forbear the same by the space of a moneth that then every such person so offending after such notice given him by the Ordinary of the Diocesse or any Justice of Assize of the Circuit or any Justice of Peace of the County or any Minister Curate or Church-warden of the Parish where such person shall be shall forfeit to the Queen for every person so relieved after such notice forty pound for every moneth that he or they shall relieve c. any person so offending This Act shall in no wise extend to punish or impeach any person for relieving or keeping his Father Wife Mother Child Ward Brother or Sister or his Wives Father or Mother not having any certain place of habitation of their own or the Husbands or Wives of any of them or for relieving maintaining or keeping any such person as shall be committed by Authority to the custody of any by whom they shall be so relieved or maintained These two last clauses are repealed by the 3 Jac. 4. All duties forfeitures and payments due to the Queene by virtue of this Act or the Act of the 23 of Eliz. concerning Recusants may be recovered and levyed to her Majesties use by action of debt bill plaint information or otherwise in any of the Courts called the Kings bench Common-pleas or Exchequer in such sort as by the ordinary course of the common-Common-Law any other debt due by any person in any other Case might be recovered or levyed where no Essoin Protection or Wager of Law bee admitted The third part of the Penalties had or received by virtue of this Act shall be imployed and bestowed to such good and charitable uses in such manner and forme as is limited and appointed in the Statute made in the 29 Eliz. c. 6. concerning Recusants No popish Recusant or feme covert shall be compelled to abjure by this Act. Every person that should abjure by virtue of this Act and refuse being thereunto required as aforesaid shall forfeit to the Queene all his goods and chattels for ever and his Lands and Tenements during life the wife of any such offendor shall not lose her Dowre nor any corruption of blood shall grow or be by reason of any offence mentioned in this Act. Every Person above sixteene yeeres of age borne within any of the Stat. 35 Eliz. cap. 2. Queenes Dominions or made a Denizen being a popish Recusant and before the end of that Session of Parliament convicted for not repairing to some Church or usuall place uf Divine-service but forbearing the same contrary to the Lawes established and having a certain place of abode within the Realme shall within forty dayes next after the Session of Parliament if they be in the Realme and not restrained by imprisonment or by command of
by reason or colour of any such Declaration or Sentence or otherwise and will doe my endeavor to disclose and make known unto his Majesty his Heirs and Successors all Treasons and Traitrous Conspiracies which I shall know or heare of to be against him or any of them I doe farther sweare That I doe from my heart abhorre detest and abjure as impious and Hereticall this damnable Doctrine and Position That Princes which be excommunicated or deprived by the Pope may be deposed or murdered by their Subjects or any other whatsoever And I doe beleeve and in my Conscience am resolved That neither the Pope nor any person whatsoever hath power to absolve me of this Oath or any part therof which I acknowledg by good and full authority to be lawfully ministred unto me and doe renounce all Pardons and Dispensations to the contrary And all these things I doe plainly and sincerely acknowledg and sweare according to these expresse words by mee spoken and according to the plaine and common sense and understanding of the same Words without any Equivocation or mentall Evasion or secret reservation whatsoever And I doe make this Recognition and acknowledgment heartily willingly and truly upon the Faith of a Christan So helpe me God Unto which Oath so taken the said Person shall subscribe his or her name or marke No Indictment to be had or found for not repairing to Church or for not receiving the Sacrament according to Law nor any Proclamation Outlawry or other proceeding thereupon shall be avoyded discharged reversed for default of forme other then by direct Travers to the point of not coming to Church or not receiving the said Sacrament If any Person so Indicted afterward submit and conform himselfe and become obedient to the Lawes of the Church of England and heare Divine Service according to the Statute in that case made and publiquely receive the Sacrament according to the Lawes of this Realm that then every such person may reverse and discharge the said Indictment Every subject of this Realme that shall passe out of this Realme and voluntarily serve any forreign Prince State or Potentate not having taken this Oath as aforesaid shall be a felon If any Gentleman or person of higher degree or any person or persons which hath born or shall bear any office of Captain Lieutenant or any other Office in Camp Army or Company of Souldiers shall after voluntarily serve any foreign Prince State or Potentate before he shall become bound by obligation with two such sureties as shall be allowed by the Officers which by this Act are limited to take such bond unto the King in the summe of 20 l. at least with condition to the effect following shall be a Felon The Tenor of the Condition followeth viz. That if the within bounden c. shall not at any time then after be reconciled to the Pope or Sea of Rome nor shall enter into or consent unto any practice plot or conspiracy whatsoever against the Kings Majestie his Heirs and Successors or any of his or their Estate or Estates Realms or Dominions but shall within convenient time after knowledge thereof had reveal disclose to the Kings Majesty his Heirs and Successors or some of the Lords of his or their honorable Privie Councell all such practices plots and conspiracies That then this obligation to be void The Customer and Controller of every Port Haven or Creek or one of them and their Deputies and none other may receive such Bond to the uses aforesaid and minister the Oath aforesaid taking for such bond six pence and no more and for such oath nothing which said Customer and Controller shall Register and certifie such Bond and Oath so taken into the Exchequer at Westminster once every year upon penalty of 5 l. for every Bond not so certified and 20 s. for every Oath not so certified If any person put in practice to absolve or perswade any of the Kings Subjects from their naturall obedience to his Majesty either within or without the Dominions or upon the Sea c. or to reconcile them to the Pope or Sea of Rome or any other Prince State or Potentate that then every such person their Aiders Counsellors and Abettors shall be adjudged Traitors and every person which shall willingly be absolved or reconciled as aforesaid shall be adjudged a Traitor The last branch shall not extend to any person which shall be only reconciled to the Pope or See of Rome and shall return into this Realm and within six dayes after before the Bishop of the Diocess or two Justices of Peace joyntly or severally submit himself to his Majesties Lawes and take the Oath of Supremacy made in the first year of the Queen * and also the Cap. 1. Oath mentioned in this Statute Where Oathes are so taken the Bishop and Justices shall at the next Generall or Quarter-sessions certifie upon the penalty of fourty pound All persons who offend against this branch of the Statute shall be indicted and tried by the Justices of Assize and Goal-delivery of that County for the time being or before the Justices of the Kings Bench and there be proceeded against according to the Laws against Traitors as if the offence had been committed in the same County If any Peer of the Realm shall happen to be indicted of any offence made Treason by this Act he shall be tried by his Peers If any person shall not resort weekly to some usuall place of Divine Service any Justice of Peace in the Limit Division or Liberty where such person shall dwell may give a Warrant to the Churchwarden of the Parish upon proof or confession made before him to levy twelve pence for every such default by distresse and sale of the Goods of the offendor and for default of such distress the said Justice may commit the offendor to prison untill payment be made No man shall be impeached upon this clause except it be within one moneth after such default made No man being punished according to this branch shall for the same offence be punished by forfeiture of twelve pence upon the Law made in the first year of Queen Eliz. This Statute repeals the two branches of 35 Eliz. 1. the first beginning and for that every person having house or family is in bounden duty to have speciall regard of the Goal governance and ordering of the same and so forth to the next clause beginning thus provided neverthelesse that this Act shall not in any wise extend to punish or impeach any persons for relieving c. ending with these words any thing in this Act contained to the contrary notwithstanding In lieu whereof every person which shall willingly maintain relieve or keep in his house any servant sojourner or stranger which shall not repair to some usuall place of Divine service according to Law by the space of one moneth not having a reasonable excuse shall forfeit ten shillings for every such moneth Every person which
are the English and Scottish And also since the corruption of the best thing is worst it will not be amiss before we conclude this Chapter and Book to discourse this Probleme whether upon all occasions it be the only and necessary way to cure all distempers of State by a full convention in Parliament according to the usuall constitution And first we will see what may be said for it That the passing of Lawes in Parliament where the major part of the Object 1 Freeholders are represented creates and begets a right understanding between the King and his Subjects that it is not the intention of the Prince to alter the old Lawes and introduce new ones to their prejudice To this I subscribe That when Lawes are so passed it confirmes and strengthens the Prince both by the person and purse of his Subjects in any designe he shall undertake because the representatives of the Freeholders consent unto it To this I subscribe That Parliaments have been of that antiquity and the Nation so habituated to them that it will never long be governed peaceably without them To this I subscribe That the grievances of the Nation can never be so well represented and redressed as in Parliament where the major part of the Freeholders are represented To this I subscribe That men will lesse dare to abuse their Prince or Country by any sinister or indirect means when Parliaments are frequent and free To this I subscribe The frequent use of Parliaments takes away all strangenesse between the King and his Subjects and begets a confidence and right understanding between them To this I subscribe That since it is necessary that every Prince in governing must necessarily ultimately resolve his confidence into something besides the Lawes to which upon all occasions he may betake himself for the Execution and defence of himself and Subjects and this must be by a constant Army in pay of his Subjects according to the institution of the Roman Legions or out of a diffidence of his own Subjects or from some reason of state trust the protection of his Person and Lawes into the hands of Foreigners as did the Kings of Aegypt before Sclymus conquered them or as the King of France now does in the hands of Switz and Scots or he must betake himself to the protection of a mercinary Army made up of his Subjects and Foreiners as the Turks Janizaries and Spahi are or establish his security and refuge up-the affection of his subjects and intrust them with the Militia in such manner as hath beene used heretofore in England and that this agrees better with the nature and constitution of English-men then any of the other as being established as well by common-common-Law as many Acts of Parliament To this I subscribe To these may be added that Tacitus in the life of Agricola makes it one great cause of the Romans conquering our Ancestors That they consulted not in common Nec aliud adversus validissimas Gentes pro nobis utilius quam quod in commune non consultant Rarus ad Propulsandum commune periculum conventus It a dum singuli pugnant aniversi vincuntur Quaere Yet quaere whether Rising-Chase in Norfolke and old Sarum in Wilts where are no Inhabitants but a few meane Tenants sending twice the numbers to the Parliament with the county of Yorke and whether the County and City of Durham sending none at all and whether Cornwall's sending ten times as many as either Warwick-shire or Leicestershire and yet eyther of them bigger and far more rich Counties Or whether Cities and Boroughs not only sending a like number of Citizens and Burgesses with the County having alike Vote with them of the County be an equall representative of the Freeholders Or whether the waies used in the Elections doe not animate the Electors and those that stand in Competition against one another and that to such a height That many of the Electors and those who stand are never after reconciled Answer It is true indeed that if God had determined all things in this inferior Orbe without any variation and that this thing were alwaies to be attained only by some one means that this in governing were by councell in Parliament then could there be neither reason or discourse upon variation and alteration of things and no difference betweene the wisest of Princes and the most foolish but this is so far from truth that there is nothing sublunary not only variable but doth vary every moment neither is there any thing in Reason Physick or State alike to all men nay in all of them the same thing may be at one time good and profitable at another time bad and hurtfull What man sees not that in health nature is not repaired by any man without a proportionable measure of diet which when he is indisposed may surcharge nature to the overthrow of it in him Strong physick may be proper to a man at one time and kill him at another Parliaments although ordinarily are the Kings surest refuge yet by how much they are more excellent by so much the worse are they corrupted Times are and will be bad when they are not made so by any cause in the Prince and so bad that in such conjuncture it may prove the utmost evill if the Houses or eyther of them shall assume the title of Parliament or give head to such Factions and distempers And no question when the Scots invaded England in 1640 it was unsafe Councell that advised the King to summon a Parliament and worst of all to convene it at London as things then stood For that saying of Tacitus it is rather Rhetoricall and makes against the Antiquity of Parliaments then any way proves necessity of them upon all occasions unless he could make consulere and pugnare the same thing nor could Agricola ever have obteined such victory against our Ancestors if he had fought with no more then had councelled him Epilogue WHen I looke back and consider the unstable condition of mankinde especially among Islanders and that often times the fate of good religious and just men is in this World more calamitous then of bad and vicious men I did then conclude with my self that Religion Justice and Piety cannot of themselves procure peace and society to mankind nay what is yet more lamentable that first sublunary cause from whence all Subjects derive and expect their protection is more subject to calamity then the condition of the meanest of mortall men Let a man take a survey of all the Kings in Britain since there were any Records of time and see whether neer one halfe of them did attain a naturall death nor is this confined within the Seas which encompass our Isle or a new thing in other parts of the world for Adgenerum Cereris sine caede sanguine pauci Juvenal Sat. 10. Descendunt Reges I shall therefore before I conclude endeavour to shew whether any peace and happinesse may be reasonably
not truly have ever made use of any thing in his writings to their advantage certainly therefore in his writings he was no seditious man but it may be our reverend Historian though blinde yet sees more then any body else It is true indeede that he lived in disfavour with two Kings yet as it becomes not subjects to dispute the actions of Prince so is no man therefore to be censured because in disfavour often times the best of Princes have not things and men truly represented to them This I am sure of having so powerfull opponents at Court if any crime much lesse then that of sedition could have been found against him it would have beene improved to the utmost advantage nor did he neglect to be reconciled to his chiefest adversary and to that purpose married his youngest daughter to his brother being in person and fortune little inferior to any Subject of her time which did him no good Othermen though little versed in the things they lay to his charge doesay in the generall That in his writings he was no friend to eyther King or Church This is so generall a charge as no particular answere can be given to it yet thus much may be said that being a Lawyer by profession I hope it is not to be a crime in any Subject much lesse in him to be a lover and honourer of the Lawes but being a Subject and no Legislator and commenting upon the Laws he must comment upon the Lawes as they were made hee could not make them better nor worse if Lawes made were derogatory to eyther Crowne or Church it was the vice of the times and no fault of his Yet I have often heard that hee was the first Grantor and a great favourer of Prohibitions to the utter ruine of all Ecclesiasticall jurisdiction How unjust the first charge is there is no man any way versed in our Lawes but must needs understand and for the latter if any one can shew wherein he so far favored them that he ever granted any not warrantable by the Law and they say somthing For his care of the Church it sufficiently appeareth in his endeavoring the passing of a Law that every Patron should be sworn as well as the incumbent against Simony and also that Patron who should Symonically promote any Clerke should not only forfeit that avoydance but the advowson to the King as also when upon pretence of concealement the Deane and Chapters Lands of Northwich were begged of the King he did not only freely proffer the Chapter to have defended their cause in person though then very aged but stated it and gave it them in writing to be kept for the future in case any after that pretence might be made which was preserved by the Deane and Chapter among their Archives untill the generall deluge of our late dissention swallowed up this among their other things and so gratefull an acknowledgment did the Society make that upon his next Progresse into Norfolke they desired that he would lay his bones in that Cathedrall whose right he had so defended So devout a Son he was of the Church of England in the observation of the Rites and Liturgy thereof that I am confident that in neere forty yeers before his death if sicknesse or publick imployment or somthing extraordidinardy not divert him scarce one day passed wherein he was not twice a devout assistant in the offering up of the publique Service of the Church nor was he lesse severe to himselfe in his person then just to his publick imployments being never so much as suspected of any notorious or scandalous vice These virtues and his learned labours wherein he has as well deserved of his Country as any man before him shall erect him a monument of same to posterity when as the malice and ignorance of his adversaries shall be forgotten For mine owne part it is true that I have ultimately resolved my subjection as a man and my faith as a Christian into two principles the one into the Law of Nature the other into the Scriptures Dominium fundatur in natura at no time or place did ever men live out of Society and Dominion is necessary to Society but faith is divinely revealed in the Scripture and this hapned in succession of time neyther is it yet received by neer one tenth part of mankinde nor will I ever hope to mend what God hath made It is therefore an idle thing to object Imperium in Imperio against it neyther is the objection to any purpose or understood by the objectors for it is the same God which hath engraven lawes of Nature in the mindes of men and who hath divinely revealed himselfe in the Scriptures not is there any thing in either which is repugnant on contrary but rather the one doth confirme and support the other there is no better plea for mens subjection to eyther Kings Fathers or Masters then is contained in the Scriptures nor doth Christianity any waies repugne the Regality of Princes but it is as entire over the persons of all men in all Cases as where men are not Christian Were not those the best Christians who in the primitive times lived under heathen Emperors and persecutors without any civil disturbance on their parts and cannot Christians be as good under Christian Kings or is the case of Kings worse for their being Christian Let any one shew me any thing in all the Scriptures which doth countenance sedition and I will abjure my Christianity yet I will shew him almost infinite places which without all contradiction commands obedience to higher Powers They are therefore Wolves in Sheeps clothing who abuse that ghostly Power left us by our Saviour for the benefit of mans salvation into licentiousness against their temporall obedience due as well by the Law of Nature as those by divine positive institution as if men being qualified to perform the acts of Ghostly power were free from naturall subjection which as Priests they ought to preach as Gods Ordinance R. 13. deserve rather to persecuted to death then obeyed when they do so and by consequence Master Hobbs understands not himself when hee makes his convenient argument against Christianity upon supposition Cap. 6. Art 11. de cive that if one man may command the same thing upon the penalty of temporall death and another forbid it upon pain of eternall the whole structure of his civitas might be dissolved which is no great matter if it were But I pray what doe those men doe which resolve all subjection into the civitas and the civitas into the civil part and the civil part into the wills of men into do or dedi and not dabo or faciam which make the Lawes of Nature voluntary and depending upon the wills of men which make this civitas made by the wills of men superiour to the Law of Nature and impossible to command any thing contrary to it and yet as ridiculously as blaspemously make tyranny
this Act shall be certified into the Chancery by such Parties before whom the same shall be made within three moneths after such submission upon pain of forfeiture of 100 l. for every such offence to the Queen If any person so submitting himself shall within 10. years after come within 10. miles of the place where her Majesty shall be without speciall licence had from her Majesty under her hand that then such person to have no benefit of such submission Enacts That every Feofment Gift Grant Conveyance Alienation Estate Stat. 29 Eliz. cap. 6. Lease Encumbrance Limitation of use of or out of any Lands Tenements Hereditaments whatsoever had or made since the beginning of the Queens Reign or after by any person who had not repaired or shall not repair to some Church Chappel or usuall place of Common-prayer or which is or shall be revokable at the pleasure of such offendor or in any wise directly or indirectly intended or meant to or for the behoofe or disposition of such offendor or in consideration whereby his Family may be maintained shall be deemed and taken for utterly void c. Every conviction heretofore recorded for any offence before mentioned not already estreated or certified into the Queens Court of Exchequer shall from the Justices before whom the record of such conviction shall be remaining be estreated and certified into the Exchequer before the end of the next Easter Term in such convenient certainty for the time and other circumstances as the Court may thereupon award out processe for seisure of the Lands and Goods of every such offendor as hath not paid their forfeitures according to Statutes in such case provided And every conviction hereafter for any offence before mentioned shall be in the Court called the Kings Bench or at the Assises or generall Goal-delivery and not elsewhere and shall from the Justices before whom the Record of such conviction shall remain be estreated and certified into the Exchequer before the end of the Term next ensuing after every such conviction in such convenient certainty as is aforesaid Every offendor in not repairing to Divine Service and hath been heretofore convict and not made his submission and been conformable according to the true intent of this Statute shall without other indictment or conviction pay into the receipt of the Exchequer all such summes of money as according to the rate of twenty pounds for every moneth since the same conviction in manner following viz. one Moity before the end of Trinity Term the other Moity before the end of Hilary Term or at such other times as the Lord Treasurer Chancellor and Chief Baron or any two of them shall by composition upon good security be limitted before the end of the said Trinity Term if any such composition shall happen to be And shall also in every Easter and Michaelmas Term untill such time as the same person do make such submission pay into the Exchequer 20 l. for every moneth which shall incur in all that mean time For default of Payment of the said 20 l. a moneth in every Easter and Michaelmas Term after such conviction the Queen by processe out of the said Exchequer may take seize and enjoy all the Goods and two parts as well of all the Lands and Tenements c. of such offendor as of all other Lands and Tenements liable to such seisure by the true intent of this Act leaving only a third part for the reliefe of the offender his Wife Children and Family For the more speedy conviction of such offendor the Indictment shall be sufficient although it be not mentioned that the offendor was or is inhabiting within the Realm of England or any other of the Queens Dominions But if it shall happen that any such offendor were not within any of the Queens Dominions that in such case the party shall be relieved by plea to be put in in that behalf and not otherwise And upon Indictment a Proclamation shall be made the same Assises or Goal-delivery that the party indicted shall yeeld his body to the Sheriff and if at next Assises or Goal-delivery the said party shall not make appearance of Record that then such default shall be deemed a sufficient conviction in Law If any such offendor shall make submission and become conformable according to the form of the Statute made in the 23 of Eliz. or shall fortune to die that then no forfeiture of 20 l. a moneth nor seisure of Lands from and after such submission and conformity or death and full satisfaction of all arrearages of 20 l. monethly before such seisure due or payable shall ensue or be continued against such offendor so long as he shall continue in coming to divine Service according to the intent of the Statute The Lord Treasurer of England Chancellor and chief Baron or any two of them may assigne and dispose of the full third part of the twenty pounds for every moneth paid into the receipt of the Exchequer towards the relief of the Poor of Houses of correction and of impotent and maimed Souldiers This Act or any thing contained in it doth not in any wise extend to make void or impeach any Grant or Lease made bonâ fide without fraud or covin and not revocable at the will and pleasure of the offendor This Act or any thing contained therein shall not in any wise be construed to continue any seisure of any Lands or Tenements of such offendor in her Majesties hands after the said offendors death which Lands or Tenements he shall have or be seised of only for term of life or in right of his wife For the preventing of such great inconveniences and perils as may happen Stat. Anno 35 Eliz. cap. D. and grow by the wicked practices of seditious Sectaries and disloyall persons it was enacted That every person above sixteen years of age that shall obstinately refuse to come to Divine Service established by Law and shall forbear the same by the space of a moneth without lawfull excuse or shall at any time after fourty dayes after the Session of that Parliament by word or writing advisedly goe about to move or perswade any of the Queens Subjects or any other within her Realms or Dominions to deny or withstand her Majesties power or authority in causes Ecclesiasticall united and annexed to the Imperiall Crown of this Realm or shall advisedly perswade any person to forbear coming to Church to hear Divine Service established or to come to or be present at any unlawfull Assemblies Conventicles c. upon pretence of Religion contrary to the established Lawes Or if any person shall obstinately refuse to repair to some usuall place of Common-prayer and shall forbear to hear Divine Service by the space of a moneth or shall after fourty daies willingly joyn in any such Assemblies Conventicles c. under colour of exercising Religion contrary to the Laws of this Realm That every person so offending and being thereof lawfully