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ID Title Author Corrected Date of Publication (TCP Date of Publication) STC Words Pages
A29596 A sober enquiry, whether it be lawful for subjects without royal authority to take up arms in defence of the Protestant religion, to prevent popery De Britaine, William. 1684 (1684) Wing B4809; ESTC R9196 7,868 14

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be an Invasion ab extra or an Insurrection ad intra in this Kingdom if the Jus gladii were not in the King who should defend the Kingdom If it be in the people as you would have it then all have an equal Right to command and so for want of a good accord amongst them as they will rarely agree to reason the Kingdom would be lost Therefore the Posse Regni by the Laws and Constitutions of this Kingdom doth solely belong unto the King F. N. B. 113. Glanvil lib. 1. c. 2. lib. 14. c. 1. Bracton lib. 3. fol. 118. and by the Statutes of 13 Car. 2. c. 6. 14 Car. 2. c. 3. the Jus gladii is setled and declared to be solely in the King Therefore if Subjects upon any pretence whatsoever shall take up Arms without the Authority of the King it 's high Treason by the Common Law and by the Statute 25 E. 3. for they usurp Royal Authority and it 's a Machination and Compassing of the Kings Death and a levying of War against his sacred Person and Authority It was resolved by all the Judges of England in the reign of Henry the Eight That an Insurrection against the Statute of Labourers for the inhansing of Sallaries and Wages was a levying of War against the King because it was against the King and his Laws and so in destruction of the King and for that the Offenders took upon them the Reformation thereof which Subjects by gathering of power ought not to do Inst part 3. fol. 10. The Imperial Law doth assert the same Ad Legem Ju. Majestatis Leg 3. eadem lege tenetur qui injussu Principis bellum gesserit detectum habuerit exercitum comparaverit its Treason without the Command of the Prince to make War levy men or raise an Army And Codex armorum usus inscio Principe interdictus est Nulli prorsus nobis inscitiis atque inconsultis quorumlibet armorum movendorum copia tribuatur It 's not lawful for any without our Authority to take up Arms. These are the words of the Emperors Valentinian and Valens and Codex de re militari Leg. 13. Nemo miles Nemo miles vel sibi vacet vel aliena obsequia sine nutu Principali peragere audeat And Bodin doth tell us the same de Repub. lib. 1. c. 10. n. 155 156. fol. 244. Edit Latin Ursell Anno 1601. 2. It 's not lawful for Subjects in the Realm of England to take up Arms for Religion either to reform it or to take away that established or to introduce a new one without Warrant or Authority of the King Because 1. The King is the Supreme Head of the Church of England 26. H. 8. c. 1. 2 E. 6. c. 2. And at a Convocation holden Anno 22 H. 8. by a publick Instrument made by all the Bishops and whole Clergy of England the King was acknowledged to be Supreme Head of the Church of England Inst part 3. fol. 121. 2. All Ecclesiastical Authority and Jurisdiction in this Kingdom are originally derived from the King lib. 5. De Jure Regis Ecclesiastico he hath power within his Dominions to declare what are Articles of Faith according to Scriptrue to make Laws for the Government of the Church to appoint forms of Worship and Discipline and he hath power to make Orders and Constitutions for the Government of the Clergy as it was resolved by all the Judges of England 2 Feb. 2 Jac. Croke part 2. fol. 37. Moors Rep. 755. And these Rights and powers of the King are inherent in him as Essential Flowers of the Crown and as ancient as the Crown it self For Subjects to raise Arms in opposition of any of these Powers or against the Laws and Constitutions to that purpose by the King made it 's High Treason within the Statute of 25 E. 3. for the Church and Common-wealth make but one Monarchy therefore they which take up Arms against the Ecclesiastical Power of the King take up Arms against the Monarchy and so against the Monarch And I must tell you Sir That originally there was no difference between Church and State as to Jurisdiction until Christian Monarchs divided Jurisdictions and delegated Civil and Ecclesiastical persons to take Conusance and judge of Causes separate And those Jurisdictions are called Civil and Ecclesiastical in respect of the Delegates only and not in respect of the Cases whereof they take Conusance and judge And the same persons which ratione Ligeantiae are Members of the Common-wealth ratione Fidei are Members of the Church Sir Edward Coke that great Oracle of the Law saith If Subjects take up Arms to alter Religion established within the Realm or the Laws or to any other end pretending Reformation of their own heads without Authority from the King this is a levying of War against the King because they take upon them Royal Authority which is against the King and per Consequence it 's High Treason Inst part 3. fol. 9. Sir John Old castle of Cowling in the County of Kent in Parliament was adjudged a Traytor for that he and others to the number of twenty men called Lollards did conspire to subvert the State of the Clergy Rot. part 5 H. 5. n. 11. In Queen Maries time Sir Nicholas Throgmorton conspired with Sir Thomas Wyat to levy War within the Realm for alteration in Religion he joyned not with him in the execution of this Conspiracy yet both adjudged Traytors by the Common Law before the Declaration of the Stat. 25. E. 3. Dy fol. 98. 1 Jac. The Lord Gray and other Conspirators met and conspired to make an Insurrection whereby they designed to seise the King into their power until he should grant them a Pardon of all Treasons a Tolleration of the Exercise of the Popish Religion c. They were indicted for Compassing the Kings Death the Lord Gray was tryed by his Peers and had Judgment to be drawn hang'd and quarter'd In the Fifthty first of Henry the third it was declared by Parliament that for Subjects to associate or enter into any Covenant to reform Church or State without the consent of the King was High Treason by the Fundamental Laws of this Nation and entred upon the Roll Nullo contradicente Rot. part 51 H. 3. n. 8. If the end of raising Arms be to overthrow any Statute any part of the Law and setled Government in Church or State this is war against the King and High Treason In that great Insurrection of the Villains and meaner people in King Richard the Second's time they took an Oath Quod Regi Communibus fidelitatem servarent to be true to the King and Commons and that they would take nothing but what they paid for punished all Theft with Death here was no intendment against the person of the King the intent was to establish the Laws of Villenage and Servitude this in Parliament 5 R. 2. is declared to be Treason against the King 5 R. 2. part 1. n.