great cause for a King to use his extraordinary power without the compass of positive lawes as there was for the Romans to constitute such an extraordinary and supream Magistrate For as the prerogative of the King ought to give place to the publick good and safety of the people so must the rights and liberties of the people when necessity requireth give place to the Kings supream authority Subditorum jus supereminenti Regis dominio subest Grot. de jure belli lib. 2. C 14. quatenus publica utilitas desiderat Nam ut aequitas simplicitèr cedit aequitati summae ita jus eedit juri supremo maxima aequitas est lex suprema dicunt Doctores quae maxime ad religionem nam summaratio est ut in lege dicitur quae pro Religione facit spectat ad publicam utilitatem ad hominum societatis vinculum conservandum Moreover those who would abolish the Kings prerogative would take away with it one most proper and necessary branch thereof which is his right of granting priviledges dispensations qualifications exemptions from the Rigour of positive lawes so as men shall expect no farther then the letter of the law granteth whatsoever their case or merits are whereas there is often as necessary use and as great justice in priviledges dispensations and exemptions as there is of and in the Lawes themselves and peradventure more For the most perfect positive Lawes cannot provide for all accidents The Roman Praetor had power Cicero L. 1. F. de Just jure as equity required aequitas justitiae maximè propria est ut juvet jus civile ut suppleat utque corrigat in private mens cases and so is it in Courts of equity And shall the Prince be restrained from the use of equity from helping supplying or correcting the Law when the publick good or the preventing of injury to private men requireth it and from dispensing with the rigour of penal laws L. 1 l. 9 l. penul Cod. de legibus Novel 82. cap. 10. L. 12. F. qui et â— quibus Cuiae alii ad dic l. 12. Faber adregul Juris whose right it is leges condere conditas interpretari duritiamque ipsarum mollire lenire temperare Judices non debent esse clementiores legibus In lege dicitur quod quidèm perquà m durum est sed ita lex scripta est and it was not in the power of the Judges to help it for such a strict and hard Law onely the Prince could mollifie when the words of the Law are so clear and precise that it cannot receive an interpretation ex bono aequo it were very absurd to take away all particular priviledges and exemptions from the general rigour of sundry Lawes and it were infinite to set down those good Laws founded upon reasons drawn from the Law of nature which nevertheless upon due consideration of circumstances are justly restrained from their general force without any violation to the reason the life and the soul of those Lawes as the Doctors say of the Civil and Canon Lawes So as there is a dispensation of Justice requisite in point of Justice as well as there is a dispensation of Grace whereby the bond of the Law is not released the force and obligation of the Law still remaining onely the reason of the Law which is the soul of the Law in some particular case ceasing the Law is justly interpreted in such case not to have place but to have the influence and vertue thereof limited or suspended according to the true meaning of it and the intention of the Law-maker lest injustice or absurdity follow I grant that there is often an abuse of the Law and of the equity and power given for interpretation mitigation and dispensing with Lawes under the countenance and colour of equity and justice plerumque sub authoritate juris perniciosè erratur L. 91. F. de verb. oblig ubi quaestio sit de bono aequo And there is an abuse of the Regal power and prerogative quid non dominantium cogitavit cupiditas ubi malè agitur necessitatis obtentu Plinius licita ex necessitate in argumenta trahuntur as saith the Law And all this is acted under the colour and pretence of reason of State which according to the Italian saying Ragion di Stato guasta tutto il Mondo Reason of State destroyeth the whole world These are commonly called Machiavillian counsels State-impostures stagitia dominationis as were those which Proculus Tacitus Titianus and Nero used when they could find neither Law nor reason to justifie their will ad jus imperii ad vim dominationis transibant And in later ages the exorbitant actions of Princes are justified by Sycophants by reason of State and by the virtue of their absolute power different from their legal and ordinary power Baldus Innocent Alciat ad l. 2. Cod. de in jus voeando alii De plenitudi ne potestatis Pontificis non oportet sermonem effundere quia superfluum est solem facibus adjuvare Extravag Gloss ad tit 1. Plinius ad Trajan Imp. Plenitudine potestatis Princeps ad malum utendo dicitur plenitudo tempestatis non potestatis nam clausula de Plenitudine potestatis inserta intelligitur de potestate justa non Tyrannica Inest enim plenitudo potestatis in dispositione bonitatis non pravitatis posse injustum facere potestas non dicitur sed infirmitas deficientia boni Plenitudo potestatis non extenditur ad iniquum neque exercenda est nisi praemissa clave discretionis quae regulanda est per jura ex bono aequo Sed in Jure nostro nulla est mentio plenitudinis potestatis Vt foelicitatis est quantum velis posse sic magnitudinis velle quantum possis But these corruptions and abuses are not sufficient causes for the abolishing the good and ancient institutions in Common-wealths or the proper and necessary rights of Monarchy unless we will imitate our late Reformers who rather have chosen to cut off from the body that which was necessary then endeavoured to cure any defects there and have destroyed the good corn wilfully when they onely pretended to pull up the weeds The Baâ—ance would be kept even between the Subjects right and the Kings prerogative if the Rule in the Roman Law were observed salva Majestate Imperii L. 11. F. de Justitia salvoque jure more majorum quia ut dicunt Juristae sicut pendet Justitia ratio Tributi Fectigalis in recognitionem Supremae potestatis ob onera sustinendae Reipub. ad praestandam securitatem mercibus ita Regalia Regibus competere ut statum Reipub desendant sive decus dignitas sive salus utriusque spectetur Kings have their proper and peculiar rights assigned by God who commanded Samuel to shew the people the manner of the King that shall raign over them rationem istam
King be in the worst condition of all men sit quasi exul qui est omnium praesul Baldus He is tyed by the Laws of nations and nature to observe just contracts which as the Doctors say he cannot make void and revoke de plenitudine potestatis suae The Lawyers affirm that vectigalia alia emolumenta ex jurisdictione provenientia alienari possunt in parte praescribi possunt firma manente jurisdictionis suae suprema exercitatione apud se et successores suos Baldus ita ut sit sine diminutione authoritatis supremae derogatione directi dominii Principis * No Act of Parliament can bind the King from any prerogative which is sole and inseparable to his Person And although some of these Regalities seem to be reserved yet are they grantable and subject to prescription as creare Tabelliones monetas cudere exactiones vectigalium aliquorum and some others quae cùm sint inter minora Regalia corporis summique Imperii Patrimonii Regii integritatem non imminuunt In his praescriptio valeat contra fiscum * Peregrinus de jure fisci alii Chopin de doman Reg. Codex Fab. Sex tinus de Regalibus Tributa alia publica functio seu collatio nullam temporis praescriptionem admittunt Cod. l. 6. de Praescript 30. vel 40. annorum Et generaliter res Fisci non usucapi l. 2 Cod. communia de usucapi Institut de usucap l. 18. F. de usucap temen sunt aliqui casus ubi praescriptio locum tenet contra Fiscum per leges constitutiones Imperiales l. 4. l. 6. de Praescript 30. 40. annorum Cod. l. ult C. de Fundis Rei privatae l ult C. de Fundis Patrimon caus 16. quast 3. c. 16. de Tributis aliisque prensitationibus publicis nullo temporis spacio praedia redduntur immunia non sic de alio jure publico principali seu Fiscali Feudali Cujac consultatio 54. Census tributa domnium Principis res sunt inalienabiles imperscriptibiles quarum vindicatio nulla temporis praescriptione submoveatur His ancient and just tributes and customes and his right of imposing moderate gabells and taxes are not alienable neither within the reach of prescription as likewise the domaines of the Crown called the Royal Dowry for when these are taken away he doth lose his peculiar and proper livelihood and the ordinary means to support his estate and the Common-wealth receiveth much detriment when the King hath not wherewith to live of his own but the people must be continually burthened with exorbitant and illegal Taxes and courses used for raising of money the most usual causes of discord between the King and the People often producing Insurrections and Rebellion and sometimes made use of by factious and discontented persons to justifie or colour their designs against their Soveraign The Emperour Vitellius unto some men released his Tributes Tacitus to others he granted over-large immunities without care of posterity he mangled and maimed his Empire The Common sort accepted these favours the fools bought them with money which wise men accounted void as being such as could neither be given nor taken with the safety of the State CHAP. IX Of the Act of Parliament wherein the King was to pass away his power in the Militia And that other Act which was made for the continuation of the Parliament until both Houses should agree for the dissolving thereof Of fraud or force used towards the King or any other men for the obtaining of any Charters Patens or Grants BUt we cannot finde any grants of Vitellius or of other Roman Emperours or Princes subject to more just exception either in respect of the matter and things granted or the means used for the obtaining of them or the end and purpose for which they were obtained then that act of Parliament whereby the King was to pass away his power of the Militia and raising of moneys upon the People for maintenance of forces by land and sea at the will of the Parliament the ready way to out himself of all power of War and Peace of arming or disarming his own Subjects or any others upon what cause soever contrary to the rights and safety of Monarchies and to the Laws and Statutes of England as hath been before declared But this was as the Psalmist saith to strengthen themselves in their wickedness and to worke their iniquity by a Law The King might as well have granted them jurisdiction over any City or County of his Kingdome independent as unto himselfe and exempt from his authority and the Laws of the Realm and without appeal to his supream Court and he might as well have passed away his peculiar right of pardoning offences and despensing with penal Statutes The Doctors of the Civil and Canon Law say that a King in what grant soever cannot abdicare à se superioritatem suam jus illud supremum Baldus Alexand Angelus alii quod semper praesumitur reservatum nec concedere censetur totum hoc privativè quoad se successores suos ita ut non possit alteri jurisdictionem dare aut potestatem quin ei remanet major jurisdictio potestas quam fuerat translata neque tamen quocunque modo Regalium concessio fiat Sixtinus de Regalib lib. 1. cap. 5. ipsius Imperatoris aut alterius Regis superior potestas ea concessione comprehensa censetur sed potius major quam est concessa illis reservata retenta sit neque potest à supremo Principe licet velit ita concessio fieri ut superior potestas in alium transferatur The fairest and the most specious pretences and the strongest and most legal tyes and formalities make that which is evil in it selfe the most pernicious and abominable damnabilis est malitia quam titulus bonitatis accusat Salvianus this Statute therefore being such and so qualified and so destuctive to that power wherewith Kings are intrusted by God and invested by the fundamental Laws of their Kingdomes and serving most properly to raise and continue discord between the King and his Subjects cannot but appear to all men to be as absurd as pernicious And like this was that other act and of the same leaven and mould with that act of the MILITIA which was made for the continuation of the Parliament until both Houses should agree for the dissolving of it But they did not stay for that agreement for the Parliament was dissolved against their will by the irruption of the soldiers And yet before that they did dissolve it themselves although besides their intention when they deserted the King and his authority and acted contrary to their writ of summons and to the rights of both King and People But more apparently when they suppressed the House of Peers and ran away most part of them together with their speaker unto the protection of the Army and so became the
and natural The brother delivereth up the brother Matth. 10. and the father the childe to death This made certain Jewes bind themselves under a curse Act. 23. that they would never eat nor drink until they had killed St. Paul Experience hath proved that there is no cruelty comparable to theirs who have taken on them the name of the Church neither any so dangerous evil as that which carrieth the face and pretence of Religion King James describeth such Puritans as he had long trial of in Scotland Instruct to his son and saith they are the very Pests of the Church and Common-wealth whom no deserts can oblige neither promises or oathes binde breathing nothing but seditions and calumnies aspiring without measure railing without reason making their own imaginations without warrant of the Word of God the rule of their actions Sermo 66. Cant. St. Bernard doth make mention of the like men in his time Qui nec rationibus convincuntur quia non intelligunt nec autoritatibus corriguntur quia non recipiunt nec slectuntur suasionibus quia subversi sunt Of the like men by the unsearchable Judgment of God our King his Son had the like experience but with much worse success It were a work of time and a labour to little purpose to relate the several Sects which now do swarm for sometimes their doctrine doth differ from their practise and some of their errors are opposite to others although they spring from the same root And it is meet that errors should be divided into sundry serpentine heads one hissing against another howsoever they are tyed together by the tails like Samson's Foxes to set fire both in the Church and Common-wealth D. Bernard Sermo 65. In cunctis assertionibus eorum licet multae sunt nec novum quid aut inauditum audisse me recolo sed quod tritum est diu ventilatum inter antiquos haereticos à nostris autem contritum eventilatum The Ecclesiastical Histories do mention such Pests to have been â—â—ciently in the Church and these of our Age seem to be of their seed and of the same leven and mould Eusebius saith that whilest new Heresies sprang up Eccles hist lib. 4. cap. 7. creeping one upon another the latter taking place the former did seem to vanish or subdivide into many Sects changing this way or that way until they were destroyed or grown obsolete and out of request For the Church being once divided they rested not upon any one Schism or Sect Socrat. Eccl. hist but they fell out and severed themselves upon slight and trivial matters People divided in religion seldome agree in matters secular neither can religion be safe when the Common-wealth is rent by civil discord both suffer together in by and through each other Socrat. Proem ad lib. 5. Eccl hist. When the Common-wealth hath been tossed with dissentions the Church hath not been quiet both at one time out of square or the ones calamity ensued immediately after the others And sometime when the Church began to vary in religion immediately followed rebellion against the Civil Magistrate But we can find none or very few of those many ancient Hereticks Sectaries or Schismaticks quarrel with Episcopacy but all these of our time jump together in no one point so near as they do against Episcopacy Those Christians who are now dispersed in divers parts of Africa and Asia although they are of different Sects do not admit of any other form in Ecclesiastical Government but Episcopal in this they agree The ancient Hereticks and Schismaticks who were as subtle men as these new did not quarrel at the Function so as they might have had Bishops of their own side or have been Bishops themselves Their envy towards others or their desire of being preferred before others made many become patrons of Heresies to the great prejudice of the Church and the peace thereof Concerning the opposition against Episcopacy and Ecclesiastical Discipline wherein full defence hath been made by divers learned and pious men I shall not say much although the matter deserveth to be more fully and exactly handled Much may be said against the tyranny and superstition under the Papacy and against other abuses and personal faults yet may we not thereby infer a necessity of the change of the Episcopal order and office into Presbytery which is subject to as many and great abuses as they finde who live under it It is not without just cause that those men who would be reputed learned and pious should receive blame for their so eager and bitter contesting against the superiority of one man in Church Government even to the rending of the Church in pieces when they do not define or declare by the Scriptures notwithstanding all their labour what is of necessary and perpetual obligation in this controversie And of all those things which they have urged in their own behalf as greatly necessary for Church Government there is no one which they have proved to be contained in Scripture and injoyned for perpetuity but in stead of this proof they obtrude conjectural and slight interpretations uncertain probabilities and as weak inferences in opposition of the primitive and continual judgement and practise of the Church Until the blessed Apostles less the world there could be but little shew of superiority in any but in them and in those whom the Apostles constituted Superiours as Timothy and Titus 2 Cor. 8.23 and immediately after them there was shew enough in the Churches planted by them if we will give credit to all the stories of Antiquity and value the practice of the Primitive Church when the Scripture was best understood and godlinesse did most abound Our Saviour did approve of superiority in the Church so as it were without pride and tyranny by his saying Luke 22.26 He that is greatest amongst you let him be as the younger and he that is cheise as he that dâ—th serve And that Saint James was established the first Bishop of Jerusalem cannot be gainsaid Saint Jerome whom the Presbytery account most favourable to their cause of all the Antients and most against the granting Episcopacy to be of Divine right he saith Et Alexandriae à Marco Evangelista usque ad Heraclam Dionysium Episcopos Presbyteri semper unum ex se electum in excelsiori gradu collocatum Episcopum nominabant Olim idem erat Episcopus Presbyter sed sciunt Presbyteri ex Ecclesiae consuetudine Vide Distinct 93. c. 4. distinct 95. c. 5. in toto orbe decretum esse ut unus de Presbyteris electus superponeretur caeteris ad quem omnis Ecclesiae cura pertineret in schismatis remedium factum est ut schismatum semina tollerentur ne unusquisque ad se trahens Christi Ecclesiam rumperet The time nearest the Apostles ought to be herein our best Directory and interpreter Observantia proxima valde interpretativa dat fidem
aut minuit The Apostolical and Primitive practice rather then the late discipline and example of some reformed Churches who as much of necessity as of election are fallen for the most of them unto a form of Presbyterian discipline of which they find no use nor Character in the Primitive time And therefore they shew little candor and sincerity who so peremptorily defend this Presbyterian discipline and with detraction and detestation of Episcopal Government seeing it hath been fully proved by Learned men that the office and power of a Bishop made ever a great difference betwixt him and a Presbyter Neither can they conclude any thing for their advantage by the promiscuous use of those two names at the first at which they catch It cannot be called one and the self same order where the offices are distinct Diversi tituli praebent regulariter significationem diversi juris * Episcopetus est ordo distinctus in quantum est officium quâ—ddam ad sacras actiones Aquinas Episcopa tus juxta veriorem receptiorem sententiam Canonista um Theologorum ordo est quatenus ordo dicitur officium quoddam potestas respecâ—u qua rundam sacrarum actionum que sacerdoti non conveniunt Conarunias variarum resolut lib. 1. c. 10. Amongst Gods selected people there was the high Priest the chief Governour of the house of the Lord. Jer. 20.1 Numb 3 32. If the offices and things are distinct it availeth little the insisting upon words and names promiscuously used There is not one and the same imposition of hands and shall not it be a distinct order in it self from whence ordination and all other orders do and ever did proceed untill of late time Neither was the office and Power of a Bishop lessened by the assistance and counsel of certain Presbyters called Senatus Ecclesiae but rather strengthened and supported by that antient and laudable course There doth not appear in Scripture any commission given to any assembly of Presbyters by our Saviour to govern the Church without a Bishop or Superiour in whom was the power of Ordination and Imposition of hands although by the antient Canons Distinctio 24. c. 6. causa 15. quâ—st 7. Episcopus sine consilio Clericorum suorum Clericos non ordinet it a ut Civium conniventiam testimonium quaerat Neither is there any example in Scripture of any delegation of power of Censures or Government derived from the Apostles to any Colledge or Assembly of meer Presbyters If these men will peruse the Canons of the four first general Councils which Calvin saith Institut 4. c. 19 Et in lege Constantini Imperatoris sancimus vim legum obtinere Sanctas Ecclesiasticas regulas quae à Sanctis quâ—tuor primis Cenciliis exposi a sunt Novell 131. cap. 1. distinctio 15. c. 2. libenter amplectimur reveremur they shall find enough to justifie the office and superiority of Bishops and to give them satisfaction of the necessity of that Function if wilfull ignorance and the spirit of delusion and contention doth not still prevail They cannot shew that ever any Church upon the face of the earth hath ever been ordered by their discipline untill this later age or hath not ever been under Episcopal government since the Apostles time * Exceptis Haereticis Macedonianis qui pro certo tempore non habthant Episcopum sed sub solis Presbyteriis eâ—ant Sosomen Eccles hist lib. 8. c. 1. Neither can they by their doctrine and manners or by any other means induce those who are in no respect behind them in learning prudence and piety to believe that they and not others have had the clearer lights and more divine inspirations Saint Paul meeting with such men saith unto them 1 Cor. 14.36 Luk. 11.35 What came the word of God out from you or came it onely unto you Take heed that the light which is in thee be not darkness CHAP. II. Of the Presbyterian Government in the Church The practice in the Primitive times Touching the election of Pastors and Ministers in the Church and their maintenance by paiment of Tythes AS they would have it granted that their Presbyterian Government is onely of Divine right so would they also have it granted that nothing is to be used in Church Government but that which hath direct and express warrant in Scripture and that all discipline and order in the Church ought to be reduced to the primary purity of the Church which is not possible in many things neither necessary or expedient in these corrupt times and latter age of the world An exact form for all Church government and discipline is not to be found expressed in the Scripture For one cause of so many general Councils in the first times and shortly after was to make Canons and Constitutions for the external Government of the Church which had not needed if such a perfect Platform had been delivered in the Scripture as these men do imagine We find of necessity Aliter in constitutà Ecclesià aliter in constituendà Some things are sit for the present which for the times past were not convenient according to the old saying Nunc aliud tempus alii pro tempore mores Cicero had just cause to be displeased with Cato who living in a corrupt State sought to have all things carried as though he had lived in Plato's Common wealth New lawes may be made but not new men neither the present manners of men altered or reduced to the old It was wisely said in the Imperial Law That the looking back too curiously into the times of old and seeking to reduce the present to that which was past erat confusionis potius quam legislationis Laws look not back they may well be made to look forward and for the future but they must of necessity be made fit for the present time which man cannot over-rule Aul. Gel. lib. 20. c. 1. Legum opportunitates medelas pro temporum moribus pro rerum publicarum generibus pro utilitate praesentium mutari atque flecti The ancient good discipline may well serve for our instruction which neither may nor can all serve for our imitation Respect is to be had unto the times of old and we are instructed by Gods word to ask of the dayes of old to remember the dayes past to ask for the old paths but not injoyned to follow them in all things Jerem. 6.16 and in all times We finde in the Scripture things of Apostolical institution changeable and not appointed for perpetuity Many offices and ministeries in the Church at first were soone changed as the electing of widows for some services the manner of instituting and ordering of Pastors and Elders not lay Elders and for the raising their maintenace which in the primitive times when the Church was in the Infancy and under Persecution before Tythes were established did rise from the free Benevolence of men who were of one
inconstant in the use and observation of them Julius Caesar said of Cato his mortal enemy that he shewed himself both a good man and a good Citizen by opposing the changes of the State and Government Salust mutationes in Republica caedes hostilia portendunt especially if the changes and alterations are driven on by violent and pertinacious Spirits who if they obtain their desire in having any antient Laws and customes changed their Countrey shall find the smart as did the Roman State Valerius Max. lib. 9. cap. 1. when the Senate yielded thereunto quia non providerunt ad quod tenderet pertinax studium eorum quò se usque effusura esset victrix legum audacia Livius lib. 1. tentari patientiam tentatam contemni ut si jugum acceperint obnoxios premat As some men ask unreasonable things but to draw others to yield unto that which is reasonable so others by granting unto some men more then reason doth require do imbolden them to press more unjust and insolent demands The alterations in the State and Government procured by those who have the supream authority if they are not discreetly handled and effected by degrees in an orderly course and carried still on with the ease and contentment of the people they will in short time be disquieted and either turne back into the old way like sheep driven or violently run head-long into some new Salust Jus quod invaluit quod viget quod inharet animis hominum non semel sed pedetentim tollendum esse quoniam Populus non facile dediscit aut deutitur quod insnevit And therefore those Innovators who try experiments upon a State and upon the peoples disaffection to the present government and thereupon lay the cheif foundation of their designs without some other stronger assurance have often failed and have found themselves and others with them utterly ruined through the suddain and violent ebbing and flowing of the Peoples passions and affections The fear of this caused the Roman State when they had expulsed their King Tarquin not to rest upon the Peoples present violent hatred of the Regal Government and their oath freely taken never to admit Monarchy but for the future security of their usurped Government the Senate gave the People the spoil of all the Kings goods and of theirs who adhered unto him ne quis expers sceleris esset saith Livie that there might not be any who had not a hand in that foul fact and thus to set farther all hope of reconciliation with their King yet unto this the Senate added as the most effectual means to assure the Peoples affection their continual carefor provision of corn victuals and all necessaries at cheap rates together with freeing the Commons from heavy taxes and burthens and laying them upon men of most wealth and ability and upon Commodities superstuous and least necessary For the State being not come unto full growth and maturity might by many accidents have been destroyed Livius had it not been fostered and trained up por tranquillam moderationem Imperii et per multa blandimenta Plebi por id tempus ab Senatu data by a gratious Goverment and by entertaning the Commons at that time with courtesies and favours By which smooth dealing and indulgence of the Senate and Nobles the City was afterwards kept in liking of their new Government notwithstanding the strong opposition of the Tarquines and their party so as the meanest as well as the highest who were most ingaged and interessed continued altogether in the hatred of Monarchical Government and in the love of the new The alterations in the Church and the government thereof how pernicious they are we find especially being wrought by faction violence and tumults Vim Patriae afferri as Cicero saith These cause great distractions in the minds of men raise daily cross and counterspirits occasion the Religion professed and established to be traduced and do open an entrance to Atheism and to the weakning of all those facred bonds which preserve all Laws and obligations in humane society For then oaths are not regarded by those men nor the consciences of any other men in their pressing these Alterations in the Church neither the conscience of their Soveraign nor his solemn oath at his Coronation which oath is a supporter and an Epitome of out Magna Charta the confirmation of all our liberties By which oath the King is obliged to save and keep inviolable all the rights and liberties of his People and also those of the Church This oath they inforce the King to break in as much as concerneth the Church and the rights thereof and leave the People to the challenge of their rights and liberties by and from the vertue of this broken oath In both Kingdoms of England and Scotland he took an oath Episc Winton Tontur Ton. de conservandà in statu suo illo colendi Dei formulà quae publicè recepta utriusque gentis legibus stabilita esset Their consciences some of them would seem much to regard this in which respect they pretend that they cannot admit the Common-Prayer Book neither those Ceremonies in the Church which are by Law established and yet most of them although they cannot swallow a ceremony they can devour that which is holy and account it no snare Prov. 20.25 even as easily as they can digest their wilful breach and violation of the oaths of Supremacy and Allegiance in ordine ad spiritualia for the advancement of the holy cause and the Kingdome of Christ But Calvin giveth them a rule for their consciences concerning Church Government and concurreth with Melanchthon men in great esteem when their Presbytery was in the infancy viz. aliquando aliquod onus aliquam servitutem tolerandam esse si non sit iniquitatis sed pressurae lest by being over indulgent to our weak and erroneous consciences we give an offence to others violate the Peace of the Church and shew our contempt of Authority and of that which hath been established with prudence and piety We ought well to consider what things are of Divine right and precept and what are properly positive and Ecclesiastical constitutions what things are of Divine Right according to the matter and substance and are of humane institution according to their forms prescribed All are of weight although not equally What ought to be perpetual in the Church and what is changeable by positive Laws What is Moral what is Ceremonial lest the defects of our judgement cause us to abound in our own sense and lead us into an erroneous or perplexed conscience Some things are of Divine institution and right yet do not alwayes belong unto faith Bish of Winchest Epist to P. Moulin they belong to the agenda or practise of the Church to the credenda or points of faith they may not properly be referred Somewhat may be wanting that is of Divine right at least in
the external Government of a Church and yet salvation may be had there and that Church may stand without it Moreover although the constitutions of men are not of force in themselves to bind the conscience yet do men sin in wilfully disobeying such Laws and constitutions as are by Lawful Authority established when they can shew no other cause for their disobedience but their conscience neither bring any warrant out of Gods Word In the supposed purest reformed Chuches there are some Ceremonies enjoyned Psalm 29. and are not without punishment contemned and some must be if we will serve God in the beauty of holiness Calvin alloweth such Ceremonies as tend to the perspicuity of doctrine as being prositable allusions and iliustrations and having divine significations such Ceremonies saith he as are paucae numero observatione faciles significatione praestantissimae In the ministry of the Church there ever have been some Ceremonies ordained for order and decency and also for signification Ceremonies tending to edification signisie moral duties and works are signified Such rights and Ceremonies as are not repugnant to Gods Word neither apt to lead men into superstition and to will-worship but serving to edification and decent service so as the Church be not burthened with the multitude of them nor the essence of Religion placed in them although some of them have been in part used by Pagans or Papists lest upon such restraint we press too much servitude upon the Church We cannot take in too many helps for our performance of Religious duties for the exaltation of Gods glory and goodness for the more decency in his service for the manifestation of our duty of thankfulness and for the furtherance of our devotion so as Superstition and Will-worship be restrained And in all this if men should be left to their own wills the Church of God would alwayes be perplexed and grieved and the peace thereof dislurbed with infinite Scandals both given and taken A great evil it were that order and decency should break the Communion of Saints which hath been so piously instituted for the preservation thereof and the increase of devotion and the manifestation of our thankfulness to God for all his benefits They ought to find other causes for their dislike of Ceremonies then because some of them were used in time of Popery The Reformed Churches retain some things used in the Romane Church And they use the Churches which not onely the Papists enjoyed but some Churches which had been Temples of the Pagan gods If they quarrel with our Ceremonies because they were used in the Roman Church without any other reason they are like those who hate men for other mens sake or because of the company wherein they find them They will not consider that those things which have been superstitiously abused may be made useful for the service of God Judges 6. who did command the wood of the Grove dedicated to Baal to serve for the use of his Sacrifice And Jericho an accursed City all in it was to be destroyed by fire Joshua 6. but the silver and gold the vessels of brass and iron were put into the House of God Constantine and other Christian Emperours abolished Paganism and made it death to worship their gods yet they preserved their Temples and other things L. 3. 1.4 Cod. de Pagenis as appeareth by the Imperial Law Sacnisicia templorum prohibemus publicorum operum ornamenta servari jubemus festos conventus civium communemque omnium laetitiam non patimur submoveri unde absque ullo sacrificio superstitione damnabili exhiberi Populorum voluptates secundum veterem consuetudinem ac ministrarietiam festa convivia quando exigunt publica vota decernimus Neither ought we to abolish our fellivals in memory of our Saviours Nativity Resurrection and of Pentecost because they are vestigia legis antiquae Mosaicae and seem to be borrowed from the Mosaical Rites and Ceremonies The verses and sayings of the Heathen Poets dedicated to the Muses and to their gods not onely holy men but also the Apostles used not so that our faith faith the Apostle 1 Corinth 2. should stand in the wisedom of men but in the power of God The use of humane learning is not to be contemned by those who would be reputed learned in Divinity qui liberales illas artes imbiberunt carum subsidio adjuti longè altiùs provehuntur ad imrospicienda divinae sapientiae arcana * Calvin Inslit lib. 1. c. 5. n. 2. Ad intelligentiam sacrarum Scripturarum secularium peritia liberaltum Artium est necessaria Distinclio 37. Quicquid de ordine temperum transactorum indicat historia gentiumplutimum nos adjuvat ad sanctos libros intelligendos quaecunque de locorum situ naturaque animalium lignorum herbatum â—liorumve corporum scripta sunt sendimque cognitionem valere ad aenigmata soripturarum solvenda docuimns August de Doctâ—ina Christiana lib. 2. Jalianus Apostata interdixit Christianis usu Poeticae Rhetoricésque ac Philosophicarum artium nempropriis inquit ut inproverbio est pennis configimur ex nost is enim libris aima copiunt quis but in bello adversus nos utantur Theodoreti Ecclos hist l. 4. c. 8. An ipse non est Ecclesiam persecutus qui Christianos liberales artes dosere discere ve â—uit August lib. 18. c. 52. de Civit. Dei Licet à ciuore abstinuit non Christianorum corpora occidere sed ex corum animis Christum revellere miris artibus technisque attentabas quod est genus persequendi omnjum efficacissimum porniciocissimum Ita effecium est ut plures hac calamitate abcesseriot ab Ecclefia quem ulla alia superiore Lud. Vives We ought to take heed of those who under colour of Incorformity with the Church of Rome and of their desire of the utter extirpation of all reliques of Popery seek to set dissension in the Church and to root up some of the most effectual means which beareth up the state of Religion and the pillars thereof and so make way to prophanation and to Atheisme to enter and build upon the ruines of the Church Our Rites and Ceremonies by law established in the Church of England were not such as did peculiarly belong to this or that Sect but were the antient Rites and ceremonies of the Church of Christ and we have still the same reason for the use of them and the same interest in them that our fore-fathers had That our Rites and Ceremonies which we have common with the Church of Rome are scandalous in their nature and institution they cannot make appear neither do they endeavour it more then by their general clamour which implyeth nothing That some Rites and Ceremonies we retain which have been polluted yea and some peradventure instituted at first for and unto that thing which was evil although they can prove yet in tract of time and by prudent qualifications
applyed that pollution and impiety may be worn or wrought out and a good use may be found without offence And although divers Constitutions and Ordinances in use in our Church were made at first under the Papal authority yet they being such as were not repugnant to the Word of God nor the Laws and Statutes of this Realm and some others of those Canons and Constitutions having been purged from superstition they appear full of sincerity and equity and so were indenized and made English by our Church and States in Parliament and are now in that regard no more to be abandoned then Wheat because it is said to be invented by the goddess Ceres or many excellent laws of the Romans set out at first by Painims and by cruel persecutors of the Christian faith and are since made of excellent use over all Christendome * Philosophi meximi Platonici siqua fortè vera fidei nostrae accommoda dixerunt non solùm formidan de non sunt sed ab ils etiam tenquam injuflis possessoribus in usum nostrum vendicanda August de Doctrina Christiana lib. 2. De bono necessario usu dectrinae alierum rerum Paganorum Gemilium Socrates Eccl. bist lib. 3. c. 14. But let the Lawgiver or Magistrate be never so careful to satisfie erroneous or tender consciences he shall never cut out his work to fit every mans conscience or humour yet when as things injoyned by lawful authority are in themselves indifferent and without just exception or that the matter hangeth even or doubtful the weight of Authority must turn the scale between the Magistrate and the man of a weak conscience lest the Magistrate by neglecting his duty bring a scorn upon his authority and suffer a scandal to be given unto all others For although the tender conscience hath cast judgement on the thing as simply unlawful and just cause may be for a time to give him respite to rectifie his conscience yet still doth his tender conscience draw him upon the rock of disobedience and contempt of Authority and giving ill example and scandal from all which the following of his tender conscience cannot excuse him especially if he be in an errour neither any other pretence if he may find the means to rectifie his conscience for he is not then led by invincible ignorance which as the Schoolmen say is purae negationis but rather by a supine negligence or an affected ignorance which is termed pravae dispositionis Through ignorance Eph. 4.18 saith the Apostle Which is in them because of the blindness of their hearts having their understanding darkned Distinguendum est an pro certo sciat homo an conscientia pulsat animum ex credulitate probabili discreta an ex credulitate levi temeraria Cap. 44. Decretal de sentent excom ne contra legem vel contra judicium conscientiae committat offensam Alberic Gentil alii Insipida est consciemia quae rationis scientiae salem non habet non debet quis sibi de eo facere conscientiam quod non potest explicare secundum rationem veri constantis judicii nec conscientia dubia est conscientia alià s cum dubitare de omnibus possit ctiam de indubitatis ae etiam sine ratione quid est quod dici dubium non possit Into these perplexities do men fall and often draw others by fostering and cherishing of an errour whereby they seem to take as fast hold of the errour as the errour doth of them and so they fall into the number of those who do erre in their hearts and not onely in their heads If our Christian liberty which ought to be subordinate to charity we ought to moderate and restrain rather then offend the weak consciences of others we ought certainly to indure in things of their own nature indifferent the restraint of our liberty by Lawful authority unto which we must be obedient for conscience sake faith the Apostle rather then to offend the Law and violate the Peace of the Church Qui contra pacem Ecclesiae sunt si dignitatem aut cingulum militare habeant nudentur eis si sint privati nobiles Causa 24. quast 1. c. 32. suarum substantiarum proscriptionem patiantur si sint ignobiles non solum in corpore verberentur sed exilio perpetuo castigentur If we look for a Church where there are no scandals given to mens consciences neither any inperfections and defects we must go out of the world for we shall find none but only the triumphant Church in heaven There may be a true Church where there are imperfections so as the essential marks and properties thereof are not wanting If amongst the Corinthians the Church did remain in respect of the Ministery of the word and Sacraments notwithstanding their Sects and corruptions and which was worst many of them had even in derision the doctrine of the Resurrection 1 Corin. 15. Galat. 1. 6.4.11 If also amongst the Galatians great backsliders and full of corruptions the Apostle acknowledged a Church wherein salvation might be had he would certainly have condemned such men as our new Professors who for much slighter causes make a separation and break the peace of the Church upon dislike of all Ceremonies and discipline that is not of their own invention The Apostles delivered not express and particular order for all Church Government but left most of it to be accommodated to the times and occasions as might best serve for edification and the Service of God And so touching Ordinances and customes in the Church which men ought to observe and those who are contentious and given to innovations the Apostle taketh them off with this saying We have no such customes neither the Churches of God In his rebus de quibus nihil certi statuit divina Scriptura mos populi Dei instituta majorum prolege tenenda sunt sieut praevaricatores divinarum legum â—t D. August Decret Gratian. Distinct 11. c. 7. Qui etiam dat hanc regulam ut quae consuetudines non sunt contra fidem neque contra bonos more 's et habent aliquid ad exhorte tionem vita melioris ubicunque institui videmus non solùm non improbemus sed etiam laudando imitando sectemur Epistola ejus ad Januarium ita contemptores Ecclesiasticarum consuetudinum coercendi sunt But these innovators are not ruled by any customes and Lawes but such as please them They still urge without bringing any proof that nothing should be established in the Church which is not expresly commanded in the Word of God and that their Presbyterian discipline is onely of divine right wherein they deal unjustly in requiring express Texts of Scripture from us which is not needfull whereas they in their own cause obtrude upon us peremptorily things they call necessary for which they cannot bring any positive express or probable warrant out of
set upon offences then as punishments for the reformation of manners Such Magistrates administring Justice in such manner are obeyed non tanquam Rectores morum sed tanquam dominatores rerum August de Civit Dei lib. 2. c. 20. L. 1. Cod. de secund nup. Tit. Cod. de Caduc tol eosque non sinceritèr honorant sed nequitèr servilitèr timent The Roman Law herein giveth a good direction ne in iis quae ad correctionem morum spectant inducta sunt fisci rationem habere videamur Lex Julia de caducis ultimum locum dat fisco nam quod communiter omnibus prodest hoc privatae nostrae utilitati praeferendum esse Plinie in his Panegyrick saith unto Trajan the Emperour very elegantly Praecipua tua gloria est quod saepius vincitur fiscus cujus causa nunquam mala est nisi sub bono Principe sed nunquam Principibus defuerunt qui fronte gravi tristi supercilio militatibus fisci contumaciter adessent For this cause of religion and planting the Gospel the best Divines do not allow the Spaniards plea for shedding the blood of the Indians Inferre bella ac Populos sibi non molestos cupiditate conterrere ac subdere August de Civit Dei lib. 4. cop 6. quid aliud est quam grande latrocinium They should not so much have used the sword against the refractory Indians but rather the rod the spur and the bridle of good discipline and example to bring them to Christ for they had no dominion over them neither any offence formerly given by them dominion and propriety is not founded in and by religion but by a just natural or civil right acquired Dominia quae sunt juris gentium non tollit sides Christiana Infidelity doth not forfeit inheritance and propriety and thus the Schoolmen say Aquinas distinctio fidelium infidelium in se considerata non tollit dominium praelationem infidelium super sideles And this did the antient Christians acknowledge by their great loyalty towards their Soveraign Princes heathen Emperours and cruel persecutors But our men indued with their new lights have found that the ungodly have no right to the Creatures but are usurpers and have made a forfeiture of their propriety of which they the Saints may take the benefir and be the sole Judges The antient Christians were forbidden by the Imperial Law L. 6. Cod. de Paganis as also by the Laws of other Christian nations under a great penalty to meddle with the goods of Jews or Pagans living peaceably For the goods of the Jews although enemies to the Christian religion cannot for the cause of religion come by escheat unto Christian Princes under whom they live for delinquency they have often forfeited their goods and been expelled and sometimes all of them for the faults of a few and and thus have they been dealt withall Regia manu bono potius exemplo quà m concesso jure or rather out of reason of State which will not want specious pretences It cannot pass with a clear admittance amongst all the Doctors of the Roman Church that the Pope hath power over Infidel Princes to raise Armies against them although they do hinder the preaching and propagation of the Gospel universally authorized by these words Ite praedicate Evangelium omni creaturae seeing he hath not for ought can be made appear temporal authority annexed to his spiritual either directly or indirectly in ordine ad spiritualia to depose Christian Princes or to raise war against them for the advancement of Christs Kingdome but as for those who are not Christians the Apostle saith What have we to do with those who are without Botero It is truly said that peace a messenger whereof an Angel hath been chosen to be is scarce ever established by the Sword and the Gospel the blessed peace cannot be published by the sound of the Cannon neither the sacred Word be conveyed unto us by the impious hands of Soldiers neither tranquillity be brought to the persons and consciences of men by that which bringeth ruine unto Nations The Jewes were guilty of the greatest incredulity Rom. 11. ingratitude and crime and yet the Gentiles were admonished by Saint Paul not to shew any cruelty towards them or insult over them but to seek to provoke them to an holy jealousie and so to gain them unto Christ When Nathan reproved David he said hereby thou givest an occasion to the adversaries to blaspheme the name of God The primitive Christians rather chose to indure the most cruel persecutions then to disturb the peace of the Roman Empire and break the band of their Allegiance unto the heathen Emperours and this Saint Paul taught them who wrote his Epistle unto Christians living under Nero Rom. 13. and yet he telleth them that the Powers are of God and he that resisteth the Powers resisteth the ordinance of God and shall receive damnation D. Augnst de Civit it Dei lib. 22. cap. 2. Civitas Dei quamvis haberet tam magnorum agmina Populorum tamen adversus impios Persecutores suos pro temporali salute sua non pugnavit in iis non erat pro salute pugnare sed salutem pro servatore mundi contemnere Quamvis nimius copiosus noster Populus Cyprianus Grot. de jure belli lib. 1. c. 4. n. 7. non iamen adversus violentiam se ulciscitur sed patitur But when this is pressed against our new Patrons of Rebellion they contradict Saint Austin and the Fathers with a lye and say those antient Christians suffered through their want of power to make resistance whereby they do as much as in them lyeth deprive them of all the glory of Martyrdome and do injury unto their most blessed cause and the glory of God in his Saints sufferings And yet as nature doth draw us to yield to the unresistable power of a severe Conquerour vox est quodamodo naturae ut subjugari mallent hostibus victoribus Augustin quam bellicâ omnifariâ vastatione deleri so doth the law of nature give warrant for our resistance cum moderatione inculpatae tutelae as doth the law of God give us permission for our slight in time of persecution when we do not thereby desert our vocation nor betray nor prejudice a just cause CHAP. IV. Of the changes in Religion in England And by Luther And the toleration of divers Religions THe Professors of the Protestant Religion were at first and have been since taxed as seditious and despisers of Government and advancers of Popular licentiousness and that their Reformation in Religion proceeded from faction or turned into faction and tumults notwithstanding all their publick Confessions of their Faith and declarations of their Doctrine set forth in detestation thereof wherein they did fully profess their obedience unto the Civil Magistrate Ecclesiastical history But it hath been very antient and usual to lay that general
Armies Parliament under which power they still afterwards did sit and act leaving the Parliament without any Lawful adjournment sine die sine capite sine corpore This Law for continuation of the Parliament so directly contrary to the institution and essence of Parliaments and the undoubted right of Kings to call and dissolve Parliaments was another new and strange Law Lex nova inaudita as was said of the Roman Law Agraria from which great seditions took their first rise and from those seditions Civil wars which never were fully ended until that Common-wealth was utterly destroyed by the usurpation of Julius Caesar Salust Paterculus It was a Law quae summa miscuit imis a Law unde jus vi obrutum erat For the iniquity of our two Statutes before mentioned they may fitly in many respects be compared to this Law Agraria which Tiberius Gracchus the Tribune of the People preferred to flatter the People to continue himselfe in his office that he might be the more safe from the Nobility and rich men his enemies the better bring his designes to effect This Law being very plausible to the Commons Julius Caesar revived to assure the People unto him and to obtain their compliance with his usurpation It was a law seditious in it self serving aptly to imbase and make contemptible the Majesty of the Senate and Consuls but in respect of the meanes used to make it pass with their votes it was abominable for tumults were raised on purpose and such violence was offered to one of the Consuls for opposing it that the Ensigns of office carried before him were broken Plutarch in the lives of Caesar and Pompey and a basket of dust thrown upon his head and two Tribunes and some others in his company were wounded and soon after came to an end the Roman glory and their liberty Insomuch as many of the wisest seeing the madness of the People and their contempt of Laws and their former government thought themselves happy if the Common-wealth was no worse afflicted then with the burthen of an absolute Monarchy It is not the retaining of some of the usual form and solemnity as was in the making our two Statutes that maketh a binding law if the principal and essential parts and properties of a Law be wanting For a Law hath no force nor virtue when the material and final causes and reasons of a just Law do cease and are determined and the execution of that Law would prove injurious or absurd And so a Law or Grant whose foundation and ground is laid upon a fiction or presumption of a fact or thing which never had any existence and being Medina Felin alii Ancharan Decius alii Decis Rotae Rom. hath naturally no force efficacy as having no consent of the will but onely under an implyed and supposed condition Quae reipsa non extitit sic veritate facti deficiente totum legis desicit fundamentum quia haec est obligatio quasi ex falsa causa quae nulla est obligatio cùm deficiat voluntas ejus qui se obligavit cum aliquo praesupposito deficiente veritate dicti praesuppositi Jus supposititium lex improbat Moreover if a Law although it had at first just causes and reasons for making of it which after fall off and cease doth lose its force and vertue what may we say of our two Statutes and some others made in this long Parliament which in lieu of just and legal causes and reasons were fraudulent pretences and illusions put upon the King to obtain his assent and to abuse the people for the advancement of evil designs and the strengthening of a pernicious faction In a stipulation or promise although for the making of it there was just cause L. 2. F. de except doli L. penult F. de condict sine causa Cuiac alii sed nunc nullam causam idoneam habere videtur vel causa non secuta aut finita est datur contra petitorem doli mali exceptio quia non refert utrum ab initio sine causa aliquid datum sit an causa propter quam datum sit secuta non sit vel ex post facto redierit ad injustam vel nullam causam ita ut datum videatur sine causa Inomnibus causis quae jure non valuerunt L. 54 F. de condict in debiti l. 36. de verb. obl vel non habuerunt effectum revocatur quod datum vel solutum erat All stipulations are in their nature stricti juris and therefore not easily made void yet if one be bound contrary to his will by machination and practise he may void such stipulation And so all other contracts grounded upon deceit are void or voidable where there is dolus ex proposito dolus dans causam contractui vel ubi res ipsa in se dolum habeat And the Law doth ever provide ne quis ex dolo suo lucrum habeat L. 36. F. de verb. obl Exceptio doli accomodatur ei qui aliter obligatus est quam convenisset licet alioquin subtilitate juris obstrictus esset nihilominus repellit agentem ex stipulatu ctiamsi nulla sit ab isto adhibita machinatio dum tamen ipsares in se dolum habeat And yet not every deceit nor every fear will void promises contracts and grants as that fear is reputed sufficient which may overcome a man indued with fortitude so that deceit seemeth by law sufficient which may deceive a prudent person so as the fear or deceit were the immediate cause without which the man would not have done the act But how far this fear or deceit shall extend according to the quality nature and condition of the persons and other circumstances and whether deceit errour and ignorance do more abolish the consent of the will then fear or violence is to be left unto the Judges as a question of fact and so the Interpreters of the Law agree after much diversity of opinions amongst them As in all grants and releases fraud is alwayes presumed to be excepted so shall they not extend unto that which the party granting or releasing may justly be presumed to have not had thought either in specie or in genere non ad inopiata incognita extenditur dispositio Decis Rot. Rom. Farinacii Decis Rot. Rom. Lib. 2. Cod. de rescind vend Lib. 7. Cod. Quando provocare nec ultra ea pro quibus factum erat so general words shall be restrained ad rationem causam propter quam fuerunt prolata and so in case of excessive hurt and damage per enormissimam laesionem aut error aut ignorantia aut dolus ex reipsa praesumitur A sentence and decree shall not bind if it passed through bribery and corruption per sordes turpitudinem ipso jure nulla est although the Law saith interest Reipublicae non convelli rerum judicatarum authoritatem quia
in a lawful war there is jus hostium fas armorum Ticitus and he who is taken prisoner in such war is a lawfull captive not he who is taken by Pirats L. 24. F. de Captivis Cuiac ex Cod. Theod. ed c. ult de restit Spol Decretal l. 27. F. de Captivis Cap. 11. Decretal de Judiciis thieves rebels or in a civil war in civilibus dissentionibus non sunt jura captivitatum Postliminii Quae rapta sunt bello civili dominis si extent restituenda sunt qui bello civili se non immiscuerunt Things gotten by thieves latrocinio subrepta usucapi non posse no title doth accrue unto him into whose hands soever they come non multum intersit quoad periculum animae an quis abstulerit rem per vim ac sciens prudensque rem retinuerit per vim ablatam ab alio quia interdictum unde vi sequitur quemcunque possessorem for L. penult C. de acquir poss malae fidei emptor in vitium venditoris succedit Possessioni violentae insistentes vim continuo exercere dicuntur Time which weareth out all things will not wipe out that impression and canker and raise a just title unto things gotten by robbery and rapine Lib. penul F. de interdict l. ult F. de vi bon rapt Perpetuo persecutio rerum vi ablatarum rei subreptae aeterna authoritas esto And this in respect of a double obstacle vitium in re seu ex re vitium ex persona which cannot be purged and a way opened to prescription L. 24. F. de usurp usu cap. untill that which was thus violently gotten return again into the hand and possession of the owner or his lawful successor So odious doth the Law render violent taking that if the thing perish in the hand of him who committed the violence by chance and without his fault and that in probability it would have perished if it had been returned to the owner again L 1. 34. l. 19. F. de vi et vi armate yet the violent taker is still liable etiamsi sine culpa ejus amissa res sit aestimationem tamen illius rei per interdictum restituere debeat quia ex ipso tempore delicti plu◠quà m frustrator debitor constitutus est periculum rei ad eum indistinctè pertinet licet involuntarium si habeat suum ortum ex voluntario censetur pro voluntario Moreover he who keepeth one under unjust and illegal captivity can gain nothing of him who during that time can grant him nothing for he who offereth violence to his Debtor to get what is his due loseth his debt and falleth into the compass of the Law Julia de vi for his farther punishment L. 12. F. quod metus Si quis rem violenter invaserit si dominus sit rem amittit quam abstulit sin aliena res erat non solum eam reddit ei qui rapinam passus est verum ipsius rei aestimationem Si vinxeris hominem liberum L. 7. Cod. unde vi eum te possidere non puto multò minùs per eum res ejus à te possidebuntur neque enim natura rerum patitur ut per eum aliquid possidere possumus quem civiliter in mea potestate non habeo L. 23. F. de adq poss He who hath cast a man in prison ut aliquid ei extorqueret quicquid ob hanc causam factum est nullius est momenti L. 22. F. Quod metus Timer vinculorum restitutionem parit si quis dedit aliquid vel se obligavit ubi in furto adulterio vel alio flagitio deprehensus erat timuit ille mortem vel vincula But those promises contracts and transactions made in prison between the Creditor and Debtor cannot be said to be void or voidable by Law as done out of fear because he is detained in prison for imprisonment is ordained for Debtors and therefore the Debtor is presumed to draw it justly upon himself and if he made a promise or contract out of fear hunc sibi metum ipse infert Vt in l. 21. in principio F. Quod metus Promises and contracts made through fear of an unlawful restraint are void in law which fear is not cleared and taken off untill he be restored unto his full liberty and the cause of his fear taken away for until then it is still presumed that this fear had its influence upon all his actions although they seemed voluntary Eadem causa metus manente Decius ad reg jar 40 sic alti Decis Rotae Rom. purgari per temporis intervallum metus non praesumitur nec per ullos actus purgatur nisi tales sint ex quibus nulla alia probabilis praesumptio capi possit quam purgationis metus What is a just and probable fear is a question of fact rather then of Law although questinos of fact oftentimes draw after them questions of Law So as in this of fear as in that other of fraud before mentioned the Judge is to determine after due proofs and consideration had of the quality of the persons L. 1. l. 5. F. Quod metut l. 3. F. ex quibut caus Maj. and other circumstances The Law in general saith that fear is mentis trepidatio instantis vel futuri periculi ob causam And that a just fear is timor majoris malitatis ut timor mortis vel cruciatus corporis and doth express few cases of a just fear I find this to be one cause when a man seeth or heareth armed men come towards him and flyeth for fear L. 3 S. 7. F. de vi armata Lib. 3. 7 de usucap L. 1. S. 29. F. de vi vi arm s 33. S. 2. F de usucap L. 29. S. ult locati L. 4. F. de vi publica it is presumed he was expelled by force and arms si possessio fuit ab his armatis occupata but another Law saith sufficit terror armorum to make a forcible ejection Is qui metu turbae perterritus si fugerit videtur vi dejectus esse Imo si homines armatos venientes extimuerit ita profugerit licet nemo ingressus fuerit vi dejectus videtur quia in metu non consideratur eventus sed justa causa timoris ii qui coetum concursum fecerunt vel homines ad hoc accommodaverunt tenentur de vi publicâ All this may sufficiently serve to justify the King and his party in leaving White-Hal and the Parliament after they had been often assayled by a tumultuous rout having not power to suppresse them and those that had did incite them and made their advantage by them qui crimen Causa 23. quast 8. cap. 12 Seneca cum potest emendare non corrigit ipse committit aeque dignumesse ponâ qui ab alio admotâ vi ad suum lucrum utitur ac
eum qui vim adhibet Insomuch as this clamorous and tumultuous rout were like that seditious assembly at Rome who required the Senate Livius lib. 2. rather in threatning then by way of supplication and stood about the Curia as if they would be Judges or moderators of the Publick Councel so as very few of the Senators could be induced to repair unto the Consuls and many of the rest of them were afraid not only to come to the Senate house but to adventure abroad into the market place and streets These our tumultuous assemblies and the abominable disorders and contempts by them committed cannot be excused if they had not been incouraged by many of the members of the Parliament in saying it was the fact of the vulgar sort and that delicta vulgi Livius à Publica causa separari for their offence was not suddain momentary and unexpected it had tract of time continuation and iteration whereby the fact of a few shall involve those in authority and had power to suppress punish and prevent them Si non compescimus aut non ulciscimur quod est delictum privatum fieri potest publicum sic non singulos tantum teneri sed universitatem illaqueari as say the Doctors of the Laws for the knowledge the will yea the command of the superior or of the whole body Corporation and colledge is presumed quando delictum non est momentaneum sed successivum delinquitur iterum at que iterum pluries palà m Men in authority draw guilt upon themselves by omitting their duty in preventing and punishing offences especially publickly committed Qui non prohibet jubet L. 60. F. de reg jur mandare videtur qui potest prohibere patitur peccare vires subministrat andaciae Vox est in jure Canonico frequentissima Cuiac ad Decretal de Testib c. 45. non carere scrupulo societatis consentionis occultae qui manifesto crimini desiit obviare One other cause of just fear declared by Law is when the Master is compelled by popular tumults and acclamations to set free his bondman In this case the bondman could not obtain his freedome which the law doth favour although the Master did at that time seem willing L. 17.5 Qui et à quib Qui coactus à Populo manumiserit servum suum quamvis voluntatem suam accommodaverit mentitus sit tamen servus non erit liber L. 12. Cod de Poenis nam ex acclamatione Populi manumittere prohibetur Vanae Populi voces audiendae non sunt nec vocibus eorum credi oportet quando aut noxium crimine absolvi aut innocentem condemnari desiderant Populus docendus est non sequendus Distinctio 62. causa 5. quast 4. cum glossa causa 8 quast 1. c. 16. tit 6. de Electionibus c. 2. Decretal Electio ad clamorem Populi non vales astamen ad clamorem Populi remittatur alicui poena Glos ad dict l. 8. quaest 1 c. 16. Praesumitur de injusta ejus electione qui per clamorem tumultum est electus Much more ought we to refrain the condemning of any man by the acclamations of the People which did chiefly set forward the condemnation of our Saviour and it may be and hath often been as in the case of the Earl of Strafford this Parliament an occasion of much wrong and injustice with men in authority void of fortitude as Pilate was 1 Sam. 15.24 Saul was brought to ruine by his own ackowledgement by transgressing the commandment of God in fearing the People and obeying their voice But in evil times good men to avoid a storm have been driven to a refuge more necessary then just as was the case of Aaron Aug. de Civit. Dei l. 14. c. 11. qui erranti populo ad Idolum fabricandum non consensit inductus sed cessit obctrictus CHAP. X. The Case of Subjects in Rebellion against their Soveraign and the errour of those that would draw more crimes within the compass of Treason then they ought Of Acts made and past under the power of a Usurper AS the Kings cause is more favourable then other mens in divers respects so is the condition of Subjects in Rebellion or guilty of Treason the worst of all other Delinquents in all respects for the Law saith Per mortem crimen corum non extinguitur L. 7. Cod. ad leg Jult Majestatis L. ult F. ad leg jul Majestatis l. 15. l. 31. F. de denationib L. ult F. ad leg Jul. Majestatis sed post mortem id crimen instaurari solet consiscantur eorum substantia bona post contractum perduellionis crimen donationes factae non valent Those who are in Rebellion qui hostili animo adversus Rempublicam vel Principem animati sunt are greater enemies to their Countrey then Pirats who are reputed common enemies and may be destroyed by any man being put out of all protection by the Law of Nations ipso jure diffidati sunt for they being violators of all Lawes can have no benefit by any Law they have not jura belli Baldur l. 24. de Captiv l. 18. Cod. de Furtis Bartoli Peregrinus de jure Fisci L. 7. F. Quod metus l. 54. F. de Furtis Peregrin de jure Fisci Tertullianus Livius lib. 2. L 9. F. ad leg Cornel. de Sicartis captivitatis Postliminii due unto just enemies licitum est navigia bona res naufragatas corum surripere sic ab iis qui sunt nobis aut Christiani nominis inimici And so a notorious and declared Rebel ought not to have protection from any Prince especially from him who is in league with his Soveraign for such a Rebel is said to be exposed to the violence of all men and he that doth kill such a Rebel it is presumed he did it se defendendo de illius rebellione But a Rebel as well as a Thief if he maketh resistance or defence may be justifiably slain liceat occidere furem si telo se defendat Talis rebellis in persona sua potest impunè occidi bona ejus occupantihus concedi In râ—os Majestatis omnis homo miles est quem lex aut consuetudo habuerit pro sacro non crit capitale siquis eum occiderit Sic furem nocturnum impunè quis occidat si parcere ei sine periculo suo non potuit In former times a man outlawed for Felony Hoveden in H. 2. Augustin nec potest privatus agere vicem potestatis alioujus August might have been put to death by any man nam lupinum caput gerit à die ut legationis suae And yet regularly and by Law nec quenquam scelestum indemnatum impune occidi but in some few cases the Law giveth the sword into a private hand especially to suppress and destroy notorious Rebells if they make resistance as
lawes and liberties lay his claim to the Crown ex concessione sancti Edwardi devicto Heraldo Rege but no mention of any consent or right of the People He did as other Conquerors sometimes seem to wave his title by Conquest lest touching that string too hard it would make a jar and hinder all harmony But his concessions and confirmations of the ancient Lawes and liberties proved for the most part but illusions Ingulfus Malmesb. Some of our Historians affirm that he changed most of the Lawes and made us accept his own Norman Lawes and customes delivered in the Norman language a mark of servitude imposed by the Romans where they had conquered Polid. Virgil. He moulded the English customes to the manners of his own Countrey and did forbear to grant the Lawes of holy King Edward Edmeruâ— Huntingdon Hâ—veden so often called for yet at the suit of the Barons the Laws of King Edward correboratae confirmatae erant quia veneratae erant prae caeteris legibus per universam Angliam And therefore our great Lawyer mentioned in our Law books did speak without book in saying that the Conquerour came not to out those who had just right and possessions but those who held wrongfully to the disherison of the King and his Crown He had more knowledge in points of Law then he seemed to have of matters of fact so long before his time As we cannot find anything that can manifest this inherent and original right of the People so can we not find in any case any colour of right in them to justifie their deposing limiting and chaftising of their King as our Adversaries affirm saving onely some matters of fact which they would have pass for Law and according to their usual course draw their arguments à facto ad jus Edward the second and Richard the second were charged in Parliament for oppressing spoiling destroying and the like and were deposed yet those Parliaments did never rely upon or mention the Peoples inherent and original right to justify their proceedings neither much insisted upon the proof of those crimes objected against them as causes sufficient to ground their most illegal and violent proceedings Neither did they hold themselves sure until they had by a conjuncture of fraud and force drawn those Kings to a seeming willing resignation acted in a form and solemnity abounding both in absurdity and horror For if the power and authority of Kings ceaseth ipso facto as our new men would have it for oppressing spoiling and destroying so that they may be deposed by their Subjects why was this power and right of the People never claimed and declared in any Monarchy when they had sharp disputes with their Kings as we have had for oppressing spoiling and destroying but alwayes we quieted ourselves with a present reformation of pressures and abuses and with a new confirmation of magna Charta which those Kings had no power and right to confirm and grant if according to these mens doctrine their power was determined ipso facto and returned to the People and they or the Parliament in a condition to reassume and exercise it If Subjects have no right and very rarely or never attempted to bar the next in succession when the right of the Crown descended unto him for any personal defect or crime of his or his Ancestors or upon any former judgment or sentence given in any Court against him before the right of succession fell unto him they have less colour of right to depose him after he is in possession for any crime then committed Turpius ejicitur quam non admittitur The old Doctors of law of great credit in their times and since could tell them that it did belong to the Pope as Christs Vicar to compel rebellious Subjects to the obedience of their Soveraign by spiritual censures and excommunications and that in the Pope was all the power to depose Princes yet so as he ought not to proceed to the deposing of them except in cases of the highest contumacy and for the greatest causes quae Rempub Christianam laederent seeing it could not be done but with a great and general Scandal and with the perturbation of the publick peace For by their opinion the Emperour who is elected could not although with his free consent resign unto the Electors but into the hand of the Pope in respect that a resignation is properly to be made unto him who is Superiour and hath right judicially to hear and determine the cause Innocent Baldus Archiadic ad C. admodum Extravag de renunciat Peregrin de jur Fisci lib. 1. tit 2. 3. L. 27. S. 2. L. 22. S. ult Mandati F. Sote de Just. jure lib. 4. quaest 4. art 1. Suarez de legib l. 3. c. 4. Glossa ad Clement tit de Beptismo Aquinas secund secund quaest 42. artic 2. Mariana de Regis institut lib. 1. c. 6 c. 9. and compel the parties to the obedience of his decree Renunciatio non tenet nisi facta sit penes eum qui renunciantem invitum causà cognitâ judicialitèr destituere potuisset neque sine licentia superioris officia seu beneficia accepta dimittere licet Qui mandatum suscepit deserere promissum officium non debet alioquin quanti mandatoris intersit damnabitur mandatum suscipere voluntatis susceptum consummare necessitatis sit But there are other later Doctors more bold who affirm that a King for Tyranny may be removed by the Common-wealth or compelled by the Popes spiritual power quando à Divinis legibus rebellavit Others say that he cannot be deprived of his power by the People from whom he hath his power nisi quando in Tyrannidem declinet ob quam causam possit bellum justum contra eum geri And they repute him to be a Tyrant qui in Repub. non jure principatur cùm Princeps tendat ad bonum commune Tyrannus ad proprium ergo Tyrannus non est Princeps ideò perturbatio ejus regiminis non habet rationem seditionis nisi forte quando sic inordinatè perturbatur Tyranni regimen ut multitudo Subjecta majus detrimentum patiatur ex perturbatione consequenti quam ex Tyranni regimine And when they have declared a King to be a tyrant potest in jus vocari â Republica unde habeat Regia potestas ortum suum rebus exigentibus si sanitatem respuat Principatu spoliari neque ita in Principem jura Potestatis transtulit Respublica ut non sibi majorem reservaverit potestatem * How can the Subjects have jurisdiction over the Soveraign Prince qui est fons omnis jurisdictionis à quo jurisdictiones per concessiones commissiones confirmationes fluent ac per appellationes querelas nullitates ad eum refluan Bald. Bracton noster Here our adversaries joyn with some Doctors of the Romish Church for they find this doctrine as necessary for them
entrance they presently enter into a breach of two principall Pillars and rights of Empire ever accounted inter jura summi Imperii the one is the Usurpation of the power of raising Money upon the people the other is the Arming and drawing together of Soldiers For the first the law porvideth ut vectigalia nova Tit. Cod. nova vectig lib. 10. F de Publicanis Deciss Rotae Rom. L. ult F. de vi pub nullo decreto Civitatum institui possint nec ultra antequam consuetudinem inconsulto principe nec sufficit quod agatur de communi utilitate seu necessitate civium nisi ob damnum inevitabile evitandum Qui nova vectigalia exercent tenemur lege Julia de vi publica quia vis Reipublicae datur Force is thereby offered to the Common-wealth as much as by raising and arming of Soldiers Tit. Cod. ut arm usus Lib. 17. Cod. de re milit the other apparent usurpation of Regal Authority Nulli prorsus nobis inconsultis quorumlibet armorum movendorum copia tribuatur This is a universal Law at this day in all Kingdomes and Common-wealths and before this Law the ancient Law of the Romans made him guilty of high treason L. 1. L. 2 F. ad leg Juâ—iam Majest qui injussu Reipublicae bellum gesserit delectúmve militarem habuerit exercitum comparaverit vel quò homines armati cum telis in urbe sint and with this agreeth the common saying nemo tractet ferrum nisi qui sceptrum the sword and the sceptre go together Ordo naturalis mortalium paci accommodatus hoc poscit Augustinus ut suscipiendi belli authoritas atque consilium penès Principem sit Our Laws and statutes concurre herein and especially in prohibiting the arming of men without the Kings authority and of this one proofe amongst many may serve for all In the seventh year of Edward the first the Parliament did fully acknowledg that in them was no power to deale in matters of armes the words of the Statute are that in all Parliaments men shall come without force and armour well and peaceably to the honour of us and of the Peace of us and our Realm and that all the Prelates Earles Barons and Communalty assembled have said that to us it belongeth and our part it is by our Royal Segniory strictly to defend wearing of armour and all other force against our Peace at all times when it pleaseth us and to punish those which do the contrary according to our Laws and usages of our Realm The Subjects are bound to go with the King to the wars at home and abroad Cook Postnaâ—â— and this sheweth natural allegiance not to be local as doth appear by the Common Law and by divers Statutes declarative of the Common Law Cook upon Littleton It is the Kings peculiar right to call all his Subjects to armes especially all those who hold by knights service and to carry them with him when he maketh a voyage Royal or send a sufficient man in their place or pay Escuage And therefore there can be found no Law or reason to justifie the imaginary right of the People or Parliament in the Militia Salutem Reip. tueri nulli magis convenire quam Caesari Deoff Praefectivigil F. Salust nec alium ei rei sufficere quà m Caesarem qui cohortes militares opportunis locis constituit eam esse conditionem Imperandi ut non aliter ratio constet quam si uni reddatur As there are somethings which a King cannot get from his subjects but being either wrested from them or imposed upon them do destroy the essential pars of natural and just liberty and doth render them rather slaves then free-men so are there also some essential rights of the Crown which the Subjects cannot obtaine from their Soveraign by any grant or prescription without destroying the essential and individual rights of Monarchie A King cannot grant by his Charter neither lose by prescription as all the Interpreters of the Laws agree those rights called the flowers of his Crown which are Regalia suprema summa jura Imperii regno tuendo servientia inherent to his Royal Function and Politick Capacity and serve for the strength and support thereof And so by the Canon Law Licet generalis sit tibi concessa legatio Decretal de officio Legati cap. 4. ad ea tamen sine speciali mandato non debuisti manus extendere quae in signum privilegii singularis sunt tantum summo pontifici reservata Illa jura non sunt in commercio quae propriè sunt Dominii Diadematis Domanii Regii quae sunt de bonis juribus reservatis in signum subjectionis recognitio supremi universalis Imperii seu potestatis for by such grant or release would ensue as the Lawyers say deformationem demembrationem turbationem publici Status imperii And such are the rights of making war and Peace of having the last appeale unto him or to his great Councel and supream Court and of making leagues and of dispensing with penal Laws granting pardons and such like For the exercise of his just rights and the administration of his Regal office is committed unto him by God without any permission to suffer the destruction of them or any of them Themistocles declared to the Athenians and Cato to the Romans that man could not usurpe or prescribe unto any thing which was due unto the divine Majesty neither could private men do the like unto the Common-wealth L. 34. F. de contrah empt L 6. de contrah emp. F. L 9. l. 45. de usu cap. L. 7. tit 37. 38. Cod. The alienation of those things are by the Law forbidden quae natura jus gentium vel mores civitatis commercio exuerunt ut sunt sacra religiosa aut quorum commercium non sit praescriptio longae possessionis non concedi in rebus sanctis sacris vel publicis Populi Romani nec in rebus Fiscalibus vel Dominicis quae sunt propriae principis In the treaty between the King of Spains Commissioners and the Hollanders in the year 1607 it was often urged and not gainsaid for ought appeareth that the supream rights of Majesty and Empire could not be gotten from the King of Spain by any grant or transaction between him and his Subjects Relationes Baudii Meursti neither lost by any prescription or lapse of time And yet may a King passe by his grant and lose by prescription some things of profit and of his revenue and other inferiour rights and Regalities according to the Laws and customes of several Kingdoms And in some cases prescription doth ly in all Kingdoms against the King or else controversies would remain immortal So likewise grants alienations and contracts made by the King for just causes and in legal form are and ought to continue valid lest many inconveniences and much injustice should follow and the
passe away or communicate any part of their inherent individual legislative power The several estates conjoyned in Parliament as the Lawyers say in other cases do assist non per modum limitationis sed per viam ministerii necessarii quia leges condere est maximus meri Imperii gradus de reservatis Principis in signum supremae potestatis Iusta legitima lex est quae processit ex civium concessione voluntate spontanea Lex est communis spensio Reipub quia in legum observationem quilibet Civium spondere videtur This rule in law ought to have place in all Monarchies as well as in Common-wealths and free States it being so agreable to justice and the preservation of all mens rights Yet our Statutes made in Parliament are the proper acts of the Kings legislative power with the necessary assistance of the three Estates sed nec communicato nec diviso Imperio To communicate he ought in Counsel but not communicate his supream rights of Empire for his Empire is not so much permitted by God to his absolute power as it is by him committed to his faithful care for the preservation thereof and the Peoples welfare and unto him he must give an account CHAP. XVIII Of the Kings Prerogativ ' Our Innovators do not rest at the quarrel against the Kings legislative power and other his Regal rights but many of them fly at his whole prerogative The very name is odious unto them through ignorance or malice The prerogative of the King is supported by the Common law of England and it doth often serve to support the Law and the rights of all men both of them do give and receive vertue and strength to and from each other The Emperours in their Lawes say Authoritate juris penà ct nostra authoritas The Regal prerogative Ld. Chanc. Sir Edward Coke postnati is called Lex Coronae and it hath ever been reputed a part of the Common Law of England and so lex Ecclesiae Anglicanae lex terrae and this lex terrae doth as formerly our regular Parliaments ever did fence and inclose the prerogative within its just limits as well for the safety and preservation thereof as for the welfare of the people which being the supream law is the scale and measure of the Kings prerogative For there is great use of the Kings prerogative especially when the ordinary course of law cannot afford that help or at least so speedily as is necessary not only to prevent injustice and wrong unto private men but also the prejudice or damage of the Common-wealth peradventure irremedial Tacitus Oftentimes tarda sunt legum auxilia But as the same author saith non utendum Imperio ubi legibus agi potest according to the rule in law qui communi auxilio munitus sit non debet uti extraordinario remedio The prerogative is not to cross and suppress the ordinary course of law and Justice if it may be avoided to the prejudice of the just rights and liberties of the people Psalm 99. the Kings strength loveth judgment he doth temper his power with justice when the ordinary course of law can be effectual the supream absolute power ought not to be used There is often use of the prerogative ex vijustitiae for moderating the rigor and for suppressing the abuse of diverse penal lawes made for terrour ut metus non poena ad omnes perveniat not to be preposterously used as snares to catch men by those Informers who often become the Catterpillars of the Common-wealth and are more evil then necessary whereas the best of them are accounted in the number of necessary evils Instruments these are made for the draining of mens purses not for correction of their evil manners when the penalties exacted seem rather as a price set upon offenses then a due punishment of them Vbi omnis domus delatorum interpretationibus subverteretur Tacitus L. 4. Cod. de Delatorib utque antehà c flagitiis ita tunc legibus laborabatur graviora remedia quam delicta erant omnibus notorium sit hos nunciatores execrabiles esse qui consequendi praemii causa à enunciant adeò turpe est delatoris nomen L. 3. Cod. de Injuriis ut injuriarum actione tenetur qui hominem delatorem appellat Penal lawes thus executed prove oftentimes as pernicious and raise as much hatred against the Prince as the overstraining and abuse of his prerogative or the exercise of an arbitrary power in government * As was the case of Empson and Dudley in the time of Henry the Seventh Corielanus was banished Rome ut nimius exactor Legum Halicarnase 8. summum jus summae crux such men for their reward are often made publici odii piaculares victima But if a King hath not a supream power his government will be very defective and he is rather to be esteemed a titular King then a King invested with Regal Soveraignty although it is necessary to have this regal power restrained in many cases by just lawes and by the prudence of Judges in courts of judicature for the good of both Prince and People Ea demùm tuta diuturna est potentia Valerius Maximus lib. 4. c. 1 quae viribus suis modum imponit legitimis vinculis constringendo ut longius à licentia ita propiùs ad benevolentiam as the wise Spartan King said And yet they are much deceived who think Kings can be never too much restrained and esteem the most limited power the best and safest whereas the best limited power and most likely to preserve peace between the King and his Subjects is that power which as much as may be is regulated by the foundest most perfect and equal lawes between the Prince and the people For the ancient wise men philosophers and Law-givers did not approve of those governments as the best where the supream power was most restrained but where the justest lawes were and the most care for the execution of them The liberty necessary for the Common-wealth Guicciardine is that liberty which serveth as the handmaid of Justice and is to it applyed and appropriated Moderata libertas omnibus salutifera Livius immoderata omnibus gravis possidentibus eam periculosa The Romans who were most careful in preserving just liberty and enemies to unlimited power and arbitrary government Livius Grot. de jure belli were oftentimes constrained to constitute a Dictator with supream authority exempt from the legal forms and strictness of positive lawes who in the time of his Dictatorship by the same power did all acts as a King neither could any other make them void and the reason they gave is ne capiat Respub Livius lib. 2. detrimentum Creato Dictatore primùm Romae ut intentiores essent ad dicto parendum neque provocatio erat ueque ullum usquà m nisi in diligemia parendi auxilium And may there not oftentimes be as