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A29596
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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
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De Britaine, William.
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1684
(1684)
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Wing B4809; ESTC R9196
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7,868
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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.
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 LONDON Printed for A. Banks 1684. To the most Noble Colonel Colonel EDWARD MANSEL one of the worthy Members of the most Honourable and Loyal SOCIETY at the White Horse Tavern in Fullers-Rents near Greys-Inn SIR AS the over-flowing of Nilus doth continually leave many Seeds and Spawns of Monsters behind it so the late Inundation of Schism in this Nation hath left many prodigious and monstrous Principles with us amongst the rest That it 's lawful for Subjects to take up Arms against their Prince in Defence of Religion or to prevent Popery And this Doctrine I must tell you Sir is become so Epidemical that many of the Religionists have adopted it into the Family of their Faith I have here in transitu tanquam Viator Hermulas made some Reflections upon their pernicious Theorem The Colours I must confess are laid in Water but some better Artists hereafter may lay them in Oyl Howsoever I do appeal to your Noble self whose single Opinion in point of Loyalty I more value than the Judgment of the most advanced Heads I know Sir you carry an Antidote in your Ears and a Counterpest in your Breast against the Poison and Contagion of these Principles Your innate Loyalty hath taught you even from your Cradle to bear Arms in defence of your Prince I am sure your Religion which you profess cannot suffer you to take up Arms against your Soveraign the first hath made you gracious to your Prince the other Renowned to all Posterity your Piety hath signallized your Loyalty and both have rendred you Illustrious Sir with much Humility I beg your Pardon and do rest Your most Faithful most Obedient Servant and Countryman Ap William d' Bretaine SIR IN Obedience to your Commands I have read and soberly considered the Papers which you were pleased to send unto me The Discourse is strong and Masculine but I must beg your Pardon if I cannot obtain so much favour of my Reason as to agree with you That it 's Lawful for Subjects in a Monarchical State as England is to take up Arms for Religion or in defence of it without warrant and Authority from the King Sir this Assertion of yours is so horrid and pernitious in consequence and so fatal to all Kings and Princes and to Religion it self that I must tell you it 's 1. Contrary to the Doctrine delivered to us in the sacred Scriptures 2. Contrary to the Laws of this Kingdom 3. Against the Judgment of the most Pious and Learned men in all Ages 1. It 's contrary to the Doctrine delivered in the Scriptures which teach us the Sword belongeth only to the King and to them that are sent by him Rom. 13. 1 Pet. chap. 6. ver 13 14. And that we should be subject not only for Wrath but also for Conscience-sake because the Powers that be are ordained of God whosoever therefore saith St. Paul resisteth the Power resisteth the Ordinance of God and they which resist shall receive to themselves Damnation In the words of St. Paul there is a remarkable Opposition between Subjection and Resistance 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 implying that all military 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 whether Defensive or Offensive if it be against the Superior Power which God hath set over us is forbidden But this hath been so excellently discoursed of by many learned persons that I shall not give you further Trouble herein yet there is one Objection which you make your Achilles which I shall endeavour to answer and that is 1 Pet. c. 2. v. 13. Submit your selves unto every Ordinance of man whether it be to the King as Supreme from whence you conclude that the King is the Ordinance of man and deriveth his power from the People and in case of breach of Trust its lawful for them to take up Arms against him Ans 1. The Original is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. Submit or be subordinate to every Ordinance amongst men c. For Ajectives in 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 do not denote efficiency in the Subject but its passivitive so that it 's not meant of any Ordinance created by man but established in or amongst men 2. There is a signal Character in that very Text that keeps it from concluding the Supreme Power to be Originally in the People not only by calling the King Supreme such as in St. Pauls Divinity Rom. 13. are affirmed to be ordained of God and so no human Ordinance but also by distinguishing the Governours v. 14. from the King or Supreme v. 13. by this that the Governours are sent by i. e. have Commission from the King which might in the like manner be also affirmed of the King that he were sent by the people if he were the Creature or Creation of them but is not so much as intimated by the Apostle But on the contrary Supremacy affixt to him and Subjection to be paid to him not for the people but for the Lords sake as Subordination to and Mission from the King is affirmed of all other Magistrates 3. It 's contrary to the Laws of this Kingdom for Subjects to take up Arms upon any pretence whatsoever without Warrant and Authority of the King 1. Because the King is the only and Supreme Governour in all Cases 1 Eliz. c. 1. 5 Eliz. c. 1. 2. The King is an absolute Monarch lib. 5. de Jure Regis Ecclesiastico Cassannus in Catal. Glor. Mundi 3. The Kings Crown is an Emperial Crown 28 H. 8. c. 7. 1 Eliz. c. 1. 1 Jacob. c. 1. If so then the Supreme Power is in the King and by consequence the sole power of making war is in him In the Parliament 7 E. 1. it was declared by the Prelates Earls Barons and Commonalty of the Realm That it belongeth to the King and his Royal Seignory strictly to defend force of Armour and all other force against the Kings Peace where it shall please him and to punish them that shall do contrary to the Law and Usage of the Realm and hereunto they are bound to aid their Soveraign Lord at all seasons when need shall be Old Mag. Char. fol. 156. Lamb. fol. 135. Inst par 1. fol. 75. All Commissions to levy men for the War are awarded by the King 4 5 Philip Mary c. 3. His Majesties Subjects according to their bounden Duties ought to serve the King in his Wars 2 3 E. 6. c. 2. 11 H. 7. c. 1. lib. 7. Calvins Case The people without the King cannot make a War but the King without the people can 19 E. 4. 6. Fitz. Abridg. Tit. Jurisdiction plac ultimo The King ows a Protection to his people and is the Conservator of the Law 8 H. 7. fol. 1. If the King hath not Jus gladii how can he protect the Laws or his People If there should