Crown It is a known maxim in Law saith the learned q Coke Report 7 p. 7. ex Stat. 11. H. 7. c. 1. 2 Eliz c. 2 Judge that every Subject is bound to defend the King and to go with the King and to serve in his Wars as well without as within the Realm The Liegeance to the Prince saith a singularly well read r Majestas Intemerata Lawyer is immutable and absolute in all places It obligeth in all ubi's and the liege man ought in duty of this faith to perform to his Lord the Offices of a Subject when ever he shall need his assistance against all who mori possunt aut vivere can die or live This is clear by Law and Reason In the 48 Å¿ Claus 48. H. 3. M. 3. Tam militiâ—e quam liberi homines omnes alii ad defensionem Regis tenentur H. 3. the words of the Law are That the Knights and Free-tenants and all others were obliged to the defence of the King And so 12 E. 3. All and every single person are bound to defend the King. Thence it was that a t 4 Instit 7. In â—â—riâ—â—lo Hestium suorum Parliament judged it High Treason in Nicholas Segrave that he withdrew himself from the Kings Hoste leaving the King in danger of his Enemies The ground of all which is what u Lib. 2. c. 1. Bracton so long since hath noted that to receive Justice and Protection are the greatest benefits of this Life and there can be no use of w Com. 3.5 Rulers without these Attributes for if the Sovereign be abridged x Roll. Eritt 234. of the Prerogative to exact Obedience and Liegiance from his Subjects he hath but a small portion of the Sovereignty indeed his Kingship must be precarious as depending only on the good Nature of his Subjects Thence the Attorney y Pusw Col cer 〈◊〉 552 General in the Argument of Ship-money saith The King as Head of the Politic Body is furnished with intire Power and Jurisdiction not only to minister Justice in Causes Ecclesiastical and Temporal unto his People but likewise for defence both of the one and of the other Whence the Clause inserted in the Register Ad providendam Salvationem Regis Bracton z 2 Lib. 1. fol. 6. saith The Life and Members of every Subject are in the Power of the King And a a Pasch 19 E. 1. Rol. 36. North. Record saith Vita membra sunt in manu Regis both which are understood that the King hath sole Power to command their Service in his Wars or otherwise as he hath occasion The Lord Chief b Instit 149. West 2.39 1 R. 3. p. 2. c. 15. Rol. Brit. 85. Justice saith That if any Privy Councellor or other cause one to enter into an obligation to serve the King it is void every man being bound to serve him without it and such Writings are declared dishonourable being every man is bound to defend the King and his Realm and to do the service that appertaineth to him as his Liege Lord. The King c Com. pl. 316. is stiled the Sovereign and Chief Captain of Arms all Power is his no man may use Arms so much as in Turnament Tilt c. without the Kings License The d Rol. Parl. 5 H. 4. N o 24. Statute of Array is full in this tho' not printed This is further illustrated in that if a Sheriff return that he is resisted in serving the Kings Writ it is declared not to be good because it redounds to the Kings dishonour being presumed the King can command every one to obey and the Sheriff hath Authority from him to raise the Posse Commitatus In former Ages the Kings absolute Power in disposing the Militia was never disputed It was the black or bloody Parliament only that assumed to themselves coordinate Power and challenged the Power of ordering the Militia for preserving the Kingdom without and against the Kings consent which occasioned the first Parliament of King Charles the Second to declare in the preamble of the Act e 13 Car. 2. c. 6. 14 Car. 2. c. 3. That it is and ever was the Kings Prerogative alone to dispose of the Militia of the Nation to make War and Peace League and Truce to grant safe Conduct without the Parliament and that he may Issue out Commissions of Lieutenancy impowering them to form into Regiments and imploy them as well within their own as other Countries as the King shall direct Since the taking away Tenures it is true the Method of raising Men hath been something altered but before the imposing of the Oaths of Supremacy and Allegiance and now this Test we find no qualifications of the persons required but that they should be habiles Corporis of able Bodies sit to serve the King and Country And tho this Test doth not totally deprive the King of the service of his Subjects yet it diminisheth his Authority and takes away the corporal Service of a considerable number of his Liege people Thirdly Hew careful our Ancestors have been to preserve the Prerogatives I now pass to the third particular in which I shall in some few instances shew how careful the Houses of Parliament have been in preserving inviolable the Prerogative of the Crown or when by any pressing emergency they have been invaded that the Judges have determined that the Kings of England might by a special non obstante dispence with the penalty of them This Question about the Test being wholly new and such a weakening of the Prerogative as hath not been known in our Ancestors days you cannot expect any clear discission of it in the Books of the Law. All one can do in such a case is only to produce some Maxims Presidents or parallel Cases that may affect it most which without the help of any ones Collections as having never perused any of the Arguments in Sir Edward Hales Case I shall out of my own small reading offer these following to your consideration The Attorney f Rushworth's Collect 578. General affirms That an Act of Parliament doth not extend to take away the Common Right of the Crown and saith That hath been the exposition of the Judges of Acts of Parliament that have done so He instanceth in the Magna Charta of King Johns 17º Regni where it is said That no Scutage or Aid should be without assent of Parliament So that in this there was no exception of an Aid to Knight the Kings Eldest Son or marry his Eldest Daughter yet it was resolved in this case that by that Charter those Aids were not abolished they being due by the Law of the Land and so it was declared 25 E. 1. cap. 1. We find an Antient Statute in King g Westons c. 50. 2 Instit 263. Edward the First 's time wherein the King speaks thus That he bad done this for the Honour of God the Honour of
reputed such c. and every one of them to have hold and possess seat place and voice in our Parliaments Publick Conventions and Councils and of those of our Heirs and Successors within our Kingdom of England amongst other Barons and Barons of our Parliaments publick Conventions and Councils This having been the long used form of the Patents granted by our Protestant Princes it is not only an abatement of what the Sovereign intended for their well-deserving Subjects and a violating of that peculiar Right which was designed to be transmitted to their Posterities and thereby a degrading of Roman Catholic Peers of so importent a priviledge but it wrests out of the Kings hands a Royal Prerogative he hath Jure Coronae to make and create the Members of that most Honourable House which is his Supreme Court of Judicature The ill Consequences that may follow such Retrenchment being well worth serious Reflections and of the Kings Prerogative I having occasion hereafter to treat more largely shall add no more here but only hint to you the Resentments of some Parliaments when they have wanted their Members and close this Head with some short Reflections which with all due deference to better Judgments and those whom it may most immediatly concern I shall only offer to be considered Mat. Paris p. 885. Anno 1255. The Earls and Barons absolutely refused the King any assistance or answer at all to what he demanded because all the Barons were not at that time called according to the Tenure of Magna Charta Stat. 1â— 114 So the Acts of the Parliament of the 21th of Rich. 2. and all the proceedings therein were totally repealed and nulled by the first Parliament of King Henry the Fourth because the Lords who adhered to the King were summoned by him to the Parliament and some of the opposite party imprisoned impeached and unsummoned Pryns plea for Lords Stat. 24. When King Charles the First sitting the Parliament confined but one Member the Earl of Arundel the whole House of Lords Remonstrated and petitioned the King to take off the restraint and to admit him to sit and serve the King and Common-wealth in the great Affairs of that Parliament So the Lord Digby Earl of Bristol being not summoned the Lords ordered his Admission to Sit as his Birth-right 4 Justit p. 2. from which he might not be debarred for want of summons which ought to have been sent him ex debito Justitiae as Sir Edward Coke affirms Pryn ut supra p. 145 146. When the same King Charles demanded the Five Members the Two Houses grew exceedingly disquieted at it and would meddle in no other Business but adjourned themselves to Guild-Hall London till the King should give them satisfaction in discovering the Authors of that Counsel The stress of whose Argument in their Messages to the King Nov. 2. 1642 was That by that means under false pretences of Crimes and Accusations such and so many Members of both or either House of Parliament may be taken at any time by any person to serve a turn and to make a Major part of whereby the freedom of Parliament would be destroyed which they say dependeth in a great part on this priviledge because without it the whole Body of Parliaments may be dissolved by depriving them of their Members by degrees some at one time and others at another Plea for Lords p. 414. The same mischiefs which they urged might happen to the Being and Constitution of Parliaments by the Kings depriving the House of five Members may happen upon the Houses excluding their Members by Vote against which Mr. Prynn makes so great an Out-cry and from this unparallell'd president except in the long Parliament of expelling Members for their opinion in Religion Some Reflections upon the whole All Lovers of the so excellently composed Constitution of the Two Houses may do well to consider what an Inlet it will make to the Imitation of the likely designing Men when they shall have any Intrigue in hand to expel Members of other Qualifications Qualifications and Recognitions during the Usurpation Surely we ought not to forget how much it prolong'd our miserable slavery under the Usurpers when no Members how duly soever chosen by the Freeholders were admitted to sit unless they were so and so qualified and made a Recognition to own the Usurped Government and to Act nothing contrary to the Model of it I think it no great Commendation in us to be in Love with such a Copy of the same tho drawn in Oyl-Colours and made more lasting and obliging by the Legality of it When Queen Elizabeth was in greatest danger from Roman Catholics even while her Rival lived she could not be induced to deprive the Roman Catholic Lords of their places in Parliament The ill consequences of Secluding the Bishops I think we ought to remember what dismal effects followed the Seclusion of the Bishops out of the House of Lords and that upon the Kings Restauration none appeared more forward and zealous to have them brought into the House of Lords again than the Roman Catholic Peers did which Action none I think will interpret to have proceeded from their Love to their Religion but solely to the tender regard they had to Justice and the true Constitution of Parliaments and if the Bishops and Protestant Lords had thought fit to have been as careful of the Birth-rights of those few Catholic Lords that were Members of their House in all probability our Religion had been in as little danger by their stay as it hath been better'd by their expulsion for they neither were then or are like to be so numerous in that House as to carry any Vote to overthrow or weaken the Exercise of the Protestant Religion What sort of Acts of Parliament least dureable It must be owned that Acts of Parliament are to be looked upon as Laws the Subjects ought to yield all Obedience to But it is likewise to be considered that such Temporary Acts which upon Emergencies and to serve a juncture have altered any Ancient or Fundamental Constitution of the Government robbed the King of any useful Prerogative or the Subjects of their Birth-rights as likewise all such as by Revolution of Time have the Causes for which they were made ceasing have been rarely found conducible to Publick Good or of any long continuance It is true our present Sovereign was personally excepted from the severity of these Acts but it is well known that some great Members of the Houses designed to have him presented by the Grand-Jury as a Recusant in order to his Conviction as a Roman Catholic and the Judges for discharging the Jury too soon as the designers alledged whereby an Indictment could not be brought in were severely censured by the House of Commons This was not all for the hottest Zealots were for proceeding upon the Statute against being Converted or Reconciled to the Church of Rome upon
the Church for the Common-weal and for the remedy disburthening and ease of them that be grieved yet this should not be prejudicial to him or to his Crown but that the Right which to him appertaineth should be saved Which Sir Edward Coke calls the Kings Right of his Crown and Prerogative It is declared by the Lords and Commons in full h Reâ—l Parliament 43 Ed. 3. No. 7. Parliament upon demand by the King That they would not assent to any thing in Parliament that tended to the disinhereson of the King and the Crown whereto they were sworn This makes the Chief i 4 Iuctiâ— 51. Justice censure as a great fault the omission in the printed Statute of 2 R. 2. in confirmation of Liberties these Words Saving to the King his Regality which are found in the Parliament k Roll. Parlam 2 R. 2. Stat. 2. cap. 4. Roll. A Lawyer l Davis Reports 86. of no small esteem saith The Commons of England have ever been exemplary for the tenderness of the Kings Honour and the maintenance of the Sovereignty But this was before they medled so much with Articles of Religion So in latter times 3º Car. 1. both Houses declared upon passing the Petition of Right that they have neither intention nor power to hurt the Kings Prerogatives Thus far as to the regard our Ancestors have had to the Royal Prerogative Now I shall in a few particulars shew the resolutions of the Judges in such Cases when Acts of Parliament have intrenched upon them In the 13th of m 4 Institu 42. How the Judges have resolved upon Acts of Parliament that Insringe the Preregative Richard the Second Stat. 2. cap. 1. it was enacted That no Charter of Pardon unless so and so qualified should be from thenceforth allowed by the Justices for Murther Treason or Rape and if it were otherwise the Charter to be disallowed Yet my Lord Coke saith This did not bind the King the granting of Pardon being the Kings Prerogative incident solely and inseperably to the Person of the King. The same Richard the Second bequeathed n Ibid. certain Treasuries to his Successor on condition to observe the Acts made the 21 Reg. This was held unjust and unlawful for that it restrained the Sovereign Liberty of the King his Successor And the same Reason saith a judicious o Majestas Intemorata Lawyer may serve to overthrow a Statute which shall unjustly and unlawfully restrain the same Sovereign Nor had saith he this bequest been of more strength had it been enacted by Parliament Injustice being Injustice and Vnlawfulness Vnlawfulness every where It was p Cokes Report 12. p. 14. enacted 23 H. 6. That no man should serve the King as Sheriff in any County above one year but the Grant should be void the person accepting it pay two hundred pound and it was expresly provided that the King by a non obstante should not dispence with it Yet it was agreed 2 H. 7. against the express provision of that Act That the King may by a special non obstante dispence with the Act because no Act could debar the King from the service of his Subjects which the Law of Nature did give unto him In the 37 H. 6. it was q Ibid. p. 18. enacted That none should be Justice of Assize c. in the County where he was born or did inhabit Yet saith the same judicious Lawyer the King with a special non obstante may dispence with it and gives the reason for that it belongs to the inseperable Prerogative of the King viz. his power to command to serve The same r Ibid. p. 18. Lord Chief Justice in the same report is more express and as full as if he had foreseen this present Case of ours where he affirms That no Act can bind the King from any Prerogative which is sole and inseperable to his person but that he may dispence with it by a non obstante and instanceth in the Sovereign Power to command any of his Subjects to serve him for the Public Weal For this saith he is solely and inseperably annexed to his Person and this Royal Power cannot be restrained continues he neither in Thesi nor Hypothesi but that the King by his Royal Prerogative may dispence with it For all which he gives this most unanswerable reason because upon the Commandment of the King and Obedience of the Subject doth the Government subsist I might add very many more Authorities as Edw. the Thirds repealing an Act of Parliament by Proclamation as consented to upon necessity But I shall leave that to those whose Province it is and close this Head with one Observation We are all commendably and justly tender of the preserving the Liberties and Enfranchisments we enjoy by the gracious Condescentions of our Princes and are vigorous maintainers of our Properties and ought we not to own that there is as good reason that the Kings of England should be as solicitous to preserve their Prerogatives which are their right For as a most judicious Å¿ Quicquid in Regalibus est Ita est Principibus privatum ut Subditis quod suum est Selden prefat Mare Clausum Antiquary and Lawyer expresseth Whatsoever belongs to the Kings Royalty he hath as much Propriety in it as the Subject hath in any thing that is his We must likewise consider that the King is as much sworn to preserve the Right of his Crown as the Liberties of the People Therefore we find that branch in t Majestatis Intemerata some Coronation Oaths that the King swears he shall keep all the Lands Honours and Dignities of the Crown righteous and free in all manner whole without any manner of minishment And the rights of the Crown hurt decay or lost to his power shall call again into the Ancient Estate Therefore my Lord u 12 Rep. 18 Coke praiseth King Henry the Second in that he was a great Defender and Maintainer of the Rights of the Crown Inferences from the premises Having dispatched these Heads I now come to the application of them to the Test which as the Case now is and ever will be so long as it stands unrepealed deprives the King of the Allegiance of such of his Subjects as either Conscientiously or Designedly refuse the taking of the Oaths and affirming the Declaration enjoyned The Inconveniency of which is double First In robbing the King of so necessary and fundamental a Right over his Subjects in commanding them to serve him in Offices Military and Civil without which he is but a very Impotent Sovereign and cannot exert that necessary Justice of Protecting Rewarding and Imploying his Subjects which surely is not only much to the dishonour of the Sovereign but an unsufferable restraint And if w 31 Eliz. c. 4. Imbezelling Purloyning and Conveying away the Arms Ordnance Munition Shot Powder Habiliments of War c. is declared Fellony what sort of Crime
employments whereby the Managery of the Government might solely be in the hands of Protestants yet what necessity was there for the outlawing of them in putting them out of the protection of the King and his Laws or of receiving any benefit by them so that they could not recover their just debts defend themselves from any injury done to their Persons or Estates nor have equity done them which is the priviledge all Subjects claim from their Sovereigns Justice As they must suffer all hardships so the Acts provide that no Protestant or other should be beneficial to them being deprived of all the usual ways whereby advantages accrue to any either by the Living or the Dead in that they might not be Guardians Executors Administrators or receive any Legacy or Deed of Gift Whoever considers these things with a sedate and composed mind undisturbed with Bigotry Suspition or Envy must think this punishment intended to keep the Roman Catholics in perpetual poverty and vassallage which no Roman Catholic Prince can take pleasure to see or endure Of the prohibiting Rom. Cathol to be in the Kings Court or Presence As to the prohibiting all Roman Catholics or any other resusers of the Oaths and Declarations advisedly to come into the Kings Presence or Courts there might be some colour for such a prohibition during the time that a Protestant Prince was thought to be in personal danger from Roman Catholics but surely at any other time it appears a strange ungentileness to retrench a Sovereigns attendance and shews a very unbecoming diffidence in the Wisdom of a Prince and his Privy Council as if they knew not whom and when to prohibit Access to their Royal Persons and Court which by direction to the Lord Chamberlain or by Proclamation might be done upon Emergencies It looks like a suspition that the hinderance of the Access of Roman Catholics was rather that they might not represent their sufferings explain their Religion more favourably make Proselytes or interceed for some accused which though not expressed in the Act fully yet may well enough be interpreted from the words preventing the increase of Popery I know there is a provision upon obtaining of licence but that could extend to very few who either could be at the expence or obtain the favour of an Order of Council for that purpose and so all indigent Catholics who for their sufferings for Kings Charles the Martyr might merit the late merciful Kings regard and benignity were utterly excluded Not fit now to continue But if we suppose these Acts as necessary and equitable as the greatest Sticklers for them could evince while the Plot was believed I think no person endowed with common civility will think it fit they should be imposed upon our present Sovereign nor will they think it equitable and just that any Roman Catholic King should deal in the same manner with his Protestant Subjects And I presume the Golden Rule to do to others as we would be done by our selves should influence publick as well as private affairs Concerning the King and Queens sworn Servants As to the Kings sworn Servants It must be very severe upon several of them whose fortunes were bottomed upon it and it was a very unbecoming restraint that a Sovereign should dismiss his Domesticks though never so experienced and faithful for that which it may be few Members of the Houses would discard a Trusty Menial Servant for As to the Queens Servants it had been contrary to the Law of Nations to have imposed such Oaths and Declarations upon such as were naturaly born Subjects of Portugal yet in that they were limited to so small a number as nine whereas her Majesty entertains near thrice the number of Religious it shewed but little consideration of the number of Servants in the Family of so great a Princess But I need not trouble you with the consideration of these as moving in a lower Sphere for what ever will induce the two Houses to reinstate the great Orbs in their places and capacitate them to exert their due Powers will prevail to restore the Satellites of the great Luminaries Therefore I shall now pass to the ejecting the Roman Catholic Lords out of their House and depriving them of their Birth-rights Concerning the Catholic Lords being excluded the House By the Kings Royal Prerogative the Power of Creating a Baron and Peer of the Realm is only in the King as the Original Donor of all Honours from whom all Dignities flow as from a Fountain to all his Subjects Conciliarii nati This Honour consists not only in obtaining a swelling Title and Degree of precedencie as special Marks to them and their Families of Princely Favours but likewise hath for many hundreds of years had annexed to it a right of being a Member of the House of Peers sitting and voting there and thence they are stiled frequently Hereditary Councellors who constitute the Kings Supreme Court of Judicature In the Saxon times and long after the Conquest we find none but Bishops Abbots Priors and these stiled Magnates or Proceres to constitute the General Councils which we now call Parliaments tho it seems by what we can collect from the Ancientest Authors the King summoned which of these he pleased and did not tye himself to continue it to their Posterities Mat. Paris 227. But in the Great Charter of King John we find he granted that he would by special Letters summon to these Great Councils in Assessing all Aids and Scutage the Arch-Bishops Bishops Abbots Earls and great Barons of the Realm Cap. 2.12.19.37.38 So in the Great Charter of Henry the Third those are first provided for and a severe Excommunication was wont to be pronounced by all the Bishops in presence of all the Lords and Commons against the Infringers thereof And it is obvious to all who know any thing of our Laws how Sacred an Esteem the Great Charter hath had being stiled The Charter of the Subjects Liberties and looked upon as the Standard of the Subjects Priviledges so that some are of opinion that even Acts of Parliament contrary to Magna Charta are void Et ut Barones tractentur teneantur reputentur c. eorum quilibet habeat teneat possideat sedem locuus vocem in Parliamentis publicis Comitiis et consillis nostris haeredum successorum nostrorum infra Regnum nostrum Angliae inter alios Barones Barones Parliamentorum publicorum Comitiorum Conciliorum T it 〈◊〉 Part. 2. cap. 5. This Right of Barons sitting and voting in Parliament is specially provided for in their Patents of Creation which may be seen at large in Mr. Selden And as to what relates to our purpose is contained in these Words after the Recital of the Words of Erecting and Creating them and their Heirs-males to the Name State Degree Stile Dignity Title and Honour of a Baron c. That they shall be treated held and
they are imployed will as Bravely Honourably and Circumspectly discover their abilities and I hope will keep so good a correspondence with Loyal Protestants that are their Fellow-Servants to so great a Master that the King may at least have that satisfaction that he can unite them in a Camp which he cannot do in a Church and shew his great wisdom in Government that he can be faithfully and effectually served by all his Subjects of different Religious Interests And though the endeavours of several to explicate the Roman Catholic Religion more approachingly to the sentiments of Protestants have not as yet had that effect they wished yet it may be useful to let us see that in affairs of State and Government such an intercourse and mixture may be as former Ages have not known and by the Conduct of our Gracious and Wise King may be laid a foundation for better accord in future times that we may not be at such feuds among our selves It is true that under a Protestant King there might be some reason to maintain the Protestant Church so as it might neither be indangered by the Roman Catholics or Protestant Dissenters and by Sanguinary Laws tho rarely put in use people might be deterred from being of any other Communion yet we cannot think that the same measures can be taken now such circumstances varying the methods of proceeding and in Government and Politicks new Emergencies may yea must render old Axioms obsolete Hence we take notice how imprudent these Informers are who in our King's Reign more out of pretence and impotent zeal than for any good concern to the Church of England tempt the Justices and instigate them to prosecute Catholics by binding them to Sessions and Assizes for what can be expected from this but it will exasperate the King and discover how desirous these are to persecute them tho they know he will pardon the Transgression in as much as it relates to himself Thirdly 3 It is against the Kings Prerogative Having thus far treated of the Natural and Religious Grounds the King hath to demand to have the Act repealed I come now to the politic and more necessary part as it relates to the legal constitution of the Government which by this Act of the Test suffers a great alteration in the abridging the King of an undoubted Prerogative of the Crown For the illustrating of which I shall first give you the opinion of the most Celebrated Writers of the English Laws of what nature the Kings Prerogative in general is Secondly That the Leigance of the Subject to his Sovereign is judged among the principal Prerogatives of the King. Thirdly How tender our English Ancestors have been of the Royal Prerogative Fourthly That the Test deprives the King of the Leigance and of that Fundamental Prerogative of having the service of his Subjects And Lastly Conclude with some Inferences from these Considerations The nature of the Kings Prerogative As to the first a L. 1. Instit 90. Sr. Edward Coke saith the Prerogative extends to all Power Preheminence and Priviledge which the Law giveth to the Crown b Lib. 1. Bracton calls it in one place the Liberty in another the Priviledge of the King. c Fol. 47. Bretton following the d Weston 1. c. 50. Statute calls it Droyt le Roy and the e 61. Register stiles it the Kings Right and the Royal Right of the Crown My Lord f 2 Instit 84. Coke saith the Prerogative of the King is given him by the Common Law and is part of the Law of the Realm g Prerog c. 1. Stanford saith the Prerogative hath its Being from the Common Law and the Statutes are but declarative Properly speaking the Prerogatives of the Crown are such powers as the Kings of England have reserved to themselves as most necessary for the support of their Dignity and the Government Therefore h Rusâ—w Collect. 555. Sr. John Banks in his argument about Ship-mony affirms that the Jura Summae Majestatis which are the Prerogatives are given to the person of the King by the Common Law and the Supreme Dominion is inherent in his Person Another judicious i Mr. White Majestas Intemerata p. 30. Lawyer out of the Authorities he there cites saith The Prerogative is inseparable from his Person not grantable over it is always stuck upon the King or Crown and being inherent to the Majesty of a King and part of the matter of that Majesty is no more grantable than the Majesty it self or a Royal member of the Imperial Stile These are the Characters given to the Kings Prerogative in general â— The Subjects 〈…〉 the Crown Let us now in the second place consider that among the Prerogatives of the Crown It hath been always accounted one of the eminentest principal and fundamental ones that the King and none but he may at his own pleasure command the service of all and every his Subjects in his Wars and other Ministerial Offices which they are bound to by their Natural Allegiance Hence k 2 Instit. 128. Sr. Edward Coke stiles Leigeance the highest and greatest obligation of Duty and Obedience that can be and defines it The true and faithful obedience of a Liege man to his Liege Lord or Sovereign and so calls it * Vinculum Fidei Leges essentia The Ligement or bond of Faith and the essence of the Law and in l 7 Rep. p. 9. amittit Regnum sed non Regem amittit Patriam sed non Patrem Patrie another place he affirms That it is not in the power of any Subject to dissolve this Obligation saying That he that abjures the Realm may loose the Kingdom but not the King may loose his Country but not the Father of his Country agreeable to what another eminent m Dyer fol. 300. Lawyer asserts That none can divest himself of his Country in which he is born nor abjure his due Allegiance nemo patriam qua natus est exuere nec ligeanciam debitam ejurare potest In Calvin's Case the famous n 7 Rep. p. 4. Chief Justice saith That Liegeance and Obedience is an Incident inseparable to every Subject For as soon as he is born he oweth by Birthright Liegiance and Obedience to his Sovereign therefore in several Acts of o 14 H. 8.61 43 H. 8. c. 3. Parliament the King is called The liege and natural liege Lord of his Subjects and his people natural liege Subjects So that the liegiance is due to the natural person of the King by the Law of Nature which is immutable is part of the Law of England and was before judicial and municipal Laws as the same great Author affirms Long before him p Lib. 1. Stanford Plea 54. Bracton saith That things which are annexed to justice and peace belong to none but the Crown and dignity Royal nor can they be separated from the Crown for they make the
the two Houses might find useful for the public good Lastly This Non-correspondence must gratifie and incourage all the Enemies to Monarchy and all those who were for the Bill of Seclusion this Discord being the only pleasing Harmony to them who never hug themselves with so full an Ohe of content and satisfaction as when they find the Crown in any straits or can foment if not conjure up a Spirit of Jealousie betwixt the King and his Parliament and when they have stolen the Peoples Hearts from the King they are upon the Tiptoes of hope that they may strike in for the prize If we have not a feeling sense of the miserable state that Sedition and Rebellion It's most savage Elder Brother will bring us all to let us consult our bloody Annals and our Ancestors deplorable experience and then ponder well whether it be Tanti to move Heaven and Earth harras our Country and embrue it with the blood of so many of our Country-men and nearest Relations and at last fight our selves into a much worse condition than we are ever like to be in by granting this Repeal which in this juncture is most reasonable if not for our Kings sake and the Roman Catholics yet at least for our own peace and tranquility and the establishing our hopes of his Majesties kindness to our Church The last Inconvenience The last Reason I shall urge is that the refusing to Vacate these Acts may necessitate the King to grant a Toleration which of all things the Church of England hath hitherto most dreadded and to which we may believe the King is well enough inclined out of a principle of clemency to his people in general as well as Indulgence to his Catholic Subjects which altho his Royal Brother after an essay at the earnest solicitation of his Parliament was Graciously pleased to recal to gratifie the Church of England yet we cannot expect that our King not having those motives and being courted by so many to grant it and finding the extension of his Supremacy will think it his Interest to revoke it if he once establish it The difference betwixt Roman Catholics and other Dissenters from the Church of England Here it will not be a miss to consider the great difference there is betwixt Roman Catholics and other Dissenters while the Laws are in force The Non-conformists may meet to the number of Five besides the Family and have their Pastor or Teacher with them and the disagreeableness betwixt them and the Church of England is not so great but that those who have Estates or desire to obtain Offices of honour or profit even to do the Crown a disservice as we found in those that were to capacitate themselves to be Sheriffs in the late times could readily Conform Whereas Roman Catholics are in extream peril from the very harbouring their Priests so that in this the Roman Catholics are in a sadder state than any Christians are For to exercise their Religion without Priests for performing the Office of Baptizing Administring the Blessed Sacrament burying the Dead c. Is in that Church and ought to be in all others impossible and to have them for celebrating these and other Divine Offices as the Laws now are renders them obnoxious to the punishments inflicted on Felons and Traytors and there is no possibility of the Roman Catholics as such conforming even so much as in going once a month to Church without putting themselves out of the Communion of their Church which with them is to be avoided more than the utmost sufferings When therefore we consider the Unchristianness of such severe Laws under our circumstances and reflect that tho the greatest part of the disquiets from the Tenth Year at least of Queen Elizabeth have arisen from the pretences of keeping out Popery and the Advantages the Long Parliament had against King Charles the First was from that source and the troubles of our late merciful King were bottomed on the same apprehensions and yet now that we see it 's actually practised we find no such dreadful events but that the Vizard was portraied much more terrible than now when it appears with open face and now when we see the publick exercise of the Roman Catholic Religion we only find it gazed at as a Novelty but no affrightments attending it and we find what we understand in Sermons and Catechizing is Christian and profitable and what we understand not in Ceremonies we see full of Pomp and Magnificence and further we see not I say when we consider all this and that it is in our choice whether we will allow the sanguinary and penal Laws to be abolished with a security in the exercising the Protestant Religion or on the contrary the Inconveniencies before recited and a Tolleration to boot methinks it should be no difficult matter to determine which were more advantagious Having thus shewn some of the disadvantages to Us and our Religion by the refusal of a Repeal I might propose the advantages which will accrue by yielding up those Laws the King hath such an obligation in Honour and Justice at least in his own Royal Apprehension to insist upon but that the removal of the one puts the other in their place SECT XVI The practicableness of Roman Catholics and Protestants living under one Secular Government THerefore I shall chuse rather to shew the practicableness of Roman Catholics and Protestants living in the full enjoyment of their respective Religions under Princes of either Religion And first shall observe that the Church of Rome and the Church of England are the two Churches in Europe at least that are the most conspicuous and of most renown Both plead for the Antiquity of their Doctrine The Roman Catholics are of one Communion and so is the Church of England but Protestantism at large takes in a greater variety of subdivisions and those separate from the Church of England as much as that doth from the Roman Secondly It hath been the endeavour of many learned and pious men to accommodate the points in difference betwixt Roman Catholics and Protestants But by reason of secular interests no expedient could be found to adjust them till at last in Germany from whence our Saxon Ancestors came after about twenty years war wherein the Country was the very Theatre on which the most Tragical Effusion of Blood and the most depopulating waste by Fire and Rapine were acted to the highest degree of humane cruelty and revenge and all this principally upon the account of the difference between Roman Catholies and Protestants upon account of their Religion and being at last throughly wearied with the unsuccessful attempts upon one another in the year 1624. they came to the following settlements which I believe they hitherto reap the fruit of being confirmed Anno 1648. at the Treaty of Munster whereby it was made an Imperial Law. The Duke of Newburgh is a strict Roman Catholic yet in his Country of Juliers even at Deuseldorp