shall it be in any to withdraw himself from the Allegiance and Duty to his Sovereign to serve him personally when he commands it This leads me to the Second viz. the Subjects part for this puts the Subject in a state and condition either of disability or denying to serve his Sovereign at his pleasure for those who are Roman Catholics cannot while such take the Oaths and make the Declaration they being so penned that none of that Faith can own them without renouncing their Church the Act containing nothing in its own Nature essential to Obedience but only controverted points of Faith. So many others who are not willing to serve the King in Military and Civil Imployments by pretext that they cannot with a safe Conscience take the Oaths c. Instantly obtain a Dispensation from their Allegiance which ought to be absolute and unconditionate and whatever may be the case of some few may be of many and consequently a Prince may be deprived of the necessary Aid of his Subjects even when any Rebellion or Invasion should happen for tho the King be willing to dispence with their not taking those Oaths c. Yet they may insist upon the penalty which they may pretend they cannot be secured from Here I must answer an Objection that I foresee will be urged that Contra Hostem publicum quilibet homo est miles against a public Enemy every man ought to be a Soldier and so it cannot be the intent of the Law that the King should be deprived of his Right to arm whom he pleaseth and can confide in in such a Conjuncture but only it was designed to hinder Catholics from being Commissionated and Imployed in times of Peace But who ever peruseth the Act will find no such Exception or Limitation which is a very rational plea against the equity of the Act that taking away so great a Prerogative makes no provision for the safety of the Crown even in such cases I remember my Lord Coke speaking of the statute 11 H. 7. saith It hath a flattering preamble pretending to avoid many mischiefs yet it was found that by colour of it Empson and Dudley did many enormous things therefore he observes that When any Maxim or Fundamental Law of the Realm is altered it is incredible to foresee what dangerous mischiefs follow It becomes therefore all Lovers of the Monarchy of England to be very careful to consider the dangerous consequences of taking out or undermining any Corner Stone of that Royal Fabrick and in this particular case to deliberate well of the dangerous sequels of such Laws as limit the Sovereign to use only persons so and so qualified For by the same president we cannot tell if a Prince should succeed that shall be a Calvinist or of any other perswasion opposite to the Church of England and obtaine a Parliament to his purpose but that he may make renouncing of the Episcopal Government or the Church of England a condition absolutely necessary to capacitate any to serve in any public Imployment and then we should find too late how cautious our Ancestors ought to have been to consider consequences of things We have a fresh instance of this in the Kings Supremacy which Act being purposely designed to abridge the Popes power here in matters Ecclesiastical hath heightned so much the Kings Power above what the Pope or any other Ecclesiastical Court ever had that now the Church of England finds how much they are at the Kings pleasure and must necessarily rely more upon the Kings clemency than upon any security they are in by that Act So that if some men had considered the extent of this it is probable they would have acted with more caution and observance SECT XIV Concerning the Sanguinary and Penal Laws against Roman Catholicks BEfore I proceed further I think it necessary to speak something to the Sanguinary and Penal Laws against Roman Catholics made upon the rejecting the Pope's Supremacy in Ecclesiastical Matters and for securing the Sovereigns that were Protestants and the Religion established since the Reformation For the clear illustrating of which I shall 1st Shew what the Principal of those Laws were 2ly The grounds and reasons why they were made And 3ly Shew that as to the security of the Civil Government the ends for which they were made now cease and then proceed to lay down the Inconveniences that will attend the not repealing of them An Abridgement of the Penal Laws As to the first In the 35 H. 8. c. 1. A Statute was made wherein it is declared Treason in any who refuse to take the Oath commonly called of the Supremacy of H. 8. to distinguish it from that of Queen Elizabeth The persons there appointed to take it are to swear that Neither the See nor the Bishop of Rome nor any foreign Potestate hath or ought to have any Jurisdiction Power or Authority within the Realm c. 1 Eliz. That of Queen Elizabeth appoints all to swear that No foreign Prince Person Prelate State or Potentate hath or ought to have any Jurisdiction Power Superiority Prehemenency or Authority Ecclesiastical or Spiritual within the Realm And in the 5th of the Queen the refusers to take it are guilty of a Premunire And in the former Statute No man shall by Writing Printing Teaching Preaching c. maintain or defend the Authority Preheminency Power or Jurisdiction Spiritual or Ecclesiastical of any foreign Prince Prelate Person State or Potentate which was heretofore claimed c. within this Realm for the third offence shall suffer as a Traytor Anno 13 Eliz. cap. 2. It was Enacted That if any person use or put in use any Bull Writing or Instrument Written or Printed of Absolution or Reconciliation or if any shall take upon them by colour of any such Bull Writing c. to Absolve or Reconcile any Person or Persons or promise such Absolution or Reconciliation it shall be judged High Treason So bringing of Agnus Dei's Crosses Pictures Beads or such like vain and superstitious things from the Bishop or See of Rome or any authorized or claiming Authority from the Bishop or See of Rome to Consecrate or Hallow the same shall be guilty of a Premunire 27 Eliz. c. 2. All Jesuits Seminary Priests or other such Priests Deacons or Religious or Ecclesiastical Persons whatsoever born within the Queens Dominions made ordained or professed by any Authority or Jurisdicton derived challenged or pretended from the See of Rome unless upon some occasions allowed by the Act that shall be known to come into or remain in the Realm or Dominions shall suffer lose and forfeit as in case of Treason Also all such as shall willingly and wilfully receive relieve comfort aid or maintain any such being at liberty and out of Prison shall be adjudged Fellons Likewise to give or contribute any money or other relief to such out of the Dominion or for maintenance of any Colledge of Jesuits or Seminary Priests shall
incur the penalty of Premunire I need not mention the severe Laws of that Queen against convict Lay Recusants As confining them within five miles of their Habitation and the poorer sort that had none to Prisons or other Restraints and to the end that the Realm be not pestred and overcharged with the multitude of such seditious and dangerous people they must abjure the Realm King James the 1st 1º Reg. c. 4. Confirms all the Laws of Queen Elizabeth against Jesuits Seminary Priests c. and enjoyns the taking of the Oath of Obedience commonly called Allegiance which was more directly to oblige to Fidelity than in point of Faith and only enjoyned to repair to Church and continue there during the time of Divine Service and not to send any to Seminaries beyond Seas Cap. 4. But in the third of his Reign when the Gun-powder Treason was discovered the Laws were made more severe that If any shall put in practice to absolve perswade or withdraw any of the subjects of the King or of his Heirs from their Natural Obedience to his Majesty his Heirs or Successors or to reconcile them to the Pope or See of Rome it shall be High Treason and those that are willingly absolved or withdrawn as aforesaid or willingly reconciled shall be adjudged Traitors ◠5. At the same Parliament it was enacted that Recusants should not come to the Court that they should depart from London be confined within five miles of their Habitations Convict Recusants should be as Excommunicate Persons made incapable of most Offices Civil or Military of practising Law Physick c. Which no doubt gave rise to the Test and which in its full extent was never put in use and hath been connived at or dispensed with under Protestant Princes ever since Likewise under several penalties they were to Marry Baptise and Bury according to the Laws of the Realm The grounds of these Laws Now if we enquire into the grounds of all these Laws we shall find them expressed in the several Acts as in that of the 35º of H. 8. it is said to be made in Corroboration of that made in the 28th of the same King To exclude the long usurped Power Authority and Jurisdiction of the Bishop of Rome That of the first of Queen Elizabeth is to the intent That all usurped and foreign Power and Authority Spiritual and Temporal may for ever be clearly extinguished and never to be used or obeyed within this Realm c. In the 5th of the same Queens Reign the grounds are expressed For the avoiding both of such hurts perils dishonours and inconveniences as have before time befallen as well to the Queens Majesties Noble Progenitors Kings of this Realm as for the whole estate thereof by means of the Jurisdiction and Power of the See of Rome unjustly claimed and usurped within this Realm as also of the dangers by the fautors of the said usurped Power at this time grown to marvelous outrage and licentious boldness and now requiring more sharp restraint and correction of Laws c. 〈…〉 The Reasons for the passing the Act of the 13th of the same Queen is more full viz. That divers seditious and very evil disposed people minding not only to bring the Realm and the Imperial Crown thereof being indeed of it self most free into the Thraldom and Subjection of that Foreign Vsurped and Vnlawful Jurisdiction Preheminency and Authority claimed by the See of Rome but also to estrange and alienate the minds and hearts of sundry her Majesties Subjects from their dutiful Obedience and to raise and stir Sedition and Rebellion within this Realm and so mentions the Pope's Bull to absolve and reconcile all those that will be contented to forsake their due obedience whereby hath grown great disobedience and boldness in many not only to withdraw and absent themselves from all Divine Service now most Godly set forth and used in this Realm but also have thought themselves discharged of and from all obedience duty and allegiance to her Majesty whereby most wicked and unnatural Rebellion hath insued and to the further danger of this Realm for hereafter very like to be renewed if the ungodly and wicked attempts in that behalf be not by severity of Laws restrained and bridled Cap. 2. The 27th of the same Queen lays no stress upon Religion but only on the security of the State altho it was the first Act that prohibited Jesuits Priests to come over and stay here under penalty of Treason without whose Offices the Roman Catholics could no ways exercise their Religion The grounds in that Act are expressed That of late Jesuits Priests c. have come and been sent into the Realm c. of purpose not only to withdraw her Highness Subjects from their due obedience to her Majesty but also to stir up and move Sedition Rebellion and open Hostility within the same c. Cap. 2. The Act of the 35º of that Queen expresseth that For the better discovery and avoiding of such traiterous and most dangerous conspiracies and attempts as are daily devised and practised against the Queen by sundry wicked and seditious persons who terming themselves Catholics and being indeed Spies and Intelligencers c. hiding their Detestable and Devilish Purposes under a false pretext of Religion and Conscience c. Cap. 4. In the Act of the first of King James the first the grounds are For the better and more due execution of the Statutes heretofore made against Jesuits Seminary Priests and other such like Priests as also against all manner of Recusants be it ordained c. The third of the same King expresseth the Reasons thus For as much as it is found by daily experience that many his Majesties Subjects that adhere in their hearts to the Popish Religion by the Infection drawn from thence by the wicked and devilish counsels of Jesuits Seminaries and other like Persons dangerous to the Church and State are sō far perverted in their Loyalties and due Allegiance unto the Kings Majesty and the Crown of England as they are ready to entertain and execute any treasonable conspiracies and practices as evidently appears by that more than barbarous and horrible attempt to have blown up with Gun-powder the King c. Having thus given a short draught of the severe Laws against Roman Catholics and the Reasons and Grounds of them It is obvious that those for the Supremacy were enacted principally to exclude the Popes Authority in Matters Ecclesiastical which opposed King Henry the Eighth's Divorce and the Reformation of the Religion begun So that a Subject in point of Conscience and mere Matter of Faith that could not be induced to believe a King and Prince capable of being Head of the Church but shall be invincibly perswaded how erronious soever that the Pope is St. Peter's Successor and Christs unquestioned Vicar upon Earth and cannot without hazard of his Soul consent to acknowledge otherwise yet not
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
doubtful whether the Kings dispensing Power will be allowed or not I say if there were no other Reasons the King hath from hence sufficient cause to insist earnestly upon the repealing these Laws and the Test and it is probable almost to a demonstration that if this had been frankly granted it would have satisfied the King and have composed the minds of Roman Catholics who being placed in a condition of safety would have continued that esteem they had for the Church of England ever since the late Civil Wars when they were the only fellow-sufferers SECT XV. The Inconveniencies that will attend the not repealing of Penal Laws and particularly the Test HAving premised this I come to treat of the Inconveniencies the denial of the repeal of these Laws brings with it viz. First That it raiseth in his Majesties Royal Breast a prejudice against our Church and Religion and the effects of the unkindness it may beget appears to me of a much more dangerous consequence than the taking off the sanguinary and penal Laws can produce so that in stead of acting for the preservation of our Religion we expose it to more imminent and apparent danger and inconsiderately run upon the Rock we would avoid since such unaccountable obstinacy hath not only in all probability occasioned the enquiry into the Kings Power in dispensing with the penal Laws the displacing of Ministers of State and Officers in the Army and Commissionating a greater number of Catholics than otherwise would have been admitted the taking Catholic Lords into the Council and granting the Commission for Ecclesiastical Affairs but may oblige the King to make still greater Changes amongst his Officers Ministers and Judges than otherwise he intends All those holding their places only during his Royal Pleasure so that without violating any Law he may at one stroke remove most Protestant Officers from the Administration of Affairs of State under him And we know not what Changes and Alterations this wayward and unseasonable stiffness may induce his Majesty to make in the external Government and Polity of the Church by the Power of his Supremacy and Prerogatives And surely the extruding of Protestants from Power and Authority either in Church or State under the King is likely to be a vaster prejudice to our Religion than the repealing the Test can be Let us therefore think how much we are bound even in Christian prudence for the sake of our Religion not to provoke the King to withdraw his Indulgence to us in the Exercise of that Religion which he graciously offers to protect and which Grace we ought not to requite by urging the keeping up those severities against those of his Religion which most Protestants would decline to execute if they could and which we cannot if we would until we first renounce obedience to Gods Command and Submission to our Sovereign by refusing if not overthrowing his Sacred Authority and Power Whereas we are tyed by our Principles and Religion not to resist it being a chief and Essential Position and Doctrine of the Church of England to render Active and when we cannot do that Passive Obedience to our Sovereign and what ever we suffer it will not excuse us from the Guilt and Crime of indamaging and indangering our Religion by this unnecessary giving occasion to it when we might have saved not only our Reputations of being most dutiful Subjects but won so far upon the heart of our Royal Master that it would have been in the power of none to have estranged his Affections from us The Spirit of moderation becometh Christians and Calmness and Discretion becometh Subjects in all dealing with their Sovereign and we may be assured that the greater invitation we give our King by these Virtues the greater assurances we have of his Protection of our Religion and the preservation of the present Peace and Tranquility which we enjoy Let us not therefore by denying what we cannot hinder lose the greatest Blessings and Happinesses we may retain that King and People may live in that happy and good understanding which may continue and Crown the sweetness and easiness of his Royal Government over us and of our Tranquility Prosperity and Happiness under his Shadow The second Inconvenience Secondly Till these Laws be taken off it will continue those most dangerous of Evils that can befal the King and People when there is no good correspondence betwixt the King and the two Houses of Parliament On the Kings part first we may call to mind the miserable times of King John and King Henry the third and those more fresh and never to be forgot under King Charles the First Secondly However prudent and wise a Prince may be yet the watchful envy or designs of some Neighbour Potent Prince or State may necessitate our King to defend his Merchants or Plantations to succour his Allies or to secure his People from Damage or Hostilities whereby he may be forced to have recourse to his Parliament for Aid which while a good correspondence is wanting may render them slow to grant or upon unequal Conditions Thirdly This will give an opportunity to all sorts of Male-Contents and Enemies to the Monarchy to bestir themselves to embroil and ferment the People into some dangerous Defection Sedition or Rebellion On the Peoples side the mischiefs that will befall us by this want of a good understanding betwixt the King and his two Houses will be first that since our King by a mature Age and a great Experience of all affairs relating to Arms and Government is fitted and enabled more than most of his Royal Predecessors to aggrandize himself and give renown to his Subjects by buoying up whatever hath been sunk in the reputation of the World And is able to increase the Traffick of his people and inlarge their Commerce and his Empire and make as great a Figure in the World as any Crowned Head. All the Blessing we and our Neighbours might expect from so qualified a Prince will be utterly lost so that in stead of transporting his Cares Counsels and Arms into foreign parts he shall be necessitated to confine them within the Circle of his own Dominions only to keep them from Sedition or any worse mischief So that the hopeful opportunities which the World knows our King might have to hold again the Ballance of Europe and make us as flourishing a people as ever will be totally lost To the great satisfaction no doubt of some of his Neighbours and the general and irreparable loss to us and our Posterity who with sad reflections may lament the occasion of this dispute Secondly Such a want of good Correspondence betwixt the King and his two Houses will hinder us from obtaining such advantageous Laws for the benefit of the Subjects as this Remora being removed might rationally be expected among which most probably one or more might be a Corroboration of the Kings Gracious Promise of protecting the Church of England and whatever else