Man's Law and not prohibited by God's Law for to interpose themselves for the Safeguard of Equity and Innocency Much more I could transcribe if it were necessary Only this he further saith That he never denied that the People might preserve the Foundation Freedom and Form of their Commonwealth which they fore-prized when they first consented to have a King This Book was Printed 1585. perused and allowed by publick Authority But such have been the Spirits and Tempers of some Men that if a Prince would suffer his Power and Authority to be used by them to work their own Wills and impose what they think fit to injoin upon their fellow Brethren they 'll give him more than ever he could expect or dream of And no wonder whilst they take it for granted that what they give him is as good as their own and to be managed by them to make themselves arbitrary and great Was it not an hard case for those Earls and Noblemen abovesaid to be accounted guilty of a capital Crime for presenting their Petition for a redress of Grievances Nor was it much better with us when the late Abhorrences were in fashion by which they had so far decried that reasonable and undoubted liberty of the Subject which the late King believing and that the Sauce for a Goose might serve for a Gander too took the advantage of imprisoning and impeaching the Seven Bishops for a modest and humble Representation of their Grievances which by the Law of the Land they were sufficiently vouched to do But Laws it seems are Fetters which no Princes must be intangled with if our Hyperconformists Divinity be good What Spirit leads you saith Heylin that you are grieved with illimited Power Moder Answ p. 28 32. which Men of better Vnderstanding than you have given to Princes Princes are God's Deputies of whom should they be limited If you say by the Laws of the Land those themselves have made A Prince in abstract is above the Laws though in Concreto a just Prince will not break the Laws which himself hath promised to observe otherwise we say of Princes Principi lex non est posita That they do not only govern by the Law but are above it that he is sure and hath an absolute Authority Which the late King in his Declarations sent into Scotland so frequently mentions The same * Heylin Author avers that as its a kind of Atheism to dispute Pro and Con what God can do and what he cannot so 't is a kind of Disobedience and Disloyalty to determine what a King can and what he cannot (o) Supposed to be Dr. Lesly Bishop of Doâ—n and Conor Lysimmachus p. 3. saith That Princes being God's Legislators are (a) Thomas de Corsellis was of another mind in his Argument against the Supremacy of the Pope in the Council of Basil Neque hic inquit ille â—os audis qui tam latam regibus attribuunt potestatem ut eos teneri legibus nulâ—a tenus velint Aeneas Sylv. de gest Con. Basil above their Laws and dispense with them as they think expedient A Prince is not bound to his own Laws because no Man can impose a Law upon himself Out of which kind of State Divinity our late Dispensing Power did arise and spring Wemius de primatu regis p. 39. is of the same Mind Audemus dicere reges supra leges esse iisque solutos nemo enim sibi legislator And the better to justifie this they exclude Parliaments from having any decisive Voice or legislative Power though they may have a deliberative when the King thinks fit to call them Legum latio saith the same Author praecipuum est supremae dominationis Majestatis caput legum Ecclesiasticarum Principes latores sunt nec differant à civilibus Ecclesiastica ratione causae efficientis p. 59. That is Princes are makers of Ecclesiastical Laws which are the same with civil Sanctions in respect of the efficient Cause Potestatem in Ecclesiasticis 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 posse à Principibus jure suo extra concilia exerceri But when they are called he allows them only a consultive Voice Consultivam habent vocem tanquam juris divini consulti definitivam Princeps p. 89. Nor are Parliaments more necessary to the making Laws in the State than Synods in Matters of the Church according to the same Author's Opinion who account the Prince's calling them only a piece of Modesty to advise with them and hear their Opinions not that their Consent or Authority were necessary to the making Laws Neque vero putandum est quia sâ—let rex ex modestâ prudenti virium suacum diffidentiâ non nisi de ordinum consensu leges ferre absolutam ei impâ—ni ejusque successoribus necessitatem illorum obtinendi consensus ac si nullo modo its liceret per se sine eorundem suffragiis bonas edere constitutiones De jure in omnes leges feren â—o sine omnium consensu stature potest p. 17. Heylin's Antid p. 6. In Heylin's Antid we read to the same purpose p. 66. Quodcunque imperator per Epistolam constituit vel Cognoscens decrevit legem esse constat That whatever the King by Proclamation or Letters shall appoint that 's Law Cum Imperatore Justiniano dicendum videtur explosis ridiculosis ambiguitatibus verum conditorem interpretem legum esse solum Principem Et legem Legislatoris non consiliarii esse non ex vi consensus consilii habiti sed ex regià legislatoris vi obligantem Wemius pag. 19. That is the obliging Power of the Law is not from any Counsel or Consent given viz. by his Parliament but by the Royal Power or Virtue of the Law giver Whence he concludes that the King is the only Maker and Interpreter of Laws and that the Obligation ariseth from the Legislative Authority of the Prince and not the Consultive Power of his Parliament In * In an absolute Monarchy this Proposition may be true but in a Monarchical Government viz. in England where the Constitution and Contract is otherwise 't is very false Monarchiâ regis sola voluntas de substantiâ legis est Praevia populi consultatio est utilis immo utilissima necessaria tamen non est To consult the People in making Laws may be useful but 't is not necessary But supposing the Parliament had any Legislative Power or that to the enacting of Laws the Consent of Lords and Commons were requisite the same King's Man doth declare him to have Power to nominate whom the People shall choose and by a Congio d' Elire name whom they shall send and appoint whom he shall judge most fit for the Members of that great Assembly p. 23. Baronum civiam ad Comitia delegatos non ita absolute à Baronum civium delectu pendere volumus ut non possit rex quos ille maxime Idoneos censuerit delegendos nominare presertim cum pro
legibus ferendis iisque quae administrationis sunt publicae statuendis Comitia indicia sunt That is when the King hath new Laws to enact and Matters of publick concern to be treated on he may that is the King name the Persons whom he shall judge most fit to sit in Parliament But when they are convened the King hath no need of their Consent according to these State Divines to levy Taxes or raise Subsidies seeing the King hath a sufficient Right and Power in himself to dispose of the Subjects Goods as he shall judge fit so Weems affirms Omnia saith he quae in regno sunt fatemur regis esse id est qua paternus regni dominus adeoque quae postulat ipsius qua rex est aut publica regni conditio posse regem de singulorum bonis disponere p. 19. Bishop Montague also was of the same Mind as we observe Orig. p. 320. O. lg p. 320. Omni lege divinâ naturali vel Politicâ licitè semper reges Principes suis subditis tributa imposuerunt licite Coegerunt tum ad Patriae reipublicae defensionem tum ad ipsorum bonestam familiae prâ—curationem hanc doctrinam accurate tuetur Ecclesia Anglicana c. But that the King could levy Money of the Subjects without the consent of Lord's and Commons and Authority of the same is not the Judgment of the present Church of England Although though this hath been the cry of some former high Church-men who to tickle the King's Ear and fawn themselves into Preferment have preacht up the same Doctrine upon the strickest Penalties Thus Dr. Manwarring out of the Pulpit for the Edification of the Court I suppose more than the People L'Estrang's Annals p. 84. did declare That the King without common consent in Parliament could by his Command so far bind the Subject in Conscience to pay Taxes and Loans that they cannot refuse payment of them without peril of eternal Damnation And that the Authority of Parliament was not necessary to raise Aids and Subsidies But how mischievous such extravagant Insinuations and Councels proved both to Church and State the ensuing Miseries were too evident and undeniable Arguments Nor did the Authors and contrivers of them succeed any thing better than others who fell under the dint of them Malum enim Consilium consultori pessimum For whilst they thought to oblige and espouse the Sovereign Power to their Interest viz. To press and push on those Innovations in Religion which they had advised his Majesty were orderly and decent in the Church and to urge the establisht Conformity very offensive to tender Consciences with the utmost Rigor nay in two several Reigns they Councelled and procured Edicts to legitimate the Violation of the Sabbath-day by Sports and Pastimes several of them fell under the Dint and Censures of the Civil Power feeling the Effects and unhappy Influence of those Convulsions they had occasioned in the Bodies Ecclesiastick and Politick by regrating too far upon the Humors I mean the Liberties of the Subject both as Christians and Men. Have we not reason then to plead for an allay and temper of such Matters as are apt to occasion so dangerous a Ferment both in Church and State But I can't conclude here seeing by these wild and extravagant Notions concerning Royal Power I have been led aside and my Pen dipt in this Argument especially considering those vile and virulent Reflections made upon our late Revolution counting all no better than Rebels and Traytors who willingly offered themselves to rescue our Liberties and Religion from Popery and Arbitrary Government Nay the most that can be allowed our King by such as pretend upon second thoughts to be proselyted to his Service is that he must be acknowledged so rather of fact than right But if what hath been already said be not sufficient to vouch the Endeavours of the People in preserving the Fundamental Constitutions of the Commonwealth their Lives and Religion when they are in eminent and apparent hazard I shall fetch an Argument from a Royal Topick which I think may serve much to vindicate our late Transactions Had Queen Elizabeth King James King Charles judged the Defence which the Protestants made in France Flanders Germany c. of their Lives Religion and Liberties against the Kings of France Spain and Emperor an unjustifiable Rebellion they would never have assisted them with Men and Money Arms and Ammunition for their redress and rescue from those who by their Sovereign but ill managed Power had so far rent and ravisht them out of their Hands By which Assistances and Supports they though Princes themselves did not only approve their Undertakings in particular but allow and vindicate the like Practices in parallel Cases in general But if the Doctrine of Non-Resistance be true in the Sence it hath been preacht Neither Peers nor People Lords nor Commons must wag an Hand move a Foot but stand still and see the Salvation of God Let the Pillars of the Church be rifled the Foundations of Civil and Ecclesiastical Polity raced and destroy'd the original Contract of Government dissolved nothing is to be done but to depend upon Providence expecting a Miracle to be wrought for our deliverance Every act of our own in order to that end being adjudged Rebellion Were the Knife at our Throat according to the Rules of Passive-Obedience we must not put it by if an Angel from Heaven appears not to our rescue But never did Men make worse use of a Doctrine they had so stifly maintained when it came to their own turn to practice it They proved indeed Passive in their Obedience to the Commands of the late King few or none of them being very active to obey him in the time of his distress or to make use of the Doctrine of Non-Resistance but with respect to the Design of the P. of O. so that if we may be guided by what they did and not what they said we have enough to justifie not only our present Constitution but late Revolution also But I think we have much better Authority than this to alledge * Quarto ait idem Barclaius amitti regnum si rex verè hostili animo in totius populi exitium feratur quo concedo saith Grotius Lib. 2. Cass 4to do jure belli poc Hear what Barclay saith to which Grotius assents Scharphius Symph Prophet Apâ—â—â— tells us Vel is de quo agitur talis est qui Monarchiam â—â—idem Supremam habet sed certis Conditionibus limitatam in quas jurârit Est penes status ordines aut primores regni tyrannidem grassantem coercere sunt enim subditorum officia duplicia alia ordinaria pro ratione loci temporis vocationis in republ Alia extra-ordinaria secundum circumstantias varias quae nullâ certá lege possunt definiri Hâc exceptâ quod saluti reipub semper studendum sit Quaest 45. Cicero saith it
is certain that there was a time when the People had no Kings but afterwards when Lands Possessions came to be divided there were Kings ordained for no other case but only to exercise Justice c. Not only the People but also the King to be subject to the Laws c. If a King contemn and despise the Laws violently rob and spoil his Subjects deflower Virgins dishonest Matrons and do all things licentiously and temerariously do not the Nobles of the Kingdom assemble together deposing him from his Kingdom set up another in his place which shall swear to govern uprightly and be obedient to the Laws Fox Acts and Monuments p. 762. Ed. 1684. The Substance of which is that he who hath Sovereign Power or Authority but limited by certain Rules or Conditions which he hath sworn to observe If such an one shall become a Tyrant it is in the Power of the States and Peers of the Realm to restrain him for saith he the Office of the Subject is twofold ordinary in respect to Time Place and Imployment they have in the Common-wealth the other extraordinary which is to be exercised according to the Circumstances of Affairs which can be bound by no certain Rule except that of the publick Safety which must ever be consulted for and which * Lib. de repub Quo fit ut leges non solum populum sed reges etiam obligare sciamus at si regem contemnere leges Raperebona subditorum violare Virgines stuprare matronas omniaque suae libidini temeritati committere vidiamus numquid Congregatis regni proceribus illo summot◠alius sublimabitur qui bene gubernare juret legibus obtemperare Aen. Sylv. de gestis Con. Basili Bodin calls Suprema lex But if Monarchy be absolute and under no Restrictions we must then patiently suffer the most unjust Exercise of Power there being no other appeal but only to the Divine Tribunal Thus Daniel paid Allegiance to Nebuchadnezzar and our Saviour to the Roman Emperor Pareus de potestate civili Propos Primâ saith Episcopi pastores magistratibus suis impiis aut injustis possunt ac debent resistere non vi ant gladio sed verbo dei That is Bishops and Pastors must not resist evil Magistrates by force or by the Sword but by the Word in which he speaks honestly for the Weapons of our Warfare are not carnal but spiritual In his second Proposition he saith Subditi non privati sed in magistratu inferiori constituti adversus Superiorem magistratum se rempub Ecclesiam seu veram Religionem etiam armis defendere jure possunt c. That is not private Subjects but such as are placed in an inferior Order of Magistracy may by force of Arms defend themselves and the Common-wealth the Church or the true Religion without the Breach of any Law Supposing the Supreme Magistrate be degenerated into a Tyrant an Idolater and is become highly oppressing of the People provided they act sincerely and for the publick good because he saith Princes are bound by their own Laws Imperator testatur incodice se contra jus nolle ut sua decreta injudiciis locum habeant sed debere Irrita fieri si fortasse cognoscantur à justitiâ discedere c. Lib. 4. Cod. de leg Prin. Adeo digna est vox Majestate regnantis legibus alligatum se Principem profiteri That all his Commands contrary to Law were void and that it was a Saying becoming the Majesty of a Governour that a Prince is bound by Law Trajan was commended by Dion who giving the Sword to the Praetor used these words 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 That is take this Sword if I rule well use it for me if ill against me But as to private Persons he saith Moriendum potius quam resistendum Yet for several Reasons I cannot take his Words in the Sence which that excellent and learned Person D. Fabritius would put upon them restraining his Meaning to the Princes of the Empire who are Sovereign Princes and invested with Royal Power It never being a question whether such had Authority for the Preservation of their Rights and redress of Injuries to levy War against another Prince though in some respects greater than themselves But if in no case the Nobility and Commonalty of a Nation may interpose to prevent the imminent Ruine of the Church and State it would be very difficult to vindicate the late Revolution as is already hinted from those severe Imputations by such as have very little good will to our Sion cast upon it I shall not in so great a case interpose mine own Judgment it being easie to prick our Fingers in such a Thorny question Yet I may say if any for the breaking of their Yoak have ascribed too much to the (b) Though the Bishop of Burgen to prove the Church above the Pope argued from an unexpected Topick endeavouring to prove the Body of the Kingdom to be above the King To which Tho. Corsellis agreed Adductoque intestem summo omnium Philosophorum Aristotele dicebat in omni regno bene instituto illud in primis desiderari ut plus regnum posset quam rex Si contra reperiretur id non regnum sed tyrannidem dici debere Aen. Sylv. degest Con. Basil People granting them too great a Liberty of contesting their Rights with their Sovereigns others in hopes to espouse Princes to their Interest in grieving and oppressing their Dissenting Brethren have beyond measure fawned upon and flattered them till they nurst up the best tempered Monarchy upon Earth into an intollerable and tyrannick Exercise of Regal Power But this is a digression which by pursuing the Extravagancies of some Mens Opinions I have been led In which if I proceed a little further being once out of the way I must beg the Readers Patience and Pardon For having perused the Case of Allegiance due to Sovereign Princes by W. S. I could not but with very much regret observe that in the whole drift of that Discourse we can find little or none other Argument to enforce our Allegiance to King William c. than what would bespeak it for the greatest Usurper and Intruder who hath had the good Fortune to gain an actual Possession of the Crown which looks to say no worse very ungratefully upon him whom the Lords Spiritual and Temporal invited over and who by the universal Consent and applause of the People declared by their Representatives in Parliament was invested with the Royal Government and to whom we owe next to the Divine Providence all that is dear to us To reflect then so unworthily upon him as if he were no better than one who usurps the Government and that hath no further Right to the Kingdom then what Power Possession and Success can convey to him seems no way reconcilable to Duty or good Manners This Author in his Preface tells us that he never did any thing to cause the World
which he hath no great reason to thank him for nor we to admit when the Court of Parliament have declared That the Three Kingdoms and all the Dominions thereunto belonging that the Royal State Crown and Dignity of the said Realms with all Honours Stiles Titles Regalities Prerogatives c. to the same belonging are most fully rightfully and intirely invested incorporated united and annexed in and to his Princely Person So that according to our Laws he is rightful King of England as well as de facto and by Virtue of his Possession and providential Promotion to the Crown nay they See the Act of Recognition viz. The Lords and Commons assembled in Parliament did recognize and acknowledge that their Majesties were are and of right ought to be by the Laws of this Realm our Sovereign liege Lord and Lady King and Queen of England c. Now W. S. p. 54. Case of Allegiance makes this demand viz Is it not saith he most reasonable to think that to be the Sense of the Law which learned Judges and Lawyers have agreed to be the Sense of it Is it not reasonable to take that to be the Sense of the Law which hath been the Sense of Westminsâ—â—â—-Hall Let him give me also leave to aâ—k one Quâ—stion and that is Whether that be not the Sense of the Law which the Judges and Lawyers learned in the Law have declared in Parliament nay which in that High Court of Parliament have been declared to be * The Law of Man that is not contrary to the Law of Reason nor the Law of God but that is super-added unto them for better ordering the Commonwealth shall rule the Conscience and he that despiseth this Law of Man despiseth the Law of God See Dr. and Stud. Cap. 4. Cap. 19. Cap. 26. To fill up a vacant Throne is not contrary to the Law of God or Reason that our Throne was vacated is declared to be Law by our highest Court that we have in England That a King may abdicate the Realm Grotius saith is not to be doubted and Barclay saith cited by Grotius that if a King shall aliene his Kingdom and subject it to a Foreigner or leave it or act as an Enemy to the Destruction of the Community he looseth his Kingdom di jure Bell. Lib. 1. Cap. 4. Law And that I am sure it was as we have already heard viz. That King William is King de jure and according to the Laws of this Realm whose Declaration and Decree will bind the Subject in fâ—ro Conscientiae where it is not contrary to any moral Precept though they should be mistaken in their Judgment which is not to be supposed till a Court of equal Authority for there 's none Superior repeal their Act or reverse their Decree Obj. But perhaps it may be said that the Title of the Prince is a Matter above and no way cognizable in any â—â—mane Court it being said of Kings that they judge all things but are judged of none especially as to Matters criminal for which they are only accountable to him who is the Judge of all the Earth for when Courts do sit and act by the King's Commission and Authority it can be scarce thought that any Prince should be so Trayterous to himself as to grant a Power to censure his Person or his Actions So that whatever the Parliament may have delared or enacted with respect to the late King's Actions however they may affect the Ministers of State who were the Advisers or Transactors of them yet all must be void with regard to the Person or Title of K. J. because they have interposed in that which is no way within the compass or purview of their Jurisdiction Res The House of Lords I take to be the Supreme Court of Judicature in England which though it be convened by the King 's Writ yet needs no special Commission to empower them to act that being a Right inherent in them and by the original Compact or Custom immemorial inseparable from them But suppose there be no King in our Israel the Master of the Ship fled the Waves run high must the Vessel sink all that are on board perish lest they should intrench upon the Prerogative of their Master Must they not consult their own safety for fear they should meddle with or consider the Actions of their Governour as being above their Cognizance Must the Community perish and Nation sink in Compliment to him that hath fled from them and left none to exercise his Authority over them Is not the universal Safety the Supreme Law But my last Reply to this Objection is that the Parliament of England hath not adjudged the Royal Succession or Title of the Crown a Matter above their Authority nor is it beyond the Sphere of their activity Let us hear what my Lord Cooke saith in the 4th Part of his Institutes Cap. 1. Of the Powers and Jurisdiction of Parliament for making Laws in proceeding by Bill it is so transcendant and absolute as it cannot be confined either for Causes or Persons within any bounds Of this Court it is truly said Si antiquitatem spectes est vetusatissima si dignitatem est honoratissima si jurisdictionem est capacissima Huic ego nec metas rerum nec tempora pono Virg. of which we have divers eminent Instances to induce In the 8th of Hen. 4. as my Lord Cooke hath it Instit Part. 4. Cap. 1. But I find it rather in the 7th of Hen. 4. Cap. 2. the Succession of the Crown was intailed to Hen. 4. Was not the Crown settled upon Hen. 7. by Act of Parliament and upon his Heirs before his Marriage with Elizabeth eldest Daughter and Heir of Edw. 4. of the House of York notwithstanding the Judgment formerly given in Parliament as we are about to take notice of for establishing the Title of the Crown in that Family Cook 's Institutes Part 4. Cap. 1. Many more Examples may be given to prove that the Title and Succession of the Crown is not a thing beyond the Notice and Authority of Parliament to intermeddle with But he who desires a more particular Information let him consult these Statutes 25 Hen. 8.22 28 Hen. 8.7 35 Hen. 8.1 1 Eliz. 3. 1 Jac. 1. Yet give me leave to mention one Case which happened in the Reign of Hen. 6. whose Crown whilst it was upon his Head was challenged by Richard Duke of York whose Claim was received and Plea heard in Parliament The Council alledged many and great Arguments in defence of the King's Title too many here to be inserted but that high Court upon a full Hearing on both sides gave Judgment for the Duke of York against the King though in actual Possession of the Government in these Words That Hen. 6. should reign during his Life the remainder to rest in Richard Duke of York and the lawful Heirs of his Body in general Tail King Henry 's Heirs to be excluded