and impossible things to come from Men otherwise so learned For though Mr. Hobbs does lay down his Principles and persue his method much more clearly then Grotius does yet his Principles are so monstrous That to me it is impossible any ingenuous Man should assent to them Indeed if Mr. Hobbs would have supposed that the state of Man had been either in Society or out of Society and that out of Society Men had been in such a state as he makes them in his state of pure Nature I should never have stumbled at it But he forsooth requires it for a Yet thus much I will tell Mr. Hobbs he may as wel suppose a Brute an intellectual or rational Creature or a man no intellectual or rational Creature as no sociable or out of Society Principle That all Men jure naturali are in a parity and equal condition and may kill one another without any offence or sin and that Men continue in this estate until by their civil Pact they oblige themselves to one another that the will of the civitas shall be the will of them all Notwithstanding this I must needs say of Mr. Hobbs That if Men have so little understanding as to make Jus naturale to be contrary to Lex naturalis and so little grace as to believe that the civitas hath all its power from the Pacts and wills of Men and yet impossible to command any thing contrary to the Law of Nature which he says is the Law of God and tyranny to be onely ab exercitio when as it is impossible for Kings to command any thing contrary to the Law of Nature and all Faith and Ghostly Power which our Saviour left in his Church to be instrumental and subservient to it and never look how little he understands a Pact or from whence Men become obliged to it the cives of this Vtopia may do well enough If I edified but little by Mr. Hobbs yet I received much less satisfaction from Grotius for Mr. Hobbs defines his terms so clearly as to me he was easily understood whereas all Grotius his Principles are so perplexed and equivocal that it is not possible for any Man to understand any thing clearly from him As the first thing in his Preface he confounds is Societas Communitas whereas Societas is as different from Communitas as black is from white Societas according to the definition of Aristotle being Pol. lib. 1. cap 5. Vnum quid it a constans ex diversis personis ut sit unum quod imperet alterum quod pareat Society is one thing so made up of divers persons that one may command another obey Whereas community is where any company of Creatures are without the offices of commanding and obeying Well but having got out of his Preface after some Propositions of his Method c. he in the Tenth Paragraph of the First Chapter of the First Book De jure Belli Pacis defines Jus Naturale in a tedious general thing to be dictatum rectae rationis c. and this to be the Law of God and about the middle to be immutable by God himself and towards the latter end to continue but for a certain space and towards the beginning he makes the Dominion which is now in use to be brought in by the will of Man and this to be Jus Naturale too Now let any ingenuous Man judge what can be clearly deduced from Jus Naturale which is the Law of God and immutable by God and yet to continue but for a certain time until a Dominion brought in by the will of Man should abrogate what was immutable by God and this Dominion thus brought in against this Jus Naturale to be Jus Naturale too If I have slandered Grotius let any Man see the Paragraph aforesaid It was to me an admirable thing to consider that men so learned should one of them define the Law of Nature to be Dictamen rectae rationis the other Dictatum rectae rationis Well I will therefore see what Ratiocinatio is and what Dictamen or Dictatum rectae rationis which is the same thing and whether this can to any ingenuous man be any probable definition of the Law of Nature Aristotle Eth. Lib. 6. Cap. 3. makes Ratiocination and by consequence every dictate of Reason to be from Universals and that there are some Principles which do constitute the Ratiocination of which there can be no Ratiocination These Principles for which no Reason can be given and yet the reason of all those things which can be deduced from them are called Axiomata Dignitates or Communes Notiones and from these men by Ratiocination or Right Reason do infer Arts and Sciences a Scientia est actio ars effectio Eth. l. 6. c. 4. Both begotten by right Reason Ars est habitus ad faciendum idoneus cum verâ ratione conjunctus Nay all Ratiocination or Right reasoning whatsoever may be resolved into somewhat which is superior to this Ratiocination for which no reason can be given * These things thus premised I say it is impossible the Law of Nature should be the dictate of Right Reason and thus I prove it Every Principle which does constitute Ratiocination and for which no Reason can be given is no dictate of Right Reason But the Law of Nature is a Principle which does constitute Ratiocination and for which no reason can be given Therefore the Law of Nature is no dictate of Right Reason If Mr. Hobbs denies the Minor Proposition set him shew into what it can be further resolved or what can prove it For though God be the prime and efficient cause of all things but what proceeds from the will of man and into which all things may be ultimately resolved yet by Principles Aristotle and all Philosophers understand those things which immediately proceed from God and the Law of Nature could not be the Law of God if it did not immediately proceed from him but the Law of that thing from which it did immediately proceed the Law of Nature therefore is a Principle Well but let us suppose the Law of Nature to be the dictate of Right Reason and see the consequence Every dictate of Right Reason is of less Dignity Authority and Excellency then the Right Reason viz. The Effect then the Cause But ex hypothesi the Law of Nature viz. the Law of God the Creator is the dictate of Right Reason Therefore is the Law of the Creator of less Dignity authority and excellency then the faculty and attribute of the creature viz. Right reason then which what can be more monstrous and blasphemous Nor is this definition less ridiculous then impossible and blasphemous For the dictates of Right reason are understood by one man and not by another and may be learned and taught Suppose now one of these Masters of Reason should come to the most plain and ignorant man in the world who is
seen that the Turkish Muscovitical and other whatsoever Governments setled upon this principle That the goods and lives of the Subjects are the Princes not to defend as our Laws go but to dispose at will c. neither do nor can breed any obligation of Obedience in the Subject more then of Fear and present Utility Observ It seems then neither Fear nor Utility may be expected from our Authors Laws with which his absolute Trustee is impowered And what other means besides the law of God which commands us to be subject to the higher Powers Rom. 13. and S. Peter 1 Ep. cap. 2. 13. To submit our selves to every ordinance of man for the Lords sake whether to the King as supreme c. can any Governor propound to his Subjects for their conformity to his Laws but utility and reward for their obedience and fear of punishment for their disobedience And here our Author calls them Tyrannical c. What 's the matter Have they too much power They have no more then God hath given them and in having less they should soon actually have none at all and Aristocraties and Democraties assume as much Do they eat too good meat or wear too good clothes Why sure Nature intended that the best things should be used and who better use them then the King What are many of their Subjects poor and miserable 'T is not their fault 't is the curse of God upon the ground for Adams sin in not giving up his will to Gods command that in sorrow man should eat of it all the days of his life Gen. 3. 17. And if any of these Tyrannical Governors as our Author calls them should divest themselves of all their power and greatness yet there would not be fewer poor laboring men And let our Author shew me in any of these Goverments half so many Slaves and miserable men as I will shew him have been under the Romans and other popular States Nor need any man in any of these be a Slave if he will become Renegado to his Faith and Religion whereas under the Romans c. they were necessitated to it at the will of their Lords Will they if they fear the power of any man to grow too great use means not fully warrantable in the known Laws either to make it less or none at all why the Portian Law prescribed only banishment to the Citizens of Rome in any offence yet Cethegus Lentulus Longinus c. were put to death for being agents in Catilines Conspiracie The Athenians would by their Ostracism banish any man that they but suspected would grow too great Will they make unjust war without any cause given why the Romans undertook the protection of the Mamertines Livy lib. 16. a company of * Sir Walter Raleigh book 5. ch 3. Hellhounds who had murdered their Hosts the Messanians and took possession of Messana against the Carthaginians which was the ground of the first Punick war And when Greece was divided amongst Athenians Lacedemonians Arcadians Corinthians Achaeans c. when was there any faith or troth among them but the weaker still bandying against the stronger till they were all brought in subjection to Philip the father of Alexander Will they put men to death upon no sufficient proof of crime against them why what proof of suspicion of crime was there against the most excellent and divine Philosopher Socrates or against the victorious Athenian Captains at the battel of Arginusae Will they not reward their good Servants and Captains what reward had Camillus Coriolanus both the Scipio's African and Asiatick See Dio Siculus Bib lib 13. Where the Syracusans before Dionysius his time made it their pastime to reward the vertue of their worthiest Commanders with death or banishment And Nicias lost the whole Athenian Army in Sicily consisting of above forty thousand men for fear if he had preserved them he should have been proscribed or put to death by the Athenians Thucid. lib. 7. Themistocles Alcibiades Hermocrates the noble Syracusan Dion c. Will they take severe revenge upon their enemies although it may be they had no just occasion given The poor Melaeans who were content not to have medled in the wars between the Athenians and Lacedemonians and no occasion of war against them but the will of the Athenians after they were forced to yield up their City at discretion were all of military age slain the women and children made slaves and Melos made a Colony to Five hundred of these cursed Demagogues as you may see at the end of the 5. book of Thucidides And see Plutarch in the Life of Sylla what came upon the Athenians who first called the Romans into Greece when Sylla took Athens Will they take severe revenge where as our Authors calls it the obeyer does not understand that it is his own profit which the action aims at that is to say when the Subject will not obey Let him see the fate of the Capuans in Livy lib. 26. and of the Mytileneans and Scionians in the 3. and 5. book of Thucidides What do they not govern their Subjects in peace Where was there ever any such dissention and confusion as in Democratical and Aristocratical States And the Grecians have seen less war and disquiet two hundred years together under the Turk then ever they saw in three years when it was divided into so many Aristocraties and Democraties But our Author will not endure that the Subject should be protected in his life and estate by the Law of these Tyrannical Governors Why what greater obligation of obedience can there be to Government on the Subjects part then that he is thence protected in his life and from thence holds whatsoever may be called his And since there never was nor can be a fourth species of Government how much better is it for a Subject to obey one Individual Prince then by an imaginary liberty to make his obedience to many for Quantae molis erit dominis servire duobus Author Well but let us compare one of these Tyrannical Governors with our Authors Absolute Governor For though our Authors Absolute Governor be a Mungrel extracted from equivocal generation and such a Beast as Nature never intended and Ground 8. tied up to certain Laws and Limits of the People yet for all that our Author can have a course too with his Lycisce though tied up in a line But then it must be agreed between our Author and his Lycisce that they say it be for the good of the People and then Ground 11. they are his Laws alack the while what is become of the Peoples Laws c. And Gr. 13. p. 101. The lawfulness of a Soveraign Commander is no other then that he truly thinketh to be for the good of the Commonwealth Observ So now Casting of Dollars and Coining of Dollars is all the difference between our Authors Trustee and one of these Tyrannical Governors the same thing differently called by the Author
the Father may alter them and the Son sell them Primogeniture being so sacred a thing that Esau was said to be a despiser of his Gen. 25. 34. birthright that he set it at a price to save his life and being due by the Law of Nature he could not transfer it to Jacob by any act of his yet was it just with God because he despised it to transfer it to Jacob. 17. The submission to the will of one Man or one Council then becomes the Cap. 5. art 7. will of them all when every one of them obliges himself by pact to one another not to resist the will of this Man or this Council to which he hath submitted himself Observ Here is nothing to pass or to be transferred from one Man to another and therefore here can be no pact and here I would fain know how to bind and to be bound can be the same thing which Mr. Hobbs here makes But every Man binds himself forsooth and therefore every Man may when he will disoblige himself for unumquodque dissolvi potest eo ligamine quo ligatum est 18. The Right of punishing is then to be understood to be given to any one Cap. 6. art 5. when every one doth covenant that he will afford no help to him who shall be punished Observ What power of life or death is here any more then if a company of Men contract one with another that they will afford Mr. Hobbs no relief if another Man will kill maim or punish Mr. Hobbs that then this Man hath a power over Mr. Hobbs his life and person and this Right forsooth he will call gladium justitiae Art 6. 19. Having made the Temporal power to have its origination from the Inventions Pacts Wills and policies of Men he makes it Judge of all Cap. 6. art 11. Doctrins and Opinions of Faith and this from convenience for saies he If one may command any thing upon pain of Temporal death and another forbids it upon penalty of eternal death it will follow not only innocent Citizens may be punished but the City it self be dissolved for no Man can serve two Masters Observ I would know how this granted could Christianity be preached when the Temporal Laws every where did forbid it Our Savior saies Whoso hateth not Father and Mother and Wife and Children and Brethren St. Luke 14. â6 St. Math. 10. 28. and Sisters yea and his own life he cannot be my Disciple And if Temporal powers command any thing contrary to the Laws of God we ought not to feare them that can kill the Body but are not able to kill the Soul but rather to feare him who is able to destroy both Body and Soul in Hell 'T is true indeed no Man can serve two Masters who may with equall Right command the same thing but a Man may serve two Masters who do not with equal Right command the same thing as a Tenant who owes Homage to his Lord is the Lords Man of life and limb and of earthly worship and ought to be true and faithful to him saving Littleton Hom. cap. 1. the Faith he owes to his Soveraign Lord the King and so every servant ought to obey his Master in all things which do not contradict Gods nor his country-Country-Laws and so ought every Man to submit himself to Temporal powers in all things if they be not repugnant to Gods Laws And let any Man see whether the whole scope of this Article be not to make all Faith and Religion as well as Society a meer invention and policy of Man and humane constitution and Creature of a Creature nor is the danger he makes so much to be feared for Ecclesiastical Powers have nothing to do with Secular jurisdictions 20. There are some doctrines held he saies by which Citizens are impowered Annot. art 11. Cap. 6. to deny Obedience to the Civitas and to fight against Supreme Princes and Powers and that by Right yea it behoves them and this belongs to the power which many do attribute to the Prince of the Church of Rome in aliena Civitate and to the power also which Bishops otherwhere out of the Church of Rome ascribe to themselves Observ I do not know nor did ever hear that any Bishops out of the Church of Rome did ever ascribe to themselves this Power Nor are there any Bishops in the Western Churches of Christendom out of England Ireland Sodorensis Episcopus and the Isle of Man if those in Scotland were not which is a question and sure this Hierarchy never challenged any such Power But why does this Man take such care for peace and quiet when as by his own principles he justifies all the actions of the League in France against Henry the fourth for Henry the third never gave nor sold the French Monarchy to Henry the Cap. 9 art 13. fourth nor did the Duke of Mayne and his party upon the death of Henry the third oblige themselves by pacts one to another that the will of Henry the fourth should be the will of them all 21. It is most manifestly false and contrary to the practice of the Cap. 5. art 9. whole world where Men are not condemned to slavery that servants have Cap. 8. art 5. no property against their Masters for where servants are not slaves they may both sue or implead and be sued or impleaded nay they may sue their Masters for Debt or not performance of Covenants c. 22. Where he makes the Fathers power not to arise from Generation but Cap. 9. art 1. that Art 7. Children are subject to their Father no otherwise then Servants are subject to their Masters is so wild and groundless an opinion that it is not worth an answering 23. It is he saies a seditious opinion that Faith and Sanctity are not acquired Cap. 12. art 6. by reason and study but alwaies supernaturally infused and inspired and yet he saies Cap. 18. Art 4. prope finem There is but one way to Science i. e. by definitions but this way to Faith does hurt Observ How these two are consistible I do not understand 24. Jus is contrary to Lex Cap. 14. art 2. prope finem Observ Therefore by the 4. Axiom lib. 1. Euclid Jus naturae is contrary to Lex naturae By Art 1. cap. 4. Lex naturalis est Lex divina And therefore by Art 2. cap. 14. Lex divina is contrary to Jus divinum which is most abominable Blasphemy Nay he says * Cap. 8 ar 10. and oftentimes in hi. s Preface Jus divinum positivum is the Scripture and here Lex divina positiva to be the Scripture So that he makes contraries to signifie the same thing Observ Lex naturae cannot be contrary to Jus divinum nor different but only in this Jus divinum is an absolute right in God to will or command any thing to be a Law of Nature and
a Law not to kill one another which I no where find nor he proves nor do I see any colour of reason to believe Nor had Adam any power to restrain his Sons or give them Law as Father for if you believe him he tells you that Dominium paternum non oritur ex Cap. 9. art 1. generatione I would further be satisfied how this civil pact can give the Civitas that which none of them have viz. Property and power of life and death without which can be no Civitas or Supreme Power or any Power at all if we be Christians and believe God who says By me Kings reign and Pro. 8. 5. Princes decree justice or judgment and that All powers are of God and the Rom. 13. 1. powers that be are ordained of God If they be then Gods ordinances and ordained of him then can they not be an artifice and invention of any Man but are and ever have been whether Do or Dedi ever had been or not And let any man judge whether he does not contradict himself He Cap. 5. art 4. says That the concord and consent of the Multitude is not sufficient long to preserve Peace but that it behoveth that something more be done that they who have once consented to peace and mutual aid for the common good should not afterward when any Private good varies from the Publique again disagree be restrained by Fear And Art 5. he says Aristotle reckons among living creatures which he calls Politick not only Man but also many other as the Ant and Bee who although they be destitute of reason by which they can make covenants and submit themselves to Government yet nevertheless by consenting that is by desiring the same things and by avoiding the same things they so direct their actions to one common end that their Companies are obnoxious to no seditions Yet are not their Companies therefore Civitates nor are those Creatures to be called Politick because their Government is only consent or many wills to one object not as is necessary in a City one will Observ Now mark here he says Consent only makes no Civitas yet where he would prove the beginning of his Institutive or Politick Government from Scripture he says Tale fuit initium regni Dei c. Such was the Cap. 11. art 1. Kingdom of God over the Jews instituted by Moses If you will hear my voice c. ye shall be to me a Priestly Kingdom And all the People together answered We will do whatsoever the Lord hath spoken Observ So here let any man see this great Master of Learning and Reason make the Initium of this Institutive or Politick Civitas to be derived from the Consent of the Multitude and in the same breath before the Multitude did consent he makes God only by his servant Moses first to will and after that the People to consent You come behind and I follow after whither of us went before But suppose the beginning of this Civitas had its beginning from the Observ 2. Consent of the People yet does he contradict himself as much as before for then this Initium is the Initium caput corpus finis of it for here is nothing added to it So that either here is no Civitas and so Mr. Hobbs says not true and has taken great pains to no purpose or else this Civitas is wholly made from the Consent of the Multitude which is absurd and contrary to Art 4. 5. Cap. 5. Well let us see whether he hath better success with Art 6. then the 4. and 5. where he says Because the conspiracie of more Wills to the same end is not sufficient for the preservation and stable defence of Peace Doubtless it is not less then a Judgment upon him that he should call such a consent as he here speaks of a Conspiracie which all men take in ill sence of men consenting to do some evil act it is requisite that the will of all be one concerning those things which are necessary to peace and defence But this cannot be unless every man so subjects his will to the will of another viz. of another Man or Court that whatsoever he wills concerning those things which are necessary to the common peace be accounted the will of them all and every one of them And Art 7. he says This submission to the will of one Man or one Council then is made the will of them all when every one of them obligeth himself by pact to every one of the other not to resist the will of that Man or that Council to which he has submitted himself And this a little after he says is called Unio and this Union so made Art 9. is called Civitas or Societas civilis or Persona civilis Observ If this Unio or Civitas or Societas or Persona civilis be so necessary to all Governments and that it must and therefore may be made by mens pacts one with another I wonder why the Children of Israel should be 1 Sam. 8. 5. so zealous to have a King to judge them like all the Nations if they could by their pacts have made one without ever asking one at Gods hands Nor was there at that time or ever before any such thing as ista Curia or Democracy ever heard of For the Children of Israel desired a King to judge them like to all the Nations and at that time was Codrus King of the Athenians Smendes or Semendes King of the Sicyonians Aletes King of the Corinthians Eurysthenes King of the Lacedemonians So that in those days not among the Grecians was there ever so much as Aristocracy or Democracy heard of Nor was there ever any place in the world where there were men inhabiting without Government For that place When there was no King in Israel we shall answer afterwards Nor was there originally ever any Government but Monarchy and that never from any Pacts of men And this Government so continued everywhere until it was violated by seditious and rebellious men And whereas he makes this Civil Pact to be so necessary and antecedent to all Civil Government I would fain know of Mr. Hobbs whether Saul David Solomon Jehu Hazael Cyrus c. were not as much Kings or Civitates as he calls them as if they had all this Covenanting and making Pacts one with another That this mans will should be the will of them all Not to resist the will of David Solomon Hazael c. in those things which they deemed necessary for the peace of the Israelites Persians Syrians c. But if these were Civitates as if Mr. Hobbs be a Christian which I think may be a question he must needs confess and yet not made so by his Civil pacts nor indeed any other Then is this Unio so far from being essential or necessary to the making of a King or Civitas that as to the right of a King it is no matter whether it be made
of another As here in the observation of the Sabbath the omitting of which duty was a sin only against God for no man had any wrong done to him thereby But Thou shalt not commit adultery Thou shalt not kill c. which if a man does he not only sins against God but does wrong to another Admit in case of necessity God who hath made all things for man and man only for himself hath dispenced with many sins which related only to him for mans preservation yet by Grotius his good leave we must not go too far for I do not see then how the primitive Christians should have suffered martyrdom and not have symbolized or resisted the Gentiles yet it does not therefore follow that any man may pretend any necessity nor can any one shew that ever God did dispense withall to transgress Gods command and to do that wrong and injury to others which is impossible for him to repair as in Subjects making war against their Superiors for what recompence can be given for the blood and destruction which they bring upon them who obey their Superior And I hope neither Grotius nor any man else will deny it is lawful to obey Superiors Yet from the authority of S. Peter 1 ep 2. 21. qui animam ita perdit Grotius S. Matt. 10. 19. S. Luc. 13. 33. is vere eam acquivisse à Christo pronunciatur and the example of the primitive Christians he seems to be in the negative Observ But why in reason should he make Gods command to be in subornation to a humane constitution and that not founded upon any command of his neither I cannot tell Well see what he says for it Here he has his Notandum Grotius primò homines non Dei praecepto sed sponte adductos experimento infirmitatis familiarum segregum adversus violentiam in societatem civilem coiisse unde ortum habet potestas civilis quam ideo humanam ordinationem Petrus 1 Pet. 2. 13. vocat quamque alibi divina ordinatio quia hominum salubre institutum 1 Pet. 2. 13. Deus probavit Observ If there was never nor can be a Family where men be in a parity of condition and that as Grotius here says Civil power was made from Families then were not men in a parity and like condition before they brought in the Dominion which is now in use And therefore all his whole Treatise founded hereon not only false but repugnant and contrary to himself And how is his Notandum that Legal power is not made by Gods precept but from the People proved by S. Peter It is true S. Peter calls it an ordinance of Man but if this be not Gods ordinance of Man it is inconsistible with Rom. 13. 1. and with what he himself says immediately after viz. for the Lords sake It is therefore the Lords ordinance of Man and so quite contrary to Grotius his Notandum Where to look for the Divine ordinance because God has called it a wholsom Institution of Man I cannot tell nor care much Then Grotius in seven Cases together gives leave to make war But ex hypothesi how it can be of Subjects making war against their Superiors I do not understand unless it be in the fourth where he says A King loses his Kingdom if he be carried with a hostile mind to the destruction of all the People For in none of the other there can be any subjection But how any man should be so mad as being a King he should make himself worse then any private man by destroying his Subjects I do not understand and therefore Grotius might very well have left his 4. or 11. Parag. alone The rest of this Chapter is Wherein an Invader may be resisted He speaks nothing against Usurpation for fear he calls his Countrimen in question So Grotius seems to leave it indifferent whether there be a necessity of Subjects obedience God expresly and the practice of the Primitive times were for it Certain Laws of God although generally pronounced have a tacite exception of highest necessity seems to be against it But Mr. Hobbs outruns the Constable and a Cap. 6. art 12. makes the King or Civitas not only impunible for whatsoever he shall do and b Art 20. indissolvable by that power that made him c Art 14. And that the King or Supreme power is not bound by its own Laws And d Art 15. that no man has any thing proper against it But also e Art 11. this Civitas or Supreme power has power to examine what doctrine shall be taught against which none ought to say any thing contrary For says he if any one may command one thing upon pain of natural death another forbid it upon the penalty of eternal death and both by right it will fellow not only Citizens although innocent may be justly punished but the City dissolved for No man can serve two Masters Observ True not actively where they command contradictories Yet so it pleases God that not all who love and serve him should go to heaven upon beds of roses Nor is any man a loser if God for his temporal affliction 1 Pet. 2. 21. S. Matt. 10. 39. S. Lu. 13. 33. crowns him with eternal happiness And therefore where it pleases God to give and not the People make wicked and idolatrous Princes for the sins of a Nation there must good men expect persecution and affliction And if Mr. Hobbs says true then must no man speak against the golden Image Dan. 3. Nebuchadnezzar had set up nay every man ought to fall down and worship it for he says Obedience is not rightly distinguished if it be distinguished into Cap. 4. art 23. Annot. art 7. cap. 16. active and passive But Mr. Hobbs has a help for this for he says The City may command such a Worship of God as is irrational But if it be done at the command of the Civitas to which the written Word of God is not known or received Cap 15. art 1. 8 he has shewed such a Worship of God to be rational But says he Men must have a care that they do not worship God so where he reigns by Covenant as by the Covenant of Abraham for there it is ill done whether it be done by the command of the Civitas or not But whether as among the Jews heretofore or with the Christians now for I hope he will not deny God to reign as much over Christians by Covenant as ever he did over the Jews how can any Man obey both where contraries are commanded if there be no passive obedience Yet he makes it an easie thing to obey both God and Men actively in the last chap. by distinguishing between things necessary and not necessary to Salvation as if humane power did never nor will forbid things necessary to Salvation but then Men may save themselves by saying one thing and meaning another and making themselves
Fishes are animalia vivipara that is bringing forth their young ones actual living Creatures and do generate viviparorum more should in that vast body of the Ocean when as by reason of the grosseness of the Medium they cannot use their sight at any small distance to perceive when they are neer one another at the seasons of generation find one another To proceed herein were proper for Plinies natural History or Aristotles History of living Creatures All Creatures are either animalia nociva hurtful Creatures which prey upon and devoure other living Creatures or innocua which feed and eate upon such vegetives as grow and are renewed by the earth or water or sociabilia which are only Men who are better or worse then other living Creatures accidentally If they suffer themselves to be enslaved by their depraved passions and appetitions then they become worse than any hurtful Creature but if they by depressing their passions and ill affections rule their actions by reason they far transcend all other Creatures The end of Government is twofold either to preserve the governed in peace within themselves or to protect them from forraign force or power in neither of which respects is Government requisite to other Creatures besides Men For animalia nociva are solivaga and therefore no Government is required to keep them in Peace one with another whereas they do not company one with another And many other living Creatures who are not by nature hurtful do not keep in companies and therefore no Government to preserve themselves in peace is requisite to them neither It is an admirable thing to contemplate how nature has granted to these hurtful and robustious Creatures armes consentaneous to their force to protect themselves from outward force and violence of those Creatures who are enemies unto them as the Lyon his paws and tayle the Bear his paw the Fox Otter Brock c. their Teeth whereas other Creatures who are by nature denied those armes to defend themselves what a strange cunning and dexterity has nature given them in the preservation of themselves from those Creatures who are hurtful to them and prey upon them Those Creatures who live in Community one with another by desiring the same things and avoiding the same things to direct their actions to a common end that their companies are obnoxious to no seditions and therefore Government is not necessary to them neither and of them is Man usually Protector against their ravening enemies Men differ from other Creatures for they are neither Animalia solivaga not gregalia but sociabilia that is living in conversation and subordination and Man is born a living Creature apted potentially for society and alike naked and unarmed as one whom nature intended a sociable peaceful and politick Creature and to be governed rather by reason than force in all his actions and therefore has endewed him with hands and ingenuity that having by his ingenuity purchased himself necessaries he might with his hands cloathe feed and defend himself In all other Creatures the Laws of Nature that is those bounds which God by Nature has set them are securely obeyed and never transgressed by them and are only transgressed and violated by Man and therefore the Laws of Nature are not sufficient for the preservation of mankind in Peace for by reason of the discords which arise naturally in Men for Honor and preheminence Secondly the appetite of possessing all things Thirdly the desire to excell other Men in wisdome and policy and to that end are studious of novelty which causes seditions and civil warrs that they might be esteemed wiser then the men of this present Age or their predecessorsby reason of which present coersive humane Laws are necessary for preserving peace among Men that the feare of a present punishment may deter men from those things which because of their Infidelity and Atheisme they otherwise would not feare Isay this Humane Power from whence all Humane Laws are derived is from the Law of Nature and if it shall seem strange to any Man that it should be Humane and yet derived from the Law of Nature let that Man consider that only Man is a Humane Creature and does Humane and reasonable actions and yet it is from the Law of Nature that only Man is a Humane Creature and can do Humane and reasonable actions And the Fathers and Husbands power is Humane yet I think no Man before Mr. Hobbs did ever deny that they were from the Law of Nature I know in usual speech the supream power of Nations is called Politick power which is a mistaking of the cause for the effect for it is not the power which is politick in the cause but in the effect and exercise as take an instance of my meaning A Father hath divers Children of several dispositions one disposed to learning another endewed with bodily strength and averse from learning another hath not bodily strength yet a desire to learning but by reason of his gross Minerva is not probably qualified to attain to any great progress in it c. The Father breeds up his Studious Son in literature his Active Son which hath no disposition to learning he makes a Soldier or Seaman his Duller Child he binds an Apprentice to some Trade c. Though the Fathers power be Natural yet this exercise of it is Politick so though Regal Power be from the Law of Nature yet must the exercise of it be Politick And therefore Humane Laws and the exercise or Politick use of Humane Power cannot though the Power of all Kings be alike and from the Law of Nature be the same in several Nations but different according to the nature manners and dispositions of the Inhabitants And we see the same King governing in divers places by divers Laws accordingly as his Subjects are different in manners and dispositions Humane Laws therefore and the Politick use of Regal Power cannot be as the Laws of Nature are immutable and the same in all parts of the world but ought to take their origination from the nature and disposition of the Governed and are alterable as Mens vices and manners do alter The Method observed in the subsequent TREATISE and the Reason of it ALl Science all Learning and all Reasoning by the Judgment of Aristotle is begotten from pre-existing Principles which being indemonstrable in themselves do demonstrate them And since that all Society or Power and Subjection whatsoever is created by Divine or Humane Laws and since it is impossible there should be Lex Lata where there was not Jus Legislativum Superior and the cause of it In the First Book we treat of Rights Laws Virtues the Obligation of Laws and of Pacts Promises Vows Leagues and Gifts and from whom Men become obliged to them These things thus premised the Second Book treats of the Causes of all Humane Christian and Legal Society of Regal and Magistrates Power of the Three Species of Government viz. Monarchy Aristocracy and
4. All Divine Laws are created and derived from that divine and From whence all Divine Laws are derived eternal Right which was inseparably in God before any such Laws were created by him 5. Humane Laws are threefold viz. Secular Temporal or Civil such are the Laws of every Country or Gamacal viz. the Laws of the How manifold are Humane Laws Husband or Paternal viz. the Laws of Parents to their Children 6. All Humane Laws are derived from that Right or Power which From whence derived the Law of Nature creates in supream Powers Husbands and Parents 7. They are called Humane Laws because they are made by Men Why called Humane Laws who by the Law of Nature have a Right to make or create them 8. All Ecclesiastical Laws are derived from that Right or Power From whence Ecclesiastical Laws are derived which by divine positive institution our Saviour Christ left to his Church to continue untill his second coming again 9. Ecclesiastical Laws are so called because they only relate to the discipline of the Church and worship and service of God Why so called 10. Despotical Laws are derived from the Right or Power Despotical Laws from whence derived which every Master of a Family hath over his Servants which Right or Power is created by Secular or Temporal Laws of the place where the Family is 11. Two things must necessarily precede every Law or it hath no What must precede every Law Obligation viz. the Legislative Right and the Declaration of it So that Jus divinum is one thing and Lex divina another and Jus naturale is one thing and Lex naturae another And so is Jus Humanum and Lex Humana and Jus Ecclesiasticum and Lex Ecclesiastica And he that will confound these things cannot possibly ever write clearly upon the subject 12. Humane and Despotical Laws are vindicative or oblige to corporal What Laws are vindicative punishment in this world 13. Only Humane Secular Temporal or Civil Laws are distributive and create property among Men in their Estates What Laws are distributive 14. Neither Divine nor Ecclesiastical Laws are vindicative but oblige in Conscience only What Laws are neither distributive nor vindicative * How Men come to be punished Temporally for not observing Ecclesiastical Laws 15. Although Ecclesiastical Laws as we shall prove in the next chap. bind in Conscience only and therefore cannot impose any Corporal mulct or punishment yet the Secular Laws do as if a Man be excommunicated he shall have no advantage or relief in any plea by the Common Law a Lit. vil sect 201. and by the Common Statute Law whoso is adjudged an Heretick or Blasphemer shall be burnt yet neither Common Law nor Statute Law take cognisance of either Excommnication Heresy or Blasphemy before the Statute of the 2 H. 5. 7. In curia Christianitatis id est Ecclesiae in qua servantur leges Christi cum tamen in foro Regio servantur Leges mundi saies Linwood who saies moreover b Com. Stat. de circumspecte agatis That the Probate of Wills and Testaments de consuetudine Angliae not de jure communi belong to the Court-Christian But whether Linwood saies true or not Hen. 8. began by the Statute Law to encroach upon the Rights of the Church and by confounding the jurisdictions both of Church and State making himself head of both has opened such a gap to let in all Schisme and dissention that the Common-Lawyers and Statute-Laws have upon the matter devoured all Church-rites and power nor are either the Common or statute-Statute-Laws now in much more esteem then the Ecclesiastical Nor is it less then a Divine judgment upon those men who have so extravagantly attributed both powers to be in the King Between Supreme Head and Supreme Governor I understand no difference for if the Supreme Governor hath not supreme power or right of command then necessarily must such a Governor be an Usurper or unjust Invader in words only but indeed in their practice have denied him the exercise of the one or the other power and ascribed them both to themselves and Courts subordinate to the King That these men I say should be themselves and all the Courts in as little esteem as Ecclesiastical Rites and Constitutions and the King God knows upon what account for no colour of pretence was ever yet so much as reasonably pretended violently restrained from the exercise of any either Ecclesiastical or Civil power among us Here do not I admit of Mr. Hobbs his division of Civil Laws into Sacred Annot. and Secular Did ever man before hear of Sacred Civil Laws Sacred Laws are those Civil Laws he says which belong to Religion that is Cap. 14. art 5. the Ceremonies and Service of God and are called Ecclesiastical Secular Laws are those he says which are wont to be called Civil by a general name For though Ecclesiastical Laws be made by Men and therefore not Sacred as he says yet is the power by which they are made from Divine positive institution and therefore cannot have any right or power from Civil or Secular sanctions which at highest cannot amount to more then Humane 16. A Law differs from Counsel as my Understanding differs from How a Law differs from Counsel my Will my Will is that which imperates all my actions my Understanding informs my Will whether the doing or not not doing such an act be good or bad just or unjust reasonable or unreasonable A Law is the declared will of him who by right commands Counsel the reason advice or discourse of them to whom he who by right commands refers any thing to be debated who are usually called the Council whether the willing or passing such a thing into a Law will be probably convenient or inconvenient either to him or his Subjects CHAP. III. Of Virtue 1. THat Virtue is not always placed in a mean between two extremes Introduction Virtue is not fited always in a mean between two extremes and those extremes to be Vices according to the opinion of the antient Philosophers I do subscribe to Mr. Hobbs cap. 3. art 32. de Cive And that from the reason he there gives viz. that Fortitude in a good cause is a virtue although it be in the extreme Nor does quantity in giving be it much little or indifferent make Virtue but the cause of giving To these may be added Gratitude and Patience Justice and Obedience which are not placed between any extremes But if I assent to Mr. Hobbs in this I cannot less dissent from him where cap. 3. he makes Virtues to be the Laws of Nature and cap. 2. art 1. the Law of Nature to be the Dictate of Right reason For 2. Virtue is the doing or forbearing any action as it is dictated by What is Virtue Right reason from the Law of a Superior or from some Notion known to
accounted Abrahams faith St. James 2. 23. That he would have offered up Isaac though by the law of nature Abraham should have preserved his sonne and so God ceased the motion of the Sun and Moon upon Joshua's prayer Jos 10. 12. And caused the same to go retrogade ten degrees upon the prayer of Hezekias and Isaiah 2 Kings 20. 11. It is true that nothing less then that power which made a Law can alter it the Laws therefore of God whether positive or natural have an eternal and immutable obligation upon all the men in the world but whatsoever power may make a Law that power may alter it Divine Laws therefore whether positive or natural cannot have any obligation upon God but he may alter them when he pleases CHAP. VI. The Obligation of Divine and Humane Laws upon the Consciences and Persons of Men. 1. COnscience comes of con and scio to know together with reason Conscience or some law Conscientia est animi quaedam ratio lex quâ de recte factis secus admonemur Conscience is a certain reason or law of the Mind whereby we are well or ill advised of our deeds The laws therefore of Man may not only be violated by doing contrary to them but by consenting to them As he which does contrary to that he thinks though the doing of the thing be just yet 't is unjustly done by him for whatsoever is not of faith is sin Rom. 14. 23. 2. The affirmative precepts of God they do semper obligare yet they The obligation of the laws of God do not oblige ad semper As when he commands us to pray continually it is not to be expected a man should be always in the act of prayer but so to live as he does nothing which may indispose him from praying But Gods negative precepts do not only always oblige but oblige ad semper too for there is no time at all wherein it is lawful for a man to kill to steal to commit adultery c. Deut. 5. 17 18 19 20 21. negative in all instances 3. Ecclesiastical laws do oblige in Conscience If thy brother shall neglect Ecclesiastical laws oblige in conscience to hear thee tell it to the Church but if he neglect to hear the Church let him be to thee as a heathen man or Publican Mat. 18. 17. And the Scribes and Pharises sit in Moses chair all therefore whatsoever they bid you observe and do but do not after their works for they say and do not Mat. 23. 2 3. If then by the law of our Saviour the Jews were to observe and do whatsoever the Scribes and Pharises commanded them because they sate in Moses seat sure with as much or much more reason ought Christians to observe and do whatsoever the Church which our Saviour Christ himself hath planted doth command them 4. My kingdom is not of this world Joh. 18. 36. God sent not his Son In conscience only into the world to judge the world but that by him he might save the world Joh. 3. 17. And O man who has made me a Judge or divider amongst you If then our Saviours kingdom were not of this world if God sent not his Son to judge the world and if our Saviour were not a Judge among men then cannot the Church of Christ have any power from Christ in the kingdoms of the world nor to judge the world nor to be a Judge or divider among men 5. Ecclesiastical laws according to the usage and custom of England To what things Ecclesiastical laws have reference relate to Blasphemy Apostacie from Christianity Heresies Schisms Holy Orders Admissions Institution of Clerks Celebration of Divine Service Rights of Matrimony Divorces general Bastardy Subtraction and Right of Tythes Oblations Obventions Dilapidations Excommunication Reparation of Churches Probate of Testaments Administrations and Accounts upon the same Simony Incests Fornications Adulteries Sollicitation of Chastity Pensions Procurations Appeals in Ecclesiastical cases Commutation of Penance which are determined by Ecclesiastical Judges 6. So that there is a mixt Conusance in the Ecclesiastical Judicature All things determinable by Ecclesiastical Judges are not meerly spiritual viz. of things meerly Spiritual by which they are impowered to judge and take conusance of and that by no humane power but only as they are impowered and sent by our Saviour and are only his Ministers viz. the taking conusance of Blasphemy Excommunication Heresie Holy Orders Celebration of Divine Service c. And this Ghostly power the Church and Ecclesiastical persons had before ever Temporal powers received the Gospel of Christ or were converted to Christianity And also after it pleased God that Nations and Kingdoms were converted to Christianity and that Kings did become nursing fathers and Queens nursing mothers Isa 49. 23. to Gods Church then did Kings cherish and defend Gods Church and endued it with many Priviledges and Immunities which ere while was persecuted by them or other Powers but yet could not these Immunities or Priviledges divest them of that Ghostly power which our Saviour by divine institution gave his Church It is true no question but that originally not only all Bishopricks and their bounds and the division of all Parishes and the conusance the Church hath of Tythes of Probate of Wills of granting of Letters of Administration and Accounts upon the same the right of Institution and Induction and the erection of all Ecclesiastical Courts c. were all originally of the Kings foundation and donation and that to him only by all divine and humane laws belongs the care and preservation of all his Subjects none excepted in all causes And therefore not only all those things which relate to the extern peace and quiet of the Church although exercised by Ecclesiastical persons but all those priviledges and immunities which the Church or Churchmen have in a Church planted which the Primitive Christians and Apostles had not in the persecution of the Church when planting are originally Grants of Kings and Supreme Powers and so Temporal or Secular Laws but in regard they accidentally have reference to the Church and are exercised by Ecclesiastical persons they are not improperly called the Kings Ecclesiastical Laws And sure either ignorance of this or faction hath made men run into two contrary extremes one That Kings have no right to their Crowns but in ordine ad bonum spirituale and so cannot be Kings or That all power and jurisdiction in all causes is from the King and so cannot there be any such thing as Christian faith Religion or any Ghostly power left by our Saviour with his Church to continue to the end of the world which every Christian man de fide ought to believe and submit to before any Temporal Law or Power in the world Object But beeause Ecclesiastical laws have not infallibility affixed to them if they command any thing repugnant to Divine laws do they then oblige Answer No for God
subjection to them which are created by Gods will so revealed are not created by the Law of nature 11. All offices which are created by Divine Law whether by the Law All offices of commanding and obeying are not Gods ordinance immediately of Nature or by divine positive institution being from higher then humane causes are indelible and cannot be aliened transferred or communicated by any humane act for ejus est nolle cujus est velle and therefore cannot the power and obedience of Parents and Children of Husband and Wife of King and Subjects be aliened dissolved communicated or transferred but the offices of Masters and Servants of Magistrates and those subject to them are alienable communicable and transferrable and sometime are and sometime are not they are not therefore from any immediate ordinance of God either positive or natural But the offices of commanding and obeying as Masters and Servants and Magistrates and those subject to them are but temporary and determinable by the laws of him that made them therefore not Gods ordinance 12. Humane laws create Magistrates power two ways Immediately How many ways power and subjection happens by humane laws to Magistrates and those subject to them as when Supreme powers which are the fountain from whence all Temporal laws are derived constitute any Magistrate giving him jurisdiction over the inhabitants of any place or when the Laws or Higher powers enable such men to nominate their Magistrate there the Nominators are the instruments by which the Law does transfer this Magisterial power 13. The mutual offices of power and subjection between Masters and How many ways humane laws create the power and subjection of Masters and Servants Servants happen two ways either created by the contract or pact of the Master and Servant and we have before shewed that all pacts and contracts receive their obligation from Humane laws as the means by which Humane laws do create these offices or else without any pact or contract of the parties commanding and obeying as in the cases of Slavery where prisoners are taken in war or men condemned thereunto for some offence or of Apprentiship where children are bound for such a term by the Laws of their Country or Parents And I do grant Mr. Hobbs Grotius and White that this power and subjection Humana voluntas introduxit but not the parties obeying as they most senslesly feign but the Supreme powers or the parties commanding And where they are not so created all men are originally free I do much wonder at those men who make all Supreme or Regal power to have Annot. its origination from the consent and aggregation of many families For they not only confound the Masters power with the Fathers which in the nature and cause we have already shewed and shall more fully hereafter in their proper Chapters shew but also make the Masters power to be from the Law of God and Regal power to be a Humane institution whereas the contrary is true in both And what it is should move men to imagine that after Adam's and Noah's posterity dilated themselves into many families that they should give Adam and Noah more power then God gave them I am sure no such thing or the least probability thereof appears in Scripture or that after Adam's and Noah's deaths their Posterities became free and independent from all Government which was no body can tell when brought in by the Pacts of Men or by consent and submission of Families to it 14. That power or right of command which God jure divino hath as All power and subjection from what causes solely and absolutely over all his creatures as the Creator first and efficient Cause of them and therefore by highest right all obedience is chiefly due to them before any creature in all things Or else power and subjection are caused from the Laws of Nature or from the Law of God revealed in the Scriptures or from Humane positive Laws All Society which is not contained in these causes is Tyranny in the party commanding nor is any obligation in Conscience to such Commands from the party commanded Having thus far treated of the Causes of Power and Subjection conjunctly we shall hereafter in their several Chapters treat of them severally and more at large And we insist more largely hereon in regard these Powers and Subjections are either so confounded in their Causes by other men or such wild things begged for Principles that so far as I understand no ingenuous man should grant CHAP. II. Of Regal and Magistrates power 1. THere is no question but one of Mans chiefest happinesses in this Introduction life consists in the contemplation of God in his works to contemplate the Heavens and the Earth the workmanship of his hands and the admirable order and motion of them all being by him so made and created Nor is God less seen in the generation and birth of Man and other creatures then in the creation of the Universe And as admirable is the preservation of every Man as his generation For abstracting from the internal cause Spiritus intus alit totamque infusa per artus Virg. Aen. 6. prop. fin Mens agitat molem How God does renew and preserve every Man and every part of Man by a perpetual motion viz. the Systole and Diastole of the Blood If a Man considers his outward preservation not only from the violence of other creatures who are of much more force then himself but also from the force and violence of his own kind for were he not restrained Homo homini lupus And what are the People in general but a sudden rash and furious Beast carried hither and thither upon every wild fancy raging to have this thing done and presently lamenting because it is done He must needs As the Athenians did in their sentence on Socrates and the Captains at the Fight at Arginusae confess there is no power under heaven which can restrain the raging of the sea and the madness of the people The Psalmist therefore Psal 77. when he calls to mind the works of God and his wonders of old Thou thundrest from heaven thou shakest the earth thou dividest the sea and at last as the greatest wonder of all he says Thou leadest thy people like sheep by the hands of Moses and Aaron It is not therefore from any pacts and inventions of Man that he may hope for any security but by submitting himself to what God hath ordained for his preservation 2. Upon a survey taken in Scripture how often Christi Domini are Regal power cannot be created by the People used they are found to be thirty three two of which are spoken of the Patriarchs one of our Saviour and all the rest of Kings only Once of our Saviour Luk. 2. 26. twice of the Patriarchs Psal 105. 15. and 1 Chro. 16. 22. all the rest to Kings only and expresly And though others were anointed yet none
but our Saviour Patriarchs and Kings were the Lords anointed Nor is Gods anointed peculiar to them not the material anointing and the receiving and believing Gods revelation of him-self in the Scriptures is essential to the making of Gods anointed here but all rightful Kings are so whether they be materially anointed or believe Gods revelation of himself in the Scriptures or not For not only Cyrus was not Isa 45. 1. materially anointed and an unbeliever yet Gods anointed but Nabuchadnezzar also a cruel persecutor and destroyer of Gods people But Lam. 4. 20. God calls them Mortal Gods too Psal 82. 6. And is it not strange that our Saviour should say No power can be but from above data desuper and that Joh. 19. 11. Men should be so impudent as to affirm that there is no power unless data de subter and that against all sense and reason as well as faith For it is impossible that any Power should be superior to the cause of its being or that any thing should give that to another which it self hath not How then can an imaginary rout of Men give a power of life and death and of creating property which not any of them nor all of them together have to another 3. Humane Laws being the accidents or effects of Regal Power they Regal power not made by Humane laws cannot be superior to give or create a being to the cause Regal Power therefore cannot be made or created by Humane Laws 4. That in Regality as well as in Subjects estates jus proprietatis The possession or exercise of Regality does not create Regal power possessionis have been divided and Regal power usurped and exercised by them who had no right thereunto is not only testified by infinite Authorities out of prophane History but also many times in Sacred Writ as in the cases of Absolom Adonijah Athaliah c. It is true indeed that there is no visible power under Heaven but only Mens Consciences that can judge between an Usurper and a rightful Prince Yet ought men principally to have a care how they offend herein for God no where denounces a more dreadful sentence nor shewed a more terrible judgement then upon such Rom. 13. Men Num. 16. And if in Regality possession alone did create a just title then were summa injuria summa justitia it being no question the highest injury to invade the highest authority or dominion of another 5. If possession conjoyned with the submission and acknowledgement Possession with the Subjects acknowledgment and submission does not create Regal power of the Subjects did create regal power or right of command which Kings have over their Subjects then were the dominion of Theeves and Pirates where others submit to them just and Jeroboams title good to the kingdom of the Ten Tribes nor the Children of Israel Rebels but true Subjects after they had quietly submitted themselves to Jeroboam But this is false for God does denounce them Rebels to the house of David unto this day 1 Kings 12. 19. And Jeroboam himself a Rebel after he was quietly 1 King 12. 19. possessed and acknowledged by the Ten Tribes 2 Chron. 13. 6. It is a very remarkable thing that the Subjects of this Nation although Annot. pretending to be Christians have against all rules of Christian Faith placed all power in Government to be from the people and their obligation to it to be from their own submission to it and have by their often forswearing themselves to this and that Government not only habituated themselves into a belief that there is no such thing as right or power in Government but only possession but also taken away all Religion and Obligation of an Oath in things lawful and indifferent God no doubt permitting it that they who would not stand and be protected by his ordinance and institution should fall into all infidelity and perjury and never be true to any thing they sweare to and set up instead of it 6. If the Law of God or Nature did create Regal Power by the acknowledgement The Law of God or Nature does not create Regal power by the submission or any act of the Subject or submission of Men thereunto or that Subjects were the essential instruments by which Regal Power was originally created and yet is continued in the world then were not Men only free from Regal or Higher Powers before they did submit thereunto but also free to make whom they would their Prince and so by consequence there can be no such thing as Hereditary Monarchy in the world which for many Hundred nay Thousand years where God was not pleased to reign himself immediately over his peculiar people was in the old time the only Government in the world For above 3000 years after the Creation was neither Aristocracy Democracy or Elective Monarchy ever heard of in the world and yet Hereditary Monarchy is in above 19 of 20 parts in the world the only Government Nor would any Government that ever was or is in the world grant this liberty to any one born in their dominion but upon resisting it or renouncing it whether he ever submitted to it or not proceed against him not as an Enemy but as a Rebel and Traitor To suppose therefore that Subjects acknowledgment and submission is previous the essential means by which God does create Regal or Higher Powers is upon the matter to give the Lye to all the Powers and Governments that are or ever were in the world 7. None of these things therefore but some higher cause must create Regal power and that Regal Power is the Ordinance of God the Apostle Regal Power is the Ordinance of God and created by the Law of Nature saies expresly where he saies Rom. 13 that he which resisteth the Higher or Regal power resisteth the Ordinance of God And that this is not Gods Ordinance only to them who receive and believe his revelation of himself in the Scriptures is evident by his ordaining of Hazael Cyrus Nabuchadnezer c. and to put all out of question the Apostle here calls Higher or Regal Power Gods Ordinance and at that time whenas there was no King in the world which did receive the Scriptures for the revealed word of God Besides Kings reign by God c. Pro. 8. 5. and that Kings reign by God not only where he is believed as having extraordinarily revealed himself in the Scriptures Job in the state of nature long before the Job 3. 6 7. Moral Law was given by Moses saies Reges in solio collocat in aeternum Regal power therefore is Gods Ordinance and from the Law of Nature 8. Regal power being Gods Ordinance and created by the Law of Adam had Dominion over all Creatures and not as Father Husband or Master of a Family Nature there was never any time wherein Men were borne out of subjection to it not but that the Laws of Nature
Monarchy Aristocracy Democracy I answer that God hath made Man upright but he hath sought out many inventions Therefore let Aristocracies Democracies answer for themselves anciently there was no Government in the world but Monarchy nor does God ever command obedience to others and the very Athenians for above 800 years could find a Government under Kings hereditarily before any footsteps of Aristocracy or Democracy was ever heard of in the world nor did they ever transgress the bounds of Europe unless in the Carthaginian State and when the Magi usurped in Persia It was Pride in the Romans and Grecians who not only esteemed all the world barbarous besides themselves and all Kings to be of the kinde of ravenous beasts but were the first inventers of these Aristocracies and Democracies and made all Power in Government to be Artificial and Political not only in the exercise which is true but also in the cause This Jus Politicum was of a more large extent with the Grecians then the Jus Civile was with the Romans For the Grecians esteemed that to be Jus Politicum which is common to all Men conjoyned with any society the Romans called that Jus Civile which is proper to any City So to buy and sell was by the Grecians called Politick the Romans called not those things Civil unless to sell by such a measure and at such a time the Romans called the Cloaks and other habits of vestments used by themselves and other people civil But let any Man judge whether these Men Mr. Hobbs White and Grotius being Christians and two of them very learned Men do reasonably not only to reject all precepts and examples of Sacred writ and all Testimonies of the consent of the present World and Testimonies of all most antient Histories from the examples of those most unreasonable Men besides the case between them is as unlike as can be For though they agree that this Jus Politicum or Civile is so as well in the cause as exercise and all power to be originally with the people yet by the people did neither Romans nor Grecians understand a company of Men in a rout or promiscuous parity but they who were Civitate donati nor did ever the People of Athens or Rome acquire their Dominion from the people subject to them by do or dedi and not dabo or faciam as these men feign all power to be originally deduced but by rapine extorting it from their rightful Kings in whom it undubitably was If it be questioned how originally this power came into the world if not Annot 3 by the Pacts of Men or consent of Families I answer Rem teneo modum nescio for the manner of it how it came originally I am not bound to give an account where the Scriptures and most antient Historians do not confirm it it is enough that I having proved it to be natural and Gods Ordinance it was never otherwise especially having the practice of the present world and the Records of all prophane and sacred History 14. It is true indeed that the Humane Laws and the exercise of Regal Not only Kings but Kingdoms have their being from God and by the Law of Natore Power is Politick Voluntary and Artificial but that these Laws are received and exercised in those places where they ought to be which makes Kingdoms is expresly said by the Prophet Dan. cap. 4. in three places The most Highest ruleth in the kingdoms of men and giveth it to whom it pleaseth him ver 7. And it was Nebuchad-nezzars punishment for his pride that he should have his dwelling with the beasts of the field untill he knew that the most Highest ruleth in the kingdoms of Men and giveth it to whomsoever he will ver 25 and 32. So that it is evident not only Kings but Kingdoms not only their ãâã ãâã ãâã ãâã ãâã but their ãâã ãâã ãâã ãâã ãâã their Right but also Government is from God immediately and that this is a Declaration of the Law of Nature not only long before God by the Prophet Daniel speaks this were Kingdoms upon the earth but also no Kingdom or King which at the time that this was spoken that did receive or believe Gods Revelation of himself in the Scriptures Kingdoms therefore or the exercise of Regal Power is Gods Ordinance as well where the Scriptures are received as not and due by the Law of Nature and by consequence the obstinate resistance of Kings in their Government by their subjects is a violence upon the Law of Nature 15. Sir Francis Bacon in his life of Henry 7. relates that Perkin Warbeck How many waies Regality comes to pass by the often affirming himself to be Richard Duke of York second son of Ed. 4. did at last believe himself to be so indeed The violent and frequent usurpations of usurpers in this Island and some other Northern and European Region hath invested such a habit in Men that renouncing reason as well as all faith and belief of God in the Scriptures they with much confidence affirm nothing but possession or possession and submission of Subjects to be requisite with Kings Both which do no more make a rightful King then a Mans Deseisin Abetting or Intruding into the signiory of another and the Tenants attorning to him does make him rightful Lord of the Mannor But neither humane Laws nor Man nor any thing under Heaven can endue any Creature with a power over anothers life and fortune who is of the same kind with himself and without which there can be no supreme power and by consequence no society among Men. There are but four waies by which Regality can happen First When it is immediately and expresly given by God as it was to Saul David Solomon Hazael Cyrus c. Or Secondly derived from him who had Regality truly vested in him but this derivation must not be from the Election Adoption or the will of him who was invested with the Regal Power which at highest cannot amount higher then a humane Law which by the 3 para of this chap. cannot create Regal Power It must therefore be derived by Primegeniture which is derived from a higher cause then humane Laws for jura sanguinis nullo jure civili dirimi possint Or Thirdly by Lot which we have shewed to be by the Law of Nature Or Lastly Jure Primi Occupantis if its Occupant be capable thereof for Man being a sociable creature by Nature and society according to Aristotle being contained in many divided parts therefore in the society of Men there must be unum quid quod imparet alterum Lib. 1. cap. 5. Pol. quod pareat But whether Aristocracy and Democracy be unum quid that may jure imperare to me is a question neither of them being any Institution of God or from the Law of Nature but brought in by unjust usurpation and violence and against the universal consent and practice of the world for above Three
was I conceive that Athaliah desired to cut off all the Royal seed of the house of Judah 2 Chron. 23. And that all Usurpers do not think themselves fafe in their usurpations unless they secure themselves by attempting greater viz. in destroying all the Progeny of those men who can make a better and more superior claim then they have Where therefore Democracies and Aristocracies if such many-headed beasts by the Law of God or Nature be sufficiently qualified to be capable of this power and Elective Monarchies have been of that continuance that no superior claim can be made justly by another let them continue their possessions still for all me Yet would I not for any good in the world venture my life in any of them or judge any man to death in any of them unless it could be made appear that God or the Law of Nature did ever institute any such things or that any where in the world they were not usurped or introduced by them who had no right to do it But however it is a most unreasonable thing that their actions of Adoption and Election should be taken for precedents in rightful Hereditary Monarchies which cannot admit them without a total dissolution and do justly attribute their Governments to a higher then humane cause 21. Where in Hereditary Monarchies the whole Line is extinguished Wherein the decision is to be by Lot there the decision is to be by Lot for The lot is cast into the lap but the whole disposition of it is of the Lord Pro. 16. 33. But if any one gets the possession before such disposition his Title by the antecedent proposition is good enough besides we have demonstrated by para cap. 1. lib. 1. that Jus primi occupantis is good by the Law of Nature 22. If it be Misera servitus ubi Jus est vagum aut incognitum a miserable How blessed and happy men are where Supreme powers and Laws are certain servitude where the Law our Lawyers by Jus. understand Law is wandring or unknown Then by the Rule of contraries it is a happy Freedom where the Law is certain and known to which a man may safely and securely direct his actions If it be a miserable slavery where the Law is wandring and unknown how much more miserable a slavery is it where the Supreme Power is wandring and unknown What confusions murders rapine and spoil of all things sacred and civil must men necessarily fall under The woful and miserable condition of this Nation since our late Distractions hath sufficiently manifested the consequence of it If then such a condition be so miserable how happy then is that Nation where by Gods mercy men are certain who is their Prince and to whom they may securely pay their obedience and assuredly expect protection in their lives and estates If there be nothing more servile and base then to be insulted and tyrannized over by them who by no right command over us how ingenuous and virtuous is it to be subject where by all Divine and Humane laws we owe our obedience For out of the offices of commanding and obeying did never any man live and where men will not be subject to them who may by right command over them they shall be slaves either to their own ambition or to others who by no right command over them And if it be most woful and horrible by resisting Higher Powers to incur damnation Note the Apostle does not say You must Rom. 13. needs be subject to Governments and whoso resists Government shall receive to himself damnation for the Empire of Thieves Robbers and Usurpers is Government but to Higher Powers who have a right of command from God to what a condition then have men brought themselves where either they are uncertain of the Supreme Power and so are either uncertain whether in their actions they incur this dreadful sentence or else where they are certain where the Supreme Power is and yet dare not for fear of their lives actively submit to it Who is the rightful English Soveraign and to whom all Englishmen by all Laws of God and Man owe their obedience is so evident that I never heard any man deny or dispute it 23. The ratio finalis or the end for which God hath ordained Kings The end for which Regality was ordained by God is for the protection of them whom God hath committed to their charge and government not only by all just and due means to protect them from the outward violence and oppression of their outward Enemies but also in peace inwardly and by all means to suppress all faction and sedition of ambitious men who would disturb it He chose David his servant and took him Psal 78. 71 72 73. from the sheepfolds as he was following the ewes great with young he took him that he might feed Jacob his people and Israel his inheritance So he fed them with a faithful and true heart and ruled them with all his power And that Kings may be nursing fathers and Queens nursing mothers to Gods Church Isa 49. 23. And consonant to these revelations of God by these noble Prophets is the declaration of the Saintly King Edward Confessor Rex auiem qui est summi Leg. S. Edw. cap. 19. Regis Vicarius ad hoc constitutus est ut regnum populum Domini super omnia sanctam ecclesiam regat defendat ab injuriosis maleficos autem distruat 24. By this which hath been said it is evident that the power of all No power arises from Conquest Kings is alike and equal viz. Supreme and Gods Ordinance and from the Law of Nature The difference between Kings is only in the exercise of their power some being contracted into narrower terms and others of a more vast extent and dilatation Where therefore one King extends the exercise of his power into the dominion of another by conquest or otherwise no new power ariseth from hence but only an extension of the exercise of the old And so by consequence the invasion usurpation or conquest of Subjects or others who before had no Regal power cannot create any after 25. Naturalia determinantur ad maxima minima There is nothing How far and when Conquest is to be obeyed and submitted to in Nature but bath its beginning termination and ending And so Regal power hath its beginning termination and ending from the Laws of Nature and all men are to be subject to those powers wheresoever they are For no man when he comes into the power of any Prince whether he be his natural Soveraign or nor but is obliged and subject to the power of that Prince wherein he is therefore if a Frenchman goes into Spain or a Spaniard comes into England they are subject to the powers of Spain and England so long as they continue there And since it is impossible that two Supreme powers can be in one place where any one
least Liberty and that which in other men is termed Anger in them is called Pride and Tyranny Besides in private men it is enough that they themselves do well but Princes must have a care that neither they nor their Ministers do ill 6. Tibi soli peccavi says the Psalmist Psal 50. Humane Laws are the The Supreme power is not obliged by his own Laws organs or instruments of the Power that governeth they cannot therefore extend themselves to bind him from whom they are derived for Omnis potentia activa est principium transmutandi aliud Besides the Prince may free other men from the obligation of the Laws and therefore much more himself And if Supreme Princes were obliged by their own Laws then were Humane Laws as well as the Laws of Nature eternal and immutable which is absurd nor could Humane Laws protect Subjects when any thing happens which comes to pass every day that was not foreseen at the making of the Laws Humane Laws are made to oblige and preserve the governed necessitate coactionis but they cannot have any obligation upon Lawgiver who is the Supreme power unless a man will grant that an Effect may be prime and superior to the Cause Nor were ever other Governments subject to their own Laws No man hath any thing proper against the Supreme power 7. No Subject hath any Property except Ecclesiasticks but by the Laws of his Country But by the precedent Proposition no Supreme Prince can be obliged by his own Laws and therefore no Subject can have property against him If any Subject had property against the Supreme power then could not the Supreme power impose a Forfeiture of Goods in case of Praemunire Attaint Conviction of Treason or Felony But the Consequence is false and therefore the Antecedent is false That any man hath any property against the Supreme power Besides there could no Fine nor Fine and Recovery be levied or suffered if he in Reversion or Remainder had property against the Supreme power Nor could an Act of Parliament enable Tenant for life to make sale of his Estate It is remarkable that the Children of Israel should not be content to Annot. have God to reign over them immediately who did himself give them Laws being enquired of by the High-Priest Samuel might well say therefore unto them Ye shall cry in that day because of your King which not ye shall choose but which ye shall have chosen you and the Lord shall not hear you in that day 1 Sam. 8. 18. For Gods ways and actions are always perfect whereas by the reason of humane frailty the best mans actions are subject to imperfections But if it seems grievous to any man that he holds his goods at the will of another let him consider that God since Adam did never give any Nation but only the Children of Israel Property but always used the mediation of his Vicegerents And since Property must be derived from some Humane act for the Law of Nature gives none but to Supreme Princes and therefore the possessions of Kings are called Sacra patrimonia because Kings have no Superior but God Almighty Proedium Domini Regis est directum dominium cujus nullus Author est nisi Deus How Sir Ed. Co. Com. on Lit. p. 1. 6. much better is it for Subjects to hold of one Man then of many For nothing can be objected against one but will have more force against many And let any man shew me in these last five hundred years any Subjects estate taken from him without due and legal proceeding by the act of any of the Kings of England and I will shew him five hundred who not being liable to any punishment by Law have been ruined themselves and their families in seven years and that for observing the Laws and against the will of the King Obj. But many Actions have been brought against the King which if no Annot. 2. man hath Property against him may seem inconsistent Answ But the question here is not what the King may do but what he hath done Not what the King may declare Law but what he hath already declared Law 8. Majesty is from the Law of Nature immediately but the power Power of Magistrates from him of Magistrates is not so but mediately that is from him who hath the Supreme power Magistracie is the instrument or organ by which Majesty is conveyed to every place whither its own power is extended And as Majesty is restrained to the Laws of Nature and is accountable to God for all the omissions and transgressions of them so Magistrates are restrained to Humane Laws and ought to give an account of their actions to him that hath the Supreme power And as no man can offer violence or contempt to Humane Majesty but it is a contempt and violence to the Majesty of Heaven so no man can offer violence to or contemn Magistrates but it is done to Humane Majesty from whence their authority is derived Wherefore Subjects must submit to Governors who are sent by Kings 1 Pet. 2. 14. By this Proposition it is evident that although Supreme power cannot Annot. be divided yet the exercise of it may For where a King is an Enfant he cannot exercise his power who can neither act any thing nor expres what he would have done nay it is impossible for the best and wisest King that ever was to exercise his power every where for one body can be but in one place at once though the power thereof may be diffused every where as the light and influence of the Sun is diffused every where although the body of it can be but in one place And the exercise of power by Magistrates is like Gods governing the world by natural causes who being the first Mover of all things produceth natural effects by the order of second causes Jethro his counsel to Moses therefore is to be taken Thou wilt surely weare away both thou and this people that is with thee for this thing is too heavy for thee thou art not able to perform it thy self alone Exod. 18. 18. 9. Quando lex aliquid alicui concedit concedere videtur id sine quo res The Right of calling Assemblies belongs to Christian Kings ipsa esse non potest where any Law Divine or Humane does give any thing it gives all the means by which this otherwise could not be had And that God by the Law of Nature has given Kings a power to protect their Subjects we have sufficiently demonstrated but it is impossible Princes should protect and govern their Subjects if they might not rule their actions Now all actions and motions are either regular or irregular All regular motions and actions may be reduced to one certain beginning where the beginning is not one and certain there they may be called commotions or confusions rather then motions or regular actions But all Assemblies are motions and therefore they
came under one Monarch or King again for the Royal dignity of a Monarch or King from whence all subordinate dignities tanquam lumen de lumine are derived without any diminution will suffer no division Regia dignitas est indivisibilis quaelibet alia derivativa dignitas est similiter indivisibilis The most woful event that fell out in this Kingdome when Gordobug divided this Kingdom between his two Suns Ferrex and Porrex and what heavy event came to pass untill it was reduced again under one Monarch let our Histories tell you and letting pass others I cannot overpass the miserable estate within this Kingdom under the Heptarchy untill all was reunited under one Soveraign and this is the reason that in England Scotland and Ireland the Royal dignity is descendible to the eldest daughter or sister Sir E. Coke Inst 4. 243. c. Regia dignitas est indivisibilis 2. Of these Governments Monarchy is the best as appears by reason by How many ways Monarchy is the best Government the consent of the world by the institution of God and his commanding obedience only to this Government and by woful experience 3. Monarchy in reason is the best Government for the dignity and Monarchy is the best Government in reason majesty of one man is more easie to be maintained then of many The ills that follow from bad Monarchs are no worse than what do and alwaies did happen from the best of humane Laws viz. mischiefs to particular men Nor can the mischiefs which happened to Silus Sabinus Sillanus c. who not well brooking the powers of Tiberius and Caligula Emperors as bad as who were worst had been over lavish of their tongues in vilifying the power of the Caesars and magnifying that of the Senate and probably had they been able would have advanced the power of the Senate to the abdication of Caesars be compared with the inconveniences which came upon the Senate and people of Rome in those times of Silla and Marius of Caesar and Pompey Besides factious and discontented persons cannot hope for that encouragement in their designs where the supreme power is in one individual person as where it is compounded of many The freedome and liberty of the Subject is more under one then more for it is easier to obey one then many The common people of Rome never enjoyed so much liberty as under the Emperors and therefore when after the death of Caligula the Senate endeavored to restore Rome to her antient liberty as they Sueton. in vita Claud. cap. 10. called it and extinguish the name and power of the Caesars and to that end had seised upon the Capitol they aided by the Preterian coherts continued the power of their Emperors in Claudius and the day and night wherein the Senate would not receive him was the cause of much trouble which Josephus notes l. 19. c. 30. 4. By the consent of the world for every where in the known world By the consent of the world before 1641. either in Europe Asia Africa or America over Christians Mahumetans and Infidels except the State of Venice the usurped power of the Cantons in Switzerland the State of the Neatherlands the Hans-towns Genoa and Geneva who seek protection of the Emperor and Kings of France this Government is established 5. By God himself for he never instituted any Government either in By Gods owning it only Priesthood Judges or Kings but only this nor commands obedience to any other Can a man touch the Lords anointed and be guiltless 1 Sam. 26 9. And submit your yelves to every ordinance of man for the Lords sake whether it be to the King as supreame c. St. Pet. 2. 13. Feare God honor the King And I counsel thee to keep the Kings commandments and that in regard of the oath of God And therefore what thing an Unite is in numbers the Minde in the faculties of the soule a Centre in a circle the same is God the most omnipotent King in the world simple in unity indivisible in nature most holy in purity placed by an infinite interval far remote above the fabrick of the highest Heaven joyning this perspirable region with the celestial and intelligible keepes and preserves from ruine as by a secure care the whole universe framed and compounded in such admirable order and harmony to whose great example ought every good King who is the Unite the minde and centre of his kingdome that hopes to govern and preserve his subjects not only safe but honest and happy wholly to betake himself 6. By woful experience I do not find any mans life except the destitute and deposed Princes Arthur Ed. 2. Rich. 2. Hen. 6. and his sonne By wofull experience Ed. 5. and his brother herein and in many other things doubtless more unhappy then private men and the Duke of Clarence after conviction and attainder thought by the consent of Ed. 4. to be drowned in a Butt of Malmsey and Cromwell Earle of Essex condemned and executed unheard in Parliament see a remarkable passage herein by Sir Ed. Co. Insti 4. fo 37. 38. Queen Katherine fifth wife to H. 8. Mary Queen of Scots and the Earl of Strafford or estate taken away by any of the Kings of England for these last 500 years in an extraordinary and extrajudicial manner If the dissolution of the Abbies by Hen 8. be objected I answer it was usual in Parliament to alter many things in the Common law as the statute de donis conditionalibus made a great alteration in the Common law for before all estates which were not for life and under were either in fee absolute or conditional and so the Statutes which gave power of entry where before no remedy was to be had by Common law but by a Cui in vita And to Jointenants to compell others to sue a Writ of partition c. In case of life the ordinary way of trial was by Peers the Nobility by the Nobility and the Commons by the Commons but a Parliament being a body compounded of heterogenial and dissimilary parts viz. King Lords and Commons could not be Peers to any man which was the usual way of Trial with us neither were the Estates so taken from Abbots c. but that they enjoyed them or a full value in lieu of them during their lives so that by this act no wrong was done to any man living Yet it is true which Sir Ed. Co. saies in his Comment upon Magna charta chap. 1. Quod datum est Ecclesiae datum est Deo what was given to the Church was given to God which by the Law of God Numb 16 37 38. is unalterable nor can be be employed to any profane or common use So that I am confident I may safely affirm that the Subject in seaven years under the Long Parliament suffered extraordinarily and extrajudicially five hundred times more then all their Ancestors in 500 years before did
to the prejudice and dishonor of it for sure no man can imagine that because a Man is a King that therefore he should divest himself of Nature and neglect to use some means to get an Estate for his Posterity where there is none provided If it be objected that the Crown descends to the Heir not to the posterity if more then one I answer That no Crown but hath many Offices and Dignities appertaining to it which descend to the Heir he probably will not reject his own flesh and blood to advance strangers whereas in an Elective Kingdom it cannot be hoped for 10. The Government in Britain and England untill 1641. was Monarchy The Government of Britain was ever Monarchy Hereditary before 1641. hereditary If you believe Mr. Selden in the First Book cap. 1. of his Analecton Anglo-Britanicon he will tell you upon the Faith of Jeoffrey of Monmouth the stem and progeny of Brutus the Nephew of Aeneas and give you a series of the Government of his posterity to Cassivellanus King of the Trinobantes when Cesar first made his invasion here and cap. 5. from Cassivellanus Essex and Middlesex to King Lucius Now I trowe our Author for the honor and reverence of the Apostolick sea will not deny Lucius to be a King and the first Christian King of the Britaines who and whose subjects were baptised Plat. in vit S. Eleutherii p. 21. about anno 176. by Fugatius and Damianus sent to this end by Pope Eleutherius And see Tacitus Lips pag. 457. in vita Agricolae Ii Britanni scilicet his atque talibus invicem instincti Voadicâ generis regii faemina duce neque enim sexum in imperjis discernunt sumsere universi bellum c. with these and the like speeches inciting one another by common consent they resolve to armes under the conduct of Voadica a Lady of the blood royal for in matter of governing in cheif they make no distinction of sex It is not my purpose here to relate a series and Catalogue of all the Brittish Kings to the Saxon Monarchs nor of the Saxon to the Dane and Norman I deny that in any of these times there was any other Government but Monarchy Aristocracy or Democracy never nor was ever any of those Kings chosen by the people Here by the way though I affirm the Government of England and Brittaine to be Monarchy yet I do not affirm that part of this Island which is called England was governed by one Monarch only till King Athestan reduced it about the yeare 938 nor the whole Island under one King before it was united under James anno 1602. And this Monarch not a thing in abeiance an aiery title but an absolute free and independent Monarchy Stat. 24. H. 8. cap. 12. It is resolved and declared that by sundry and old antick Histories and Chronicles it is manifestly declared and expressed that this Realme of England is an Empire and so has been accepted in the world Publick Notaries made by the Emperor claimed de Jure to exercise their office here in England but were prohibited because it was against the dignity of a supream King see Sir Ed. Coke Instit 4. fo 342. Omnis sub rege ipse sub nullo sed tantum sub Deo And ipse autem Rex non debet esse sub hominibus sed sub Deo And Rex autem qui vicarius summi Regis est ad hoc constitutus ut regnum terrenum populum domini super omnia sanctum veneretur ecclesiam ejus regat ab injuriosis defendat maleficos ab ea evellat destruat penitus disperdat ibid Now would I fain know what higher power can any man upon earth claim then is here by the Law acknowledged to be in the Kings of England Nor hath any Subject any property in his estate but what he claims from the King for all Lands and Tenements in England in the hands of Subjects are holden mediately or immediately of the King Sir Ed. Co. Com. on Lit. fol. 1. Inst part 4. pag. 363 364. Nor have the Lords and Commons a concurring power with the King in making statute-Statute-Laws for the King makes the Law the Lords and Commons consent Co. Lit. 159. b. And what concurring power of Lords and Commons is there in Magna Charta but only Henry by the grace of God King of England c. We have granted to God and by this our present Charter have confirmed for us and our heirs for ever c. And Charta de Foresta hath nothing which makes it a Law but Edward by the grace of God c. We will that all Forests c. Stat. Hiberniae made at Westminster 9 Feb. ann 14 H. 3. Henry c. commands that the Customs recited in that Statute and used in the Realm of England be proclaimed in Ireland and straightly kept and observed there And Stat. de Anno Bissextili made at Westm. ann 21 H. 3. ann 1236. is The King unto his Justices of the Bench greeting The Statute entituled Assisa panis cerviciae is made by the King The Statute de Scaccario is nothing but what the King commandeth And so let any man peruse all the antient Statutes of this Realm and he shall not find any so much as Consent of the Lords and Commons named in the making of them though it may be it was implied Nor had the Lords and Commons in the Parliament Anno 1641. any more power de jure then their Predecessors had before them And therefore the Common-Law and Statute-Law of this Realm were nothing but the declared Will of the King Nor hath any City or Borough c. any Priviledge but what they claim and hold immediately from the Kings Grant Customs I take to be those Usages which the Kings have permitted Sir Ed. Co. comment on Littleton 113 to divers of their Subjects in several places of this Realm time out of mind distinct and not the same with the Common Law And herein they differ from Prescription because this refers to the person that to the place so Prescription is what such an individual Man and his ancestors have done in such a place and Custom is what divers Men at once have used in such a City Borough Mannor or Village Add hereunto the Militia of the Kingdom the Mint the power of making War or Peace which were always in the King and for the manageing of which he hath usually taken the Results of his Ordinary Council and who will deny the Kings of England to have been Absolute Soveraigns What the Government since 1641. hath been I cannot tell nor do I care If you believe the Instrument it will tell you It is in One Person and the Freeborn People of this Nation so in Two and divided But who are the Freeborn People of this Nation Every man hath as much right to this Freedom as another here is no Vassalage no Civitate donatus in
power which is not restrained The Father hath power of life and death over his children by the Law of Nature the power is absolute But it is evident that the Law of Nature gives Fathers a power over their Children without restriction Therefore the Fathers power is absolute and by consequence he hath power of life and death over his Children See Bodin cap. 4. pag. 21. de rep where he says That the Persians the people of Higher Asia the Hebrews Romans Celtae Gaules the West Indians before the Spaniard subdued them did use this absolute power And see pag. 23 24. how he makes all the strife disorders and contentions among Brethren their Father living the wantonness luxury and riot of youth without fear of punishment the contempt and scorn of the Fathers person and power and the decay of the glory and ennobled virtue of the Romans to proceed from the taking away of the Fathers power Examples of the Fathers power of life and death are hard to find because it cannot easily be imagined a Father should give judgment upon himself his son being part of himself to cut off any part of himself which he hopes might by any means be cured Yet Quintus Fulvius did adjudge his son to death for being of Catelines Conspracie Salust de conj Cat. And see Deut. 21. 18 19 20 21. where it is most evident that the Father hath power of life and death for the People do but execute the judgment of the Father and Mother That such a son is stubborn and rebellious c. The exercise of this power is restrained generally among Christians by positive humane Laws but from what ground I cannot tell 6. The Fathers power arising from generation and the person of the The Son hath propriety against his Father Son being only generated the Fathers power can extend no further and therefore whatsoever the Son does acquire it is his own excluding his Father 7. Though the Son out of wedlock is alike subject to both parents Why out of wedlock the Fathers commands are to be preferred before the Mothers because he is alike part of both yet if the Father and Mother command contrary things whereby it becomes impossible for the Son to obey both there the command of the Father is to be preferred because of the excellencie of his sex CHAP. VII The Husbands Power 1. THe Husbands power doth not arise ex concubitu for then a man hath power over all the women which he hath or shall have known which is absurd besides one woman known by several men should be alike subject to them all which is impossible 2. The Husbands power does not arise from his Wifes being a part of his family for any part of the family may become no part of the family but the Wife can never be out of the power of her Husband therefore the Husbands power does not arise from the Wifes being a part of his family 3. The Husbands power does not arise from the Wifes submission or subjecting herself to her Husband for that is but an act of her will unumquodque dissolvi potest eo ligamine quo ligatum est and therefore by an act of her will she may when she list set herself free 4. It does not arise from the Husbands accepting of the Wifes will for that makes the Husband obedient to his Wife obedience being no other thing but the accepting the will of another which is unnatural 5. The Husbands power does arise from the law of God or Nature by From whence the Husbands power doth arise the conjunction of Man and Wife in wedlock For these two individual persons by the law of God are made one mystical person of which the Husband is head and the head is the directive and ruling part of the body therefore the Husband is the director and ruler of his Wife Object But if the Law of Nature by Marriage gives the Husband a power or right of command over the Wife why may it not be that God by the Civil pact might give a Prince or Court a right of command over those Men who made it Answ I answer That first a Similitude proves nothing Secondly The cases are nothing alike For Marriage was an institution of God in Paradise and the power of the Husband over the Wife being due by the Law of Nature hath been ever since attributed by Mankind to the Husband yet so that after the death of the Husband the Wife becomes free from such subjection until by Marriage she again subjects herself In none of these respects does this hold in the Civil pact for no such thing was ever instituted by God nor any such thing ever constituted or done by Man but only a Chimera invented by capricious men to palliate sedition Nor did ever any man become free from subjection to Supreme powers by the death of him or them to whom they made their subjection by virtue of the Civil pact Nor was it ever known in the world that Men were free before they made their Civil pact as Women are before they marry 6. God gives a power to the Husband without restriction viz. Thy The Husband hath jus vitae necis over his Wife desire shall be to thy husband and he shall rule over thee Gen. 3. 16. And therefore the Husbands power over the wife is without restriction and by consequence the Husband hath power over the life of his Wife Antiently among the Gaules this power was not restrained The Romilian Law restrained the Husbands Caesar lib. 3. de bel Gal. power to put his Wife to death for four causes only This power was used by the West-Indians before they were subdued by the Spaniard and is generally among the Idolaters and Mahumetans But the exercise of the Fathers and Husbands power of life and death over their Children and Wives is restrained not by any law of God that I know of but by the Temporal laws and yet no wrong done to the Fathers or Husbands neither For though their Children and Wives be in their power by the law of Nature yet by the law of Nature are they in the power of their Soveraign and subject unto him And though the Fathers and Husbands power be from the law of Nature yet the exercise of it is humane politick and voluntary and the exercise of all Subjects voluntary actions may be restrained and determined by him who hath the supreme power therefore the Fathers and Husbands exercising their power over their Children and Wives may be restrained by him who commands by the highest right which is the King But supposing the Husbands and Fathers power to be from the law of Nature and Regal power but a politick and invented thing and made only by the will of Man it were then a violence upon the law of Nature that any thing which hath no origination but from the inventions and wills of Men should restrain the exercise of that
derived from this begging the question is false Indeed Mr. Hobbs is no question a man of most exquisite parts and learning and possibly might have a peaceable intention in making the Civitas the Judge of all matters of faith as well as manners But sure many things in his generation of it can never consist as his making Jus and Lex contrary one to another his making the Legislator to depend upon the Citizen for without his consent and proper pact either express or understood the Legislative right can be conferred upon none And yet he says Wherefore doest Cap. 12. art 3. thou call him Tyrant whom God hath made King His making the Civitas to receive all power from the pacts and wills of men and making the Civitas Head of the Church and Judge of Faith makes the power of the Church and all Faith to be a thing invented and to receive their beginnings from the wills and pacts of men then which what can be more destructive to Faith and Religion But for our Author Tho. White Gent. he is not worthy the name of a learned rational nor honest man 13. Slaves are born or made so Slaves born are the children of such Slaves as were so Slaves made so happen two ways For being condemned for some crime committed against some humane Law and therefore by the Condemned persons Law condemned to it Where the Law condemns it is the will of the Supreme power which condemns and therefore not the will of the Slave that makes it so I deny therefore that where the Law does not make Slavery any man can make himself a slave to another nor can any man use another as a Slave where he is not made so by Law Or else Slaves are Prisoners taken in War There is no man will affirm Prisoners by War the taking of another man prisoner gives the taker a power over the others life for then all men falling into the hands of Thieves and Pirates the Thieves and Pirates have a power over their lives and so commit no murder in putting them to death But Slaves from being made Prisoners is when there is competition between two Supreme powers and they give their Subjects power over all their Enemies which they shall take Prisoners It is not therefore the taking of another Prisoner which gives a man power over anothers life but a precedent humane Law which gives this power over those Enemies which any Subject shall take Prisoner and sure no man was ever taken Prisoner by an act of his will It is false therefore that Bodin says That a man may make himself a Slave of his own accord lib. 1. c. 5. p. 31. de repub a man may as well offer violence or kill himself and that a man bought for a price of Thieves and Pirates is a Slave to the Buyer for he is not made so by any humane law Nor can any act of force ever give another any power nor can any continuance of time make any thing good which originally was not so and therefore if all commands were originally from force as he affirms then are no commands now any better and so no difference Pag. 46. de rep between the commands of Thieves and Pirates and of Fathers and Kings Although a man lawfully taken prisoner by another be in his power Slavery moderated so as it is in the Takers power to have taken away his life and so an act of grace in granting it yet the Law which originally gave this power may moderate it as here in England the Law hath restrained the Lord from killing or maiming his Vilain Slaves have nothing proper against their Master 14. Apprentices are when the Father or Mother do oblige a Child Apprentices for such a term to serve such a Master and this act is binding because by the Law of Nature the Father hath an absolute power over his Children But because of the impotencie of Children who cannot by reason of their youth and want of art and experience do any thing which may at first compensate their diet and clothes if the poverty or negligence of parents be such that they cannot or will not procure a Master for their Children and where Children are Orphans they may be bound and compelled to serve Apprentiships in such manner as is prescribed by the publique humane Laws of the place 15. Neither naturalis nor delegata potestas can be communicated nor What power is alienable aliened But acquisita potestas as the power of Masters over their servants and slaves may be sold aliened or otherwise given away And therefore Guardian in Chivalry may give or sell to another the Guardianship of his Ward but Guardian in Socage cannot for his is delegata potestas 16. The Master of every family deriving his power from the humane The Masters power restrained to humane laws Caveat laws of every place his power is restrained to the laws of that place therefore ought he not to command his servant any thing which is against the laws of the place When I say by humane laws such a thing is to be done or not done I always except those laws which God did give to the Israelites and peculiar only to them when he pleased immediately to reign over them which laws did supply those humane laws by which his Vicegerents do procure peace among us CHAP. IX Of Ecclesiastical power THat there is a GOD who is the Author of all good past present By the light of nature God is to be worshiped and to come and that He is to be worshiped and adored not only for the present past and future blessings in this world but also in hope of eternal happiness in the world to come is so naturally ingraffed into the minds of all men that not scarce one man compos mentis in an That there is a God and this God to be worshiped and served is innate in the minds of all men Plato Euthyphro requires as the first axiom of all virtue age did ever deny it It is no wonder therefore if men attaining to such a height of impiety as to sell their inheritance in Heaven unjustly to purchase possessions upon Earth do always make the specious pretences of Religion and Reformation as the easiest way to work upon the giddy and inconstant multitude carried hither and thither with every wind of doctrine the Exordium of all their Enterprises for Quoties vis fallere plebem Finge Deum 2. But how they should worship him aright from the imperfect use of The difficulty of pleasing God from the light of nature their reason prejudiced by their appetitions and affections is not to be imagined For to worship and serve God not according to the will and pleasure of God is superstition and not to worship God is atheism It is therefore an impossible thing without the special assistance of Gods grace that men should not fall either into superstition
or atheism 3. It being impossible that any act of mans will can please How God will be served God be it what it will for Saul intended well in sparing Agag and the best of the cattle of the Amalekites for a sacrifice to God and Uzzah in staying the Ark God therefore by the light of humane nature being to be served and yet not according to the will or fancy of any creature what then is left but that he will be served accordingly as he hath revealed himself to mankind For without faith it is impossible to please God and faith is the believing in God as he hath revealed himself to mankind conjoined with the love of it 4. In the beginning of the world God revealed himself to Adam Gods revelation to Adam that he would be served and obeyed by him in abstaining from eating of the Tree of the knowledge of good and evil Gen. 2. 17. It is worth the observance that the Knowledge of good and evil is in it self a thing to be desired and endeavored so as it be done in obedience not disobedience to Gods command God therefore in punishing Adam learns all men this lesson that in all his commands he will be simply and absolutely obeyed without any disputing whether it be good or bad to obey him But Gods covenant with Adam Adam soon made void by eating the forbidden fruit God sent him forth therefore from the garden of Eden to dress the ground from whence he was taken 5. God is said to reign by covenant where he reveals himself how he God did reign by covenant with our fathers before the flood will be worshiped and served The Scriptures are silent how God did reign with our fathers before the Flood but that God did is evident for it was not Abels sacrificing to God which pleased God for Cain sacrificed as well as Abel but by faith Abel offered unto God a more acceptable sacrifice Heb. 11. 4. and the doing of any thing by faith is the doing it in conformity to Gods command as he hath supernaturally revealed himself God therefore must first command or reveal himself before Abel can do any thing by faith And Enoch walked with God and Noah was a just man and perfect in his Gen. 5. 22. Gen. 6. 9. generation and Noah walked with God Enoch's and Noah's walking with God was nothing else but walking with and doing what God had commanded And where there is no Law there can neither be Justice nor transgression Therefore could neither Noah be just nor the sons of men so malitious against God that all the imaginations of the thoughts of their hearts were only every day evil if God for Adams sin had only withheld his Gen 6. 6. grace from Mankind and not revealed himself unto them for then men had sinned of infirmity but here they sinned malitiously 6. God did establish a covenant with Noah and his sons after the flood God did reign by covenant with Noah and his posterity after the flood in this form Gen. 9. 9 10 c. Behold I even I establish my covenant with you and with your seed after you and with every living creature that is with you in fowl in cattel in every beast of the earth which is with you of all that go out of the ark whatsoever living thing of the earth it be And my eovenant I make with you that from henceforth all flesh shall not be rooted out by the waters of a flood neither shall there be a flood to destroy the earth any more And God said This is the token of my covenant which I make between me and you and every living creature that is with you for ever I do set my bowe in the cloud and it shall be for a token between me and the earth c. Yet Mankind did distrust God and said Go to let us build a city and a tower whose top may Gen. 11. 4. reach unto heaven and let us make us a name lest peradventure we be scattered abroad upon the whole earth So that Wisdom says Moreover the nations in Sap. Solom 10. 5. their wicked conspiracie being confounded she found out the righteous and prescrved him blameless with God 7. Yet God was so merciful unto Mankind as not utterly to forsake Gods covenant with Abraham them but established his covenant with Abraham and his seed I will make my covenant between me and thee and thy seed after thee in their generations by an everlasting covenant that I may be a God unto thee thy seed after thee c. Gen. 17. 7 c. This is my covenant which you shall keep between me and you and thy seed after thee Every man-child among you shall be circumcised c. God did not make any new covenant with Isaac and Israel but renewed that which he had made with Abraham and by this covenant the Israelites were not to serve God as God simply but as the God which had appeared and made a covenant with Abraham Isaac and Israel Under this covenant God by Moses gave the children of Israel the Moral the Judicial and Ceremonial law and under this covenant was the Messias promised and prophesied of by all the Prophets Mr. Hobbs cap. 16. art 13. says The supreme power and also the interpretation Annot. of Scripture was in Moses while he lived and not in Aaron Nor do I gainsay it for Moses was of the Tribe of Levi as well as Aaron Besides what should hinder but that God when he pleased might give that to Moses which ever after should be inseparable from the High Priest But where he says from Num. 27 18 19 20 21. that Eleazer was not only High Priest but also had the supreme power because that when Eleazer had enquired of God Joshua and all the people should go in and out at his word It does not follow for then had neither David nor Saul c. the Soveraignty who asked counsel of God by the High Priest It is true that was Magisterial in Eleazer which was Ministerial in Aaron It is true which he says that Joshua had but part of the power which Moses had But if it Note this for Mr. Hobbs does be true which he says that both powers were in Eleazer then had Joshua none of the power which Moses had But that Joshua had all temporal power and not from Eleazer both in command of war and governing the people is manifest every where in all the book of Joshua neither had Eleazer any thing to do with the division which fell to the Israelites by lot Behold Joshua said I have divided unto you by lot those nations that remain c. which thing does belong only to the supreme Temporal power And whereas he says After the death of Joshua in the time of the Judges unto King Aât 15. Saul it is manifest that the Regal right instituted by God remained with the High-Priest sure
Realm in Treason against the King and Queen and the indictment concluded contra ligeantiae suae debitum For he owed the King a Local Obedience but if he have issue here that issue is a Natural born Subject and it is not caelum nec solum neither clymate nor soyle but Ligeantia which makes a natural Subject and therefore if Enemies possess any fort c. the issue borne there is no Subject of the Kings by as much reason those Subjects borne after Conquest by any King of England are his Natural Subjects 6. Legal Ligeance is when at suit of the King the Subject takes the Oath of Ligeance to the King which is You shall sweare that from this day âigeantia Leââââs tit 4. ââg 6. 7. forward you shall be true and faithful to our Soveraign the Lord King Charles his Heirs and truth and faith shall beare of life and member and Terrene honor and you shall neither know nor heare of any ill or damage intended unto him that you shall not defend so help you Almighty God The substance and effect hereof is due by the Law of Nature ex institutione natura the form and addition of the Oath is ex previsione hominis In this Oath five things are observed 1. For the time it is indefinite and without limit from this day forward Five observable things in the Oath of Ligeance 2. Two excellent things are required that is to be true and faithful 3. To whom To our Soveraign Lord the King and his heirs 4. In what manner And faith and troth shall bear c. of life and member that is until the letting out of the last drop of our dearest blood 5. Where and in what places ought these things to be done In all places whatsoever for You shall neither know nor hear of any ill or damage c. that you shall not defend c. So as Natural Ligeance is not circumscribed within any place 7. Subjection as well as Regality being by the Law of Nature Quae The consequent upon Subjects endeavoring to dissolve their subjection Deus conjunxit nemo separet And let no man or men ever think to mend what God hath made For besides the innocent blood which will be shed besides the rapine plunder sacrilegious profaning of all sacred things in the mending if God in his judgments doth permit seditious men to prosper in their wickedness so as they suppose they have attained their Ends yet their Ends never end in peace among themselves For abstracting from the general fear common to them all of the right Heirs recovering his right it cannot be expected that all Competitors will be pleased some will think others too great none will think themselves great enough They themselves have made a president to evade all subjection and obedience to Laws and Government by pretending Liberty and Reformation So that after so much bloodshed what can be expected but the shedding of more without ever hoping to have an end Well therefore says Sir Edward Coke Inst 3. p. 36. Peruse over all our Books Records and Histories and you shall find a principle in Law a rule in Reason and a trial in Experience That Treason does ever produce fatal and final destruction to the Offender and never attaineth to the desired end two incidents inseparable thereunto And therefore let all men abandon it as the most poisonous bait of the Devil of Hell and follow the precept of holy Scripture Fear God honor the King and meddle not with the seditious But it may be objected That though Subjects Allegiance be natural Object 1 or due by the Law of Nature yet since there cannot be any visible power under Heaven which can judge between an Usurper and rightful Prince what rule have Subjects to direct them to whom they owe their subjection or obedience Sol. It is true there is no visible Power under Heaven which can judge between an Usurper and rightful Prince but the Consciences of men Yet being natural a man may as well ask how a man shall know whether every Being be of less excellency then the Cause of its being or that things equal to a third are equal to one another I am confident that where the confusion was not made by Popular rage and usurpation since the begining of the world God did scarce ever leave men so destitute but they were morally certain to whom they did owe their Topical and Natural obedience But if Regal power be the Ordinance of God and Primogeniture be Object 2 preferred by the Law of Nature then can there be but one rightful King in all the world and he the first-born from Adam which no man can believe Answ I answer That though Primogeniture be preferred by the Law of Nature and immutable by the will of Man yet is not God subject thereunto but before the Flood he rejected Cain though the first-born of Adam and made him a Vagabond and none of the Patriarchs So in the first age after the Flood God subjected Canaan although the son of Ham Japhets elder brother to Japhet And so did God prefer Jacob before Esau and Gen. 9. 27. Ephraim before Manasses and Solomon before Adonijah Yet where and when God did not reveal himself to Man otherwise was ever Primogeniture preferred Nor can it in reason be expected that God should be so cruel a Taskmaster to require subjection upon penalty of Damnation if it were not evident to whom this subjection were due It is sufficient that Subjects pay their obedience to him against whose title no just or superior title can be taken Yet is not this subjection always to be understood of active subjection For no man is bound Government being intended for mans preservation not destruction actually so to submit to rightful Governors that he be morally certain of destruction therefore Yet ought every man rather to suffer death then actually to renounce or resist rightful Governors to whom by the Law of Nature they owe obedience Quaere 8. But suppose there be such a succession from an Usurper that not only the Heir to the Usurper but all men in his Government were born Subjects to him and his Ancestors from whom he is descended as in the time of Henry 6. when all men were born either in subjection to him his Father or Grandfather who had no colour or title to the Crown whether in such case may Subjects so born assist such a Prince against the right Heir I say I pray God avert the like from ever being again in the English Nation 'T is true the right Heir hath a just title of war against such a Prince but whether Subjects so born their being so born being no act of their will but was caused by a higher cause viz. the will of God may actually assist him to whom they were so born in subjection against him who hath the superior title I leave to God and mens consciences 9. But this Quaere can only
those that are Deciners elswhere to enquire of the offences personal and of all the circumstances of offences done in those Hundreds of the wrong done by the Kings or Queens ministers and of the wrong done to the King and the Commonalty But this ought not to be done by Bondmen or Women but by the Oath of Twelve Freemen The County-Court which the Sheriffs hold from moneth to moneth County-court sec 9. or from five weeks to five weeks according to the greatness or largeness of the County Of Court-Barons and Hundred Courts Court-Baron c. sec 10. The other mean Courts are the Courts of every Lord of the Fee c. Pipowders sec 11. Courts of Pipowders And that from day to day speedy Justice be done to Strangers in Fairs and Markets as of Pipowders according to the Law of Merchants Court of Admiralty The King hath soveraign jurisdiction upon Admiralty sec 12. the Sea Courts of the Forrest The Kings Ministers of his Forrests have Courts-Forest see 13. power by authority of their office to swear men without the Kings Writ for safeguard of the peace and the Kings right and the common good c. He treats of the Professors of the Law as Counters who are Serjeants and Pleaders Of Attornies Of Ministers of Justice as Viscounts Coroners Escheators Bailiffs of Hundreds c. And also by the antient Kings Coroners were ordained in every County and Sheriffs to keep the Peace when the Earls were absent from their charges and Bailiff in lieu of the Hundredors c. Of the Prerogatives of the King as of Deodands Alienation to Aliens Teeasure found Wreck Waif Estray Chattels of Felons and Fugitives Honors Hundreds Soakes Gaoles Forrests chief Cities chief Ports of the Sea great Manors These held the first Kings as their right and of the residue of the Land did enfeoff the Earls Barons Knights Serjeants and others to hold of the King by Services provided and ordained for defence of the Realm It was ordained that the Knights Fee should come to the eldest by succession of heritage and that Socage Fee should be partable between the Male-children and that the Liege-Lords should have the Marriage He treateth in the first Chapter of Crimes and their divisions of the crime of Majesty of Fausonnery of Treason of Burning of Homicide of Felony of Burglary of Rape c. In the second of Actions of Judges of Actors c. In the third of Exceptions dilatory and peremptory that is Pleas to the Writ and in Bar c. of Trial by Juries and by Battel of Attaints of Challenges of Fines c. In the fourth of Judgments and therein of Jurisdiction of Process in criminal causes and in Actions real personal and mixt So as in this Mirror you may perfectly and truly discern the whole Body of the Common Laws of England Thus far Sir Edward Coke Mr. Lambert in his unfolding the difficult things and words in his translation of the Saxon Laws says King Alured when he had made a League with Guthrun the Dane having followed the most prudent counsel given by Jethro to Moses first divided England in Satrapias Centurias Decurias He called Satrapiam ãâã ãâã ãâã ãâã ãâã a ãâã ãâã ãâã ãâã ãâã which signifies to divide He called Centuriam ãâã ãâã ãâã ãâã ãâã and Decuriam ãâã ãâã ãâã ãâã ãâã or ãâã ãâã ãâã ãâã ãâã that is a company of Ten men and by those names they are called to this day And that no man might be ignorant the Decuria did consist of Ten men whereof all of them were pledges that every one should be forth-coming to any Action in Law and if any one did any damage the other were bound to make it good and from hence the other nine were called ãâã ãâã ãâã ãâã ãâã that is Free-pledges we in the Pleas of Courts call them Francos plegios The tenth man ãâã ãâã ãâã ãâã ãâã called the Decurio or Tithingman by which name he is most known to the Eastern English at this day Others call him ãâã ãâã ãâã ãâã ãâã others call him ãâã ãâã ãâã ãâã ãâã that is the first or chief Surety or Pledge The Kentish men call him Borsholder corruptly for ãâã ãâã ãâã ãâã ãâã that is the first Surety Centuria or a Hundred was made up of ten Decuria's as one Hundred is made up of ten times ten This viz. Hundred the men beyond Trent called by another name not unknown to the common people ãâã ãâã ãâã ãâã ãâã Wapentac Alured then further ordained That every man of free condition should be enrolled in some Hundred and be conjoined into some Ten-men company That of lesser businesses the Decurions or Court-Leet might judge and if any weightier matter were it should be deferred to the Hundred or County-Court Lastly that the Alderman and Sheriff I take it he calls them Senator Praepositus should compound the most difficult Suits and of greatest moment in that frequent Convention from all parts of the Shire or County And what the manner of judging was King Etheldred in the fourth Chapter of his Laws which he enacted in a full Senate or Parliament at Vanatnigum ãâã ãâã ãâã ãâã ãâã Woodstock expounds almost in these very words In all and every Hundred let there be Assemblies and that Twelve elderly men of free condition together with the Sheriff Praeposito be sworne that they will not condemn the Innocent or absolve the Guilty So that Mr. Lambert seems to be of opinion that the Common-Law had its origination from King Alured or Alfred who was King of all England and a most victorious pious prudent and glorious Monarch about the year of our Lord 890. And from a most deplorable condition by reason of the Danish invasion and robbery reduced it to a most quiet calm and laid that foundation upon which the body of the Common-Law is since builded But whosoever was the first Founder and Establisher of them certain it is they were antient and Laws which better suit to the nature and disposition of English-men then any other that are or ever were in the world would do 2. As those general Usages or Customs which are generally observed Particular Usages are called the Common-Law so there are almost infinite particular Usages Prescriptions and Customs in several parts of this Nation which are observed as Laws by the Inhabitants of those places and to all intents and purposes have the effect of Laws 3. Statute-Laws are Acts of Parliament which are neither general Statute-Law nor particular Customs but are Laws made by the Kings of this Land in Parliament upon sundry and diverse occasions according to the then occasions as they represented themselves For although all innovations are dangerous and therefore if it were possible no doubt it were best that humane Laws as the Laws of Nature might be immutable and eternal but as God hath created all things transitory and nothing in this world the same the next
special matter they cannot well discern or judge I have therefore been particular herein as well to shew into what cause Annot. not only both Houses conjunctly but every particular Member in either have a right of being as also since Non datur progressus ad infinitum the Parliament being a body compounded of heterogenial or dissimilar parts if they sever or divide into what Subjects may ultimately with good conscience resolve their faith and obedience And no question it is better any thing should be Law then that every thing should be lawful And that is the greatest slavery where Subjects know not where to pay their obedience and from whence to expect protection but where different Factions shall with equal right or injury impose their lusts and wills for Laws to their Fellow-subjects The Jurisdiction of Parliament is so transcendent that it maketh inlargeth The Jurisdiction of Parliament diminisheth abrogateth repealeth and reviveth Laws Statutes Acts and Ordinances concerning matters Ecclesiastical Capital Criminal Common Civil Martial Maritime and the rest It may make Daughters and Heirs apparent of a man or woman during the life of the Ancestor Com. Lit. 110. adjudge an Infant or Minor of full age attaint a man of Treason after his death it may Bastard a Child that is Legitimate it may make a Bastard Inst 2 par 36. Legitimate A Parliament was called before the Conquest Michael Sinoth Michael By what other names called Gemote Ealsa Witenage Mote that is to say the Great Court or Meeting of the King and of the Wise men sometime of the King with the Council of his Bishops Nobles and wisest of his people The French call it Les estates and L'assemble des estates the Parliaments in France are no other Inst par 1. 110. a. then our Courts of Kings-Bench Common-Pleas Exchequer and Chancery in England The Germans call it a Dyet And Inst 4. p. 2. it was antiently called Witenage mote Conventus sapientum Commune concilium regni Generale concilium regni Concilium regni Assisa generalis Tully calls it Consessum Senatorum à considendo c. Object But it may be it will be objected That though the King be principium caput finis Parliamenti and that every Member as well as both Houses have their original right and sitting there from him and that though Laws of right ought to pass in Parliament at the rogation request or petition of the Commons by the counsel and advice of the Lords yet the Kings of the Nation have long since divested themselves of this power and have granted the Lords and Commons a concurring power in the making of Laws or by custom and usage it hath been so time out of mind and so ought to be observed as a Law To the first I say Kings reign by a higher then any humane law and Ans 1 therefore no act of any King can divest himself or successor of any attribute due to him or his successor And if Kings actions did oblige themselves or successors then were this Crown not free but subject to the Pope because King John made it so But I deny the assertion for it is false that ever any King of this Realm did ever grant the Parliament or either House a concurring power of making Laws with him For the second No usage prescription or custom can take place Ans 2 where there are records or proofs to the contrary Whether we cannot give proofs enough to the contrary judge good Reader David's calling all the Lords of Israel the Lords of the Tribes the Lords of the Companies that ministred to the King by course the Captains over thousands and over hundreds and the Lords that had the oversight over all the substance and possession of David and of his sons with the Chamberlains and all the mighty and all the valiant and all the active men unto Jerusalem to consult concerning the building of God a house 1 Chron. 28. 1 2. was a Parliament So was that Convention of Solomon's Inst 4 par 3. Ibid. 2 Chron. 2. and that Convention of the Israelites Judg. 20. 11. Ego Inas Dei gratia Westsaxonum rex exhortatione doctrina Cenredes patris mei Heddes episcopi mei Erkenwaldes episcopi mei òmnium Aldremannorum meorum Seniorum sapientum regni mei multaque congregatione servorum Dei sollicitus de salute animarum nostrarum statu regni mei constitui rectum conjugium recta judicia pro stabilitate confirmatione populi mei benigna sedulitate celebrari nullo Aldremanno vel alicui de toto regimine nostro conscripta liceat abolere judicia was an Act of Parliament Proem par 9. Reports Edwardus rex admonuit omnes sapientes suos qui fuerint Exoniae ut investigarent simul quaererent quomodo pax eorum melior esse possit quà m ante fuit was an Act of Parliament by Edward King Alfreds son Ibidem Haec sunt instituta quae Edgarus rex consilio sapientum suorum instituit were Acts of Parliament Ibidem Hoc est consilium quod Etheldredus rex omnes sapientes sui condixere ad emendationem pacis omni populis apud Woodstock Haec sunt verba pacis prolocutionis quae Etheldredus rex omnes sapientes ejus cum exercitu firmaverunt qui cum Anulano Justino Guemundo Stigrani filio venit Et haec instituerunt Etheldredus rex Sapientes ejus apud Habam were Acts of Ibidem Parliament Edmundus rex congregavit magnam Synodum Divini ordinis Seculi apud Londonum civitatem in Sancto Pasch solenni hae sunt institutiones quas Ed. rex episcopi sui cum sapientibus suis instituerunt apud Culinconam c. paulo post Ego Edmundus rex mando praecipio omni populo senior ' junior ' qui in regione mea sunt qui investigans investigari cum sapientibus Clericis Laicis were Acts of Parliament Ibidem Haec sunt statuta Canuti regis Anglorum Danorum Norvegar ' venerando sapientum ejus consilio ad laudem gloriam Dei sui regalitatem commune commodum habita in Sancto Natali Domini apud Wintoniam c. were Acts passed in Parliament Ibidem Rex Canutus an regni sui 5. per 130 annos ante copilationem decretorum quae an Dom. 1150. fuer ' copilat ' anno 7 pontificatus Papae Eugenii tertii ante copilation ' aliorum Canon ' quorumcunque cunctos reg ' sui praelat ' proceresque ac magnates ad suum convocans Parliam ' in suo publico Parliam ' persistentibus personaliter in eodem Wulstano Adelnodo archiepisc ' Ailwino episc ' Elmehamense aliis episcopis ipsorum suffragan ' septem Ducibus cum tot Comitibus nec non diversorum monaster ' nonnullis Abbatibus cum quamplurimis gregariis milit ' ac
men and all the Commonalty assembled in Parliament Statutes made at Westminster were enacted by the King his Prelates An. 4. Ed. 3. Earls Barons and other of the same Parliament at the request of the Commons Statutes made at Westminster The King by the assent of the Prelates An. 5. Ed. 3. Earls Barons and other great men of the Realm at the request of his people granted and established c. Statutes made at York were enacted by the King in Parliament upon An. 9. Ed. 3. the Petition of the Knights Citizens and Burgesses Statute of Money made at York was enacted by the King with the An. 9. Ed. 3. assent of the Prelates Earls and Barons and the Commons not so much as named Statutes made at Westminster were made and established by the King An. 10. Ed. 3. with the assent of the Prelates Earls Barons and other Nobles of this Realm and at the request of the Knights and Commons Statutes of Purveyors made at Westminster were enacted by the King An. 10. Ed. 3. with the assent of the Prelates Earls Barons and also at the request of the Knights of the Shires and the Commons by their petitions put in the said Parliament Statutes made at Westminster were to the honor of God and of Holy An. 14 Ed. 3. Church by the assent of the Prelates Earls Barons and other assembled at Parliament And see almost all the Acts of Parliament in Ed. 3. his time after in Rich. 2. Hen. 4. Hen. 5. Hen. 6. Ed. 4. Rich. 3. the King always made the Law and the Lords Spiritual and Temporal did assent at the instance request or petition of the Commons or by the King with the assent of the Lords and Commons which was not or but rarely used unless in Rich. 2. his time In Hen. 7. his time the Commons got to have their assent as well as the Lords in passing Laws And this manner of passing Laws continued generally until Edward the Sixth's time where they were sometime made by the King with the assent of the Lords Spiritual and Temporal and Commons in Parliament and sometime by the Parliament But the form of enacting Laws by the King and the Lords Spiritual Temporal and Commons assembled in Parliament was seldom or never used before Queen Maries time So that it is as clear as the Sun at noon-day That a King of England Sessions of Parliaments do not derogate from Regal Power by the ancient usages of this Nation is as free and absolute in the Session of Parliament as out And the Act of a King in Parliament is the free and voluntary Act of an absolute Monarch for the Act of the King in Parliament passed by the assent of the Lords Spiritual and Temporal and at the Petition of the Commons is not less the act of the King because it is so passed unless a man will deny that my Will being a faculty of my Soul cannot imperate an act if it takes information from my Understanding or Reason Reason and Understanding being in proportion to the Will as Counsel is to a Law King Charles of Sacred memory commends to his Son the then Prince of Wales in his last Letter and Admonition to him though for his own particular he had little Reason God knows so to do the frequent use of Parliaments as the best means by which Laws may be received of the Subjects and diffused to all parts of the Nation and to hold a right understanding between the King and his Subjects But as nullum medicamentum est idem omnibus nay the same Medicine at one time may kill the same person which at another time may cure him And that thing which at one time may be a very probable reason of an action at another time may be none at all or quite contrary to Reason So in Reasons of State that may be a very probable reason at one time which may be none at all or perhaps destructive at another time As Henry the Third had great Reason of State to form a House of Commons and endue it with large priviledges to secure himself against a stubborn and rebellious Nobility But King Charles had not the same Reason of State to indulge the House of Commons contriving the destruction of himself the Church and Nobility Laws and Liberties of this Nation Edward the First had great Reason of State to call a Parliament and to pass the Act De Tallagio non concedendo for otherwise as the state of affairs then stood he could neither get money to assist his Friend and Ally the Earl of Flanders nor relieve his distressed Subjects in Aquitaine oppressed by the French King which Sir Edward Coke in his Comment upon this Statute observes but King Charles had not the same Reason of State to call the Parliament in 1640. who instead of assisting their natural Sovereign against a Rebellious Rabble of Mungrel Hebrides and Lysisks give them Three hundred thousand pounds to be exported out of the Kingdom for their Brotherly assistance Edward the First had great Reason of State to pass the Statute of Mortmaine when as men were so superstitiously given that no man thought he could merit Heaven if he gave nothing to the Church whereby such large Revenues accrued to the Church that the third part of the Revenues of the Nation was in Church-mens hands who pretending exemption from the Temporal Power if some remedy were not taken the King would probably be left destitute of means to protect himself and his Subjects yet is there not now that Reason of State when in a Sacrilegious age all the Patrimony of the Church goes to wrack and ruine and men of Badges of Sacriledge make marks of Saintship It were endless to enumerate how Reasons of State vary with the times It must suffice that there be means always in the Supream Power to remedy and cure the maladies and mischiefs of State as they arise and represent themselves Yet it is a remarkable thing That they who oblige Kings and Supream Powers to their own Laws will never be obliged by either their own or any Laws of God if ever the Supremacy comes to be vested in them and let any man shew me in Five hundred years one time wherein the Kings of England did alter the Laws out of Parliament and I will shew him an hundred times in seven years where men arrogating to themselves the name of Parliament have altered the Laws without the King They who oblige Supream Powers to Humane Laws the Conditions must oblige God too to such things as is contained in those Laws and Conditions or else it is impossible for Powers to protect their Subjects But Corruptio optimi est pessima there were never so vile things done as have been by Parliaments or by men calling themselves so Sir Edward Inst 4. page 37 38. Coke being always mightily in love with Parliaments gives instances but in two viz. Thomas Cromwel Earl of
to instance the Acts of Parliament which give one Jointenant a power to compell the others to sue a Writ of Partition which was denied at Common-Law and right of Entry where they were put to their Cui in vita c. It may suffice that in no Kings reign there have not been Acts of Parliament which have been so far from making declarations of the Common-Law that they have made manifest alterations in it And as the Common-Law hath no force nor reason against an Act of Parliament so hath no particular Custom any force or reason against it for no man can prescribe against an Act of Parliament and all Lands in Gavel-kind were particular Customs but taken away by Act of Parliament And many Acts of Parliament have not declared the Succession of the English Diadem according to the usual custom thereof but made manifest alteration thereof as in the Succession of Hen. 4. 5. 6. Rich. 3. Hen. 7. 8. which being unjust and the cause not depending upon Humane laws ought not to be obeyed Nor secondly is that a less error that Judicial Records are equivalent to Acts of Parliament for they are so far from being equal to Acts of Parliament that in truth they are no Laws but Inferences and Conclusions which are deduced from Laws For there is not any Judicial Record which is not unjust if it cannot truly and ultimately be resolved in some general or particular Custom Act of the Parliament or grant of the King So that Acts of Parliament the Common Law Particular Customs and Prescriptions and Royal Grants are as Axioms Postulata or Principles in Arts or Sciences and Judicial Records Reported Cases and Yearsbooks are Inferences Conclusions or Sciences deduced from Acts of Parliament the Common Law and particular Customs of this Land or Concessions of the King Touching Royal Government Royal Government being the ordinance of God and from the Law of Nature is paramount to all Humane laws and the prime and efficient cause of them they cannot therefore declare the cause so as to create any obligation of what they are but the effects and from whence derived We have thus far treated of the means by which the Kings of this Nation have until 1640. governed and preserved their Subjects internally But because it is the office of Kings to preserve their Subjects as well from foreign force as internal broil there is yet something wanting of which we have not treated viz. The power of making War and Peace and maintaining Alliance and Traffique Of these in regard they refer to Foreign powers and jurisdictions and are not subject to the Laws of the Nation we shall forbear to treat only affirming that it is necessary that at all times this power must be so vested in the King that at all times he may have the aids and assistance of his Subjects in prosecution of the Ends aforesaid The end of the Third Book The Contents of the Fourth Book HAving thus far treated of all created Rights and the causes of all Laws and created Powers and Vertues and these being previous and necessary to all Justice and Obedience We in this Book descend to treat of Justice in the first Chap. as the most eminent and noble of all Humane vertues it being that which not only conserves private Families but all Nations and Kingdoms in unity peace and society and demonstrate it neither to be in Geometrical proportion as Plato would nor Arithmetical proportion as Zenophon held nor in Harmonical proportion as Bodin taught Nor is that corrective and distributive Justice which Aristotle affirmed to be in Arithmetical and in Geometrical proportion The Second Chap. treats of Obedience and shews how that it necessarily proceeds and yet is different from Justice The Third Chap. treats of Judgment and shews how it differs from Law and Justice The Fourth Chap. treats of Equity and shews how it differs from Judgment and how necessary Courts of Equity as well as Judicature are THE FOURTH BOOK CHAP. I. Of Justice 1. JUstitia est habitus animi communi utilitate Cicero's definition of Justice servata suum cuique tribuens Societatem conjunctionis Humanae munifice atque aequè tuens Justice is a habit of the Minde common utility being conserved giving to every one their right and bountifully and equally Cicero lib. 1. de legibus defending the Society of Mankinde Et Justitia est quae suum cuique distribuit Justice is that which does distribute to every man what is his right Where he says That Justitia est obtemperatio scriptis legibus we will shew that is not properly Justice but Obedience onely 2. Justice is the upright doing of an act conserving Society in that Quid sit Justitia formality as it is commanded or permitted by him who by right may command or permit it Justice is the doing of a just action the doing of a just action is the upright doing of any act as it is commanded or permitted by him who by right may command or permit it preserving Peace and Society I say Justice must have these two properties viz. upright doing that is abstraction from all affections of love hate or self-interest and the Law or Command of him who by right may command or permit such an act Other actions proceeding from Wisdom Reason Experiment or Discourse c. are prudent profitable c. but none are just or honest actions which cannot be truly and ultimately resolved into the Law or Command of him who by right may command or permit such an act So Quotuplex that Justice is twofold either commanded or permitted 3. Injustice is the abuse or falsifying the Law or Command of him What is Injustice who by right commands to the hurt or prejudice of another As a Law preceding and Integrity are inseparable incidents to Justice so Hypocracy seeming just and yet abusing or falsifying a Law and the damage of another or more are incidents inseparable to injustice 4. Let us see who may by right command and who are obliged to do God commands by highest right in conformity to their Laws and Commands I say God by highest right ought to command all the created things in Heaven and Earth and all Creatures are chiefly and absolutely obliged to do whatsoever he commands without any reasoning or disputing why he so commands For the earth is Psal 24. 1. Job 41. 11. Psal 50. 12. the Lords and all that therein is the compass of the World and all that dwell therein And whatsoever is under the whole Heaven is Gods and the World is mine and the fulness thereof All Gods commands therefore have a like and equal influence upon all his Creatures all Creatures as compared to him are alike vile and between him and them is no proportion To abuse then or falsifie any Law of God or Nature to the hurt or prejudice of another is a sin of injustice in all Gods Creatures and
therefore in all men and therefore in all sorts of men As if any man promises another that he will do or give him such a thing although it be to his hinderance he wilfully breaks his promise I say this is a sin of injustice in the promiser for he abuses and falsifies the Law of Nature which obliges every man to the performance of his promise to his hinderance to whom he made his promise And though this be the Law of Nature which does onely oblige in Conscience yet is such a promiser an unjust man nor does he deserve to be trusted as a friend or honest man But this must always be understood of private men and they not pre-engaged Annot. before for the first promise is to be performed Neither must the performance of a private mans promise be to the hurt or damage of another man for by the Law of Nature he was obliged to hurt no man and to give to every man his due before he made such promise A publick person promises to another to do or give him such a thing which will be prejudicial to his trust I say he ought not to perform it for he was obliged to perform his trust before he made such promise What then does preengagement the not injuring of another or publick employment free men and let them loose from all Law of God and Nature I answer nothing less for they sin not less then private freemen in not performing their promise but commit a greater sin in breaking their first promise and betraying their publick trust c. then if they should perform their promise So that in promising they sin but in the performance they commit a greater sin 5. A King promiseth he will not hurt any of his Subjects in their persons How Kings promises are to be interpreted and performed or estates without due Process and after judgment given according to the known Laws He being a King was obliged as King to do to the best of his power all things in order to the good and preservation of his subjects in general and therefore is obliged to this latter promise onely as it is consistent with his former He ought onely to protect his subjects in particular as it does relate to the good and benefit of his subjects in general I say therefore notwithstanding any such subsequent promise is not any King obliged to it but may in case of publick necessity govern by Martial Law and destroy any particular Subjects estate rather then enemies or seditious men should make advantage thereof to the endangering of the publick Nor is this any new thing but always was in all species of Governments since the World began nor does any King sin in making such promise for he may justly do it and thereby secure the mindes of his Subjects who would otherwise be in a continual diffidence nor does he sin in not performing this promise when it becomes inconsistble with the publick good for no King can possibly foresee all the publick necessities and dangers which may happen 6. No mans being greater or lesser does free him from his duty which Injustice in Princes he owes to the Laws of God all men being alike as compared to God Kings therefore being so are not disobliged to the Laws of God and Nature It was therefore a sin of injustice in Ahab to take the possession of Naboth's Vineyard the property and inheritance of the Israelites being given by God and unalienable by the Children of Israel I say this was a sin of injustice in Ahab for his being a King did not free him from Gods Laws but did without any publick necessity abuse the power and command which God had given him as King to the damage and hurt of Naboth and his posterity Davids putting Uriah to death and Ahabs consenting to Naboth's death although after his death were sins of injustice for they were entrusted by God to be Kings for the good of their Subjects Whereas they did abuse and falsifie their trust to the highest wrong of others whom they ought to have protected Princes are Gods Ministers for their Subjects good 7. Man being a reasonable and sociable Creature which being inconsistible Rom 13. 4. Kings by right command next after God with community and parity and mankinde being onely conservable in Society that is in the mutual commanding and obeying of different parties And as God by highest right ought in all things to be obeyed so Kings ought to be obeyed next after God in all things For every Soul ought to be subject to the higher powers for there are no powers but of God and the powers that be are ordained of God And through me Kings reign Rom. 13. 1. Prov. 8. 15. and Princes make just Laws All things therefore which Princes command where God hath not left necessary Laws for the good and governing of their Subjects which he was onely pleased to do to his peculiar people the Israelites are therefore just because they command them they commanding nothing repugnant to the Laws of God 8. A Prince commands a Judge to execute the known Laws uprightly Injustice in Subjects he becomes corrupt and sells or otherwise purloyns judgment I say this is a sin of injustice in the Judge for he abuses the command of his Prince who by right might command him to the damage of another against whom false judgment is given It is an act of injustice in all Subjects in general to abuse the trust committed to them by their Soveraigns for he by right may command and entrust them nor can they abuse their trust but it must be to the damage of the Prince or some other But besides express Obedience of Subjects to their Soveraigns when they are particularly entrusted by them there is a general and implied Obedience which Subjects ow to their Soveraigns and the Laws of their Countrey as Subjects whether they be employed in any place of trust or not For subjection being in the predicament of Relation does imply a right of command and no man can be subject where there is nothing to which he is subject It is therefore a sin of injustice in any Subject to pretend or abuse any of his Countries Laws to the hurt or damage of another 9. Since therefore Kings by highest right next after God may command Highest injustice in Subjects then by consequence is that the highest sin of injustice next after Luciferian pride of Creatures making themselves equal or superior to their Creator for Subjects to tread under foot all Sacred and Civil Laws to make themselves superior to their Soveraigns to whom by all Divine and Humane Laws they ow their obedience to the ruine and destruction of so many thousands of innocent men women and children and families of all sorts which must necessarily come to pass in the attaining their ends And that Subjects do abuse all Humane Laws in pretending them to the advancing of themselves above
all Humane Laws and their rightful Superiors There neither is nor ever was any Government in the World good or bad just or unjust that did ever permit subjects without authority from it to take up arms And by our Countrey-Laws If any man levy war to expulse strangers to deliver men out of prison or against any Statute or any other end pretending Reformation of their own head this is a levying war Nota. against the King because they take upon them the Royal Authority which is against the King Inst 3. p. 9. 10. All Stipulations Oaths Promises c. made by Subjects against All Oaths Promises c. made against Prince or Laws are void Husbands by right may command their Wives their Prince or Laws are void and not to be performed for they were Subjects and obliged to their Prince and Laws before they made such Oath Stipulation Promise c. 11. God is not onely the Author of Government and Obedience of Order and Society in Nations and Kingdoms but also in Man and Wife for being reasonable and sociable Creatures does imply a necessity of mutual commanding and obeying God first created man and by so creating him gave him the power and dominion over the woman It is therefore an act 1 Tim. 2. 13. Justice and injustice in a Wife of Justice in every Wife uprightly to fulfil the Law or Command of her Husband to the benefit of him or another he commanding nothing derogatory to the Laws of God or his Countrey and a sin of injustice in the Wife to falsifie or abuse any Law or Command of her Husband to the hurt or prejudice of her Husband or another 12. God is not less the Author of Power or Right of Command in Of Justice and injustice in Wives and Children Parents then in Husbands As therefore it is an act of Justice for Wives and Children uprightly to do any act which is commanded them by their Husbands and Parents they not commanding contrary to the Laws of God or their Countrey so it is injustice in Children as well as Wives to falsifie any Command or Law of their Parents to the hurt or prejudice of another 13. Suppose the Father and the Husband command the Wife contrary Whether the Wife ought to obey the Father or Husband things whereby it becomes impossible that the Wife should serve both Which ought she to serve I say the Husband For though the Fathers power be from God and so inseparable by any act of Man yet is not God obliged to his own Laws but may give that which he gave the Father to another And Matrimony being an Institution of God in Paradice and the Husbands power from the Law of Nature that is from God the Wife becomes subject to her Husband retaining notwithstanding her piety and observance which is always due to her Father 14. All Societies that is all companies of Men whether of Master Masters of Families by right command their Servants Cicero lib. 1. de leg and Servants of Father and Children of Husband and Wife of King and Subjects are contained in the mutual Offices of commanding and obeying It is true that Cicero says Cum dico legem à me dici nihil aliud intelligi volo quam imperium sine quo nec domus ulla nec civitas nec gens nec hominum universum genus stare nec rerum natura omnis nec ipse mundus potest Where therefore the Laws of Nature are not sufficient there must be a supply of Humane Laws Object We have shewed before that the Power or Right of Command which Kings have over their Subjects which Husbands have over their Wives which Parents have over their Children is from the Law of Nature that is from God immediately I say they command by the Law of Nature For all right of command which is not from any Humane Law is from the Law of Nature but Kings Parents and Husbands have a right of command and not from any Humane Law they have it therefore from the Law of Nature Sol. But though Masters of Families have a right of command over their Servants yet formally they do not command by the same right that Kings Fathers and Husbands do For I deny that ever any Master of a Family had his power from any Law of God I except the Israelites or Nature but that ever since there were Families the Masters or Mistresses of the Families derived and had their power or right of command over their Servants from their Countries Laws If Adams Family be objected I say that Adam commanded not as Master of a Family onely but as a Universal Monarch not onely over all the Creatures irrational that God had made but also over his Wife and Posterity as King and not as Father and Husband onely For no Father or Master of a Family can create any property in his Son or Servant nor had ever any Subject who was not an Israelite property from any Law of God or Nature But it is evident that Cain had property in the Fruit of the Gen. 4. 3 4. Ground and Abel in his Flocks they therefore derived it from Adam as King 15. Since Humane Laws are necessary for the conservation of all Of Justice and injustice in Servants Societies of Men and the Masters power not being contrary to any Law of God or Nature the Master of every Family hath right of command over his Servants by the Laws of his Countrey he commanding nothing repugnant to the Laws of God or his Country It is therefore Justice in every Servant uprightly to execute such commands of their Masters and injustice to falsifie or abuse such commands to the hurt or prejudice of another 16. Suppose the Father makes his Son a Servant for every Father hath Whether the Son ought to prefer the commands of of his Father or Master the same right over his Childes person that a King hath over his Subjects and the Father and Master command the Son contrary things Which shall the Son serve I say the Fathers power being from the Law of Nature and so inseparable by any act of Man the Son ought to serve the Father but the Father being as much in the power of his Soveraign as the Son in his Fathers the Father shall make good to the Master whatsoever he shall be damnified by such command the Laws of the Fathers Countrey obliging Subjects to perform their Contracts 17. Suppose the Master command contrary to the Laws of God or his How far the Servant owes his Master subjection Country and the Servant executes such command shall this excuse the Servant No for being a Servant does not free him from the obligation of the Laws of God or his Country as a Subject Well but if the Master commands upon corporal punishment for the Masters power obligeth to corporal punishment to do something contrary to the Laws I answer That jus vitae necis which Masters had
over their Servants is generally restrained every where as well among Mahumetans as Jews and Christians where men are of the same faith So that Masters cannot put their Servants to death as Masters for any crime If they otherwise punish them unjustly the Servants have their remedies by the Laws of their Country Object 1 But who shall judge whether this be contrary to the Laws of God or his Country the Master or the Servant I say not the Servant Object 2 But if the Servant may not judge yet has he not a Conscience as well as his Master I answer That Ignorance and an ill-set Conscience excuseth no more from doing what he ought and Servants actions in general ought to be done about the Masters persons or affairs in which it is a very hard matter for the Master to command any thing contrary to the Law of God or his Country But if the Master does command his Servant to do any act in prejudice to another if it be not so much as the Master cannot make satisfaction as to kill or maim another the Laws do make a favorable construction of what is done by the Servant as Servant and punish the Master as commanding and not the Servant as doing in order to such commands In a Masters commands to a Servant is usually implied a Warranty which secures the Servant for doing what he commands him 18. It is Injustice in any man to tell another that he gave such a price Injustice in Commutation for such a commodity whenas he gave not so much thereby to deceive another who believes him and gives him thereafter to a greater value then the thing is worth I say this is a sin of injustice in the Seller for in Lying he did falsifie the Law of the God of Truth to the damage of the Buyer 19. In Justice commanded no man ought to do more or less but to the Of permissive Justice in a King utmost of his power ought to do what is commanded him in that formality as it is commanded In Justice permissive it is not always so but the utmost or rigid exacting of what is permitted is highest injury As a King is permitted to execute his Laws but the rigid executing of all Laws against all Offenders at all times without any consideration of inability or other circumstance of person time or place is highest injury to his Subjects For it is impossible though Laws should be general and not respect the persons but the good of the Subjects that all Laws can at all times be alike observed by all Subjects And therefore though it be permitted to a King to execute all his Laws or else he should have none to be executed yet in the execution of them he ought to weigh circumstances of person time and place whether it were the malice or defence of the person offending or whether he were able to fulfill such Law or not c. Or otherwise Summum jus est summa injuria 20. As a King so ought not a Subject rigidly to exact of another In a Subject whatsoever is by Law permitted him at all times As a Tenant by sterility of the year inundation of waters c. is so damnified that he is not able fully to satisfie his Landlord but to his utter ruine I say in such case the Landlord ought to remit of what by rigor of the laws he might justly take Or if in such case the Landlord shall rigidly exact his utmost due to his Tenants ruine when it is not the Tenants fault such exaction such summum jus est summa injuria A man is permitted to sue any man for triflings tres passes of pedibus ambulando c. yet if upon all occasions a man shall sue every man that steps out of the footpath such a man will be counted a wrangling knave and such suing summa injuria Yet is not the Law in fault but the men for if it were not permitted to men to exact their rents and sue for small trespasses then would no Tenant pay rent nor should any man be secure of enjoying what he is possest of 21. It is true that Aristotle says That he is a just man that keeps the laws Who is a just man Eth. lib. 5. cap. 2. 3. and that he is an unjust man who commits contrary to laws and that therefore one Justice contains all other virtues God having made Man as well a sociable as reasonable creature and a free Lord of all his actions whose will may freely imperate his actions not as it is with irrational creatures whose objects determine their actions as he pleaseth neither did ever yet in this world any man do any act virtuous or vitious but it was freely in his own choise whether he had done it or not And by making him sociable made him more excellent then the other creatures of this orb We do not therefore look for Justice in so large a sense as Aristotle here takes where every particular or personal virtue may be taken for Justice 22. We take that virtue to be Justice which conduceth to the preservation The excellency of Justice of Society for other personal virtees as Temperance Chastity Frugality c. although not as virtues yet may they be found in other creatures which is only proper to Man and wherein Man does excell all other creatures And no question but that the meanest Servant uprightly and conscientiously performing the trust and command which his Master commands him is as just and honest a man as the greatest man whatsoever 23. Nor is it less true that Aristotle says That he that commits any Who is an unjust man thing against the Laws is an unjust man and so the commission of any thing against the Laws is a sin of injustice and every sin a sin of injustice But by reason of humane frailty it is very difficult if not impossible for the most just man not to be an unjust man where injustice is taken in such a latitude And in this sense the most just and righteous Subject that ever was stands in need of Gods mercy and the Kings But the injustice we look for we take in a more restrained notion not every unlawful act done upon ignorance or passion c. but where men premeditately and wilfully make the laws of God or man a cloke and pandar to shelter and hide their unjust and illegal actions They that tread under foot all Sacred and Civil sanctions intended for the conservation of peace and society among men to set up themselves above all laws of God or man and to make way for their own lusts in stead of Divine and Humane laws They who the Prophet David says imagine mischief as by a law Such men such actions are Psal 94. 20. most properly unjust men and acts of injustice 24. Injustice differs from Injury only in agencie and patiencie in him How Injustice differs from Injury who does and in
as Judicial The end of the Fourth Book The Contents of the Fifth Book HAving before treated of the Causes of all Regal and Ecclesiastical power and having in the last Chapter of the Third Book treated of the Laws and Civil Government of this Nation being the exercise of Regal power in reference to the publick preservation of Peace and Society in it In this First Chap. we shall treat how far Ecclesiastical power has been exercised in this Nation and by whom Whether originally the Britanick and English-Saxon Churches were free or subject to the Papal power quoad exercitium And whether as well before the Conquest as after the Kings of this Nation were not Nursing Fathers to the Church of Christ And whether always before the Conquest the Royal Government did not extend as well to the Persons as Possessions of Ecclesiastical persons And whether all Bishopricks were not originally of the Kings foundation In the reciting the Ecclesiastical Laws made by the Kings and Queens of this Realm we shall observe three periods viz. The Ecclesiastical Laws made by the Kings of England before the Conquest The Laws made by the Conqueror and subsequent Kings until Henry the Eighth And lastly the Laws made by him and the Kings and Queens after him until the end of King Charls his Reign Note good Reader that in the reciting of these Laws I do not affirm that these Laws made by the Kings of this Realm did never incroach upon that Ghostly power which our Saviour by Divine positive institution left only to his Church and therefore make no construction upon them but only when they are recited and objected as Authorities against that Power My designe is to shew having already demonstrated that by the Law of Nature the persons of all Subjects born in the dominion of rightful Kings are their natural Subjects which is an indelible character and can never be washed out and therefore Subjects being Ecclesiastical persons cannot free them from it And that all priviledges and endowments which Ecclesiastical persons enjoy besides their ghostly power is created by the King That the exercise of the Kings power over the persons and possessions of Ecclesiasticks as also Laws made by them for the order and preservation of the extern peace of the Church is no new thing as hath been by some objected THE FIFTH BOOK CHAP. I. How far the Kings Popes and Bishops of England have exercised their Spiritual Jurisdiction in England before Henry the Eighth IT cannot sure be reasonably denied Apology by any man but that Ignorance is the mother of all Error nor is any man better in any kind whatsoever for being innurtured or ignorant We daily see no where more feuds If learning or knowledge were the cause of dissentions or distractions how then comes it to pass that all dissentions are determined by learned and knowing men or else they would be endless and dissentions then among ignorant and mean men which were there not Laws to decide their difference would be endless and Mankind left in a worse condition then any other creatures Nor is Education and Learning any cause of the dissentions and debates which arise among learned and better educated men but some internal cause proceeding from pride or some other appetitions or affection in them And though Education and Learning does not totally alter mens natures from bad to good yet does it soften mens manners and makes them not to be so bruitish as those who are destitute of Learning and Civil breeding For Didicisse fideliter Artes Emollit mores nec sinit esse feros It is true indeed that in that state in which God hath placed all men here they do not see all things truly but men are and always were and will be subject to humane error and frailty and in many things notwithstanding all the arts and helps which can be devised men will never be reconciled But that men should therefore condemn all Science and Learning is like to a man that if he sees and hears not all things distinctly and clearly although it may be he sees and hears well enough to do things which are necessary for his conservation that therefore he will put out his eyes and have his ears always stopped Nor shall ever ignorance of any mans duty totally excuse him for his not observance of Laws be they Divine or Humane Nor shall the blind belief of Subjects in their Superiors whether Ecclesiastical or Temporal ever totally excuse them from those things which are due and they believe that they owe to God I am not so very a Hobbian as to believe that it is impossible for Supreme powers to command any thing contrary to the Law of Nature nor yet so very a Papalian as to think that the Pope is infallible Especially since it is evident that Aarons joining with the people in their idolatry did not excuse Exod. 32. the Israelites of old nor did the command of both King and Priests ever under the Old Law excuse the subject Israelites from Gods judgments upon them for their idolatry Nor is this very opinion of them in the Church of Rome of the Popes infallibility believed by themselves however urged against others who are not of her communion For then were not only General Councils supervacaneous and useless things but also there could be no difference among them which is superior a Pope or General Council Nor do they less deny it in their practice then their opinion For when Sixtus Quintus had excommunicated 9 Sept. 1585. the King of Navar and Prince of Conde and as he affirmed made them uncapable of succession to the French Monarchy yet were most part of the French troubled at it doubting the Priviledges of the Gallic Church would be trodden under foot which they needed not have doubted or feared if they had believed the Pope to have been infallible and all the Parliament of Paris who were all of the Church of Rome desired the King Henry the Third to have the Bull torne in pieces as you may read Davila 575. And the Parliaments of Chalons and Tours did not only decree the Bull of Gregory 14. to the Prelates and Catholiques of the Kings party under pain of Excommunication of being deprived of their Dignities and Benefices and of being used as Hereticks and Sectaries that within a certain time they should withdraw themselves from those places that yielded obedience to Henry of Bourbon and from the union and fellowship of his Faction to be publikely burnt but it was so far rejected and scorned by the very Prelates and all other Catholiques of the Kings party that it did extreamly confirm them all in the Kings obedience being before unsetled and inclining to the Cardinal of Bourbons faction as you may read more at large in the Twelfth book of Davila's History But it may be they will say That this was not in matter of Faith and that the Popes infallibility is affixed to Faith
Yet this can be no objection by those men who ascribe all infallibility to the Pope and that all his Acts and Decrees are to be received and obeyed by an implicite faith as Divine oracles Well but suppose these determinations of the Pope were not concerning matters of Faith as no doubt they were not then how comes the Pope because he is infallible in the Faith that he takes upon him to be Judge and Determiner of those things which no ways appertain to it but are as much where Christianity is not planted as where it is Object Yet it will be objected That if the Church be not Judge of what conduceth to the peace and safety of the Kingdom and Church then who shall and so farewell to all Government and peace in Church or State But before I answer this Quaere I would be resolved one Question or two Who shall be Judge whether the Pope or a General Council be superior Who shall judge whether in any Determination of the Popes it be concerning matter of Faith or not or whether it be determined in Gathedra or not In the many Schismes of the Papacy who should judg who was the true Pope or who shall judg whether Alexander the tenth be now the true Pope or who ever gave the Cardinals who were an humane institution many hundred years after our Saviour this power of Election of the Pope that whosoever they should so elect should be universal Bishop and St. Peters successor Although I might justly insist hereupon nor can these things upon these mens principles who maintain the Popes infallibility at least in my understanding be solved and so are they for all their boast of unity among themselves in as much confusion and dissention even in their very principles as other men yet am not I ashamed to give an account of my obedience both to my Church and King Answer I say that God hath made man a sociable intellectual and reasonable creature and endewed him with an immortal soule potentially capable of eternal happiness Nor will God be served by man having so made him only by a base servile feare and without the intellectual and rational faculties of the soule and therefore has engraven by nature in the heart of every man certain rules by which he is to direct his actions which are the first principles and foundations upon which I honor my Parents King and them who are set over me for my direction in order to my eternal good And although that out of the Church and not being preserved by humane Laws I can neither hope for safety in this world nor salvation in the world to come yet who he is from whom all humane Laws are derived or what is the Church in which I must hope for salvation there is no visible Judge under Heaven but only mens consciences to direct them viz. those directions which God either by nature has given to men or revealed supernaturally in the Scriptures Nor does a mans conscience thus informed leave him after it be informed who it is from whom he ought to expect protection and to whom he owes his obedience as well spirituall as temporal for though there be no visible means for men to hope for peace in Church or State yet does it not follow that by all men all things which may be commanded for the Laws of the Church and State are to be observed as the Laws of Church and State as if the Church command men to worship Images or any creature for the Creator which under the old Law it many times did nor do I understand how it can be excused in the Church of Rome or if men be commanded by higher powers immoral things as to dishonor them or their Parents or whenas temporal powers command things plainly derogatory to the ghostly power of the Church or the Church commands things contrary to the duty men owe to their King and Country which we daily see both the one and the other do which makes some men in their passion ultimately resolve their Temporal and Ecclesiastical obedience into the Church others into the secular power and many deny all obedience to either and set up themselves or something else in stead of either But though mens affections carrie them several waies yet ought not all reason therefore and conscience to forsake all men for although I ought not to judge either King or Church if they command any thing they ought not yet have I and every man else a conscience to direct them whether I ought to do all things whatsoever commanded by King or Church Nor ought men to be frighted out of their consciences viz. the Law of God by nature informing them or his Law supernaturally revealed by his grace directing them because a perverse company of Schismatical and seditious men have abused all Temporal and Ecclesiastical Laws and Powers by pretending conscience Nor will a blind obedience in all things to the Church of Rome cause unity and peace among Christians although it be so much magnified by them for let any man read the lives of H. 4. 5. 6. and 7. and Frederick 1. and 2. Emperors whenas the whole Empire was of the Roman Catholick Religion and see if ever greater broyles were in the Christian World and let them judge whether Obedience to the Popes by so great a part of the Empire were not the cause of them or whether all the Wars in Christendom caused by Boniface the eight and Julius the second were not against Christians in the communion and form of the Church of Rome But where secular or ecclesiastical Laws do plainly command things not plainly derogatory to Gods Law for where they do God is in all things to be obeyed before man so as it is doubtful whether they do repugne Gods Law or not then certainly the best way is to submit to them for a mans conscience wrong informed does not excuse him from any Article of his duty and if it may be the Laws do repugne Gods Law it may be they do not and in controverted and doubtful cases the Law is alwaies presumed to be on the Governors part Nor shall any mans conscience ever excuse him if the Laws either of Church or Country do command things repugnant to Gods word from the duty and obedience he owes to them in all things where they do not repugne it Nor does it free any man from his subjection to higher power but where he cannot submit he ought to suffer And no question that where two evils unavoidable happen the least is to be taken as if a man in the communion of the Church of Rome be reduced to that necessity of simply conforming himself to all things used in the Church of Rome although his conscience cannot digest many things or be excluded out of the visible Church of Christ he had better be of such a Church then of none at all Sure God never affixt such infallibility to men how great or good soever
their submission to the Church of Rome But on the contrary when Austin first arrived in England he stayed in the Island of Thanet until he knew the Kings pleasure and offered not to preach in Kent until he had the Kings licence to preach throughout his Dominions c. Neither was there any Appellant from the Conversion of the English he says to Rome until Wilfrid Archbishop of York who notwithstanding pag. 60. that he gained Sentence upon Sentence at Rome in his favor and notwithstanding that the Pope did send express Nuntio's into England on purpose to see the Sentence executed yet could he not obtain his restitution or benefit of his Sentence for six years during the reigns of Egbert and Alfred his son yea Alfred told the Popes Nuntio's expresly That he honored Spelm. concil an 705. them as his Parents for their grave lives and honorable aspects but he could not give any assent to their Legation because it was against reason that a person twice condemned by the whole Council of the English should be restored upon the Popes Letter And after he says That after Alfred and pag. 62. Theodore were both dead Theodore was the Archbishop of York that opposed Wilfrids Donation from the Pope and continued it so long as he lived we find the Sentence of the Pope and Wilfrids Restitution still opposed by the surviving Bishops in Alfreds Sons reign c. Neither were there any Appeals to Rome from that time until after the Conquest in the reign of Henry the First by Anselm Archbishop of Canterbury 8. See Comment Lit. sect 648. pag. 344. where it appears by our All Bishopricks were of the Kings foundation originally and donative books and divers Acts of Parliament that at first all the Bishopricks in England were of the Kings foundation and Donative per traditionem baculi id est the Crosier which was the Pastoral staff annuli the ring whereby he was married to the Church King Henry the First being requested by the Bishop of Rome to make them elective refused it But King John by his Charter bearing date quinto Junii anno decimo septimo When they became eligible and by what power granted that the Bishopricks should be eligible So that all Bishopricks were not only at first of the Kings foundation and Donative but afterwards became eligible from no other cause but the Kings Charter 9. That the sacred character of Priesthood does not free men from The Kings of England before the Couquest did exercise their Regal power over all persons in all cases the subjection due to the Laws of their Prince and Country is not only evident by many examples in Sacred Writ and by almost infinite precepts and examples of Gospel and holy Martyrs in primitive times but also by a concurrent consent of all Histories where Christianity hath been planted And that these powers have been justly exercised by the Kings of England before the Conquest among the many Laws of Ina Withred Alfred Edward Athelstan Edmund Edgar Athelred Canutus and Edward take these of Canutus Si quis sacra tenens pejerasse convictus fuerit ei manus praeciditor ni dimidiatam Lambert Saxon laws lex 33. f. 113. sui capitis astimationem domino atque episcopo dependerit neque vero deinceps qui juret dignus putandus est nisi quidem Deo cumulatè satisfecerit atque ab ejusmodi in posterum nefario scelere abstinendi fidejussores admoverit If any in Holy orders be convict of Perjury let him be branded on the hand unless he shall pay to the King and Bishop half the price of his head Neither shall he afterward be esteemed worthy to take an Oath unless he shall have abundantly satisfied God and shall have given Sureties that afterward he shall abstain from such wickedness Si quis eorum qui arae deservierint alicui mortem obtulerit omni cum divini lex 36. 114. tum humani juris patrocinio excludatur nisi quidem cum exilio cumulatè id sceleris compensarit atque caesi etiam cognatis satisfecerit aut saltem una cum hominibus qui jurent idoneis omnem criminis suspicionem diluerit Hanc vero quae Deo hominibus debetur compensationem intra ter denos idque cum fortunarum suarum omnium discrimine dies aggreditor If any one who serves at the Altar shall kill any man let him be excluded from the protection of Divine and Humane laws unless with his banishment he may abundantly satisfie that wickedness and shall also give satisfaction to the kindred of him who is killed or at least together with sufficient men who shall give Law-gager their oaths shall wash away all suspition of the crime And let him go in hand to make this compensation which is due to God and men within thirty days and that upon the forfeiture of all his fortunes Si eorum qui arae deservierint aliquis hominem occiderit aut insigne aliquod lex 38. ibid. perpetrarit flagitium gradu honore dispoliatus proinde atque ei Papa circumscripserit habitandi locum exulato ac cumulatè compensato Sin is crimen fuerit inficiatus excusatio tripla esto Atque in hanc quae Deo hominibus debetur compensationem intra ter denos aggrediatur dies ab omni legis commoditate destitutus habetor If any one who serves at the Altar shall kill a man or commit any foul offence despoiled of his honor let him be banished the place of his habitation and make abundant satisfaction yea though the Pope make it void But if he deny the crime let his excuse be threefold and if within thirty days he does not endeavor to give this satisfaction which is due to God and man let him be outlawed Si quis sacris inauguratus rei capitalis obnoxius extiterit comprehenditor lex 40. 115. atque ut tandem episcopo criminis admissi poenas dependat asservator If any one in Holy orders be guilty of any capital crime let him be apprehended and fafely kept until he be punished by the Bishop for the crime committed Si quis sacrum ordinem atque vivendi formulam commutarit pro ipsa lex 46. 116. ordinis dignitate sive capitis aestimatione mulcta legis violatae poena sive rebus suis omnibus compensato If any one shall change his holy order and form of living for the dignity of the order or price of the head let him be fined for punishment of the violation of the Law or forfeit all he hath But how far this good Prince was from having any spight to Holy Orders or men separated to the Worship of God and Service at the Holy Altar he does enact Siquis sacris initiatus incoláve in iis quae ad fortunas Law 37. fol. 114. vitamve ejus spectarint decipiatur tum ei rex ni is aliunde habuerit loco Patroni cognatorum esto Fraudator
the Lord of the Ground go with the Priest and without thanks take away and restore to the Church what shall belong to it and leave the Ninth part to him who would not pay the Tenth let them divide the rest into two parts let the Lord have one half the Bishop the other be he a Kings man or another Romfeath ought to be restored upon the Feast of St. Peter in bonds he who shall keep it beyond that time let him restore that penny to the Bishop and thirty pence let him add to the King 50 s. Who shall keep Cherisceat beyond the Feast of St. Martin let him restore it to the Bishop and pay eleven fold and to the King 50 sol Who married shall commit adultery let the King or Lord of him have the superior the Bishop the inferior Who shall commit perjury upon holy things * * Laying his hand upon the book I think let himlose his hand or half his were viz. half the Cap. 11 price of his head and this is common to his Lord and the Bishop Who shall bear false witness let him not afterwards be admitted for witness but restore to the King or the Lord of the Soyl Helfeng ' * * Neither Mr. Lambert nor Whelock give any construction of Helfeng that I can finde Who shall kill a man in Orders or malign him let him make him amends as is right and the amends of the Altar according to the dignity of his Order to the King or Lord sufficient breach of the peace or deny it with full purgation Plena lada neget If any man guilty of death desires confession let it never be denied him but if any man shall do it let him pay the King one hundred and twenty shillings or swear with five men that he did it not If a free-man work upon Holy days let him amend his helfeng and at least diligently make composition with the Lord. If any man by force holds the Rectitudes of God Rectitudines Dei let a Dane pay lahite an Englishman full witam or deny it with eleven * * Or twelve in Mr. Seldens Ms and Mr. Whelocks if he should there wound any man let him amend this and restore full witam and redeem his hand of the Bishop or lose it If he kill a man let him be outlawed and every man that desires right follow him with clamor if it comes to pass that he be killed by this that he resisted right if this thing be verified let him be unrevenged He who shall make a breach of his Order let him amend it according to the dignity of the Order wera Wita Lahilita * * Lastita Mr. Seldens Mr. Whelocks Ms and with all mercy Let every widow be without a husband twelve moneths afterwards she may choose whom she will and if within a year she take a husband let her lose her Morgangifan * * Dower and all her money which she had from her first husband and let her husband forfeit to the King the price of his head or to whom the King shall grant it If a man unjustly hold a fugitive of God let him restore him to right and pay to him whose he shall be and satisfie the King according to Legergild If any man hath a man excommunicated or keep him outlawed and all his forgiveness and all amendment commonly made better by Christ and the King is utterly lost wheresoever the Law of God shall be refused to be justly kept according to the word of the Bishop and it will be expedient that he be compelled by the Secular power Because Justice and Secular distriction are necessary for the most part in Divine Laws and Secular Institutes for that otherwise many men cannot be recalled from their ill ways many will not be inclined to the worship of God and observance of the Law from whence by the much infesting of ill men it is provided for the profitable dispensation of peace that the more weighty pleas and things more to be punished be brought to Justice alone or the mercy of the Prince that pardon may be more abundantly had to men desiring it and punishment to sinners but in causes which may be amended for the compassion of the Saints it is permitted that the earthly Lords by their leave may presume to take pecunial amends according to the Law of the Countrey Of the kindes of Causes Cap. 21. There are also some kindes of Causes put before as we have said to be more freely expedited in the amendment of which the King does more particularly communicate wheresoever they are done in Divine or Secular things over Kings men and Ecclesiastical and of Barons men and he hath totally or particularly * * Or acephalos âcefalos pauperes sive socham of which are Adultery Fornication homicide in a Church breach of the peace or order or Christianity or Legality if it be needful to be done by the Secular power that right may be done De Christianâ consuetudine locutionum secundum quod sunt 64. Towards the latter end interline 25. and end A Priest who leads a regular life in a simple accusation may swear alone in a threefold with two of his Order a Deacon in a simple compellation may accompany himself with two Deacons in a threefold with six A Countrey Priest may purge himself as a regular Deacon a Priest accused by his Bishop or Archdeacon may swear himself the sixth of lawful Priests as they are prepared at Mass Of killing a Minister of the Altar 66. If any should kill a Minister of the Altar let him be outlawed before God and man unless he repent with worthy satisfaction and justly compound with his parents or throughly deny it with purgation of his head * * Werilada and begin this within thirty nights before God and man above all he hath If any Minister of the Altar kill any man or if it be extraordinarily declared by bad actions let him be both deprived of his Order and go on Pilgrimage as the Pope shall enjoyn him and amend the work But if he will purge himself he may do it triply but unless he shall begin this within thirty nights let him be outlawed before God and men If any man any ways afflict any man Ordained with stripes or bonds let him make him amends as is meet and to the Bishop the amends of the Altar according to the dignity of his Order to the King or Lords sufficient breach of the Kings peace * * Mundbrecho or deny it with sufficient purgation * * Plenlada If any man condemned to death desires to be confessed let it never be denied him but if any man should deny him let him give the King in satisfaction one hundred shillings or swear with six men that he did not do it If any man by force takes away Gods rights let a Dane amend with Lah sliht full Wytam with
Item Whereas Commissions be newly made to divers Justices that 6. they shall make enquiries upon Judges of the holy Church whether they made just proces or excessive in Causes Testimentary or other which notoriously pertaineth to the cognizance of holy Church the said Justices have enquired and caused to be Indicted Judges of the holy Church in blemishing of the Franchise of the holy Church That such Commissions be repealed and from henceforth defended saving the Article in Eyre such as ought to be No Scire facias shall be awarded against a Clerk for Tythes Item Whereas Writs of Scire facias have been granted to warn Prelates 7. Religious and other Clerks to answer Dismes in our Chancery and to shew if they have any thing or can any thing say wherefore such Dismes ought not to be restored to the said Demandants and to answer as well to us as to the party to such Dismes That such Writs from henceforth be not granted and that the proces hanging upon such Writs be annulled and repealed and that the parties be dismissed from the Secular Judges of such manner of Pleas saving to us our right such as we and our ancestors have had and were wont to have of reason In witness whereof at the request of the said Prelates to these present Letters we have set our Seal Dated at London this 8th of July the year of our Reign of England 18. of France the 5th In the Reign of Ed. 3. 16 Ed. 3. tit Excom 4. An Excommunication by the Archbishop albeit it be disannulled by the Pope or his Legats is to be allowed neither ought the Judges to give any allowance of any such sentence of the Pope or his Legat. It is often resolved that all the Bishopricks within England were founded In the Reign of Ed. 3. by the Kings Progenitors and therefore the Advousons of them all belong to the King and at first they were Donative and if that any incumbent of any Church with cure die if the Patron present not within six moneths the Bishop of that Dioces ought to collate to the end the Cure may not be destitute of a Pastor if he be negligent by the space of six moneths the Metropolitan of that Dioces shall confer one to that Church and if he also leave the Church destitute by the space of six moneths then the common Law gives to the King as Supream within his own Kingdom and not to the Bishop of Rome power to provide a competent Pastor for that Church The King may not onely exempt any Ecclesiastical person from the Jurisdiction 17 Ed. 3. 23. of the Ordinary but may grant him Episcopal Jurisdiction And thus it appears there the King had done of antient time to the Arch-Deacon of Richmond This resolution is not grounded upon any Custom or Law but onely upon a particular fact of a King à facto ad jus non valet argumentum All Religious or Ecclesiastical Houses whereof the King was Founder are by the King exempt from Ordinary Jurisdiction and onely visitable and 20 E. 3. Excom 9. 19. Ed. 3. corrigible by the Kings Ecclesiastical Commission This resolution too is onely grounded upon matter of Fact and what man will warrant all the Facts of Kings not to be repugnant to the Laws of God and man Yet shall not these men in other things of much less moment allow the Kings Proclamations to be Legal nor any thing less then the Commons Law or Acts of Parliament The Abbot of Bury was exempted from Episcopal jurisdiction by the Kings Charter This is nothing neither but matter of Fact 20 Ed. 3. tit Excom 6. The King presenteth to a Benefice and his presentee was disturbed by one who had obtained Bulls from Rome for which offence he was condemned 21 Ed. 3. 40. fol. 40. to perpetual imprisonment c. Tythes arising out of any parish the King shall have for that he having the Supream Ecclesiastical jurisdiction is bound to provide a sufficient Pastor 22 Ed. 3. l. 1. Ass pl. 75. that shall have the cure of souls of that place which is not within any parish And by the common Laws of England it is evident that no man unless he be Ecclesiastical or have Ecclesiastical jurisdiction can have inheritance of Tithes The King shall present to his free chappels in default of the Dean by 27 Ed. 3. fol. 84. lapsin respect of his supream Ecclesiastical jurisdiction And Fitz Herbert saith that the King in that case does present by laps as Ordinary Fitz nat Br. 34. Au Excommunication under the Popes Bull is of no force to disable any man within England and no suit for any cause though spiritually rising in 30 Ed. 3. lib. Ass pl. 19 c. this Realm ought to be determined in the court of Rome In an Attachment upon a Prohibition the Popes Bull of Excommunication of the plaintiff was adjudged insufficient 21 Ed. 3. tit Excom 6. 33 Ed. 3. tit Agel de Roy. 38 Ass pl. 20. Reges sacro Oleo uncti sunt Spiritualis jurisdictionis capaces A Prior which is the Kings Debtor and ought to have Tithes of another spiritual person may chuse either to sue for substraction of his Tithes in the Ecclesiastical court or in the Exchequer Fitz Herbert in his N. B. fol. 30. holceth that before the St. 18 Ed. 3. Cap. 7. the right of Tithes were determinable at the temporal courts at the election of the party And the courts of divers Manors of the Kings and other Lords in antient times had the probate of last Wills and Testaments and it appeareth by 11 H. 7. fol. 12. That the probate of Wills and Testaments did not appertain to the Ecclesiastical courts but that of late time they were determinable there The King by his Charter did translate Canons secular into regular and 38 Lib. Ass pl. 22. 46 Ed. 3. Proem 6. religious persons Nicholas Moris elected Abbot of Waltham which was exempt from ordinary Jurisdiction sent to Rome to be confirmed by the Pope who not having regard to the said Election gave to the said Nicholas the said Abby with all the said Spiritualities and Temporalities the Bull was adjudged against the Laws of England and the Abbot for obtaining the same was fallen into the Kings mercy whereupon all his Possessions were seised into the Kings hands Where the Abbot of Westminster had a Prior and Covent who were Regular 49 Ed. 3. lib. ass pl. 8. and mort in Law yet the King by his Charter did divide that Corporation and made the Prior and Covent a distinct and capable body to sue and be sued by themselves It was Enacted by the whole Parliament That as well they who obtained St. de 25 Ed. 3. de Provisoribus provisions from Rome as they that put them in execution should be out of the Kings Protection and that a man might do with them as enemies to the King c.
Court in the conusance of Heresie but onely for the punishment of Heresie adjudged in the Ecclesiastical Court and all men know that it is the Temporal not Ecclesiastical power although it may be executed or pronounced by Ecclesiastical persons that punisheth men for Spiritual Crimes The Pope cannot alter the Laws of England The Judges say that the Statutes which restrain the Popes provisions 11 H. 4. 37. 11 H. 4. fol. 69. 76. to the Benefices of the Advowsons of Spiritual men were made for that the Spiritual durst not in their just Cause say against the Popes provisions so as those Statutes were made in affirmance of the common Law Excommunication made by the Pope is of no force in England and the same being certified by the Pope into any Court in England ought not to 14 H. 4. fol. 14 c. be allowed neither is any Certificate of any Excommunication available in Law but that which is made by some Bishop in England for the Bishops are by the common Laws the immediate Officers and Ministers of Justice to the Kings Court in Causes Ecclesiastical If any Bishop do Excommunicate any person for a cause that belongeth 14 H. 4. 14. not to him the King may write to the Bishop and command him to assoyl and absolve the party If any person of Religion obtain of the Bishop of Rome to be exempt St. 2. H. 4. Cap. 3. from obedience regular or ordinary he is in case of a Premunire which is an offence as hath been said contra Regem coronam dignitatem ejus Upon complaint of the Commons of the horrible mischiefs and damnable customs which there were introduced by the Church of Rome that no St 6. H. 4. Cap. 1. person Abbot or other should have any provisions of Archbishoprick or Bishoprick which should be void till he had compounded with the Popes Chamber to pay great and excessive sums of money as well for the first fruites of the same Archbishoprick or Bishoprick as for the other less services in the said Court and that the said sums or greater part thereof be paid beforehand which sums passed the double or treble of that that was accustomed of old time to be paid c. It was therefore Enacted That they and every of them that did pay greater sums then had of old time been accustomed to be paid into the said Chamber should incur the forfeiture of as much as they may forfeit to the King No person Religious or Secular of what estate or condition that he St 7. H. 4. Cap. 6. were by colour of any Bulls containing Priviledges to be discharged of Tythes appertaining to Parish-Churches Prebends Hospitals Vicaredges Purchased before the first year of King R. 2. or after not executed should put in execution anysuch Bills so Purchased or any such Bulls to be Purchased in time to come upon pain of a Premunire In the Reign of Hen. 5. In an Act of Parliament made in the third year of Henry 5. it is Declared ãâ¦ã H. 5. âââ 4. â That whereas in the time of H. 4. father to the said King the seventh year of his Reign to eschew many discords and debates and divers other mischiefs which were like to arise and happen because of many provisions then made or to be made by the Pope and also of licence thereupon granted by the said King among other things it was Ordained and Established That no such Licence or Pardon so granted before the same Ordinance or afterwards to be granted shall be available to any Benefice full of any Incumbent at the day of the date of such Licence or Pardon granted Nevertheless divers persons having provisions of the Pope of divers Benefices in England and elsewhere and Licenses Royal to execute the same Provisions have by colour of the same Provisions Licenses and acceptations of the said Benefices subtilly excluded divers persons of their Benefies in which they had been incumbents by a long season of the collation of the very Patrons Spiritual to whom duely made to their intent to the final destruction and enervation of the Estates of the same Incumbents The King willing to avoid such mischiefs hath Ordained and Established That all the Incumbents of every benefice of Holy Church of the Patronage Collation or presentation of Spiritual Patrons may quietly and peaceably enjoy their said Benefices without being inquieted molested or any way grieved by any colour of such provisions licencies and acceptations and that all licences and pardons upon and by such provisions made in any manner should be void and of no valour and if any feel himself grieved molested or inquieted in any wise from henceforth by any by colour of such provisions licenses pardons or acceptations that the same molesters grievers or inquesters and every of them have and incur the pains and punishments contained in the Statutes of Provisors before that time H. 4. St. 2 H. 5. Cap. 7. Lollardy Was made for extirpation of Heresie and Lollardy whereby full power and authority was given to the Justices of Peace and Justices of Assize to enquire of those that hold Errors Heresies or Lollardry and of their maintainers c. and that the Sheriff or other Officer c. may Arrest and apprehend them A man should undertake a very hard task that goes about to maintain that all Humane Laws did never transgress their limits nor encroach upon things that were not properly in their conusance and this Law ill suits with the temper of these times The King by consent of Parliament giveth power to Ordinaries to enquire St. 2 H. 5. Cap. 1. of the Foundation Erection and Governance of Hospitals other then such as be of the Kings Foundation and thereupon to make correction and reformation according to the Ecclesiastical Law nor could any other Power grant such Ordinances In the Reign of Henry the sixth 8 H. 6. fol. 3. Excommunication made and certified by the Pope is of no force to disable any man within England and this is by the ancient Common Laws before any Statute was made concerning forein Jurisdiction The King onely may grant or licence to Found a Spiritual Corporation 9 H. 6. fol. 16. The Pope wrote Letters in derogation of the King and his Regality 1 H. 6. fol. 1â and the Church-men durst not speak against them but Humfrey Duke of Glocester for their safe keeping put them into the fire In the Reign of Edward the fourth The Pope in the Reign of King Ed. 4. granted to the Prior of St. Johns H. 7. f. 20. to have Sanctuary within his Priory and this was pleaded and claimed by the Prior but it was resolved by the Judges that the Pope had no power to grant any Sanctuary within this Realm and therefore by Judgement of Law it ought to be disallowed There it appeareth that the opinion of the Kings Bench had been oftentimes Ed. 4. 3. that if one Spirital
person sueth another Spiritual person in the Court of Rome for a matter Spiritual where he may have remedy before his Ordinary that is of the Bishop of the Diocess within the Realm Quia trahit ipsum in placitum extra regnum incurreth the danger of a Premunire a hainous offence being contra Legiantiae suae debitum in contemptum Domini Regis contra coronam dignitatem suam In the Kings Court of Record where Felonies are determined the Bishop or his Deputy ought to give his attendance to the end that if any man 9 Ed. 4. 28. that is Indicted or Arraigned for Felony do demand the benefit of his Clergy that the Ordinary may inform the Court of his sufficiency or insufficiency that is whether he can read as a Clerk or not whereof notwithstanding the Ordinary is not to judge but a Minister to the Kings Court and the Judges of that Court are to judge of the sufficiency or insufficiency of the party whatsoever the Ordinary do inform them and upon due examination of the party may give judgement above the Ordinaries information For the Kings Judges are Judges of the Cause whether the Ordinary be a Judge of Legit or non Legit matters not much for if he be Judge or Minister no doubt but he is the Kings Judge or Minister And I my self have seen Chief Justice Littleton overrule the Ordinary in the Case of one Brudbank after the Ordinaries Deputy had pronounced legit ut Clericus and give sentence of death upon him for his non legit and he was hanged The Popes Excommunication is of no force within the Kingdom of England 12 Ed. 4. f. 46. In the Reign of King Ed. 4. a Legat came from the Pope to Callis to have come into England but the King and his Councel would not let him come into England until he had taken an Oath that he should attempt nothing against the King or his Crown And so the like was done to another of the Popes Legates And this is so reported 1 H. 7. fol. 10. In the Reign of Richard the third It is resolved by the Judges that a Judgement of Excommunication in the Church of Rome shall not prejudice any man within England at the Common Law In the Reign of Henry the seventh 1 H. 7. fol. 10. The Pope had Excommunicated all persons whatsoever who had bought Alume of the Florentines and it was resolved by all the Judges that the Popes Excommunication ought not to be obeyed or to be put in execution within the Realm of England It was enacted ordained and established by the advice and assent of the Lords Spiritual and Temporal and the Commons in the said Parliament assembled That it be lawful to all Archbishops and Bishops and other Ordinaries having Episcopal jurisdiction to punish chastise such Priests Clerks and Religious men being within the bounds of their jurisdiction as shall be committed afore them by examination and lawful proof requisite by the Law of the Church of Advoutry Fornication Incest or any other fleshly incontinency by committing them to ward or prison there to abide in ward until such time as shall be thought to their discretions convenient for the quality and quantity of their trespass And that none of the Archbishops Bishops or Ordinaries aforesaid be thereof chargeable of to or upon any action of false or wrongful Imprisonment but that they be utterly discharged thereof in any of the cases aforesaid by vertue of this Act. The King is a mixt person because he hath Ecclesiastical and Temporal 10 H. 7. 18. jurisdiction By the Ecclesiastical Laws allowed within this Realm a Priest cannot 11 H. 7. 12. have two Benefices nor a Bastard can have a Priest But the King may by his Ecclesiastical power and jurisdiction dispence with both these because they be mala prohibita but not mala per se How far Henry the Eighth exercised his Ecclesiastical Jurisdiction IT was enacted That if any person or persons at any time after the St. 21. H. 8. 13. first of April 1530. contrary to the Act should procure and obtain at the Court of Rome or elswhere any Licence or Licences Union Toleration or Dispensation to receive or take any more Benefices with cure then was limited by the said Act or else at any time after the said day should put in execution any such Licence Toleration or Dispensation before that time obtained contrary to the said Act That then every such person or persons so after the said day suing for himself or receiving or taking such Benefice by force of such Licence or Licences Union Toleration or Dispensation that is to say the same person or persons only and no other should for every such default incur the danger pain and penalty of Twenty pounds sterling and should also lose the whole profits of every such Benefice or Benefices as he receives or takes by force of any such Licence or Licences Union Toleration or Dispensation And that if any person or persons did procure or obtain at the Court of Rome or elswhere any manner of Licence or Dispensation to be nonresident at their Dignities Prebends or Benefices contrary to the said Act that then every such person putting in execution any such Dispensation or Licence for himself from the said first of April 1530. should run and incur the penalty damage and pain of Twenty pounds sterling for every time so doing to be forfeited and recovered and yet such Licence or Dispensation so procured or to be put in execution to be void and of none effect It was enacted That no person from thenceforth cited or summoned 23 H. 8. cap. 9. or otherwise called to appear by himself or herself or by any Procurator before any Ordinary Archdeacon Commissary Official or any other Judge Spiritual out of the Diocese or peculiar Jurisdiction where the person which shall be cited summoned or otherwise as is abovesaid called shall be inhabiting and dwelling at the time of awarding or going forth of the same citation or summons Except it be for in or upon any of the cases or causes hereafter written viz. for any Spiritual offence or cause committed or done or omitted forstowed or neglected to be done contrary to right and duty by the Bishop Archdeacon Commissary Official or other person having Spiritual jurisdiction or being a Spiritual Judge or by any other person or persons within the Diocese or other Jurisdiction whereunto he or she shall be cited or otherwise lawfully called to appear and answer And that every Spiritual Judge offending contrary to the purport of this Act shall forfeit Ten shillings sterling the one half to the King the other half to any person that will sue for the same in any of the Kings Courts in which action no protection shall be allowed nor Wager of Law or Essoine be admitted In which Sir E. Coke Cawdries case says there were twenty four Bishops Stat. 24. H. 8. cap.
Dissolution of Abbies and all were easily passed and assented to in Parliament But whatsoever the King were otherwise yet sure the Popes passion The Pope was more unjust in his censures then the King was in excluding the Papal jurisdiction against him carried them to greater extravagancies and exorbitancies then were on his part against them For suppose that the Pope had de facto the Investitures of Bishops Peter-pence Annates and First-fruits paid them and did exercise a jurisdiction over all the Church and Clergy yet no question all these things were by the grants and permission of precedent Kings and if Kings may grant and permit these things then what hinders but that they may recall them for Cujus est velle ejus est nolle Besides we have already shewed that although there were not that bitter personal spite between the Kings of England and and the Popes formerly as was between Henry 8. and Clement 7. and Paul 3. yet did many of them ascribe as little to the Pope as Henry did But for a Pope to deprive a Christian Prince of his kingdom over whom he had no manner of right his Adherents of whatsoever they possessed to command his Subjects to deny their obedience to their Soveraign and Strangers not to have any commerce in the kingdom and all to take arms against him and his followers granting them their estates and goods for a prey and their persons for slaves is so unlike to the example and precept of S. Peter whom they pretend to succeed who not only suffered death under Temporal power but inspired by God does command so expresly obedience to Kings not as subordinate to himself 1 Pet. 2. 13. but as supreme And of our Saviour himself who both suffered himself under Temporal power and paid tribute to Caesar and took not away but fulfilled the Moral Law which commands obedience to Princes and Higher powers and whose kingdom was not of this world that sure no Turk or Infidel was so much an enemy to Christians or indeed rather to mankind as to have desired it The state of the Church and of the Ecclesiastical Laws made by Edward the sixth THe time of this Kings reign being a Child and therefore woful and of his Father were perillous days The Father in his Laws scarce ever took advice but from his passion lust or avarice the Son although a Prince of infinite hope and goodness yet wanting the authority and reputation requisite in a Soveraign was either not able to restrain or else perswaded it was beneficial to give reins to a company of Sacrilegious Harpies and Courtiers to make a total prey not only upon all Colledges Free-Chappels Chantries and all their Lands except them of the Universities and some few other which by the Statute of 1 Ed. 6. cap. 14. were given to Camb. pref Eliz. Reg. Life of Ed. 6. the King upon specious pretences but the Lands of the Bishops generally became a prey unto them So much worse is it for every thing to be lawful then that any thing should be Law It was enacted That if any man spake irreverently or contemptuously An. 1. Ed. 6. c. 6. of the Sacrament of the Altar he should be imprisoned and fined at the Kings will and pleasure and that Justices of Peace might enquire of offenders Yet should not the person offending be arraigned or tryed unless the Bishop of the Diocese or his Chancellor or Deputy learned were required to be at the Quarter-Sessions to which purpose a new Writ was made Rex c. Episc L. salutem Praecipimus tibi quod tu Cancellarius tuus vel alius deputatus tuus sufficienter eruditus sitis cum Justiciariis nostris ad pacem in com nostro B. conservand assignat apud D. tali die ad sessionem nostram tunc ibidem tenend ad dand consilium advisament eisdem Justitiariis nostris ad pacem super arraiment deliberationem offendet contra Formam statuti concernend sacrosanctum Sacramentum Altaris And by this Satute it was Enacted that the Sacrament should be delivered to the people under both Kindes viz. of Bread and Wine From thenceforth no Conge deslier shall be granted nor any Election An. 1 Ed. 6. Cap. 2. shall be made of any Archbishop or Bishop by the Dean and Chapter but when any Archbishoprick or Bishoprick shall be voided the King by his Letters Patents may confer the same to any person whom he shall think meet c All summons citations and other proces Ecclesiastical shall be made in the name and with the stile of the King as in the Writs of the common Law and the test thereof shall be in the name of the Archbishop or Bishop c. All persons that have the exercise of Ecclesiastical Jurisdiction shall have in their Seals of Office the Kings Arms with certain characters under them for the knowledge of their dioces but the Archbishop of Canterbury shall use his own Seal and his own name in all faculties and dispensations A man speaking against the Kings Headship of the Church shall being An. 1 Ed. 6. Cap. 12. thereof attaint or convict forfeit all his Goods and Chattels to the King and suffer imprisonment during the Kings will and pleasure for the first offence and for the second offence forfeit to the King the whole issues and profits of all his Lands and all his Goods and Chattels and suffer perpetual imprisonment and for the third offence shall be adjudged a Traytor and suffer death and forfeit all his Goods and Chattels Lands and Tenements as in cases of High Treason And it shall be deemed Treason for any by Printing Writing or Deed to affirm the King not to be Head of the Church An Act for uniformity of Service and administration of Sacraments being An. 2 3 Ed. 6 Cap. 1. before divers and different viz. of Sarum of York of Bangor and of Lincoln and divers and sundry forms and fashions were used in Cathedrals and Parish-Churches of England and Wales as well concerning Mattens or Morning Prayer and the Evening Song as also concerning the holy Communion commonly called the Mass with divers and sundry rites and ceremonies concerning the same and in the administration of the Sacraments of the Church The Statute does inflict upon every Parson Vicar or other whatsoever Minister that ought or should say or sing the said Common Prayer mentioned in the said Book Entituled the Book of Common Prayer and Administration of the Sacraments and other rites and ceremonies of the Church after the use of the Church of England and shall refuse it or use any other form or shall Preach Declare or speak any thing in derogation of the said Book or any thing contained therein and be thereof lawfully convict by a Jury of twelve men or by confession shall forfeit to the King for the first offence the profit of all his Spiritual benefices and promotions arising in a whole year and
after them Gunthramn Clowis Carloman and Pepin at Masscon first and second at Chalons That which is called Francia and that which is in Vernis Twenty of them at least in France In Spain by ten several Kings in two Councels at Braccara and in ten at Tolledo by the space of three hundred years together And how under what terms Peruse the Councel themselves their very acts spake Ex praecepto Imperio Jussu Sanctione Nutu Decreto Ex evocatione Dispositione Regis One saith Potestas permissa est nobis another facultas data est nobis a third Injunctu est nobis á rege and this for about eight hundred years after Christ Then arose another Empire here in the West under Charls the Great and he called six several Councils at Frankfort Arles Tours Chalons Mentz and Rhemes And what says he in them In that at Rhemes In conventu mere priscorum Imperatorum congregato à piissimo Domino nostro Carolo That he called that Convention by no other right then as the manner of the antient Emperors had been to do After him Ludovicus Pius Lotharius Ludovicus Balbus Carolus Calvus Carolus Crassus and Arnulphus at the several Councils of Aken Mentz Melden Wormes Colen and Tribur and so held it nine hundred years after Christ for about that year a year or two over or under was holden the Council at Tribur in Germany by the Emperors decree and himself President in it Nor are the Kings of England less absolute then either Emperors Kings of Spain or France And see B. Bramhalls Just Vindication of the Church of England cap. 7. how the Emperors Kings of France Spain and Portugal have by their own authority convened National and Provincial Councils which have not only determined without the Papal authority but very often in contradiction to it Nor are either the English or British Churches or ever were less free then the Gallicane the liberties whereof in the Chapter aforesaid are set down viz. 1. The Pope cannot command or ordain any thing directly or indirectly concerning any Temporal affairs within the Dominions of the King of France 2. The Spiritual authority and power of the Pope is not absolute in The priviledges of the Gallican Church France but limited and restrained to the canons and rules of the antient Councils of the Church and received in that Kingdom 3. No command whatsoever of the Pope can free the French Clergy from their obligation to obey the commands of their Soveraign 4. The most Christian King hath had power at all times according to the occurrence and exigence of affairs to assemble or cause to be assembled Synods Provincial or National and therein to treat not only of such things as concern the conservation of the Civil estate but also of such things as concern Ecclesiastical order and discipline in his own dominions and therein to make Rules Chapters Laws Ordinances and Pragmatique Sanctions in his own name and by his own authority Many of which have been received among the Decrees of the Catholique Church and some of them approved by General Councils 5. The Pope cannot send a Legate à latere into France with power to reform judge collate dispence or do such things accustomed to be specified in the autoritative Bull of his Legation except it be upon the desire or with the approbation of the most Christian King Neither can the said Legate execute his charge until he hath promised to the King in writing under his oath upon his holy Orders not to make use of his Legantine power in the Kings dominions longer then it shall please the King and that so soon as he shall be admonished of the Kings pleasure to forbid it he shall give it over And that whilst he doth use it shall be exercised conformable to the Kings will without attempting any thing to the prejudice of the Decrees of General Councils or the Liberties and Priviledges of the Gallicane Church and the Universities of France 6. The Commissions and Bulls of the Popes Legate are to be seen examined and approved by the Court of Parliament and to be registred and published with such cautions and modifications as that Court shall judge expedient for the good of the Kingdom and to be executed according to the said cautions and not otherwise 7. The Prelates of the French Church although commanded by the Pope for what cause soever it be may not depart out of the Kingdom without the Kings commandment or licence 8. The Pope cannot by himself or his delegates judge any thing which concerns the state preheminence or priviledges of the Crown of France nor any thing pertaining to it nor can there be any question or process about the state or pretensions of the King but in his Courts 9. Papal Bulls Citations Excommunications c. are not to be executed in France without the Kings command or permission and after permission only by the authority of the King and not by authority of the Pope to shun mixture and confusion of Jurisdictions 10. Neither the King nor his Realm nor his Officers can be excommunicated or interdicted by the Pope nor his Subjects absolved from their Oath of Allegiance 11. The Pope cannot impose Pensions in France upon any Benefices having cure of souls nor upon any others but according to the canons according to the express condition of resignation or ad redimendum vexationem 12. All Bulls and Missives which come from Rome to France are to be seen and visited to try if there be nothing in them prejudicial in any manner to the estate and liberties of the Church of France or to the Royal authority 13. It is lawful to appeal from the Pope to a future Council 14. Ecclefiastical persons may be convented judged and sentenced before a Secular Judge for the first grievous or enormous crime or for lesser offences after a Relapse which renders them incorrigible in the eye of the Law 15. All places of France are obliged to swear fealty to the King and to receive from him investitures for their fees and manors 16. The Courts of Parliament in case of Appeals as from abuse have right and power to declare null void and to revoke the Popes Bull and Excommunications and to forbid the execution of them when they are found contrary to Sacred Decrees the liberty of the French Church or the Prerogative Royal. 17. General Councils are above the Pope and may depose him and put another in his place and take cognisance of Appeals from the Pope 18. All Bishops have their power immediately from Christ not from the Pope and are equally successors of S. Peter and of the other Apostles and Vicars of Christ 19. Provisions Reservations Expective graces c. have no place in France 20. The Pope cannot exempt any Church Monastery or Ecclesiastical body from the jurisdiction of the Ordinary nor erect Bishopricks into Archbishopricks nor unite them nor divide them without the Kings licence 21. All those are not Hereticks
Nor was that less abhorrent to me which men in this factious age beg for a Principle viz. That all men by Nature or the Law of Nature are in a like equal condition and that the Laws of Nature are eternal and immutable even by God himself And yet by a continued violence upon these eternal and immutable Laws men should every where in the world live in Society or in the mutual offices of commanding and obeying Yet did not I so confidently resolve these things as to exclude what I could argue against them I therefore did suppose in my self a company of such men as were in a parity of condition yet could I never conceive it possible that ever any Civitas or Supreme power could be derived or created by them For either this Civitas must be superior to the Cives or People that made it or not If it were not superior to it then could it not govern or rule them for dominion is always placed in the superior part If superior to it then was the Creature or Instrument superior to the Cause and Creator which is most absurd Nor was it to me less monstrous to imagine that any thing could give or transfer that to another which it self hath not but this people or multitude who should make this civitas had neither Jus vitae or necis nor Property seperately nor conjunctly they could not therefore endue another with that power which none of them nor all of them together had and without which there can be no supream power which may protect and defend Subjects But I did not insist onely upon this but supposed that the cives could make a civitas which should be superior to them and endew it with a power which none of them nor all of them had yet was I no less perplexed then before who these cives which should make this civil Pact should be and who should be subject to it If onely those be the cives who made this civitas and they onely subject to it then were Women and Children who were none of the cives that made this civitas free and independent from it Nor could all the people or multitude of both Sexes and all Ages in such an imaginary state be the cives which must constitute this civitas by virtue of the civil Pact For many must necessarily be so yong as not being compotes mentium they could have understanding sufficient for the doing such an act And if no Laws oblige Men to their Pacts and Contracts done under such an age then sure it must be unreasonable that Children and Infants should be obliged to their act if they then did it or therefore obliged because others had done it upon whom they had no dependence Well but suppose these men in such a condition to be qualified to do such an act yet did another doubt arise which I could no ways salve viz. Who should define at what age the Men should be who should constitute this civitas Well I went yet further I supposed it granted That it should be agreed at what age Men in such a condition might give up their wills and constitute a civitas yet was it not in reason probable that this civitas should be of one days continuance For being formally constituted of such individual cives it could not be of any longer continuance then the cause Sublata causa tollitur effectus but the next day some of the cives would be probably dead and others grown up to be of age who were none of those individuals which did constitute the civitas Well but I supposed the cives who made Formae rerum sicut numeri consistunt in indivisibili They could not therefore be the cives that did constitute the civitas and by consequence no such could remain as the civitas this civitas to be immortal and no posterity yet could not I in reason expect it to be of any continuance for cujus est velle ejus est nolle and not onely all just and legal actions but all Arts and Sciences may truly and ultimately be resolved into their first Principles without any diminution to them The People therefore constant in nothing but inconstancy could not in reason be expected constant and obedient to their Creature the civitas onely and yet so in nothing else Besides I always did believe and yet do that all Mens Pacts and Wills must be conformable to the Laws of every place and where they are against them then do they oblige no further then to Repentance Much more therefore ought all mens Wills and Pacts to conform and submit to the Laws of Nature and never transgress that and that all Pacts and Acts of mens Wills made against it oblige to nothing but Repentance Nor is there any thing more abominable then to conceive that the Acts of mens Wills should irritate the Law of Nature which they say is immutable by God Hence it is I conceive that Mr. Hobbs will not have all men to be of a like and equal condition lege naturae but jure naturae and therefore most absurdly makes jus naturae to be contrary to lex naturae and yet oftentimes in his Preface and Cap. 8. Art 10. confounds jus with lex and that the Acts of mens Wills to make them in a better estate then God hath made them should be the Law of Nature or of God Whereas on the contrary If no man that ever was born in the World which was not a Posthumus King but was born in subjection not onely to his Parents or as a Servant in a Family but to something superior to these then cannot the will of that man nor all the men in the World alter or make that man in another condition then that whereof neither any act of his will nor the will of any man else was the cause But yet did not I conclude things onely as I was an intellectual or rational Creature but being a Christian I submitted all my Reason and Understanding to the most high Authority of sacred Scripture in those plain places which admit of no Controversie where both in the Old and New Testament the first causes of supream Power are owned to be Gods Ordinance Rom. 13. By God Kings raign and Princes decree Prov. 8. Justice and there can be no power but from above Joh. 19. 11. And all power is in relation to something subject to it But because I would not seem to see only with mine own eyes I desired yet to be better informed of these things and from whom better then Mr. Hobbs and Hugo Grotius Men no doubt of as eminent learning and parts as any this last Age hath produced these Men both derive their civitas from such Principles as is before spoken of viz. From the Pacts and contracts of Men in a parity and equal condition but so far was I from being convinced that if I understand them aright I was amazed to see such inconsistible
case to him whether there be a King or no King in Israel for he will do what is right in his own eyes For our Author says In renouncing the power Pag. 25. of our Will we renounce our Understanding also Our Author for his part needs not fear it but sure he fears that if he do so because he cannot hope that he is qualified enough to be a Privy-Councellor that he has bound himself up from dabling with the Grounds of Obedience and Government Why he should do well to be of Counsel with Adam against God for the Devil and he agree in the same thing viz. That it is not liberty enough for Adam to eat of the other trees of the garden in Eden no Adam must not renounce his will and understanding too in order to his chiefest good the knowledge of good and evil and making himself like unto God by tasting the forbidden fruit To our Author it is not liberty enough for the Subject to square his actions to the Laws and Rules of his Country he must not renounce his will to be commanded by King or Laws but must have his will too in making of Laws Now let our Author tell me what a Government this is like to prove Who will hold the plough that is perswaded he may handle the scepter Who will live in an obscure cottage that hopes he may govern at the helm or eat his bread in the sweat of his brows who may expect to fare deliciously every day And now let me tell our Author once for all That humane Laws are made to retain Subjects in their obedience lest a worse thing happen unto them There must be no starting out or breaking loose from them For Laws are like the banks which encompass waters if there be the least hole in them the banks will be blown up and the waters lose themselves The Fifth GROUND That Fidelity is different from Obedience and wherein it consists Author NOw some good body help a lame Dog over the stile Here we find our Author taking monstrous pains and in a great sweat why what 's the matter trow What! Our Author undertakes to shew that Servants owe their Masters no obedience but fidelity only And this he would prove by a mighty argument viz. A man buyes a piece of Cloth or other merchandise of another and pays for it And therefore Servants owe their Masters no obedience And if this will not do it his Ipse dixit must or he loses an essential ingredient towards the patching up of his Fools paradise Observ Now herein our Author and I differ and I fear we shall never agree in any thing Our Author will trust his servant where he expects no obedience and I will make my servant obey me whenas it may be I will not trust him for a groat And indeed our Author will do more for his servant then I see in reason any man should do for him For pag. 141. he tells us In pure Morality he may falsifie and break promise if he save any thing by it and is better then his word I shall say no more in answer to this Ground but object the authority of the Holy Ghost against it Ephes 5. 6. Servants be obedient to them that are your Masters according to the flesh c. The Sixth GROUND In what consists Right or Due Author HEre our Author says The next Consideration may appear too Metaphysical a Nicety for a Moral Treatise Yet he armed Cap-a-pe in compleat Ignorance valiantly attempts it and will tell you of I know not what of Reason which takes nothing to be good but what is good for a mans self and makes it the rule of his actions to do what is fitting for him or conformable to his that is to a Rational nature But this is a rule by which he treats Horses Dogs Trees and Stones c. and runs through all his actions Observ Well But since the men of this world were never more unreasonable and every man so pretending to Reason and yet no man almost can tell what he means by Reason let us see what Ratio Reason is and what Reasoning is and why Man is onely said to be a reasonable creature Reason is properly that power of the soul by which a Man is discerned from other living creatures and by which he does excell and command them By Horace it is put for the reasoning and discoursing of the soul for finding out what is true Ratio ponitur pro ratiocinatione discursu animi ad investigandum verum Cicero lib. 2. ad Heren Ratio est causa quae demonstrat verum esse id quod intendimus brevi subjectione Reason is the cause which shews that thing to be true which we intend in a short view And Reason is many times equivocally used for Counsel as Cicero in Verr. Mea quidem ratio cum in praeteritis rebus est cognita tum in reliquis explorata provisa est My counsel is as well known in things past as throughly tried and provided in other things Sometime for Respect Habenda est ratio honoris Men ought to respect their honor Sometime for Care Habenda est ratio rei familiaris Men must look after their houshold-affairs Sometime for Business Rationem habet cum terra quae nunquam recusat imperium He busieth himself with his land which never disobeys him Thus far Calapine Sometime it is taken for Account Lu. 16. 2. Redde rationem villicationis tuae Give an account of thy Stewardship Ratio in the third Definition of the fifth Book of Euclide est duarum magnitudinum ejusdem generis mutua quaedam secundum quantitatem habitudo Reason is a certain mutual habit of two magnitudes of the same kind after their quantity As when two Quantities of the same kind two Numbers two Lines two Superficies two Solids c. are compared one to another according to their quantity that is accordingly as one is greater less or equal to another this comparison or mutual habit of one to another was by Geometricians called Ratio But now I know not by what habit or custom Proportio which definition 4º lib. 5. Euclid is Rationum similitudo And definition 5 consists in three terms at least for indeed it must consist in four for where it is in three the medium is iterated twice as what proportion four hath to six six hath to nine c. hath eaten the former quite up and is only used Or take Reason thus Reason is that by which men from given Principles do rightly infer and deduce Conclusions And Reasoning is twofold either à priori or à posteriori A priori from the cause nature and matter of necessary truths to shew what effects follow from thence and such Propositions are called demonstrative or scientifical shewn and known from the Causes such are all Propositions in Geometry and Mathematiques Or when the Effect is certain and the Cause probable and these are but probable
his tail for his Second Ground is That the nature of Man reacheth not to the perfection of Government But what does our Author here mean by Freemen if by Freemen he understands men free to do what they list then our Author leaves them as he found them and has done nothing at all but if these Freemen be subject to their Trustee so far as he apprehends it fit and necessary for the good of the Commonwealth then I believe we shall finde them as very slaves as any our Author Ground 9. makes So that after all this ado our Author has made a multitude of slaves or he has made nothing at all And thus hath our Author endeavored to shew why men desire to live in Community viz. By having nothing common at all The Eighth GROUND Of the Authority given to an Absolute Governor and of Vnder-sorts of Government Author NOw comes our Author with a dog in a line his Absolute Governor tyed up to certain Laws and Limits which he has no right to transgress Observ What is this our Authors Absolute Governor Why the Roman Dictator was worth ten of this for he had power of life and death of disposing of all Offices at his own will and pleasure without the controlment of any either Senate or People Consul or Tribune and this power to continue during the exigence and danger of the Commonwealth Yet so far was the Dictator from being an absolute Governor that he was the while but a Minister of the Peoples which was plain in Fabius Maximus for Plutar. in vita Fabii Liv. lib. 22. though he were chosen Dictator yet during the danger of the Common-wealth the People made Minutius equal to him And so was the Athenian Archon who though chosen for Ten years and called a Judge and chiefest of power in the Commonwealth yet as Bodin observes cap. 8. fol. 80. de repub was not the Majesty of the Commonwealth in him but he a Provider and Procurator of the People and was bound to give an account of his Government And the reason why the Dictator and Archon were not absolute Governors is plain because this power was not immediately in them from God but delegate and constituted from another And any power that makes any thing may alter it for Unumquodque dissolvi potest eo ligamine quo ligatum est Well but let us see what manner of beast our Authors Absolute Governor is Why our Author tells you he is an Absolute Governor but restrained and tied up to certain Laws and Limits Which is a contradiction and impossible for in being absolute he is freed from all Laws and Limitations And now I will tell our Author that if his absolute Governor be tied up to any humane Limits or Laws he has so little power that it is impossible for him to protect and defend his rational people For suppose the Laws he is restrained to be as many as are contained in the body of the Civil Law our Statutes and all the Acts and Ordinances made since 1641. and twenty times more yet would not this be sufficient for an absolute Governor For all these are finite and mens actions are infinite and therefore Enemies may find out such ways to invade this free people as this absolute Governor cannot find in his Laws where he has power to oppose them and so this rational freeborn people must be left destitute if any Enemy may be found who can outwit them and find a way to oppress them out of the Laws and Limits which they have given their absolute Governor And who will desire any greater advantage against another then to have him look always one way or what Enemy desires more against another then against such a one whose absolute Governor is tied up to certain Instructions and those known to themselves And Laws are things which must be in esse And how can any man tell to day what may happen to morrow but Princes must to morrow and next day and every day steer their course according as the wind and storms shoals and deeps c. represent themselves which no man can possibly foresee Well let us see what the restriction of any one thing in the Supream Prince may bring upon himself and Subjects Let us look upon a King of England after the Act of Parliament De tallagio non concedendo an Act of Parliament is the Act of the King in Parliament As when the Lords and Commons present any Bill to the King and he passes it this is an Act of Parliament which is no more a Law of the Lords and Commons then the Laws passed at the Petition or Rogation of Coelius Cassius Sempronius c. were the Laws of Coelius Cassius and Sempronius And let every King expect that whatsoever the Subject can get of the King by hook or crook he will hold that as fast as the King shall any flower he leaves in his Crown Well then if Edward the First will not pass this Law he gets not a groat of his Subjects in England towards the relief of his oppressed Subjects of Aquitain in France which Sir Edward Coke in his Comment upon this Statute observes Well then the Scots in the year One thousand six hundred and forty having-transgressed all Laws of God and Humanity as well as the Borders and Bounds of their own Countrey raise Arms the second time and make an invasion upon us and seise upon Berwick and Newcastle but though the Kings hands were tyed up yet the Divine Vengeance of Heaven shall overtake them and their Countrey by a hand they could so little fear as I believe few of them knew whether there were any such or no. And now oh you who have not forced all mankinde from Humane brests come and stand amazed with horror for the most deplorable condition of the most Pious the most Religious the most Just the most Chaste Vertuous and Serenest Prince that ever swayed the English Scepter and not to be parallel'd by any Countrey whatsoever The Scots having invaded this Nation to treat with them a second time was too too much an indignity for their Natural Soveraign besides it was an affront not to be endured by the Englishmen That their Countrey must be made a prey to such Locusts and Caterpillers whensoever they will pretend grievance in Kirk and Discipline To restrain them by force it could not be without raising money By this Statute the King they say can raise none but by Parliament and to call a Parliament in this mad conjuncture of times was judged by himself and Council to be a means to increase the power of the Scots by the Parliaments joyning with them to the endangering himself and his Posterity Well then what is to be done what stand still and look on while these hungry Vermine devour and make a prey of his afflicted Subjects No the King to make his goodness appear above his own danger calls a Parliament where not deceived in his
expectation the Scots and they are Simeon and Levi straight sworn Brethren and the first thing agreed between them was That Humane Blood must be offered up to them a preparative to a greater Draught nor must Strafford suffer by an ordinary way of Judicature by his Peers but that the King may be involved in the same Crime with themselves he must die by Act of Parliament and then having made the King to divest himself of all possible power to defend himself when ever they will strike him they give the Scots Three hundred thousand pounds to be exported out of the Kingdom because they had made a prey and devoured the goods of their fellow Subjects in the four Northern Counties which forsooth these good Saints call Brotherly Assistance See oh see here O my Countrymen the Assertors and Avengers of the Honor of the English Nation These are the Noble Patriots of their Priviledges I am sure not of your Liberties These are the glorious Reformers of our Church and State These are they who in order to so many Protestations Declarations Swearings and forswearings have made Charls a more glorious King then any of his Predecessors more feared abroad and more renowned at home And now tell me whether you had not better at first have given your pence and your two pences then paid your pounds and forty shillings since you knew not for what Nor was our case much unlike the case of the Constantinopolitans who alleaging Poverty and Priviledge in opposition to their Safety and Defence became a prey to the Turks 1453. their most merciless enemies who put them all to the sword the Turks themselves wondering there should be so much wealth in the World as was found in the sacking of this one City The Ninth GROUND Of Slavery and the lawfulness of it Author HEre our Author tells us We must first look into the notion of Slavery which signifies a Subjection to command in all things and that meerly for the Masters profit Well I will not quarrel with our Author about the notion of Slavery but tell him he mistakes it in all his specifications of it For his first It is he says clearly against nature for a man to submit his will so far as to renounce his eternal bliss Observ This is out of his notion and is so monstruous as it is not imaginable any man should do it but Witches and any man may chuse whether he will do it or not for no mans will can be compelled Author The like he conceives of Subjection to be killed or maimed causelesly nay or to be so penuriously abused as to have no content in life and the reason he gives is It is evidently against the inclination of nature to consent to the loss either of life or the profit of life which is either to be well in this world or the next And therefore it cannot be conformable to nature to renounce either so then a man must not by our Authors rule renounce any depraved affection or appetition in him if it conduces to his profit in this life especially the quiet in this world being the means to gain bliss in the other Observ And so our Author hath shut out of doors all suffering for the testimony of a good Conscience because the quiet of this world is the means to gain bliss in the other Author Nor does it scare our Author he says to cast his eyes upon so many holy men and women as have put themselves voluntarily upon penurious and painful lives because they enjoy the fruit of contemplation and sweetness of Conscience in expecting a great reward for what they did But for a man to renounce the content of this who either thinks not of another or at least hopes nothing out of his resignation this must of necessity be extreamly irrational and against nature Observ Why if our Author had learned thus much out of the Poet Oderunt peccare boni virtutis amore Horace Oderunt peccare mali formidine poenae He needed not to have thought it so irrational for if the love of Vertue will not make men do their duties the fear of stripes and halters must or our Author will not get Paper to write his Grounds of Obedience and Government upon Our Authors next specification is no more then every servant ought to do Now let us see what servitus or mancipium or servitude is and who are properly Slaves or as we use to term them Vilains Slaves happen Bodin says to be so five ways Either by birth as the Bodln cap. 5. lib. 1. de Repub posterity of the Parents who are so or accidentally as prisoners taken in war or thirdly those who for some offence or debt are condemned to slavery either for years or life fourthly they who voluntarily make themselves so and fifthly those that are sold by Theeves and Pirates are for the price paid slaves to the buyers But whether this last be truly accounted slavery is disputable that is Whether such buyers may use them as slaves or no. See more hereafter Cap. Domestical Power Now Slaves have nothing properly but whatsoever they get is their Lords who may sell them or give them away at their pleasure and have power of life and death over them Here in England the Lords power over their Vilains was restrained neither might the Lord maim his Vilain for though the Vilain could not recover any damage against his Lord yet after Attainder the Lord was finable to the King See Litt. 194. And the Neife who is the Vilains Wife or Daughter might have an appeal of Rape against her Lord Litt. 190. But this not being a condition for any one who bears the Image of God upon him God did restrain it Levit. 25. 39. to them who were not Israelites or Proselytes onely Wherefore I conceive that neither Mahometans Jews or Christians all acknowledging the Moral Law do not make Slaves of any who are of their Faith and Religion from this ground neither do I understand how the use of Vilains used with us heretofore can be justified if they were Christians for no question Christianity makes not men in a worse condition in this world then if they had been Jews or Turks What difference the Romans made between Slaves and Libertines and what Manumission is and how many ways Slaves become free read Bodin de Repub. cap. 5. lib. 1. And of Manumission or Enfranchising of Villains read Littleton and Com. of Sir Edward Coke thereon Cap. Villenage Author And now our Author tells you how a Nation may enslave it self by its too much wit and most prudently and wisely takes care that it be not our case And so goes on very prettily in Questions and Answers as Whether any Nation be by nature born to slavery of Joseph and the Nation of Egypt of a Nation and Nature and how like Nation sounds to Nature Gens to Natura and at last concludes Out of this Conclusion it is is easily
Lex naturae is that which is so willed or commanded by God I deny therefore that any Creature can have Jus divinum but that all right which any Creature hath is either from some Divine or Humane law Jus naturae is superior and must precede Lex naturae By Art 3. cap. 1. Every man hath Jus naturae Therefore every man hath a right above the Law of Nature and so Mr. Hobbs may save himself the trouble of his Philosophical Elements De Civie For since he makes every man above the Law of Nature sure he can never make him subject to any Humane Law 25. It is impossible for the Civil Law to command any thing contrary to Cap. 14. ar 10. the Law of Nature Observ Is it not a wonderful thing that this man should make the Civitas to be a humane Artifice and invention and the Law of Nature to be the immutable Law of God and yet that it should be impossible that this Artifice or created Deity to command any thing contrary to this immutable Law of God Sure the greatest Papalian never ascribed so much to the Pope in Cathedra I will then tell him wherein the Civitas may command Wherein the Civitas may command contrary to the Law of Nature contrary to the Law of Nature and wherein he is mistaken The Laws of Nature are either upon supposition of Humane Laws or not upon supposition of Humane Laws as Thou shalt not steal supposes a Humane Law which gives Property but Honor thy Parents Be grateful for benefits received c. supposes no Humane Law And therefore if the Civitas commands me to dishonor my Parents or to be ingrateful for benefits received which de facto it may this being but a Humane Law I am notwithstanding obliged to honor my Parents and be grateful for benefits received But Mr. Hobbs supposing no Laws of Nature but upon supposition of Humane Laws is the reason I conceive why he says It is impossible for the Civitas to command any thing contrary to the Law of Nature Yet will he have one exception viz. That the Civitas commands nothing Ibidem Observ 2. to the contumely of God If a man should ask him whether there be no Law of Nature but the Honoring of God If there be no other Law of Nature then to what purpose are all his Laws of Nature of standing to Pacts of seeking Peace c. Well but if men by the Law of Nature are obliged to honor God and it be impossible as he says for the Civitas to command any thing contrary to the Law of Nature then is it impossible for the Civitas to command any thing to the contumely of God and so he has made a needless exception But it may be he does not think that men by the Law of Nature are bound to honor God for he has not so much as mentioned it in his Laws of Nature For then they are no Laws Mr. Hobbs Yes the Statues of Omri were Statutes although they commanded to the contumely of God and so was Nebuchadnezors command for the worshiping Observ 3. the Golden Image a Law though made to the contumely and dishonor of God Whereas he saies Quid sit Adulterium does depend upon the Civitas I would know of him whether it were Adultery in David in lying with Bathsheba Observ 4. during Uriahs life if it were then is it not true which Mr. Hobbs here saies if it were not then did God unjustly so severely to punish him therefore Tyranny is not a State of a City different from rightful Monarchy Cap. 7. art 3. Observ True upon your false and feigned Principles where the wills and pacts of men are made the cause and origination of all Power in Government where Mens wills are made their Laws then which nothing can be more destructive to all Laws divine and humane and the most Wilful man should be the most Just man for to what purpose should there be any Laws Divine or Humane if a Man 's own will be a rule and Law to himself and by this Mans principles it is only mens wills from which all Power in Government is derived and to which Men ought to be subject Yet good Man some difference he makes viz. only in the exercise Mr. Hobbs of their Power he forsooth is a King that rules well and he is a Tyrant that rules otherwise Observ As if Absoloms kissing the Israelites when they came to demand Justice and his desire to judge the people righteously had made him a good Title to the Crown of Israel or that Jeroboam or Athaliah had not been Usurpers but very Rightful Princes if they had ruled well But though he makes no difference between Swordbearers and Swordtakers between Gods Ministers and Theeves and Robbers yet the Holy Ghost does for Gods Minister is a Swordbearer and if he be not Gods Minister and a Rom. 13. 4. Swordbearer but a Swordtaker as our Saviour calls them who have not a St. Matth. 26. 52. just Authority then whosoever sheddeth mans blood by man shall his blood be shed for in the image of God made he man And if ever Man had a just Gen. 9. 6. cause to have taken the sword then had St. Peter in defence of his Lord God and Master but our Saviour reprehends him telling him that whosoever takes the Sword shall perish by the Sword And it is not wicked men whom Usurpers Tyrants and Swordtakers so much murder for it is no better as vertuous and honest The worst of private Malefactors may justly with the Whore in Terence answer to the best of Swordtakers if there be any degree of goodness in any of them quamvis ego digna sum hac contumelia maxime indignus tamen tu qui feceris And whereas he only makes Tyrannus ab exercitio it is false for the abuse of a thing does not alter the nature of a thing as a Man is a Man although a bad Man who abuses those good parts which God hath given him so is a Father and a Master a Father and Master yet bad ones where they abuse their Power and so is a King a King although he abuses his Power and the Holy Ghost many times calls them wicked and idolatrous Kings c. but never Tyrants as this Man does I would here gladly be satisfied of Mr. Hobbs how if God made Man Cap. 1. art 12. and Cap. 8. art 10. in the state of pure nature as he saies in such a cut-throatly condition and so much worse than any other creature that men might jure naturali everlastingly kill one another and commit no offence if the King or Civitas does not restrain it God could in justice have punished Cain for killing Abel Cap. 6. art 16. if Cain or Abel had not gone to Do or Dedi and not to Dabo or Faciam with Adam and made him their King or Civitas over them and Adam have given them
or not For men if they do not submit and consent to rightful Kings government they disobey God Deut. 17. 15. Nor did God rob the Israelites Syrians or Persians or any other Nation of any of their original right and power of making to themselves Kings by giving them Kings Nor were these Kings Civitates Naturales as he calls them having overcome by force and commanding lest they Cap. 5. art 12. should kill Xenophon in his Proeme to Cyropoedia says We know they did partly obey Cyrus who were severed from him many days journey they who were severed from him many moneths journey and they who had never seen him and lastly they who could not hope ever to see Cyrus yet were content to obey him And when he had reckoned up all the Countries subject to Cyrus says He enjoyed the Dominion of all those Kingdoms whose language was neither the same with his nor common with themselves And yet there could be nothing less then for fear of him so great a part of the world should obey that all stricken with fear none should dare to disobey him Observ And whereas he says That is to be understood the will of the Council Art 7. which is the will of the major part of those Men of whom the Council consists It is an improper speech for the will of the major part cannot be the will of the totality but plurality and if the will of the major part could be the will of the whole then were a part equal to the whole which is absurd and impossible by Not. 9. Eucl. lib. 1 And though he takes such pains about his Pacts and makes them so essential and precedent to all Civitates and that all Institutive Civitas is built upon yet such is Truths excellency that he overthrows it all where he says Quare tu appellas eum Tyrannum quem Deus Regem fecit 'T is true Cap. 12. ar 13. indeed if he be a King only God can make him so And if Civil power Pro. 8. 15. Isa 3. 4. had been artificial in the cause then must it necessarily be that some time may be instanced where and when this artifice was not For all arts depending and being made from mans understanding and reason there must be a time before this art was found out and if it were an art it is not to be imagined that it should alwaies in all times be practised every where in the habitable world And every man sees that sometimes several arts are esteemed by some men in one place and neglected by others in the same place and in other places not minded at all and a famous Invention or Art is much cryed up in one Age not minded and neglected in another whereas the mutual offices of Commanding and Obeying were always among men in all places ever since there were men in the world 'T is true therefore which Aristotle says that Nascitur dominus nascitur servus Lib. 1. Pol. Cap. 3. art 13. although he would have it contrary to reason and experience And by consequence the Kings of Denmark Poland and the Romans are rather Kings by courtesie as they call the sons of Dukes and the eldest sons of Marquesses and Earls and the Judges when they are upon the Bench Lords though they be none rather then Kings indeed And so the Emperor and Duke of Venice are rather Supreme Powers in imagination then truly so which made our Edward the Third to refuse the Empire and Henry the Fourth of France to scorn it And if it be true which he says as it is that God makes Kings then is it Cap. 7. art 15. false where he says that a Monarch may at his will declare his Successor Observ Sure this man would not have feared to have been of the Lady Jane's Conspiracie against Queen Mary the Lady Jane being declared Successor to Edward the Sixth by his last will and Testament Besides if it be true as it is which Sir Edward Coke says that Solus Deus haeredem facere potest non Co. Lit. sect 7. homo and this to Estates that descend by Humane Laws then sure no man can make an Heir to a Crown But if Mr. Hobbs shall ask me If power in Government were not originally from Pacts how it came first into the world I answer That I am not bound to give an account of things how they came to pass whereof there is no record It is enough for me to affirm That no time ever was wherein men did live together out of Society and Government Besides Society being natural it is an absurd question and a man may as well ask why God made the world in that order and frame that he hath or how he came to make Man a reasonable creature and all other irrational as why a sociable Well but if he shall say that Laws ought to be known and if Kings reign by Gods law then how can any man know that this man is King in this place and that man King in another place I answer That I am content to shew this man by Gods law to be King here and that man to be King there when any man shall shew me by any Humane law that any Individual man is heir to any Estate And if there be that excellencie in truth that a right Heir to the meanest Estate be rarely suppressed then is this excellencie of truth more perspicuous whenas I am confident that the right Heir to a Crown was never so suppressed but he was ever believed to be so by them who had never seen him and most hated him Besides Jus is duplex Jus proprietatis possessionis Jus ad rem and Jus in re And therefore any Prince who is possest of a Crown has a Title good enough against any man else but him who hath the Jus proprietatis or Jus ad rem And therefore ought no man upon penalty of Damnation to resist the Higher powers which are that is which are in possession if it does not clearly Rom. 13. 1. and evidently appear that this is only pretended power and force indeed to the dispossession and disinheritance of another against whose right and title no just exception can be taken Let this suffice here we shall take occasion to discourse hereof more hereafter I would fain know of Mr. Hobbs Who gave the People this power of making Kings or Civitates or what are the People that have or when was it that they had it At what age in pure nature shall any man claim this right of giving up his Will or be an Instrument of making this Civil Pact or who shall define this time Whether Women be not part of Mankind and have not Wills as much or more then Men and are not as liable to punishment for not observance or transgressing humane Laws as Men Whether it be not reasonable Posterity may not give up their Wills to another since they have not the
same Wills with their Ancestors Whether the Ten Tribes did not rebel in giving up their Wills to make Jeroboam King though neither they or their ancestors ever made Rehoboam Solomon or David King by giving up their Wills Whether the King or Civitas claiming all right and power from the Multitude and every one of the Multitude claiming all right and power from the King or Civitas be not Idem per idem And let any man judge whether there be any thing more unreasonable then this mans Dictamen rectae Rationis OBSERVATIONS ON HVGO GROTIVS De Jure Belli Pacis LEt us see whether Grotius his Fabrick built upon this Popular foundation be not as absurd and monstrous as either our Author 's or Mr. Hobbs's and adde him to these two and see whether these Three be in Harmonical proportion But before we proceed we will take some direction from the greatest Light of Nature Aristotle who says All men Metap l. 1. c. 1. naturally desire to know but there is but one way by which men can attain to knowledge viz. That they proceed from things known to find out things less known and from things manifest to find out things more obscure Which is evident Naturaliter constituta est via ab iis quae sunt nobis notiora clariora ad ea Phys lib. 1. tit 2 3. quae sunt clariora notiora naturâ Non enim eadem sunt nobis nota simpliciter quare necesse est hoc modo progredi nimirum ex iis quae naturâ quidem sunt obscuriora nobis tamen sunt clariora ad ea quae sunt notiora clariora naturâ Ea verò sunt nobis primum perspicua manifesta quae sunt magis confusa Idcirco ab universalibus ad singularia progredi oportet totum enim secundum sensum notius est universale autem est totum quiddam Well Grotius says In the beginning of Mankind Community was another Mare Lib. c. 5. p 34. thing then what Dominion now is For now Dominium signifies something proper which thing to wit is so one mans as it is not anothers in the same manner We call that thing Common whose propriety is collated amongst many by a certain consort or consent excluding other men Linguarum paupertas coegit voces easdem in re non eadem usurpare The poverty of Tongues hath forced men to use the same words in a thing not the same The Community which then was was nothing else but what was simply opposed to Property But in his Preface to this Book De Jure Belli Pacis para 3. lib. 1. cap. 1. He shall not need to complain that the poverty of Tongues compells him to use the same words in a thing not the same For he himself useth things not the same viz. Communitas Societas in the same word viz. Communitas Observ Now that Community and Society is not the same thing There is not nor ever was since the beginning of the world any Family where men did not live in Society but in no Family did men ever live in Community Nor did ever men desire such a Community as he here and before in his Mare Lib. speaks of Nor can Mankind subsist in such a Community and Lib. 1. cap. 1. para 3. Lib 2. cap. 2. para 2. so he himself confesses And Man may be therefore not improperly said to be a reasonable creature because he does not love and affect another because he is of the same kind with himself as other creatures who live in companies do but chooses his society as his Reason or conversation leads him But this Community he says which Man desires is not of whatsoever Community but of peaceable and ordained for the manner of his understanding with them who are of his own kind which Community the Stoicks called ãâã ãâã ãâã ãâã ãâã Observ Does any Creature that lives in flocks and herds not desire the community of its own kind and therefore Hogs Deer and Goats keep in herds and Sheep in flocks Or does any man think that Grotius could ever imagine that his Countrimen did desire Society or Community with other Nations for their Understanding or Profit If they desire this Society or Community for Profit then are they out of Grotius his first Principle proper to Man and for ought I can understand as very Beasts as any who desire to live in Community But Cynthius aurem vellit For says he Quod ergo dicitur natura quodque animal ad suas tantum utilitates ferri ita universe sumptum concedi non debet What thing therefore is called Nature and that every Creature is carried only to their profits ought not to be granted so universally taken For even some of other living Creatures the study of their profit partly in respect of their young ones partly in respect of others of like kind with themselves aliquatenus temperant Observ Is not here a Principle well defined What so much as Equivocation can be taken against this or the other Principle of Men and Beasts or indeed what Man or Beast does understand any thing clearly from either of them How does this man take Aristotles one onely way to attain to knowledge viz. from known and manifest things to find out things less known and more obscure whenas his very Principles are so obscure and equivocal as either they are not to be understood or may signifie one thing as well as another Nay let any man see if he makes not his Countrimen generally verier Beasts then many other for they have no respect of others of like kind with themselves but only study their own profit * Grotius Which thing we believe in them does proceed from some outward understanding principle Ex principio aliquo intelligente extrinseco Observ Has he not now well mended the matter thus by a new term I believe never before heard of nor for ought I understand to be understood to explane a thing obscure by a term more obscure But the matter in controversie is not from what Principle Beasts desire Society but whether they desire Society or not When he is got loose from these Principles he then saies But this Grotius keeping of society which in a rude manner we have expressed convenient to humane intellect is the fountain of that right or law ejus juris which is properly so called by which abstinence from what is anothers obligation to perform promises reparation for wrong done c. do appertain Observ But sure the Man does much forget himself for in this Community he here speaks of there can be no meum or tuum and therefore no alienum and by consequence no alieni abstinentia nor can any Man perform any promise who can have nothing wherewith to perform nor make reparation for wrong when he can neither do any nor has any thing to repair it withall Then he tells us From this signification of
Hypocrites to whom alwaies our Saviour pronounceth woes We find but small consort yet between these three Our Author makes it Rational for Subjects to resist and depose Grotius seems not to think so both by the precepts of God and the practice of the Primitive Christians unless a King goes about to destroy all his Subjects Yet too he saies Gods precepts many of them though generally pronounced have a tacite exception in case of highest necessity Observ But how shall I know whether in this and therefore it is much better to obey then venture to break Gods positive command But Mr. Hobbs makes a subjection of Body and Souls absolutely where God reigns not by Covenant and there too by distinguishing between things necessary and not necessary to Salvation Since there is so much contest about the power of the People let us see what these three understand by the People Mr. Hobbs understands by Annot. art 1. cap. 6. the People the Civitas which commands wills and does by the Will of one Man or by the agreeing Wills of more Men which otherwise cannot be done in an Assembly Grotius no where that I know of defines what he means by People But our Author in the seventh Ground when there is no Government makes them a Rational Multitude and when they have made themselves a Government then forsooth to be a People Salus populi suprema lex is when the safety of the people or Subject is in danger then the supream Governor is not to take notice of any Mans particular interest whatsoever he has sworn to the contrary as when an Invasion c. is made though the King at his Coronation has sworn not to oppress nor take without their consents from any of his Subjects any thing which any of his Subjects hold of him or any of his Predecessors yet rather then an Enemy shall be relieved by any of his particular Subjects to the endangering of the rest he then may destroy it for the safety of the people is the highest Law and the end of all Government is the preservation of the Subjects in general and in such cases the lesser evil is to be chosen and no Laws but will suffer a mischief rather then undergoe an inconvenience And therefore could not the Dictator be questioned for any thing done during his Dictatorship because of the danger of the people and so the Romans alwaies understood this Maxim of Salus Populi suprema lex Let us see whether these Men leave Posterity in any better condition then they make the present Age and see how they agree about succession and whether a Kingdom may be aliened by the present King or he name his successor Here we must look upon Grotius either naturally or relatively and yet too as neither As he is naturally a Hogan Mogan he makes the King an Usufructuary only and then he saies he can alter nothing Lib. 2. cap. 6. Para. 11. at all neither in part nor in the whole And sometime like a Mercenary stipendary to Lewis the 13. against all his precedent grounds of the power of the People and of Kings having originally all their Power from the contracts and agreement of the People which yet does not cease their power he makes neither King nor People judge of succession for he saies the People have Lib. 2. cap. 7. Para. 27. transferred all jurisdiction from themselves upon the King and his family neither during that have the People any relicts of it and yet he makes it a very hard question whether the People may alter succession as to them who are not yet born and determineth it affirmatively in these words Quare si Lib. 2. cap. 4. Para. 10. populus à cujus voluntate jus regnandi proficiscitur voluntatem mutet iis qui nondum nati sunt ut quibus jus quaesitum nondum est nullam facit injuriam and the reason he gives forsooth is a very sorry one and a similitude Ejus qui nondum natus est nullum esse jus sicut nec ulla sunt accedentia rei non existentis Nay he does not stay here but goes on and saies sicut autem populus expresse mutare voluntatem potest ita tacite credi mutasse But who shall be Judge of this implicite Faith he saies not one word Because of the damnable consequents which must needs follow from this determination we will examine all the parts of it He almost every where makes a great stir with populus populus vult populus mutare potest voluntatem expresse tacite but never that I can any where find defines what the People is If he had said the People of Rome or the People of Athens or the People of Syracuse he had said something though nothing to his purpose For when a Man speaks of the People of Rome or Athens c. he speaks not formally of Men as born in the Roman or Athenian territories but as men who were civitate donati which it may be were not the tenth part of the Romans or Athenians nor were ever the Roman Athenian or Syracusan People free People jure naturali as he saies but by Civil sanction having made themselves so unjustly usurping dominion over the rest in their Tyranny and Dominions It cannot be then that Grotius means by People such People as were the Romans or Athenians If by People he means any thing in the world for above this 1700 years there have not been any such upon the face of the earth if the Inhabitants of Switzerland be not such who taking advantage from the remiss Government of Wenceslaus having beaten the Archduke Leopoldus about the year 1400 made themselves a Democracy and have almost ever since continued Mercenary Man-killers to the interests of the Pope the Kings of France and Spain Grotius then not meaning such People as were the Romans c. I cannot imagine what he should mean by People unless he means Men Women and Children of all ages and conditions all of them in a parity or equal condition abstracted from all Laws of God or Man and what a Harmony of Confessions would arise from such a rour any sober wise Man may judge Thus much for his populus Observ Well but be the People what it will a beast or no beast a thing or nothing it is from its will all right of reigning proceeds a cujus voluntate jus regnandi proficiscitur What all Right of Governing or Regal Power proceed from the People faith let Grotius or any of his followers shew ever since the beginning of the world any King made by the People and I will grant him all the rest be it what it will But see whether Grotius hath not a forked tongue or not here and in twenty places more with Notandums c. he makes all Regal Power to be from the wills of the People In his Epistle to Lewis the 13. he saies How beautiful how glorious how joyful to your Conscience will
it be that when God shall have called thee to his Kingdom which alone is better then thine thou maist confidently say I have received this sword from thee for defence of Justice this sword I return to thee pure and undefiled rashly guilty of no bloodshed Observ So that if he saies true that Lewis the 13. had his sword of Justice from God then does he say false here and in twenty places more that all Power of Governing is from the wills of the people Well but let us suppose a King made by the People which is the party governing and which is the party governed all Government being in the predicament of Relation where there is any one to govern or command there must be another to be governed and commanded Well then here are two the People and the King made by the People the one to govern the other to be governed Say now which is the party governing the King or the People it cannot be that the King should be the governing party for he is but a Creature and a thing made by the People and the Creator cannot be ruled and governed by the Creature the People then must be the party governing and the King must be the party governed the King therefore of France whom he so much flatters and all other Kings whatsoever from this determination of Grotius are the governed party and the People their Subjects are the governing party If therefore it be impossible to serve two Masters who by equal right command I would fain know how it is possible for a King to obey above Ten hundred thousand every one of his Subjects having as much right to command him as another and it is very like indeed to be a very well ordered Government and much conducing to the benefit and safety of the People where there is many Hundred thousands commanding and one individual person obeying But good Man he is very careful that though the People give Kings all their Regal Power that they part not with too much nay though they make Kings yet if you beleeve him they part with nothing at all for otherwhere he saies Imperium quod per Reges exercetur non desinit impeperium Lib. 2. cap. 16. Para. 16. populi Is not here a pretty play of a King and no King a King without Power and a People with all Power So that at the same time that he flatters Lewis the 13. by telling him neither King nor People are Judges of his succession he had before given the People of France a power of altering the right of succession without doing any wrong to his Son Lewis the 14 who now rules for he was res non existens when he wrote this book De jure belli pacis Sometime neither as Hogan Mogan nor stipendary to Lewis the 13 Lib. 2. cap. 7. Para. 25. directly where he saies In alienable Kingdoms the King may disinherit his heir Observ Who gave him his Fee to say this We cannot think it was Lewis he denies all his Grounds to pleasure him yet latet anguis in herba it may be because Henry the First was younger Son to Robert and Robert disposessed his eldest Son who bare his name and made his younger Son King from whom Lewis derives himself But how then can this stand with the 27 Para. that neither King nor People are Judges in succession or if Power which is exercised by a King does not cease the Power of the People then cannot Lib. 2. cap. 16 Para. 16. Kings give away their Kingdoms nor disinherit their Heirs for delegata potestas non potest participari Observ Well let us see his reason for this He says Such a Kingdom is like other alienable goods Here the right of the alienation of a Kingdom is well proved viz. I may give a poor man a penny and therefore a King may disinherit his Heir or give his Kingdom to whom he pleases And so he says Jacob did disinherit Ruben Observ What Kingdom was then given by any people to Jacob to which Ruben was Heir Besides for ought he knows or can find by Cicero Tacitus Demosthenes Cleon or any tale told by any Poet the time when Jacob lived and died was then when all things were common and undivided and how then could Jacob disinherit Ruben Observ Another Instance for the right of Alienation is of Davids disinheriting Grotius Adonijah Whether this be true read 1 Chron. cap. 28. v. 5 6 7. And of all my sons for the Lord hath given me many sons he hath chosen Solomon my son to sit upon the throne of the kingdom of the Lord over Israel And he said unto me Solomon thy son he shall build my house and my courts for I have chosen him to be my son and I will be his father Moreover I will establish his kingdom for ever if he be constant to do my commandments and my judgments as at this day Nor was it for any crime Adonijah did not reign after David for David had sworne Solomon should reign before Adonijah's usurpation 1 King 1. 13. Mr. Hobbs makes no doubt but a Monarch may choose his Successor and Cap. 7. art 15. Cap. 9. art 12. by his will dispose of the Supreme power of the City And in the next Article he gives him leave to give it or sell it to whom he will Observ King James was observed to make his Honors vile because he exposed them to sale and so conferred them upon unworthy men not as they deserved them but they were able to pay for them thereby to satisfie his hungry Countrimen who were daily begging boons of him How vile would this man make Majesty how light the ligeance which is due not only by nature but by oath from all Subjects to their rightful Soveraigns And The Crown of England has been so free at all times that it hath no earthly St. 16. Ric. 2. cap. 5. subjection but immediately subject to God touching the regality of the same Crown and to no other And it is declared by the Lords and Commons in Parliament upon demand made by the King That they could not assent to any thing in Parliament that tended to the disinherison of the King and his Sir Ed. Coke Inst 4. par p. 15. Crown whereto they are sworne How this can be consistent with this mans Sale of Crowns I do not understand Our Author is so in love with his Supreme and Absolute Trustee that let him but do what he list and he may say with Tiberius Caesar ãâã ãâã ãâã ãâã ãâã When I am dead let the earth be mingled with fire Bodin in the last Chapter of his Republique because neither from Plato's nor Xenophon's opinion he can find Justice to consist in Geometrical nor Arithmetical proportion will therefore have it to consist in Harmonical he not understanding harmonical proportion For he makes it consist in four terms viz. 4. 6. 8. 12. and what proportion
to the wills of men whereas Natural causes do immediately proceed from God and are above the will of man Society therefore being natural the actions of the wills of the most perverse and wicked men in the world could never make them out of society but where they would not be commanded by their rightful Superiors fell a commanding and obeying among themselves 4. They all not only invert Nature and make Wills and Pacts superior to it in the cause of Society but all of them make the natural relations of rightful Princes and Subjects to be dissolvible by the wills of men yet after a different manner Grotius when there is a necessity makes them dissolvible by the Subjects Our Author when the Subjects judge it reasonable And Mr. Hobbs when the King or Civitas will give or sell the relations Whereas Regal power being Gods ordinance is therefore superior to mens wills and cannot be aliened or dissolved by the will of man 5. They all not only invert Nature and make it alterable by the will of man but make the Law of Nature or God to take its origination from the civil pact or will of man whereas the Law of Nature is eternal and immutable by the will of man and connatural with every man and always had and ever shall have a like obligation upon all men in all ages and places 6. I say They not only blasphemously make Nature and the Law of God alienable and depending upon the will of man but also most illogically confound the relations of agencie and patiencie in the same subject and make the Cives to constitute the civil pact and to be subject to it whereas Omnis potentia activa est principium transmutandi aliud 7. They invert Grammatical construction in making the Cives who constitute the Civitas the patient or governed and the Civitas who accepts the wills of the Cives to be the agent or governor Whereas the contrary is true in both for Obligans is the governor who does will and obligatus the governed who accepts the will of the governor 8. They all most ridiculously make the Creature the Civitas superior to and the Governor of the Creator viz. the Cives whereas it is impossible any Being should be prime or superior to the cause of its being 9. They all of them make the Cives to endue the Civitas with that which none of them have either separately or conjunctly viz. a power of life and death and creating property whereas Nil dat quod non habet nemo potest transferre id in alium quod ipse non habet If all these things be true and that I have not unjustly charged them in my Observations how contrary they are not only to one another but to themselves in their superstructure then let the world judge especially you my dear and native Countrymen whether grounds so unnatural so blasphemous so illogical so contrary to common sense and grammatical construction so ridiculous and impossible should be worthy to be accounted the Principles of Humane society Or whether they ought not to be exploded by mankind as fit for nothing but to abuse ignorant men and to open a gap for Sedition and Atheism If I have here or heretofore unjustly charged them two of my Adversaries are alive and of age and may answer for themselves and no question but Grotius hath followers enough who may vindicate him if he hath wrong done him Or if I have committed any of these things in these Elements let them make it appear I will thank them for it A Premonition to the Reader BEside that part of this Treatise which shews the causes and means by which men attain Arts and Sciences in this Preface Observations and Elelements I have designed three things First in the Preface I designe to demonstrate That it is impossible that the Cause of Humane Society should be originally created by the pacts and wills of men and the occasion of writing these Observations Secondly in the Observations I designe to shew That the Causes of Humane Society do not appear from these mens Grounds and Principles Thirdly in the Elements I endevour to demonstrate the Causes of all Humane Christian and Legal Society And if any of my Adversaries or any man else shall shew me any errors in any of them I profess I will ascribe it as an act of Friendship to him I have one request more to the Reader That he would look upon all these Elements and Observations except one half-sheet added to the Observations to be passed the Press before His MAJESTIES Acknowledgment or Restitution until the last Book or one sheet or two of the Fourth Book of Justice c. And to insert in pag. 9. of this Preface line 22. after For which no reason can be given what is contained in the Margin from These things thus premised c. ELEMENTS OF Power Subjection Or the Causes of all Humane Christian Legal SOCIETY Vir bonus est quis Qui consulta Patrum qui Leges juraque servat By ROGER COKE LONDON Printed by T. N. for G. Bedel and T. Collins at the Middle-Temple Gate 1660. TO THE READER MAns thoughts of Life and Living are odd things pritty Antitheses he thinks his whole Life though he should live a Thousand years too short and yet every day nay hour of his living too long Vicious Men therefore misplace their happiness in entertaining worldly pleasures thereby to delude and spend their time which they desire so much to continue in their Life that in their living it might not seem to be Virtuous Men have the same thoughts of Life and living with vicious Men but their actions discern them For those hours which in their Life would otherwise seem tedious to them they entertain either in the Contemplations of God or his Works or by doing virtuously sweeten those sowre effects which idleness causes So that the old Philosophers would affirm That not Years but Virtue should be the measure of Mans life And this reward hath God the Author of Virtue in Men as Plato divinely affirms given Meno prope finem to virtuous Men that they not onely take pleasure in remembring time past but also hope well in time to come notwithstanding all the frowns of perverse and wrinckled Fortune whereas vicious Men are onely pleased with deceiving the present time ashamed to look back upon their actions past and affrighted upon the apprehensions of death and worldly calamities which notwithstanding all their Proteus shapes and Janus faces happens to them as well as virtuous Men in time to come There is no time wherein virtuous Men may not contemplate God either as God or in his Works or do well whereas many times vicious Men though never so rich and able to maintain their Vices are either wearied with them or have not means to attain to what they call the fruition of them and then they may be truly accounted miserable because they know not what to
Democracy of Sedition and the causes of it Of the Fathers Husbands Masters and Ecclesiastical Power The Third Book treats of Subjection Succession and the Municipal Laws of this Nation The Fourth Book treats of Justice Obedience Judgment and Equity The Fifth Book treats of the first Planting of Christianity under the British and Saxon Kings and of the Freedom of the British and English Churches before the Conquest and how far the Kings of England had exercised their Ecclesiastical Jurisdiction and how both British and Saxon Kings had been Nursing-Fathers to the Church of Christ and how far since the Conquest the Kings of England had exercised their Jurisdiction in the Assertion of their Regal Power in defence of the Church until Henry the 8th and of the Reformation made by Hen. 8. Edw. 6. Queen Elizabeth and of the Ecclesiastical Laws made by them Queen Mary King James and King Charls A more particular Survey of the Contents of the First Book Chap. I. THe First Chapter not onely treats of those Rights which must necessarily precede all Humane and Ecclesiastical Laws but also of those Rights which are created by Humane Laws Chap. II. Treats of Divine Humane Ecclesiastical and Despotical Laws and from whence they are derived Chap. III. Shews what Virtue is and the causes of all Theological Moral Humane Prudential and Personal Virtues Chap. IV. Treats of Particular Moral Virtues and Chap. V. Proves them to be commanded by God in the old and New Testament Chap. VI. Demonstrates the Obligation of Divine and Humane Laws upon the Persons and Consciences of Men. Chap. VII Is of Promises Vows Leagues Pacts or Contracts and Gifts and from whence Men become obliged to them and does demonstrate that it is impossible that any Law or Legislative Right can arise from the Pacts or Contracts of Men which concludes the First Book DEFINITIONS JUs is a Right Due or Property in God principally and absolutely or in some Jus quid Man or Men by some Divine or Humane Law excluding all others but him or them from whom it is derived First All Right is either Jus Divinum or Naturale and this Right is The Specifications of it onely primely and absolutely in God and incommunicable to any Creature Or Secondly Jus Humanum is a Right which Men have from the Law of Nature Or Thirdly Jus Ecclesiasticum a Right by which the Tribe of Levi did under the Old Law exercise their Priestly Office and Function and a Right by which Bishops Priests and Deacons among Christians do execute their Office and Functions Or Fourthly Jus Legale a Right which all Subjects have in their Estates and Goods And this Right is either Jus Proprietatis or Jus Usufructuarium 2. Nature is either that eternal Being which ever was in God which Men What is Nature call Natura Naturans Or that first Being which is in any Creature superior to the Will of any Creature and created onely by God and this Nature Men call Natura Naturaliter the depraved sinful Nature of Man was not originally created by God but afterward made by Man 3. Jus Naturae Naturantis is that Right which must necessarily precede What is Jus Naturae Naturantis What is Jus Naturae Naturaliter and create Lex Naturae 4. Jus Naturae Naturaliter is that Right which is created by the Law of Nature but because this Right is proper to Man onely we will call this Right a Humane Right As also that Power which is created by the Law of Nature although it be Natural Naturaliter yet being proper to Man we call it Humane Power 5. A Law is the declared Will of him who by right commands forbids or What is a Law permits athing together with a penalty annext for not observance Lex dicitur à ligando quia obligat says Isidore rightly Etymologie of Lex Common Notions or Axioms 1. ALL Right which any Man or company of Men have is derived either from the Law of Nature or some Divine Positive Law declared in the Scriptures or from some Humane Law or particular Custom which is always presumed to be created or permitted by Humane Laws 2. Humane Laws and Customs refer to some particular place or Countrey as they are permitted or imposed by the supream Power of that place or Countrey viz. By them who have right to impose or permit them 3. The Laws of Nature oblige all Men of all conditions alike without exception and are eternal and immutable by Man and are and always were connatural with all Men. 4. No Being can precede or be superior to the cause of its Being 5. All Causes are superior and precede their Effects THE FIRST BOOK CHAP. I. De Juribus 1. LEx Humana lata has by the second Notion no being Jus Humanum Legislativum is not from any Humane Law but as it is caused or created by him who has the Jus Legislativum Lex Humana lata therefore cannot by the Fifth Notion create Jus Legislativum 2. If Jus Humanum Legislativum were from Jus Humanum Legislativum is not created by Divine positive institution Divine positive institution then by the Fifth Notion must the Scriptures precede all Legislative Right but this is evidently repugnant not only to the Scriptures themselves who testifie not only the Right which Fathers and Husband have over their Children and Kings over their Subjects long before God revealed them by Moses but also this Lawgiving Right is in every place of the world whether the Scriptures be received or beleeved or not It is evident therefore that this Law-giving Right is not created from Gods positive Laws in the Scriptures 3. Jus Humanum Legislativum is not by the first Proposition from Jus Humanum Legislativum is from the Law of nature immediately any Humane Law by the second Proposition Jus Humanum Legislativum is not from Divine positive Laws Therefore by the first Notion Jus Humanum Legislativum is from the Law of Nature 4. By the third Notion the Laws of Nature are and alwaies were connatural Jus Ecclesiasticum is not from the Law of nature with Men but the Right which God gave the Priests under the old Law and to Bishops Priests and Deacons under the new Law hapned long since Men were borne in the world and therefore the Ecclesiastical Right of Bishops and Priests is not from the Law of Nature 5. If Humane Laws could create the Right of Ecclesiasticks then by Nor from any humane law the 2. Notion he who may by right create Humane laws might also create this Ecclesiastical right But this is evidently false for all Kings Fathers and Husbands have a right of creating Humane laws but none have the right of creating the Ghostly right by which Ecclesiasticks exercise their function or office This right therefore is not created by any Humane law 6. By the 4. Propos Ecclesiastical right is not from the
it is impossible they should receive their origination and first power from the Pacts and Contracts of Men For where there is no precedent humane Law obliging men can neither make Pacts Contracts or Gifts nor have any thing to give and contract for And to suppose that humane laws must precede and oblige men to thei Contracts and Pacts and that Contracts and Pacts must precede humane laws and give them their power is most manifestly absurd and contradictory THE CONTENTS of the Second Book Chap. I. HAving thus far treated of Rights and Laws which are the prime and efficient cause of all Humane Christian and Legal Society We in the first Chapter of this Book proceed to declare the Causes of all Society Chap. II. This Chap. shews the cause and end of Regal power Chap. III. Declares the attributes of it and incidently the causes of Magistrates power Chap. IV. Compares the three species of Government viz. Monarchy Democracy and Aristocracy wherein the excellency of Monarchy appears above either of the other as well by reason and experience as by the institution of God and consent of the world Chap. V. Shews the internal causes disposing men to sedition as well from the Party governing as from the Subjects or party governed Chap. VI. Declares the causes and attributes of the Fathers power And Chap. VII The causes and attributes of the Husbands power In this Chap. is demonstrated that though the Fathers and Husbands power be from the Law of Nature yet may the exercise of them be restrained by the Supreme power of any place without any wrong or prejudice to them which could not be done without a violence upon the Law of Nature if the Fathers and Husbands power were an institution of God and Supreme powers an institution of Man Chap. VIII Contains the causes and attributes of Despotical or the Masters power wherein is declared that if it be impossible for any man to make another his Master then necessarily is it impossible any man should make another his Prince or Soveraign Chap. IX Treats of the causes and attributes of Ecclesiastical power DEFINITIONS 1. SOciety Aristotle in lib. 1. Pol. cap. 5. truly defines to be made up of many What is Society divided parts or persons so that there must necessarily be Unum quid quod imparet alterum quod pareat 2. There are six sorts of Society First of Supreme powers and Subjects How manifold is the Society of Men. Secondly of Magistrates and those committed to their care or government and this is most properly called the Civitas especially where the Magistrates and those in their jurisdiction have a priviledged or exempted authority peculiar to them and not the same with that which is not contained in their jurisdiction Such are the Societies of our Civitates Boroughs and Corporations in England where the Magistrates jurisdiction is exempt and priviledged from the ordinary jurisdiction of Magistrates where these priviledges and immunities are not Thirdly of Husband and Wife and this Society the Greeks called Gamaca Fourthly of Fathers and Children which is called Patrica Fifthly of Masters and Servants which is called Despotica Besides these there is a sixth Society which is proper only to Christians viz. of Bishops Curates and Congregations committed to their charge 3. Potestas est jus imperiale in aliqua persona cujus praeceptum continet What is power rationem obedientiae 4. There are four kinds of Powers viz. Divine Humane or Natural Legal How many kinds of powers are there What is Divine power and Ecclesiastical 5. Divine power or right of Command is that power which is by highest right solely and originally in God and incommunicable to any Creature from whence all other Powers are mediately or immediately derived 6. Humane power is a right of Command created immediately by God or What is Humane power immediately derived from the Law of Nature 7. Legal power is a right of Command which is not immediately derived What is Legal power from any positive or natural law of God but from some Humane law 8. Ecclesiastical power is an institution of our Saviour and left to continue What is Ecclesiastical power What is force or Tyranny in the Church of Christ until his second coming to Judgment 9. Force or Tyranny is an usurpation of Command of any Creature or company of Creatures not created by any law of God or Man Nor is it the commanding of one alone which makes Tyranny the very Grecians could account the Athenian Thirty to be Tyrants and so could the Romans the Decemviri and Triumviri And no question but it was malice and spight which made the Grecians call all Kings Tyrants and both Romans and Grecians to make all Kings to be Ravenous creatures And all those Kings who abuse their power are by men usually called Tyrants not justly I find no such title given to Saul Ahab Ahaz Nabuchadnezzar but Wicked and Idolatrous often Nor is a Father or Husband less a Father or Husband if they abuse their powers because they have a right of Command 10. Dominion or Government is the exercise of Command by any Creature What is Dominion or Government or company of Creatures who have a right or no right of Command So that though all Government or Dominion be the exercise of Command yet is not all Government the exercise of Power as the Dominion or Government of Thieves Robbers and Pyrates c. is the exercise of Command who yet have no right of Command 11. All Power is Right but all Right is not Power as Jus Proprietatis How Potestas differs from Jus. Usufructuarium is Right not Power Common Notion ALl Created Powers are from the Law of Nature or Divine posisive Institution or Humane Laws THE SECOND BOOK CHAP. I. Of Society or the mutual offices of Commanding and Obeying 1. IF all Commanding and Obeying had To command and to obey is no humane artifice or invention been an Humane artifice or invention then was there a time when Men lived out of Society and in a parity or equal condition without commanding and obeying But there is no such time recorded in Sacred or Prophane history wherein Men lived so or when or who first invented or introduced these offices of commanding and obeying Besides we see that Arts and Sciences are received in one place and not in another and in the same place and by the same men at one time and neglected at another But at no time or place did ever men live out of society or commanding and obeying All commanding therefore and obeying is no Humane artifice or invention 2. If then there was never any man born but was born in subjection To command and to obey is natural and all subjection being in the predicament of relation which must suppose something commanding and if all things which are not artificial or invented are natural Then is it as evident as that Homo
are often violated by Men and that God created Adam an universal Monarch or King over all his other Creatures is clearly said Gen. 1. 27 28. And God created man in his own image in the image of God created he him male and female created he them And God blessed them and God said unto them Be fruitful and multiply and replenish the earth and subdue it and have dominion over the fish of the sea and over the fowl of the air and over every living thing that moveth upon the earth And that this supreme power was given to Adam not as Father Husband or Master of a Family is manifest for he was neither Father Husband nor Master of a Family there being no Man or Woman in the world at that time 9. The Scripture does not only command Wives to be subject Adam had Dominion over Eve and not as Husband only to their Husbands but the Apostle gives reasons wherefore viz. That the man is not of the woman but the woman of the man Neither was the man created for the woman but the woman for the man 1. Cor. 11 8 9. Nor does he prove this subjection to be only due from the end of the womans creation and her being a part of Man but from Mans being first created and to whom God had first given Dominion over all Creatures before the Woman was made 1 Tim. 2. 13. 10. Although God gave to Adam only of Dominion over all Creatures yet was it not intended that he alone should so enjoy that his Dominion Adam had Dominion over his Children and not as Father only that others of his own kind should be wholly deprived of the use and benefit of them without which they could not possibly subsist When therefore that Cain and Abel were born although the Dominion of all the Creatures continued still in Adam yet had Cain and Abel property in the Fruit of the Ground and of Sheep But this property could not be given Gen. 4. 3. 4. to them by Adam as Father for the Fathers power arising from generation and the person being only generated the Fathers power extends no further The property therefore that Cain and Abel had in the Fruits of the Ground and Cattel was given them by Adam as King or Monarch 11. Not only the Scriptures and all Writers many times express different The state of Man before the flood and after Adams death was not Anarchy but in Society and under Monarchy Hereditary Gen. 23. 6. things equivocally by one word but also the same thing equivocally in different words As a Chief Governor is often called not only King but Prince Duke Sultan Pharoah Ptolomy Cham c. Paterfamilias signifies the Master of a Family whether he hath a son or daughter in it or not Our Saviour as the highest attribute of power begins the Lords prayer with Our Father So the Scriptures by Patriarch Prince and King understand the same thing The Patriarch Abraham is called a Prince of God or a mighty Prince A Prince sure he was that could give battel and overthrow four Kings at once Gen. 26. 16. And the King and Prince David is called by S. Peter the Patriarch David Act. 2. 29. And Patriarchs as well as Kings are called Christi Domini And that the Patriarchs mentioned in Gen. 5. were not only men endued with the ordinary power of Parents but Princes in their generations is manifest otherwise it had been a vain thing for the Scripture to have mentioned a Genealogie of the Patriarchs from Seth to Noah if every Father had had the same power with them Besides Cain who was elder then Seth had a wife and children yet was none of Gen. 4. 17. the Patriarchs and the reason was because God for the murder of his Gen. 5. 12. brother Abel made him a vagabond and fugitive upon the earth And as this Patriarchal or Regal power was with the Patriarchs before the Flood so was it hereditary where God did not interpose For from Seth to Noah only the First-born had it or are mentioned for Patriarchs in Scripture God no doubt by this great example teaching men that where he does not interpose this Patriarchal or Regal power is hereditary and descends only to the Eldest Son and Heir General 12. If as Grotius affirmeth the state of Man had been Jure naturali in The state of Man immediatly after the flood was not Anarchy but Society by the testimony of Scripture a parity or promiscuous condition immediately after the Flood and that this Jus naturale be immutable by God himself and that this Dominion which is now in use the will of Man brought in and that not the will of the party commanding but in subjection It had been a very vain curse in Noah or rather of God by Noah to have cursed Chanaan and made him a servant of servants to his brethren or that God should bless both Sem and Japheth and make Chanaan a servant to them both And let a man see the generations of Sem Ham and Japheth where the Grandchildren of Japheth by Javan divided the Isles of the Gentiles not in a promiscuous condition but Gen. 10. 5. after their tongue kindred and in their nation And so Nimrod the Grandchild of Ham by Chus became a mighty Hunter in the earth c. And the beginning of his Kingdom was Babel Erech Acad and Calneth in the land of Sinar There is great division among Writers about Nimrod whether he were the same with Belus and Ninus or not And as the posterity of Japheth did not inhabit the earth in a parity and equal condition so did not the posterity of Ham but in their kindreds tongues countries and nations Verse 20. And so did the posterity of Sem v. 31. And Gen. 11. gives the genealogie of Sem to Abram which came to pass in less then three hundred years after the Flood And in Abrahams time Pharaoh ruled in Egypt cap. 12. and Amraphel was King of Sinar Arioch King of Elazar Chodorlaomer King of Elam and Thidal King of the Nations and Bera King of Sodom Birsa Gen. 14. 1 2 3. King of Gomorrha Sinab King of Adma Semeber King of Seboiim and the King of Bela. There is no reason that I understand why men should affirm Nimrod to be Annot. the first Monarch after the Flood from Gen. 10. 8. He began to be a mighty one upon the earth and that the beginning of his kingdom was Babel Erech Accad and Calneth Which proves it no more then if a man should say That David was a mighty one upon the earth and the beginning of his kingdom was Judah and Jerusalem that therefore there was never any King before him 13. We begin with Diodorus Siculus who after that in the first Part The state of Man most antiently was never Anarchy but Monarchy by the authority of the most antient of Vulgar Histories of his first Book
thousand years I do exclude Conquest to be any cause of Regal power where God does not give it For either this Conquest must be made by power or force If it be made by power or one who is Gods Sword-bearer no new power ariseth from thence but only a dilatation of the exercise of the old which was formerly in him But if it be done by Sword-takers then is it no other then unjust usurpation and robbery The World being large and the Men in it alwaies ambitious I will not undertake to answer for the matters of fact which Men have done in all Ages nor do I doubt but that oftentimes the alterations and conversions of Government have happened from the will of God Object But it is evident by the Prophet Daniel c. 4. 23. 25. that God ruleth in the kingdoms of men and giveth them to whomsoever he pleaseth And if that he were pleased to make Saul David Solomon and Jeroboam who reigned over his peculiar people and Hazael Cyrus c. who knew not God Kings and yet neither by Lot Primogeniture from a rightful King or by right of First possession then for ought is known these alterations which have otherwise happened and do come to pass in the world may be from the will and gift of God Sol. I answer If it may be Gods will that these alterations and confusions happen in the world it may not be Gods will affirmanti incumbit probatio Let them therefore or they that make these alterations and confusions prove that Gods will and not their own perverse will was the first cause of them It is true and I grant that God does oftentimes for the punishment of a Nation convert the succession of their Kings into another line yet did he never so far chastise any Nation as to subject it to an Aristocracy or Democracy So it is necessary offences come yet shall that never excuse them by whom they come And so it many times happens that men cannot avoid Gods judgments and die it is no consequence therefore that men should run themselves into them or kill themselves It may be it is Gods will that my Father should die or that he will destroy my Country and Laws c. It does not therefore follow that a man may kill his Father destroy his Country or endeavor to subvert the Laws thereof Men are not alwaies obliged to conform their wills to Gods will but to do what he wills and commands them I am obliged to pray for my Parents and Country when it is Gods will they should be destroyed It was Gods will that Jeroboam for Solomons sin should be King of ten 1 King 11. 13. Tribes of Israel yet because the Tribes did will it and not upon Gods command he pronounced them eternal Rebels and Jeroboam a Rebel because 1 King 12. 19. he took it upon those terms 2 Chron. 13. 6. Nor do we find that ever Israel joyed good day after For the policy of Jeroboam to continue Comparethese times with these and see the event his dominion over them must be preferred before Gods worship and service in order thereunto Jeroboam must take counsel and make Calves which he says brought the Children of Israel out of Egypt any Priests were good enough to sacrifice to them no matter whether they were Priests or of the Tribe of Levi the lowest of the people would serve the turn 1 King 12. 32 33. yea forsooth Jeroboam himself could hold forth to the people and burn incense which before was peculiar to the Priests But it is a strange thing that this invented policie of Jeroboams for the keeping of the ten Tribes in their obedience to him should be the cause of so wonderful a Captivity 2 King 17. 21 22 23. that to this day it is unknown what became of them and their posterity 16. Parum est jus nisi sunt qui possunt jura gerere And men have always The miseries of men when the Supreme power is rejected or unknown by woful experience found that all Tyranny of a rightful and known Prince is not to be compared with the miseries and calamities where the Prince is not known or rejected but every popular and ambitious Man arrogates and usurps to himself what should be justly ascribed to the lawful Prince Nor does the calamities of miserable men in such a condition end so but God no where shewed so great a judgment as upon those men viz. Corah Dathan and Abiram who rejected their rightful and known Prince Num. 16. Nor does he ever denounce a more dreadful judgment then upon those men who resist Higher powers Rom. 13. How great then will his judgment be upon them who reject them 17. He is a natural Prince of right or by the Law of Nature who Who is a Natural Prince de jure truly prescribes from such Ancestors that no mortal creature can make any just exception or superior claim And so great a Lover of Men and Truth is God that scarce in all the world was it not known in any Nation who was the rightful Prince thereof when his Subjects did reject him 18. It is true that there is no visible power under Heaven but only Where there are diversities of titles which is to be preferred mens Consciences that can direct them where Titles of Princes come in question But where diversity of Titles are alleadged that which is truly and indubitably most antient is the best for it is a true rule in all descents whatsoever that Dormit aliquando nunquam moritur jus But this must be jus apparens for De non apparentibus de non existentibus eadem est ratio Whether the Title of the Heir general or Heir male be better we shall treat more at large in Cap. of Succession 19. Jus is duplex Proprietatis Possessionis And that this Right is Who is a Natural King de facto and not de jure divisible as well in Regality as private mens Estates is demonstrated by para 4. of this Chap. And if it be true as it is that no Being can be superior or better then the Cause of its being then will it necessarily follow that all Kings who inherit from Usurpers cannot have a better title then that which the Usurpers had so long as a superior or better claim can be made by another Nor do I fear to affirm Hen. 4. Hen. 5. and Hen. 6. were natural Kings of England and did inherit the Crown of England de facto but not de jure 20. Although nothing which is naught in the beginning can be How Usurpation may be bettered bettered by the continuance of time yet may Usurpation although naught in the beginning be bettered in time viz. if the Usurpation be of that continuance that it outlives all claim that can be justly made by another for Possession is title sufficient against all men who have no jus ad rem Hence it
King comes to be in the exercise of another Kings power he is subject to that King so long as he continues in the exercise or dominion of that King By more reason therefore ought the Subjects of any Prince to be in subjection to Supreme powers so long as they continue in the exercise of their power whether it were by Conquest or not Besides God hath ordained Supreme powers for mens preservation not their destruction And there must be some visible power upon earth which may put a period to and decide differences or they will be endless But there is no power under heaven but their sword that can put a period to the differences of Princes what therfore in such case the sword decides ought to be obeyed and the conquered Subjects nay Princes who come into the dominion or exercise of anothers power ought to be subject to it so long as they continue therein God therefore pronounceth Zedekiah a Rebel against Nebuchadnezzer But this reason cannot 1 Chro. 36. 13. hold for Subjects against their Soveraign where the Law may decide their Regal power cannot be transferred nor communicated by any humane or voluntary act differences and where by no Law of God or Man they are permitted to take the sword 26. Cujus est velle ejus est nolle No power less then that which made any thing can alter it But Regal power is Gods ordinance therefore nothing less then the power of God can alter transfer or communicate it Yet is the exercise of it subject to violence As Gravia sursum levia deorsum feruntur yet may a man by violence throw a stone upward and depress smoke from ascending without altering the nature of either So though Regal power cannot be transferred nor communicated by Man yet is the exercise of it not only subject to violence and usurpation but also being voluntary may be suspended by Supreme powers themselves without any diminution of the power or right of exercise of it When therefore Subjects or Enemies do unjustly invade and possess the Dominion of another this possession does not divest the right or jus ad rem of that other but only suspend the exercise of the others power or right during such usurpation So may a King by a league or peace with others by his act suspend the exercise of his power in any place unjustly usurped from him by others yet without diminution of his power or right to that place But this act cannot oblige his Successor nor himself after such term but they have a just cause of war if it be noâ restored Having thus far treated of the efficient or final cause of Regal power it is time to descend to the Attributes of it CHAP. III. Of the Attributes of Regal power and incidently of the Power of Magistrates 1. WHo hath the Supreme power hath the sword of Justice to punish The sword of Justice is his who hath the Supreme power them who transgress Laws and endeavour to cause sedition He is the Minister of God to thee for good but if thou do that which is evil be afraid for he beareth not the sword in vain for he is the Minister of God a revenger to execute wrath upon him that doth evil Rom. 13. 4. And Gods rod in his hand Exod. 17. 9. 2. The end of all Government is either to preserve the governed inwardly The power of making War and Peace belongs to the Supreme power in peace or to defend them from the outward violence and opposition of others In vain therefore should Government be if he who hath the Supreme power may not as well defend Subjects from the violence of others outwardly as to preserve them from factions and feditions within And this power God gave to Moses Joshuah David and all the Kings of Judah nor can any King be a Supreme Prince without it nor the governed in a probable condition of hoping for preservation from it 3. Judgment is the determining of a good or bad action which cannot All Judgment is with him be in any who is subject to another What therefore could be a more subtile temptation of the Devil to our first Parents then to tell them Gen. 3. 5. that by eating the forbidden fruit they should be like to God knowing good and evil Solomon as the most requisite thing prays to God that he would give him an understanding heart that he might be able to judge between good and bad 1 King 3. 9. And The King by judgment establisheth the land Pro. 29. 4. And Give the King thy judgments O God and thy righteousness to the Kings Son that he may judge the people according to right and defend the poor Psal 72. 1 2. 4. The right of making Laws is with him The Scepter shall not depart Jus legislativum penes eum from Judah nor a Lawgiver from between his feet until Shilo come Gen. 49. 10. Submit your selves therefore to every ordinance of man for the Lords sake whether it be to the King as Supreme 1 Pet. 2. 12. And this is the onely visible means by which Subjects may become safe rich and happy 5. In punishment Equals cannot judge Equals much less can Inferiors That he does all things without punishment judge Superiors But a Supreme Prince cannot have an Equal much less a Superior therefore a Supreme Prince cannot be punished If a Supreme Prince might be punished for any thing he doth then cannot he do any thing but he will be liable to punishment for so doing For what property can he give to one which will not offend some other Nor did the veriest Thief or Murderer ever suffer punishment but some of his Comrades would seek revenge and if they might would punish the Lawgiver Besides who shall judge his Prince If any one then every one may Let no man therefore be hasty to go out of his sight nor stand in an evil thing for he doth whatsoever pleaseth him Where the word of a King is there is power and who shall say unto him what doest thou Eccles 8. 3 4. The Lord forbid that I should do this thing unto my Master the Lords Anointed to stretch forth my hand against him seeing he is the Lords Anointed 1 Sam. 24. 6. It may seem to some that this unlimited power of doing any thing Annot. with impunity will only beget a confidence in Kings of doing what they list without ever taking care of their duty in preserving their Subjects from intestine broils and factions and from the outward force and violence of their Enemies whereas more narrowly looked into no men are so subject to care and have their wills less then they For private men if they do any thing in their passion their fame and fortunes are alike neither much removed from their persons few take notice of it But they who are set in high place all men take notice of their actions In the greatest Fortune therefore is the
must be reduceable to some one certain principle or they are irregular or commotions If then Christian Princes have not a right of calling Assemblies but others as well as they then must it either necessarily follow that Christian Princes have not power sufficient to govern and protect their Subjects and that their Subjects motions cannot be regular and orderly but confounded and irregular and so the law of nature and the end for which God ordained Princes inverted For my part I will not dispute the Power of God in the planting of the Church either under the old or new Law how that he did dispence with the actions and motions of his People and Ministers and set Father against Son c. and that to make his Power known he would plant his Church notwithstanding all Temporal Powers whatsoever but this I do affirm that God after the deliverance of the Israelites out of Egypt did give to Moses only this right of calling Assemblies as appears clearly by Numb 10. 2. for only to him is the charge of making the Trumpets to call the congregation together It is true that vers 8. the sons of Aaron shall blow with their Trumpets but neither Aaron nor the Priests had any Power to make them but only Moses they must therefore have them from him and be his Instruments and this Power was given to Moses as the supreme Magistrate and not as High Priest for Aaron was then High Priest being before consecrated Levit. 8. Nor was this Right given personally to Moses but as a Law to last for ever If any allegation be made against Moses because he was a Priest it must cease with Ioshua and the Kings after him who were none for Ioshua by virtue of this ever lasting Law did call an Assembly of all the Tribes and therefore of Levi to Sichem and vers 28. dissolved it After him did David Joshua 24. 18. 1 Chro. 15. 4. 11. call the High Priest and other Priests not to consult of any secular affair but about the removing the Ark and afterward 1 Chron. 23. 2. he gathered together all the Lords of Israel with the Priests and Levites and as he called them together so his dismissed them 1 Chron. 16. 43. The like did Solomon when the Temple was dedicated called the Assembly 2 Chron 5. 2. dissolved it cap. 7. 10. The like did Asa when Religion was restored and a solemn Oath of association for the restoring of it Jehosophat did it when 1 Chro. 15. 2 King 10. 20. 2 Chro. 34. 29 30. 2 Chro. 29. he proclaimed a publick Fast 2 Chron. 20. 3. Jehu assembled them when a solemn Sacrifice was to be performed Joash in a case of Dilapidations Josias when the Temple was to be purified and a mass of superstition to be removed Hezekiah made a law for the Priests and all their brethren to assemble and in conformity to that law they did assemble nor was this v. 15. Assembly for any other thing then to cleanse the house of God and for the affairs of the service of God being things meerly spiritual And since that God hath promised that Kings shall be nursing fathers and Queens nursing mothers to his Church it must be meant of Christian Kings for this could not be of Josias because he was a King at the time of this prophecy or before it could not therefore be meant of him for the prophecy is de futuro Kings shall be c. Nor could it be meant of the Kings of Judah after him for they were all Idolaters and persecutors of Gods Church It was therefore meant of Christian Kings And how Kings can be Kings or Supreme powers without this right I do not understand Nor can that saying of our Saviour's causing of wars and distraction be otherwise reasonably understood but only where Kings and Supreme powers have not received the Faith And that Christian Kings did generally exercise this power after they became Christians we shall shew hereafter 10. He is a rightful Supreme Governor who is a Sword-bearer that is Who is arightful Supreme Governor whom God hath chosen to be his Minister who hath not taken the sword excited thereunto neither from any ambitious or spightful passion or affection either of himself or other men That may make and abrogate Laws determine all Controversies by himself or such Judges as he shall appoint choose Magistrates and Councellors and in whom is the power of making War and Peace Nor did God give Kings to them only over whom he did reign by Covenant but also to Heathens who had not known him as to the Persians Syrians Assyrians c. he gave Cyrus Hazael Nebuchadnezzar c. And all antique History speaks only of the Government by Kings as Justin says Principio rerum gentium nationumque imperium penes Reges erat before any other Government was usurped and made by Men. 11. He is a Tyrant who is a Sword-taker who in stead of executing Who is a Tyrant the wrath of God upon offenders against all Law kills and murders them who are not of his own faction who hath no power from God but only force from the wills of inconstant and seditious men As Hos 8. 4. says They have set up Kings but not by me they have made Princes and I knew it not Nor is it the Command of One which makes Tyranny The Grecians themselves called the Council of the Thirty after the Athenians were subdued by the Lacedemonians the Thirty Tyrants of Athens I am confident there was never any thing so wildly and variously Annot. 1. ghessed at as the manner how Dominion and Power came into the world by those men who derive all power from the People originally Bodin cap. 6. de Rep. p. 46. makes all Dominion to be gotten at first by force and pag. 46. d. he says It is very like that without greatest force and breaking down the Laws of Nature Liberty could not be taken away And many men will not distinguish between Force and Power but only in the possession And sure Athaliah was as much possessed of the Crown of Judah and as quietly as any King before or after her for six years and yet I do not find Jehojadah or the people reprehended for restoring Joash And the children of Israel did not rebel while they could quietly place 2 Chro. 13. 7. Jeroboam over them but Jeroboam was declared a Rebel after he was possessed 12. When they over whom God hath given power shall submit themselves What is a rightful Government to that power this is a rightful Government When all who owe their subjection shall accept and receive the Laws of him who by Right that is by Birth Revelation Lot First possession or just Conquest ought to command As the Children of Israel answered Joshua All that thou commandest we will do and whithersoever thou sendest we will go According as we hearkened unto Moses in all things so will we
that Saul did unjustly persecute To resist Princes though commanding unjustly is contrary to faith in the Old Testament 1 Sam. 24. 6. cap. 26. 9. David with an intention to take away his life Yet when David might twice have resisted Saul and taken away his life 1 Sam. cap. 24 cap. 26. he refused to do it and the reason was because he was the Lords Anointed And who can lay his hand upon the Lords Anointed and be guiltless c. Nebuchadnezzar King of the Assyrians not only destroyed the land of Palestine with fire and sword not only destroyed Jorusalem laying it level with the ground burnt the Temple carried all things consecrated and dedicated to Gods service to Babylon converting them to prophane uses not only killed their King carried the Jews themselves into most miserable servitude but also to the contumely and dishonor of Gods Majesty erected an Image to be divinely adored upon no less penalty then to be thrown into the fiery fornace Yet were these most holy men Shadrach Meshach and Dan. 3. Abednego so far from resisting the King though they could not obey him that they patiently submitted themselves to the fornace made seven times hotter for their sakes and the blessed men were so far from seeking revenge that upon Gods denouncing judgment to Nebuchadnezzar in a dream Daniel whose mischief was no whit less intended prayeth that the dream might be to them who hate his Lord and the interpretation thereof to his adversaries Far unlike to the spirit of Calvin who commenting upon Daniel makes Kings to divest themselves of all power when they command in dishonor to God and to spit upon their heads rather then obey them c. And though Nebuchadnezzar were so wicked yet being Jer. 25. 9. a King Gods calls him his servant 25. S. Peter teacheth that it is thanksworthy if a man for conscience Against the faith of the New Testament 1 Pet. cap. 2. 19 20 21 c. towards God endure grief and suffer wrong undeservedly For what praise is it if when we be buffeted for our faults we take it patiently But if when we do well we suffer wrong and shall take it patiently then is there thank with God For hereunto were we called for Christ also suffered for us leaving us an example that we should follow his steps who did no sin neither was guile found in his mouth who when he was reviled reviled not again when he suffered he threatned not but committed the vengeance to him that judgeth righteously What more plain lesson can be given to Christians to suffer and not to resist Princes for the testimony of a good Conscience And if ever man had just cause to resist then had our Saviour and S. Peter in his defence yet would not our Saviour allow it but tells him that whoso takes the sword Mat. 29. 52. shall perish by the sword 26. That which I as a private man may assume to my self as a man Destructive to all Humane Society is due to another as a man otherwise it were a great arrogance in me to allow that to my self which I condemn in another But if I may ascribe to my self a power of judging when I may resist my Prince then ought I to allow it in another and so by consequence every man should have a power of judging how long he shall continue in obedience and not resist his Soveraign Now what Society there can be where any man may make himself free from all Humane Laws without which there can be no Society and resist them when he sees occasion for where men may resist there can be no subjection let any man judge Nay where men did ever ascribe to themselves a right or power of resisting their Soveraigns they did never stay there but made all the unjust usurpation and hostile invasion they could upon them who continued in obedience to their Prince And what Law of God or Man or Rule of Society gives me a liberty to kill and murder innocent men because I have sinned in resisting where I ought not By our Country-Laws if a man assaulted another who goeth back to some hedge ditch or wall c. beyond which he cannot pass and then in his own defence kills the assaulter yet such a tender care had the Common-Law of a mans life that though this were done by inevitable necessity in the preservation of an innocent mans life that he should have suffered death therefore And though by the Statute of Glocester he shall save his life yet he shall forfeit his goods and chattels Nor is this damnable opinion of resisting Princes Inst 3 par p. 55 56. less destructive to other men then the Assertors For why may not any man do that to them which they of themselves have done to their rightful Soveraign and his obedient Subjects 27. It is Humanum errare Fallibility is concomitant with humane Wherein Princes commanding unjustly ought to be obeyed actively nature And no doubt but Princes being men are subject to humane frailty Yet as Humane Laws will admit of although not intend a mischief to particular men rather then endure an Inconvenience so the Laws of Nature will admit of many things contrary to Nature rather then endure a Vacuity I say therefore that there are many things so inherent in the Prince individually that they are incommunicable to any other And therefore the Prince offending herein either through humane frailty or passion yet if he command unjustly the sin is his in so commanding and not the Subjects in obeying As if a Prince makes unjust War yet if the Subject obey him it is not the Subjects sin in obeying but the Princes in making such a War For if Subjects might judge whether a War were justly undertaken or not and so be freed from his obedience when he would judge it unlawful then any or all Subjects either through fear or faction might desert their Prince in any War and so the Prince left destitute of protecting himself or Subjects whenas Salus populi est suprema lex and of this is the Prince the sole and individual Judge If Princes give unjust Judgment the Executioners of Judgment ought to execute the Sentence although unjust for they are not obliged to take notice of the Injustice of the Sentence but of the Sentence The Act of Parliament against Cromwell Earl of Essex did oblige although unjust he being in peaceable times Inst 4. par 37. without any urgent necessity condemned unheard yet was it no sin in the Executioner to execute it 28. Monarchy is where the Empire or power of governing is in one What is Monarchy Person from whom all Humane Laws Magistracie and Protection of Subjects is to be expected 29. Hereditary Monarchy is where this Right Title or Empire descends What is Hereditary Monarchy to the Heir General or Male and this latter is proper only to France and that by a
pretended Salique Law 30. Delegata potestas non potest participari No man can participate No Prince can give sell or transfer his power much less alien the power which he is intrusted with But supreme power is delegate from God to every Prince and therefore no Prince can give sell or bequeath his power to any other The King is Gods Lieutenant upon earth Coke 3 par Inst cap. Deodands fol 57. 31. It may be the Electors are the Instruments by which the Elected Elective Monarchy King or Monarch receives his power but I do not understand how such a King can be a Supreme Prince Yet this by the way Neither now nor heretofore was ever such Prince chosen either by the people in general or by the Masters in families nor the Electors chosen by them 32. Aristocracy is when a company of men met in Councel ascribe Aristocracy to themselves whatsoever power is due to any rightful Monarch not being chosen by the people in general but have places either by birth or as they are chosen by the Council such is the state of Venice such were the Roman Senate and Ephori of Lacedemon 33. Democracy is when they who being free of the City do meet at a Democracy time and place appointed where they choose Ministers and Officers make and alter laws and do whatsoever they think good or what shall appear good to them as represented to them by popular Orators But because business might so fall out that there might be a necessity of making War or Peace raising mony for defence of the Commonwealth c. besides the times and places appointed the Athenian Archon and Tribunes of the Roman people had liberty given them to assemble the people when they thought fit I think no man can well tell whether the Roman Government before Caesars dictatorship were Democratical or Aristocratical For though men might appeale from the Consuls to the Tribunes yet by an Act of the Senate after the suppressing of the Gracchi the Consuls might provide that the Common-wealth should receive no detriment which is as general and high a power as can be given No wonder then if Marius pretending the power of the Common wealth and Sylla the authority of the Senate should reduce both Rome and Senate to so lamentable a condition and that Julius Cesar assisted by Lucius Antonius and Quintus Curio the Tribunes of the people and Pompey by the Senate should raise such War and commotion every where to the utter subversion of the absolute power as they called it both of Senate and people CHAP. IV. Of the three Species of Government viz. Monarchy Aristocracy and Democracy 1. IMperium est duplex solutum legibus and astrictum legibus this is There are but 3 species of Government and all compounded Government is either supervacantous or destructive to the Governors and Governed Empire restrained to the Laws and is of Magistrates who although they command private men yet they themselves are bound by the laws and command of their superiors which is the power of our Judges Justices c. That is Majesty an Empire which is the Arbitrator Moderator Controuler and maker of all laws and who justly has it is accountable only to God and this Empire is so essential to all Government that without it there can be no Kingdom or Commonwealth there cannot be any property any meum or tuum but what this Empire gives no man has any security of his life or estate but as he is preserved and protected by this power or command And though government do differ as it hath been and yet is in many places of the world in specie viz. Monarchy Aristocracy and Democracy yet in all of them this power or command is the same and equal viz. Supreme And this power or command must be in one thing viz. in one man in one court in one people but if it be divided into two or more it is either supervacaneous or destructive for those two or more in whom this divided Empire does consist must either agree or disagree in the same thing if they agree to will or nill the same then it is supervacaneous for it had been all one if but one part had willed it and frustra fit per plura c. but if they disagree in willing or nilling the same thing it is destructive for it is impossible for the Subject to obey because the Law it self is a contradiction and if the Subject obeys one he disobeys the other and to obey neither brings Anarchy and confusion upon all the governed What is left then but the Subject to be divided aswell as the power and a Kingdom divided in it self cannot stand St. Mar. 3. 24. Neither are the Governors in whom this divided power or command does consist in any better case then the Subject for Nulla fides regni sociis omnisque potestas Lucan Impatiens consortis erit It were infinite to enumerate the sad consequences which division of Kingdoms have brought upon those Kingdoms where they were made Let any man look upon the Estate of the Roman Empire when it was divided by Constantine the Great among his three sons Constantinus Constantius Constans Nor did ever the Empire retain the name and dignity after the division made by Theodosius to his sons Arcadius and Honorius Nor was the Western Empire ever raised again to near the greatness it had in Charlemaines time after the division made by Lotharius Lewis and Charles sons of Lodovicus Pius and what horrible confusions followed upon the divisions is easie to be imagined whenas in the first Battel between the brethren was slain the greatest part of the Nobility of France and more men died in it then in any other battle that hapned in France since that fought between Ecius and Attila King of the Huns in the fields of Catalonia But that we may not go so far and yet find examples neerer home Rodry Maure or Rodry the great King of Wales Son of Mersyn Frith had issue three Sons Mervin Anarawd and Cadelh In the yeare when he dyed viz. anno dom 877. King Alfred alias Alured then reigning in England this Great Rodry divided his Kingdome of Wales into three Principalities The First he called Guyneth the English Northwales the Latinist Venedotia The Second Principality was called Powisland in Latine Powisia of some Westwales bordering upon England The Third he called Deherborth the English Southwales in Latine Demetia The First Principality some say he gave to Mervin others to Anarawd The Second to Anarawd some say to Cadelh The Third to Cadelh some say to Mervin The First was the best because it was quietest The Second often invaded and troubled by the English Into the Third often incursions were made by the English the Norman and Fleming The division of this Kingdom however it was wrought in process of time such a division between these Princes as it was never quiet untill it
from their Kings The Barons warrs and those of York and Lancaster Wat Tyler Jack Straw c. were caused by the rebellion and stubborness of the Subject nor is the sacred patrimony of the Crown and Church more secure then that of private men but invaded and made a prey to soldiers Sequestrators and Excise-men a Hereditary Monarchy is better than elective in relation to the Subject For the Antiquity of this Government even among the Grecians see Thucid. 2 ed. by H. Stephanus 1588. p. 10. ãâã ãâã ãâã ãâã ãâã Before that time viz Trojan War Kingdoms were hereditary and defined to certain honors 7. Hereditary Monarchy is better then Elective in relation to the Subject If a man but considers the calamities brought upon the Roman Empire only by choosing their Emperor it were sufficient to make any man feat and tremble that hath so much compassion in him as to pity wretched States for that Nation who choose their King When Caesars line was extinct in Nero Galba was scarce chosen and received Emperor when Otho excites the Pretorian Cohorts to kill him and his adopted son Piso to make way for himself Vitellius is chosen almost at the same instant by the German Legions that Otho was chosen by the Pretorian Cohorts By this division the Empire is brought to so desolate a condition that Otho a vitious man did kill himself to prevent its further destruction yet could not Otho's death purchase his Countries quiet For the Moesian Pannonian and Dalmatian Legions ascribe to themselves as good right in choosing an Emperor as the German and name Vespasian Rome the Mistress of the known World never felt such misery as those Legions led by Antonius Primus brought upon her which Cornelius Tacitus in the latter end of the third book and the beginning of the fourth book of his History relates That Emperor the Soldiers chose scarce ever pleased the Senate what Emperor the Senate chose never pleased the Soldier From Marcus Aurelius to Dioclesian who was the greatest Persecutor of the Christians and renounced the Empire to take upon him a private life not one Emperor of ten died a natural death In Gallienus his time Thirty at once at no time less then three or four but like Hydra's heads when one was cut off another sprung up Into such a condition was the Empire brought by the Election of the Emperors Nor was the state of the Western Empire much better which he who reads the History of those times from Charles the Great until the Constitution of Pope Gregory 5. Anno 1002. for choosing Platina vita Greg. 5. 151. b. the Emperor Otho the Fifth not contradicting it may see which hath continued till this day Yet the Electors considering the confusions caused in the nominations of their Emperor have ever since Rodolphus the First who was chosen An. 1272. continued their election in the House of Austria so that upon the matter the Empire is become hereditary and the choosing but a Ceremony 7. The miseries consequent upon the election of either Native or The miseries consequent upon the Election of a Subject Stranger are many For there is no Native who is not in distaste with some body the choosing of whom gives power to take revenge not only upon him but those that opposed him in his election for it is hardly imaginable all should agree in one None of the rejected Competitors will be content to acknowledge the Elected in stead thereof they will rather study ways to raise dissention about the manner of the Election that either undue means were used in it or though they had the fewer Votes yet they who voted for them were greater better or more Saint-like whose Votes ought rather to be weighed then the others numbred These it may be and many other considerations have caused the Polonians these many years to look for him whom they choose their King out of Poland 8. Let us see what the miseries consequent upon choosing of a Stranger The miseries upon the Election of a Foreiner be he King or Subject are He who is chosen is either a Subject or a Soveraign for between these two is no mean If he be a Subject who especially freeborn Soveraign people will endure that another being a stranger and a Subject too should command over them And where power is despised the exercise of it is never permanent If he be a Soveraign he having now two Kingdoms can personally reside but in one which will disgust the other It will be expected that he observe the manners and dispositions of this Kingdom more then his other because the people chose him It will be expected by that Kingdom that he retain the observations of the dispositions and manners of it because he is their born King Philip the Second did disgust the Flemings because he retained his Spanish habit He cannot do any thing so much in order to the good of the one but it will as much excite the other to hate him in being a servant to both he shall please neither And what was it which caused all those Wars raised in Bohemia but the Election of Frederick 1619. from whence too sprung all those devastations and almost destructions in Germany since until the last Treaty at Munster From hence it was that Sigismund the son of John King of Sweden being chosen King of Poland the Kingdoms differing both in Manners and Religion and it being impossible to please both was not only himself and all his posterity for ever excluded from the Kingdom of Sweden in a Conspiracie at Lincopen 1600. but hath been the cause of all that misery and desolation under which Poland lately lay For because Casimir the son of Sigismund will not renounce the Right which God by Primogeniture has given him and acknowledge this Barbarian and Usurper he joining with the Brandenburgher and Transilvanian and seeks aid of the Turk too who being the best Christian of these four refuseth to give him any robs ruines and spoils Poland Add hereunto the calamities and confusions which happen in the intervals of their Kings which whoso reads the History of Pole may see Whereas in an Hereditary Kingdom where the Heir is known and a Major no confusions probably follow And no man sure will deny but that an Hereditary Monarchy is better for the peace and quiet of the people then an Elective 9. Hereditary Monarchy is better then Elective in relation to the Hereditary Monarchy is better then Elective in reference to the Crown and patrimony thereof Rights Patrimony and Dignity of the Crown For where the Crown descends to the Heir the King will use what means he can for the advancement of the honor and dignity thereof that himself in his posterity as well as his person may be great and renowned whereas he who cannot hope that his Heir shall enjoy it will use what means he can for provision and maintenance for his Children although it be
from long received and established Laws which is the Princes greatest security and therefore in reason ought rather to suffer some mischief from them then venture an inconvenience by altering them Whereas in the other Governments where Factions and mens Interests bear so great a sway they are daily subject to mutilation and alteration And let any man see how unlike all the Parliaments since 1640. have been in their Interests and Factions and all of them would have innovated all the established Laws of this Nation if they could have agreed upon any thing in stead of them Thirdly That it is an unreasonable thing Mens lives and estates should terminate in the Will of one Man and it may be this Man a wicked and tyrannous Man But if it be necessary that these things must depend upon some Humane cause how much better is it for Men to be subject to one Man then many Nor can any thing be objected against Monarchy but will be of more force against either of the other Governments 15. Those Men who imagine to frame a Democracy or Common-wealth It is abhorrent and impossible to frame a Common-wealth in England from the example of the Romans and Athenians here in England from the example of the Romans or Athenians c. let them consider two things First That by a general abhorrence of Mankind Democracy hath been exploded upon the face of the Earth for above 1700 years if the Cantons of Switzerland be not Democratical who have almost ever since their Rebellion against Wenceslaus about the year 1400. when they first formed themselves into a Democracy continued mercenary Mankillers to the Interests of the Pope and the Kings of France and Spain Secondly The state of the Inhabitants of Rome and Athens were the People who were Civitate donati Libertines or absolute Slaves but with us the Case is quite another thing for every Man hath as much right to his Freedom as another by birth It is therefore meer folly from Causes so unlike to produce like things Besides if a man considers the condition of this Nation ever since Monarchy was rejected that in less then the revolution of Twenty years the Publique Charge hath been twenty times more then in Five hundred years before Not only the Nobility and Gentry in general sequestred and undone but the Publique Revenues both of Church and Crown wasted and sold all Veneration of Divine and Humane Laws lost and neglected all Commerce with Foreign Nations interrupted and the Nation hated and despised by Foreigners the most Renowned places which the Piety of our Ancestors founded for the Worship and Service of God prophaned and made Stables for Horses The Governors in stead of minding the Publick good intending only by all unjust means to prefer themselves and creatures And at this day a greater Debt upon the Nation then our Parliaments for 400 years have given our Kings except the sacrilegious gifts of Church-lands and the Nation still degenerating into worse sure no sober man would be in love with Commonwealths CHAP. V. Of Sedition 1. BEfore we proceed to the Fathers Husbands and Masters Power Of Sedition it will not be amiss to take a short view of Sedition and what disposes men to it of themselves and how they are disposed to it by them who are in supreame Authority Sedition properly signifies Seditio quid a going apart or asunder As the submitting and uniting of Subjects to their lawful head causes peace and quiet from whence follows ease and plenty so sedition causes discord and War which unless timely suppressed either ends in Tyranny that is by setting up one or more of the seditious in place of him who by right ought to command or opens a gap to be overwhelmed of forrain powers See Hobbs de Cive cap. 12. 2. This is the most antient sin the first of our first parents the desire The desire of judgment disposes men to sedition of being like to God judging good and evill Therefore God sent him out of the garden to till the ground Gen. 3. 22 23. Absoloms ambition was that he might judge the land 2 Sam. 15. 4. which only did belong to his Father and by the First proposition of cap. 3. lib. 2. all judgment belongs to him who is supream The opinion therefore that judgment of good and bad belongs to the Subjects in general or to any in particular is a seditious opinion It is impossible that judgment removed from the head should abide any where for the unreasonable appetite of men doth deem things good or bad not as they are in themselves but as they appear profitable or not to them from whence it comes to pass that the same action is praised by one man as virtuous and by another is blamed as vitious neither can there be any remedy for this thing but the submission of every mans judgment to the judgment of another Besides judgment of good and evil is to put an end to all difference and what end can there be of difference when as either every man may judge alike or no man can tell who shall be Judge 3. It was Adams answer to God when he asked him whether he had Disobedience to Lawes eaten of the tree whereof he commanded him not to eat The woman which thou gavest me gave me of the tree and I did eat It is usual with seditious men when they are disposed to sedition to oppose the laws of God against humane and plead conscience because through their stubbornness they will not receive humane laws What follows No private man but may assume to himself as much liberty as another and every man will desire to seem as tender-conscienced as another so that In nomine Domini incipit omne malum Men pretending conscience destroy all society and government It is therefore a seditious opinion to affirm that subjects sin obeying their Soveraigns in all things not contradicting Faith Religion or the Law of Nature 4. When men abound with wealth and ease partly by their own natural Ambition affection and excited by their flatterers deem themselves slighted if they have not honor and power in their conceipt proportionable to their wealth no wonder if they study novelty to acquire popular affection in lieu of what they call Court-favor 5. When men are over-conceited of their parts and abilities and because Envy they are not preferred in Church or State according to their desires use their abilities to promove the affections of a faction contrary to what is Trump as they call it which where liberty may be not only disputed but opposed to Prerogative shall never be wanting a small deale of wisdome serves the turn a little eloquence is enough if they can use some small flourish of words no matter whether they be to the purpose or not at Markets Sermons Bull-baitings c. and then tell the auditory that this thing done in State is against law and that thing
done in Church is against conscience no minding of what is their duty all their talk is judging their superiors and this buzzed into the heads of light and inconstant men begets all the talk of the Country and is beleeved with the same Faith they beleeve the Gospel or their Creed and if Authority shall endeavor to suppress the further growth of such seditious practice by punishing the Authors it will be deemed by the well-affected no less then an invasion upon the liberty of the subject and persecution of the Gospel 6. If Lex lata had any obligation upon the Legislator then were the Creature subject to the Creator and the Father obliged to what he commands That supream Princes are obliged by their own Laws is a seditious opinion his Son and the Master to what he bids his Servant and God to what he commands Man which is absurd nor is it less absurd that the supreme power should be obliged by the Laws given to Subjects They who assert that supream Princes are obliged by their own Laws should do well to make their Children shooes and cloathes to serve them when they are men For as mens vices and manners vary so must humane Laws But men neither consider themselves nor Princes in asserting this For Princes are in a more vile condition then the poorest man not to have the freedom of will and they themselves are left to the rigor of the Law without hope of mercy How can any man accuse Hen. 7. for his rigid exacting the penal laws when by this opinion he had not power to remit any thing of them And why do men tax H. 8. for a cruel man and a Tyrant because he put so many men to death for not acknowledging his headship of the Church the not subscribing the six Articles c. if he were obliged by his own Laws Nay they do not allow Queen Mary a power to releive any Protestant given over to the secular power by Bishop Bonner From this very opinion sprang all the miseries for these last 18 years Scots had liberty to invade us but the King was obliged by his own Laws not to relieve his oppressed and afflicted Subjects This was that which gave the Turks first entrance into Christendom for while the wrangling Grecians not content with their rightful Emperors place usurpers in their rooms who to gratifie them again and to strengthen themselves against the right heirs care not what they grant their well-affected Subjects which so weakned the power of the Grecians that contesting with their Emperors about their liberties and priviledges which their usurping Emperors had granted them and neglecting their common and at first despised enemies the Turks they were all overcome in a short time by a handful of men obedient to their Prince And what private man can assume to himself the knowledge of good and evil that is ascribe to himself a power over his Superior by judging whether he hath transgressed the Law or not And let any man shew that ever our Parliaments as they call themselves Councils of State or Safety were ever obliged by their own Laws and I will submit that rightful Princes are obliged by their own Laws 7. There is nothing more to be wished in this world then that the That supreme power may be moderated Will of them which command might be moderated and restrained to Reason as that Kings Fathers and Masters should never exact any thing of their Subjects Children and Servants but what were reasonable But it is impossible that the Supreme power can be moderated unless it be divided or subject to the Moderators It is therefore a seditious opinion That Supreme power may be moderated 8. All right that any Creature hath to any thing is either from the That any man has any thing proper against the Supreme power Law of Nature or from some Humane Law but no Subject can have Praedium directum cujus nullus author est nisi Deus Sir E. Co. Com. Lit. pag. 1. b. qui dominium non habet dominus non est And he that holds of none is Lord of all which no Subject can be It is therefore a seditious opinion That any Subject hath any thing proper against his Soveraign 9. There has not any thing for more then this last Century caused so That the people may reform where Princes will not much dissention and bloodshed among Christians to the shame of Christianity as the specious pretence of Reformation The Turk either restrained by God or not willing to be an Enemy to Mankind hath been only a spectator not actor in this Tragedy The end doth sanctifie the means was a doctrine generally received among these Reformers if the end were Reformation it was no matter by what means it was brought to pass Hence it was that every where in the Western world men disposed to sedition made Reformation their pretence No Prince must use his power to restrain them if he do Calvin gives them a lesson Abdicant se potestate terreni Comment on Dan. 6. 21. Principes dum insurgunt contra Deum immo indigni sunt qui censeantur in hominum numero potius ergo oportet conspuere in illorum capita quam illis parere ubi sic proterviunt ut velint spoliare Deum jure suo Earthly Princes do divest themselves of power when they set themselves against God yea they are not worthy to be accounted in the number of men Men ought therefore rather to spit upon their heads then obey them where they deal so saucily as if they would spoil God by their right And Luther Ab omnibus hominum legibus exempti sumus libertate nobis Christiana per Lib. de captiv Babil de baptismo baptismum donata We are freed from all Laws of Men liberty being given us by Baptism Et scio nullam rempublicam feliciter legibus administrari I know there is no Commonwealth happily governed by Laws And Turpe enim est iniquiter servile Christianum hominem qui liber est aliis Cap. de matrimonio quam coelestibus divinis subjectum esse legibus It is a filthy and unjust servile thing that a Christian man which is free should be subject to any Cap. de sacrord but Heavenly and Divine laws And whether these mens followers have not well practised their Lectures wheresoever they have been tolerated either in Germany Bohemia Austria Upper and Lower Hungaria Transilvania Sweden France England Scotland Low-Countries Geneva c. let any man who hath read the Combustions of Christendom judge and the Anabaptists and all other Sects may from their principles justifie all their actions 10. There is nothing more manifestly commanded by God in the That temporal good follows in order to spiritual Old and New Testament then obedience to Temporal Princes yet there is nothing more endeavored to the shame of Christians then by pretence of Religion to usher in Rebellion By
this opinion are all Christian Princes made in a worse condition then Infidel or Mahumetan and subject to the Spiritual powers in their Temporal jurisdiction But mutato nomine a new generation of men have sprung up and changed Bonum temporale sequitur in ordine ad bonum spirituale into The wicked have no right to their goods and It is lawful for the children of Israel to rob the Egyptians 11. The King is greater then the Singulars and less then all his Subjects Rex major singulis c. is a seditious opinion is a Fools bolt shot at such random that it is not worth the measuring whether it be near the mark or not For not only all Subjects owe their obedience as much as every one but never was any Prince universally rejected or disobeyed by his Subjects 12. See Sir Ed. Coke 3. par Inst pag. 9. On si homme leva guerre encontre That Subjects may upon any prerence levy war without consent of the Supreme power a seditious opinion See Calv. case 11 12. nostre Seignieur le Roy This was High Treason by the Common Law for no Subject can levy War within the Realm without authority from the King for to him it only belongeth And a little after If any levy War to expulse strangers to deliver men out of prisons to remove Councellors or any other end pretending Reformation of their own heads without warrant this is a levying of War against the King because they take upon them the Royal authority which is against the King 13. Let no Prince ever hope for obedience from his Subjects who Negligence in the worship of God takes no care that God be duly served by them For where the fear of God is not men will not honor their King but are disposed to sedition 14. Honor is nothing else then the estimation of anothers power Contempt of the Regal power disposes men to sedition viz. That a man hath power to protect reward and punish another And prudent Princes ought so to maintain the reputation of this in their Subjects that it may be received and believed of all For besides that ill men will where there is no fear of punishment become more licentious generally all men ambitiously where they are not restrained by fear desire to insult over their Superiors Aesop gives an Item of this last in the Fable of the Logg which Jupiter gave the Frogs for their King when they became fearless of it every one jumped insultingly upon it And examples of the former are clearly seen in men who condemned for offences to death they penitently acknowledge their faults and desire forgiveness of that Power that puts them to death whereas scarce any offender fearless of punishment did ever submit and ask forgiveness for it Princes therefore ought principally to take care how either by their vices remiss Government or otherwise they make their persons or power contemptible for when power is contemptible the exercise of it is never permanent 15. If the Age tends to worse and men of this latter Age have been Concessions of Princes to their Subjects disposes them to sedition worse then in the precedent as men generally hold and if Princes power in Ages when Mankind did not so fast degenerate into all forbidden wickedness were not sufficient at all times to restrain the seditions and disorders of their Subjects then is it a most unreasonable thing in Princes to indulge this ambitious desire of their Subjects by granting them liberties and priviledges which they had not before And if any man can shew that ever any where in the world Princes did make their Subjects better by granting them a more then usual liberty but only made them more arrogant to demand more until their Majesties and Authorities became so contemptible that in stead of governing their Subjects they must be content to have what terms their Subjects please to impose upon them or to reject them which in the end they will assuredly do I will be content to believe Princes do prudently by granting to their Subjects all their real Prerogatives and retaining only or some small matter more then the empty Title 16. It is not only the office of a Prince that good Laws be made but If Laws be not carefully executed that they be carefully put in execution There is no man who does not will and desire to be happy but few men who are daily sollicitous and industrious to attain to happiness It is the part of foolish men only to will and wish but the part of prudent men to do wisely A man shall see it in a family where the Master only commands and never looks to the doing that in a short time though he commands much he will have little performed And where Subjects have gotten a licentious habit of neglecting or transgressing Laws it will prove a hard thing to reclaim them whereas they might have been easily preserved in their obedience by careful execution of the Laws 17. There is nothing more dangerous in Church or State then Innovation Alterations of Laws It is therefore the most secure way of governing when mens manners and vices do not require new Laws by the antient and received Laws of a Nation This will secure the Prince from the imputation of Tyranny he may better hope to preserve a strong house built upon a sure foundation then by destroying it to undertake to build another which he either knows not how to finish or having built it cannot hope it will be better then the other or cannot tell whether it will be of any continuance but falling will overwhelm him in the ruine of it Besides the Subjects from the example of their Prince will become studious of innovation and censure whatsoever Laws he prescribes in lieu of the old ones Those he gives if they please one will displease another it will be the only talk of the City Country and Market If he punish any opposer for it is not possible but disadvantage will be to many and the loser will speak he shall by all his faction be cried up for a Martyr and Patriot of his Country and Laws It will make Subjects diffident of their condition and fearful that having Property by the old Laws they shall lose all by new ones Yet there is nothing in this world can secure men and make their condition permanent For what is usually objected by seditious men against their Prince viz. the invading and not suffering freeborn Subjects to have the benefit of their antient Laws and Customs was imputed a crime to our late King who was persecuted by his own Subjects because he adhered to the known and received Laws of the Land for after the year 1642. there was not any Petition presented to the King by one or both Houses of Parliament but was against the established Laws of this Nation But no question it was not the Kings adherence to the Laws but the iniquity
of the Times which brought so great a calamity upon himself his Queen and Posterity 18. If there be any happiness in this world or the world to come which Resuming any thing granted to Subjects may be hoped for by any man no question but it is to be attained by Justice and Obedience and Justice and Obedience is in receiving and doing the Commands of our Superiors nor can any one be a just or obedient man in any thing wherein he makes not his Superior that is God Church King Father Mother or Master the reason or rule of it Yet there is nothing more desired and pretended by ignorant and seditious men then liberty And wherein do they place this liberty but in weakening the power of him to whom they owe their subjection And the more any Prince grants to his Subjects the more liberty the Subjects ascribe to themselves and the less power to their Soveraign and will rather be devoured by forein Enemies then endure that their true Prince shall infringe their liberties by resuming any thing granted them although it be for their necessary defence and preservation 19. Government is endangered either by intestine broils which are Granting priviledges to particular places causes sedition raised by factious and seditious men or forein war and Princes ought to be more careful to preserve their Subjects in general from intestine then forein war For besides that civil wars are more dangerous to the Crown then forein so intestine wars always end in loss of subjects in general whereas by forein wars much benefit may arise to King and subjects And there is nothing so much desired and that can so much conduce to the suppression of factions and seditions as the equal and due administration of the same Laws to Subjects in general But in vain shall Princes endeavor to suppress factions and seditions when they make them by making so many Factions as they make Corporations For who does not see what an antipathy there is between the Country-Justices and the Magistrates as they call them of Corporations where they agree not in aliquo tertio that is in some mischief plainly in advantage of the Corporation And let any man shew one Corporation of an hundred which hath not used the Priviledges granted them by Princes to the dissolving of that Power which granted them their Priviledges Ecclesiasticus says That without Handicrafts men and Tradesmen Cap. 38. 32 33. a City cannot be inhabited but they shall never sit in the place of Judicature And indeed what thing can there be more abhorrent then that men who by fraud and unjust gains have gotten much money should therefore sit in Judicature and judge and condemn poor men to death for small offences in comparison of theirs and different only in this that the one committed their offences fraudulently and covertly and the other forcibly and violently 20. As in mens natural bodies well-ordered action is much conducing Long peace disposeth men to sedition to the preservation of health and overmuch ease and sloth the original of many distempers which cannot be recovered without bloodletting and physick so in the bodies of Kingdoms and Empires a well-ordered Militia constantly kept in action conduceth much to the preservation of a Nation whereas sloth and neglecting military discipline makes a Nation not only unfit and unweildy to defend it self against its outward Enemies but also contracts infinite Civil distempers within it self all tending to a Civil war Well therefore might Cato Major in his great wisdom cry out in open Senate That soldiers and men of war were to be still busied in arms far from home for that in so doing all should go well with the State and the glory thereof increase And the Romans always judged an external war the most requisite and necessary remedy to prevent an intestine And no doubt but this is See Bod. de rep lib. 5. 563. at this day the Politick reason of the long wars which France makes against Spain rather then any fear or hatred of the Nations one to another It is therefore a miserable condition in which Princes are without Gods great and special favor to them that either they must maintain a forein war and so become accountable to God for all the blood which shall be spilt if unjustly undertaken or else by long peace and ease dispose their own subjects to the ruining and destroying of one another It is said of Q. Eliz. that she would never consent to the total subversion of Dunkirk lest that by a careless neglect of providing for themselves the Seamen should be forgetful and unfitting for Naval warfare And Scipio African would not give his consent to the utter subversion of Carthage lest that the Romans Carthage being destroyed should not find another Nation which might keep the Roman Valor exercised and so by its own unactivity and sloth it should degenerate and be dissolved Besides the excellencies of Military discipline not but that any thing may be abused by which Nations are protected from Foreign enemies not only Religion Justice Peace Learning c. are internally preserved it also makes men industrious and active in busines valiant in dangers temperate in their desires and to be wary and prudent in their actions It is indeed an admirable thing to consider how the most wise greatest and best God hath attempered all things Not only that all things are differing if not contrary to one another but also hath made and placed all Nations so enemies one to one another that he may by the help of one revenge the injury and injustice which is done by another that so from fear of danger all might be kept within the bounds of their duty Hence it was that God said I will henceforth not cast out before me one man of the nations which Josuah left when he died that through them I may prove Judg. 2. 21 22. 3. 1. Israel whether they will keep the way of the Lord and walk therein as their forefathers did or not And these are the nations which the Lord left that he might prove Israel 21. There is nothing more establisheth a Throne than Judgment Selling of places of Judicature causeth sedition which is giving sentence according to Law but he that buyes the place must needs sell judgment or else he will be a looser by it And what can more dispose Subjects to seditions and to seek for judgment and right in an extraordinary way then that they cannot hope for it from corrupt Judges Well therefore said King Jugurth when he departed from Rome Vade venalis civitas mox peritura si emptorem inveneris Besides who will fear to violate Laws and endeavor to raise sedition if he may hope to buy off his punishment which should deter him from it by corrupting the Judge 22. Though no man hath any thing proper against him who hath supreme Imposing and raising Taxes disposes to sedition power and
although no man can hope to preserve any thing which he hath but as he and what he hath is secured by that Power which gives him property which Power must be preserved by every mans life and fortune or else no man can hope to enjoy any thing he holds by that Power and the paying of Taxes is to maintain others who are to expose themselves and their lives in defence of what he and his fellow-subjects enjoy Yet are none of these things considered by the greatest part of men but as Mr. Hobbs observes The raising of Taxes makes men fire as those who are in Cap. 12. art 9. the disease called Incubus or as we say ridden with the Night-mare which rising from the stomach makes men think they are invaded oppressed and suffocated with great weight Which thing they who seem to themselves to be oppressed with all the weight of the City are prone to sedition and men declining in their fortunes will not spare though the fault be in themselves to impute their declining condition to the payment of the publick Taxes nor will avaritious rich men fail to pretend poverty and seek by innovation and sedition to prevent them 23. Honos est in honorante Honor is nothing else but the opinion of Passionate desire to punish Subjects especially where many are peccant moves to sedition anothers power joined with goodness Majesty does never appear so amiable as when arrayed in Clemencie whereas he who rigorously executes his power will be hated and servilely feared by them who otherwise would honor and willingly obey him It were the most easie and natural thing in the world to govern well if the violent and rigid execution of Laws against all offenders would cure the maladies of State nay Subjects ought to be preserved though peccant where the pardoning may appear an act of grace not remisness and the example not encourage others to the like offence Punishment ought always to look forward never backward that is Princes in punishing ought by the example to deter others from the like offence not to take pleasure in punishing any who hath offended him I will avenge the blood of Jezreel upon the house of Jehu and will cause to cease the house of Israel saith the Lord Hos 1. 4. How should God avenge the blood of Jezreel upon the house of Jehu whenas Jehu did nothing but what the Lord commanded him The reason is given that Jehu took pleasure in executing so dreadful a judgment upon his Masters house Weak and indisposed bodies are killed never cured by violent physick nor will Patients ever seek to Physitians who they fear will rather kill than cure them Princes who by violent and cruel ways do govern suppress yet nourish a fire which breaking out will hardly be quenched Yet it is sometime the fate I dare not think through the fault of most serene and clement Princes to suffer death and martyrdom from the sensless rage and fury of their seditious Subjects If then the insite piety of the most devout religious and best of Princes adorned with all the excelling virtues of Patience Temperance Chastity Justice Mercy love and tender care of his Subjects Magnanimity in Adversity Moderation in Prosperity could not secure Innocent Majesty from the violence of unnatural Subjects sure Peace and happiness may by other men be endeavored and prayed for in the next World but it can scarcely be hoped for in this If there were neither Heaven nor Hell no hope of bliss or fear of Annot. punishment hereafter yet sure so much Morality should be harbored in humane breasts as not causelesly to offer violence or injury to them of their own kind How much more unnatural ingrateful and inhumane then is it for Subjects against all Oaths of faith and allegiance not only not to make any restitution of those things which they hold of their Prince before they attempt any thing against him but also to imploy them all to the destruction of that Person and Power by whose grace and favor they enjoyed them And if that Monarchy be Tyranny as Libertines affirm and that all power is from the People then ought they not in reason to condemn it in the cause and allow it in the effect and rob the People of so great a part of their original right by retaining their Estates which were all mediately or immediately holden of the Crown If Regal power be unjust and usurped in the cause then cannot any act of it be just or legal and so by consequence all these famous Assertors of Liberty do unjustly and illegally hold their Estates which are nothing but Concessions originally from the Crown and do unjustly usurp them from the People from whom originally all power is derived And where these men complain so much of unjust illegal and arbitrary power of a Prince let any man shew where ever after they had usurped Regal power they made Justice Law Equity or Reason but only their Rage and Will the rule of their Actions and Laws 24. It is a vain thing to expect that Subjects will long be governed in By what degreâs and from what causes thââ Nation became miserable peace where either they are not governed by force of Arms as the Turks English Scots Irish and Low-Dutch are or where the Subjects have not that estimation of their Prince that by his power they are protected in their lives and estates and from him do claim whatsoever may be called theirs and do not unite themselves in a Religious Unity which is the chiefest bond of Peace or Publique Form and Communion of serving God For both in Church and State there must be some one thing to which all Subjects must indifferently submit themselves or it is impossible there should be any decision of their differences in either Where men therefore will not indifferently submit themselves to the just and legal established Government in Church and State there necessarily must men whatever they pretend or hope for be forcibly governed by Arms or they will infinitely destroy one another It is true indeed that Henry the Eighth who being of all mortal men the most unfit for a Churchman ascribed to himself the Headship of the Church and having converted to his own use so great a part of the Church-lands the veneration which men retained of the Church became vile and contemptible and the Crown lost the chief support thereby The Crown thus left almost without support it descended to a Child in whose Aristocratical reign not only the Chantries and divers other Religious Houses were given by the Parliament and Bishops to the King but almost all things Sacred became a prey to the ravenous Courtiers Queen Mary endeavored to have had restored all to the Church again but the lands being incorporated into particular mens estates it was not in her power After her Queen Elizabeth by Act of Parliament so stopt the precipice of things that what was left in the Church
he will not deny that the supreme power was in Deborah and yet sure he will not affirm that she had the Sacerdotal power And whereas Mr. Hobbs says That the Kings of Israel had power over the Cap. 11. ar 16. prope finem High-Priests and instanceth in Solomons deposing Abiathar If he means that they had power over their persons he disputes without an adversary for me But it does not follow from thence that they had the Sacerdotal power in them for Solomon did restore Sadoc who was of the line of Eleazer to whom he ascribes so much power whereas Abiathar was of the family of Ithamar one of Aarons younger sons whereof Eli was the first Jos de antiq Jud. l. 8. c. 1. And he may as well infer that the Regal power was subject to the High-Priest because Jehojada restored Jehoash after he had slain Athalia And ch 16 art 16. whereas he says That the Kings being constituted there is no doubt but both powers were in them It is false For if the Sacerdotal power were in the King then might the King execute his power but Uzziah transgressed 2 Chro. 26. 16. against the Lord his God when he went into the temple of the Lord to burn incense upon the altar of incense For as Azariah the Priest told him ver 18. It appertaineth not unto thee Uzziah to burn incense unto the Lord but to the Priests the sons of Aaron that are consecrated to burn incense c. See Num. 18. 7. Exod. 30. 7. And the Lord smote him with leprosie and Ahaziah thrust him out v. 20. See the manner more at large Joseph lib. 9. cap. 11. de antiq Judaeor And Saul was therefore rejected from being King because in case of extreme danger he did offer sacrifice 1 Sam. 13. 14. 7. That our Saviour Jesus Christ God and Man foretold by all the Prophets The new and last Covenant and Revelation of God to Mankind by his Son most especially by that most noble Prophet Isaiah descended from the Kings of Judah took our nature upon him in Augustus Cesars reign when Janus Temple was shut and an universal peace over all the world who by himself once offered for us under Pontius Pilate the deputy was a fulfilling of the ceremonial Law being but a type of him to come and a sufficient propitiation and satisfaction for the sinns of the whole world beleeving on him being the foundation of all Christian faith I will not dispute Note Reader that our Saviour being the Prince of Peace this Prince Nota Bene of Peace was born into the world when there was an universal Peace so being the King of Peace was born as if there could be no peace without it when as there was none but Monarchy and that not elective in all the world 8. But because parum est lex nisi sunt qui possunt jura gerere it had been What Order our Saviour took in his life time for executing of his last Will and Testament and how executed to no purpose for our Saviour to have made his last Will and Testament if he had not made Executors to have executed it he chose and ordained twelve Apostles seventy Disciples or Evangelists his Executors note that in the Gospells the Evangelists are usually called Christs Disciples as well as Apostles but the Disciples the Evangelists are never called his Apostles After our Saviours passion St. Peter in his exhortation for the choosing of another in the place of Judas who had betrayed his Master saies Acts. 1. 20. Let his habitation be void and no man dwelling therein and his Bishoprick ãâã ãâã ãâã ãâã ãâã let another take Here the Apostles who are also called Disciples appointed Joseph and Mathias but the lot fell upon Mathias these Appostles created seven Deacons Acts 6. 6. chosen by the multitude after prayer having laid their hands upon them Peter and John Act. 8. 17. confirm and lay hands on the Samaritans converted by the preaching of Philip. Saul is called to the Apostleship after he was striken blind and had seen Jesus whom he had persecuted Act. 9. 3 4 5. Barnabas was sent to confirm the beleevers converted by them who were scattered upon St. Stevens persecution at Phenice and Cyprus Act. 11. 22 23. Paul and Barnabas confirm the Soules of the Disciples and ordain Elders in every Church Act. 14. 22 23. Paul said to Barnabas let us visit our brethren in every City where we have preached Act. 15. 36. neither can it be shewed that any in the Acts did ordain lay on their hands confirme or visit but only the Apostles so that as Apostles that is men sent not only to preach confirm ordain visit c. every where were none made but by our Saviour For St. Paul and Barnabas were Acts. 15. 2. miraculously chosen by him And the Lot fell upon Mathias Act. 1. 26. and the Lot is of the Lord. 9. But because our Saviour would not leave his Church in so short-lived a states as to be but of one Ages continuance God having left with the Jewes Our Saviours promise to his Church sufficient power for the propagation of the Jewish priesthood untill all should be fulfilled by our Saviour he saies Behold I am with you even unto the end of the world Amen St. Matth. 28. 20. But preaching the Gospel ordaining laying on of hands confirming c. are necessary fundamentals for the constituting of a Christian Church unto the end of the world c. Our Saviour therefore will be with his Church unto the end of the world in Preaching the Gospel in ordaining laying on of hands confirming c. 10. It being evident that the Apostles did preach ordain c. our The Apostles did ordain Bishops Presbyters and Deacons Saviour having promised to be with the Apostles and Disciples i. e. the Church unto the end of the world therefore after the Apostles preaching the Gospel ordaining c. should be in the Church let us see to whom our Saviour did bequeath this ghostly power after the Apostles The Apostles did ordain Bishops Elders and Deacons Episcopos Presbyteros Act. 14. 21. Diaconos That Presbyter is not the name of Age but Office is most manifest for when St. Paul had ordained Presbyters or Elders in every City sure he made them no elder then they were Besides he made Timothy a Presbyter when he was but a young man 1 Tim. 4. 12. 10. As our Saviour did usually call his Apostles his Disciples but never The difference between a Presbiter and a Bishop called his Disciples or Evangelists his Apostles so the Apostles did usually call Bishops Presbyters but never called Presbyters Bishops As Act. 20. 17. whom St. Paul calls Elders of the Church v. 28. he calls ãâã ãâã ãâã ãâã ãâã and St. John the Apostle Ep. 2. 3. v. 1. calls himself the elder It is true therefore that every Bishop is
contradicting it converted the world to Christianity And although our Saviour gave power to all his Disciples to preach the Gospel yet only to the Apostles He expounded the Scriptures beginning at Moses And it was Luk. 24. 27. the Apostles understandings which he opened that they might understand the Scriptures And the spirits of the Prophets are subject to the Prophets ver 45. Our Saviour therefore having promised the continuance of all ghostly power in his Church and having given the power of the interpretation of the Scriptures that is those Scriptures which concern him immediately only to his Apostles the authority of the interpretation of the Scriptures is continued only in their successors the Bishops As my Father sent me so send I you S. Joh. 20. 21. 17. Our Saviour being the Head of the Catholique Church therefore To whom the right of making Ecclesiastical laws belongs all the body of the Church cannot make one Article de fide and Whoso shall go about to adde or diminish from the prophesie of the book of life God shall plague him and take away his part from the book of life Rev. 22. 18 19. Yet where he gives command to his Church to do any thing but gives it no direction how it should be done as Let all things be done decently and in order 1 Cor. 14. 40. there he gives the Church a power to make laws for the execution of his command for decencie and order must presuppose laws and directions and where there are no laws there things must necessarily be done indecently and disorderly It therefore belongs to the magisterial or governing part of the Church that is the Bishops to make laws for the decencie and order of the Publique service of God Consecration Sacraments things offered up to God and Rites of Marriage 18. It was only to Timothy as Bishop of the Ephesians that S. Paul To whom the composing of Publique Liturgies belongs 1 Tim. cap. 2. exhorts that first of all prayers supplications intercessions and giving of thanks be made for all men Therefore to Bishops it only belongs And S. Ambrose his Liturgy is continued in Milan to this day if no alteration were since the Council of Trent 19. The next Order in the Church of Christ to Apostles and Bishops Of Priests and their function is that of Presbytery or Priesthood as S. Paul says 1 Cor. 12. 28. God hath set some in the Church first Apostles secondly Prophets thirdly Teachers The Sacerdotal or Priestly power in most things is the same with Episcopal or Pontificial as both of them have power to consecrate the Sacrament of our Lords Supper and give it to the Laity both of them have power of Absolution and Remission of the sins of believing and repenting sinners both have power of Benediction of offering up the service of the Church both of them have power to preach the Gospel that is preach what our Saviour the Apostles and Evangelists taught and what Interpretation the Church hath made both have power of publique baptizing Infants both have power of visitation of the Sick celebrating Marriage and pronouncing man and wife But Ordination Confirmation Excommunication Interpretation of Scriptures And therefore if any Priest preaches any other Interpretation of the Scriptures than what the received Interpretation of the Fathers of the Eastern and Western Churches have made and the Councils of the first 400 years after our Saviour which Interpretation is received and acknowledged by the Bishops of the Church of England the Bishops by the testimony of two or three witnesses may judge him Visiting Parochial Congregations composing Publique Forms of Prayers Consecration of Churches and things offered up to God belong only to Bishops 20. Deacons are almost in the same proportion to Priests as Priests Of Deacons and their function are to Bishops Deacons may preach the Gospel which is evident for the Samaritans were converted by the preaching of Philip. A Deacon is the Minister of Bishop and Priest to assist them in offering up the Publique Act. 8. 12. service of the Church in giving the Cup after them in the Sacrament in taking the offerings of the Priest in the Visitation of the sick in Publique Baptism But a Deacon cannot consecrate the Sacrament pronounce Absolution nor Benediction and these three no question are the Orders which S. Paul calls first Apostles secondly Prophets thirdly Teachers 1 Cor. 12. 28. for in all things but only preaching and baptizing a Deacon is the Minister of the Priest and Bishop 21. Ecclesia says S. Cyprian est plebs episcopo adunata or as the Church What is a Church of England hath defined it a Church is a Bishop Curates and Congregations committed to his charge Every Congregation being a Parish that is a Priest rightly instituted and inducted exercising his function and the inhabitants of that Parish conforming themselves to the rules of the Bishop Una ecclesia plures episcopos non habet plures presbyteros habet And therefore S. James says If any among you be sick let him call the elders of the Church cap. 5. 14. such was the Church of Ephesus of Smyrna Laodicea Antioch c. and such is the Church of London Rochester c. A National Church is the aggregation of several Churches in one A National Church Kingdom in the same form of Liturgy Doctrine and Publique Worship of God such are the Churches of Greece Moscovy England France c. The Catholique Church is all Christian Churches united to one Head The Catholique Church Christ Jesus 22. He that heareth not and obeyeth not the Church is to be accounted He that denies the authority of the Church denies the authority of the Scriptures S. Luk. 10. 16. as a Heathen man Matth. 18. 17. And what is a Heathen man but he which denies or believes not the Scriptures Nor is it men which men despise and set at nought in despising the Church but God and Christ himself for He that despiseth you viz. them sent by Christ despiseth me and he that despiseth me despiseth him that sent me That Regality is a sacred order being an institution of God Gen. 49. 10. Annot. 1 and every King the Lords Anointed is in more then thirty places expressed by God himself It is therefore I conceive why the Church of Rome allows Kings the Sacrament in both kinds But how Kings as being Christian can have any ghostly power instituted by our Saviour to be only in his Church and that only by such means as he hath prescribed I do not understand For Kings as Kings are no essential part of Christs Church and therefore cannot create ghostly power And this King James confessed as you may read in Spotswoods History p. 514. And if Kings by becoming Christian have ghostly power then is the power left by our Saviour to his Church not only weakned by Kings being converted to Christianity but also divided which is
absurd But if Solomon his offering a peace-offering for the people and his blessing the people be objected I answer it does signifie no more then a fathers blessing his children and praying to God that they may live peaceably But none of the Kings did ever offer a sin-offering or burn incense to the Lord without reprehension by God Out of this it is evident that God never forsook men before they Annot. 2 first did forsake him Adam did first eat the forbidden fruit before God drove him out of Paradise and cursed Mankind and the ground for his sake Then mankind sinned malitiously before God brought the general Cataclysme upon them and they made a wicked conspiracy before God confounded them at Babel but none were more malitiously stubborn than the Jewes who when they were enjoyned to observe the Ceremonial Law scarce ever observed it but went a whoring after the Gods of the Nations Moab Ammon Ashteroh c. yet since our Saviour hath fulfilled it never did men so superstituously observe any thing as they have done it And now Oh that I could more then powre forth all Jeremies lamentations in commiseration of thee O my Mother Church and Native Country much more deserving it then the Jewes in the Babilonish Captivity for Jeremiah foresaw their return and restitution whereas I cannot hope but that Christianity it self is in the very wayne here among us For not only Bishops and Priests are therefore hated because they are Christs Ministers and Puppets Mountebankes and Tryers set up in the place of them and not only all the carved works in the houses of God in despite of God are beaten down with Axes and Hammers and the houses themselves destroyed and made stables for horses but all the solemn days kept in commemoration and gratitude for our Saviours Nativity Passion Resurrection Ascention c. in despite of Christianity decryed as superstitious c. Sure as glorious Christian Churches as ever were in England have been in Africa c where were it not for some poore Christian slaves there is not so much as any footsteps of Christianity left The Contents of the Third Book THe First Chap. contains the causes of Subjection of Subjects to Supream Powers of Subjection of Children to Parents of Servants to Masters as also to them who have oversight over us in the Lord. The Second Chap. treats of succession of Princes in Hereditary Monarchies and discovers the fiction of the Salique Law in France and that it was a meer invention to exclude the just title of the Kings of England and has been ill observed by the French themselves when it did not conduce to their advantage The Third Chap. treats of the Municipal Laws of my dear and native Country before they became invaded and subverted by those men who in so many several shapes since 1640. have arrogated to themselves the name of Parliament THE THIRD BOOK CHAP. I. Of Subjection 1. IT is observed by a Writer that our Saviour Introduction in communicating the Cup to his Disciples as if he had foreseen that it would be detained from the Laity gave it in these words Drink ye all of it whereas in partaking of the Bread he said only take eat c. I am sure it is well worth the observation that the Holy Ghost as foreseeing the great abuses which should happen in the world by the specious pretences of Religion Conscience the Power of the People or Parliaments c. commands Subjection to Higher Powers not in certain cases but absolutely and not certain persons but every Soul is to be Subject to the Higher Rom. 13. 1. Powers 2. I say Supream or Regal Power being from God immediately by Subjection due by the Law of Nature to Soveraigns the Law of Nature it does necessarily follow that subjection of Subjects to their Soveraign is due by the Law of Nature nor can the relations be dissolved but by God himself I may I think without any affectation affirm that the Judges in Calvins case were as learned and upright as ever any before or since let us therefore see their resolutions 3. Those learned and upright Judges resolve tit Ligeance Ligeance What is Ligeance is a true and faithfull Obedience of the Subject due to his Soveraign This Ligeance and Obedience is an incident inseparable to every Subject for as soon as he is born he owes by birthright Ligeance and Obedience to his Soveraign Ligeantia est vinculum fidei quasi essentia Legis and a little after page 5. Ligeance does not begin by the Oath of the Leete For many men owe true Ligeance who were never sworn in the Leete Where note it is false if not Treasonable in Mr. Hobbs who affirms that the Knowledg Note of the Legislator does depend upon the Citizen For every man is as much a subject before he hath taken the Oath of Aligeance as after And see whatsoever is due by the constitution of man may be Pag. 25. tit 5. altered but natural Ligeance of the Subject to his Soveraign cannot be altered ergo natural Ligeance or Obedience to the Soveraign is not due by the Law or constitution of man And again whatsoever is due by the Law of Nature cannot be altered but Ligeance and Obedience of the Subject to the Soveraign is due by the Law of Nature ergo it cannot be altered Et qui abjurat regnum amittit regnum sed non regem amittit patriam sed non patrem Pag. 9. patriae 4. Ligeantia ac quisita or Denization is threefold First absolute to them Ligeantia acquisita Pag. 5. 6. and their heirs Secondly limited as when the King does grant Letters of Denization to an Alien and the Heirs Males of his body or for life The third is when the King by Conquest conquers another Kingdom or part of it the Antenati Postnati are Denizens of the Kingdom or Dominion so conquered Yet sure under correction the Postnati are not only Denizens but Natural Subjects For Power and Subjection being by the Law of Nature all men born in the Dominion of any Soveraign are his Natural Subjects and with this does Sir Ed. Coke agree If a man come into England and have issue two Sons these two Sons are Indigend Subjects born because they Com. Lit. pag. 88. are borne within the Realm that is in the Dominion of the King but if any be borne out of the Realm that is out of the Dominion of the King although of Natural Subjects to the King they are alienigena They therefore who are Postnati in the exercise of the Kings power by Conquest are his natural Subjects 5. Local Ligeance is when any Subject of France is in England or any English in France c. so long as he is in the power of the King he is de Local Ligeance tit 3. pag. 6. facto his Leigeman Therefore a Frenchman being in England joyned with divers Subjects of this
institution and therefore incommunicable or alienable yet after it pleased God that Kings should be nursing fathers and Queens nursing mothers to his Church the exercise endowment priviledges and immunities of Christian power is of positive humane institution The obedience therefore or subjection due to them who have oversight over us in the Lord is not formally due to such Bishops and Priests who have once had the oversight over us but to such Bishops and Priests who are legally constituted to exercise the jurisdiction or function in such Dioceses or Parishes where they are so constituted which exercise is alienable or transferrible though not at the will of the Incumbent yet at the will of Supreme powers and legally at the will of the Donor CHAP. II. Of Inheritance and Succession 1. NO humane law can create a humane right Jura sanguinis nullo jure No Humane law can make a Royal heir civili dirimi possint Nor is this right of succession from Divine positive laws but observed as well where Gods revelation of himself is not received as where it is And if according to the resolution of all the most learned and reverend Judges in Calvin's Case subjection is from no humane law but from the law of nature Then of necessity must Regal right and inheritance be from the law of nature for no man supposeth subjection where he does not presuppose power The Will therefore of Henry the Eight where for want of issue of Edward Mary and Elizabeth he gives the English Monarchy to the issue of Frances and Elianor daughters of Mary his younger sister before the right heirs of Margaret his eldest sister wife of James the Fourth of Scotland was void and not to be allowed and so was that of Edward the Sixth who did disinherit his sisters Mary and Elizabeth and gave the Crown to Jane daughter of Frances the French Queen aforesaid by Charles Brandon Duke of Suffolk and so were the Acts of Parliament made by H. 4. 5. and 6. which entailed the Crown upon their Heirs so was the Acts of the last of Henry the 6. which entailed the Crown upon him and the heirs males of his body and so were the Acts of the first of Rich. 3. and H. 7. which entailed the Crown upon them and their heirs Neither is succession and inheritance of Crowns declared by any humane Law in the world that I know of but only the pretended French Salique Law which we shall examine afterwards 2. None but God can make an Heire to a Crown solus Deus haeredem None but God can make an Heire to a Crown facere potest non homo Co. Lit. Sect. 7. And this Heire which Sir E. Co. here speaks of is but heire in fee to Lands or Tenements according to common Law or Custom if then only God can make such an Heire then sure none but God can make an Heire which makes humane Laws and permits Customes 3. It is not only humane Laws which say a bastard is filius terrae None can inherit not born in Matrimony Gen. 22. 2. quasi nullius filius Et qui ex damnato coitu nascuntur inter liberos non computentur but God calls Isaac Abrahams only Son although at the same time Abraham had his Son Ismael by Hagar his Handmaid or Concubine And Abraham gave all he had to Isaac but to the Sonns of the Concubins which Abraham had he gave gifts Gen. 25. 5 6. So though Ismael were Isaacs elder brother yet in comparison of Isaac born in wedlock God himself did not account him Abrahams Son Nor can one instance be given that ever by Gods either command or permission any born out of marriage did inherit By the Law therefore of God aswell as humane Law none can inherit which are born out of matrimony 4. That which no humane Law prescribes and yet is observed by all The Issue male shall inherit before the Issue female in Royalty men generally in all ages is from the Law of Nature But no humane Law prescribes the male to inherit before the female in regality yet it is observed by all men generally therefore that the issue male shall inherit before the female in regality is from the Law of Nature 5. If primogeniture had not been a sacred thing and inheritance annexed Of the Issue male the first born is to be preferred to it by the Law of Nature then could not Esau have been pronounced a prophane person for selling his birthright Heb. 12. 16. although he did it to save his life Gen. 25. 34. but being due by the Law of Nature I say Esau by his sale could not transfer it to Jacob yet because Esau did despise it Gen. 25. 34. it was just with God to transfer it to Jacob neither can it be shewed any where in sacred writ but that alwaies primogeniture in royal descent was a good title where God did not interpose 6. Only the King can inherit and succeed because his Royal capacity is Why only the King is said to inherit and succeed and Subjects do either inherit or succeed but never both affixed and inseparable with his person In the Oath therefore of Ligeance Subjects swear to beare faith to the King his Heirs and Successors but no Subject can both inherit and succeed because there is no succession can be affixed to the person of any Subject by vertue of inheritance All Corporations therefore do not descend by inheritance but are acquired as they are nominated or elected in such manner as is granted by the King or supream power 7. There are but two waies by which hereditary or successive Monarchies How many waies hereditary Monarchies descend do descend the one is Lineal descent the other Lineal Agnatical Cognatical or Collateral or as we say the one descends to the heire general the other to the heire male This latter by vertue of a Salique law takes place only in France we will therefore see what may be said and objected against the former and how the latter hath been observed in France and of what Authority it is 8. That cannot be against the Law of God which he has owned and Gynococratia or inheritance of Women not unnatural nor against the Law of God given a blessed president of but that God has owned Gynaecocraty and that in a great and miraculous delivery of his own people is evident in Deborah And that Women may inherit when the daughters of Zelophehad made their plea for their inheritance Numb 27. They first pleaded negatively Our Father was not of the company of them that gathered themselves against the Lord in the company of Corah which is a plain argument that rebellious Subjects have no property against supream powers but forfeit their goods aswell as lives for God saies ver 7. the daughters of Zelophehad spake right why should the name of our father be done away from his family because he has no Son And God himself
subsequent minute that it was before and therefore the state of Humane affairs being every day variable and putting on a new face to morrow which they had not neither to day nor yesterday which cannot be certainly foreseen by any man or men no more then any Master of a Ship can foresee what winds will blow to morrow or next day or whether it will be serene or stormy weather whether deep or Rockey Seas Yet if no prudent Mariner will venture himself and those under his command to Sea without sufficient provision against all the contingencies which may happen and be prevented Then sure no man or men not vainly blinded with ambition will undertake to manage the Government of a Nation without sufficient means to protect themselves and Subjects from all future storms and confusions which may either arise from within the Nation or be caused from without Yet will it not follow that every day there should be new Laws made for Nihil semel perfectum inventum there is nothing which is perfect so soon as begun and many mischiefs and inconveniencies may be begun and yet be prevented before they can be brought to perfection But then it must be presupposed that there may be remedies used which must of necessity be that there be a present and coercive power in being which may suppress and dissolve those mischiefes and inconveniences by making new Laws if the old ones will not remedy them and this is no new thing but is and alwaies was in all governments that ever were whether Monarchy Aristocracy or Democracy A Parliament is a Politick body compounded of Heterogenial or Of what parts a Parliament is compounded Inst 4. pag. 1. dissimilar parts viz. the King the Lords spiritual and temporal in one distinct house and of a house of Commons another distinct house Since there has been so much contest about the power and jurisdiction What creates the Lords house and cause of Parliament and since it being compounded of unlike parts and some of these unlike parts nay pieces of those parts have assumed the name of Parliament We will examine all the parts of it and see whether it be not all made and created by the King and into him only can be ultimately resolved he being principium caput finis of it First For the Lords spiritual they are all parts of the Lords house and sit there by succession in respect of their Counties or Baronies parcell of their Bishopricks but all Bishopricks were originally of the Kings foundation and donative per traditionem baculi viz. the crosier annuli viz. Inst 4 par 1. the ring whereby he was married to the Church King Henry the first being requested by the Bishop of Rome to make them Eligible refused it but King John by his Charter bearing date 5 Iunii an 17. granted that the Com. Lit. Sect. 648. pag. 344. Bishopricks should be Eligible so that the foundation donation and election to Bishopricks was only and immediately caused by the King and in this capacity by virtue of the Kings Writ out of the Court of Chancery does every Bishop sit as a member of the upper house of Parliament So that Inst 4 par 1. 4. the Lords spiritual did immediately hold their Bishopricks of the King and were members of the upper house only by vertue of the Kings Writ Secondly That the Lords Temporal are created immediately by the King is so manifest that I think no man will question it and that every Temporal Lord is impowred to sit as a Member of the Lords house by vertue of the Kings Writ issuable ex debito justitiae out of the Chancery See Inst 4. part pag. 1. 4. All the Judges of the Realm Barons of the Exchequers of the Coif Temporal Assistants of the Lords house the Kings learned Council and the Civilians Masters of the Chancery all called to give their assistance and attendance in the Upper house of Parliament but have no voices in Parliament How their Writs differ from the Barons see Inst 4. part page 4. In every Writ of Summons to the Bishops there is a clause requiring Spiritual Assistants or Procuratores Cleri them to summon these persons to appear personally at the Parliament which is in these words Premonientes Decanum Capitulum Ecclesiae vestrae Norwicensis ac Archidiaconos totumque Clerum vestrae Dioces quod iidem Decani Archidiaconi in propriis personis suis ad dictum Capitulum per unum idemque Clerus per duos Procuratores idoneos plenam sufficientem potestatem ab ipsis Capitulo Clero divisim habentes praedict die loco personaliter intersint ad consciendum hiis quae tunc ibidem de communi Concilio dicti Regni nostri Divina favente clementia contigerit ordinari So that not only the Lords Spiritual and Temporal but their Assistants are only created by the Kings Writ or immediately by the Kings authority But since there is so much contest about the House of Commons and The House of Commons are not the Representatives of the Free people of the Nation men say they represent the Freeborn people of this Nation and are the Supreme Authority of the Nation We will therefore enquire into the cause and see what may be the Freeborn people and whether a House of Commons as it now stands can be their Representative and whether being their Representative they may be the Supreme Authority of this Nation First What are the People If any man had said the people of Rome or the people of Athens or the people of Carthage c. a man had understood them and only them of Rome Athens or Carthage c. who were civitate donati But in England the case is much otherwise for with us there is no civitate donatus in one more then another but all men are alike born free and so by consequence every man as a freeborn man of England has as much right to his freedom one man as another I say therefore if every man of England has not a like vote and power in electing Members for the House of Commons then cannot the House of Commons be the Representative of the Nation for Plus valet contemptus unius quâm consensus omnium But it is most manifestly evident that the House of Commons are not elected by the equal consent of the freeborn people of England for not only two parts of three have not Forty shillings a year yet are as freeborn as they who have and as liable to penalty for transgressing Laws made in Parliament as they who do elect but many men have double votes in the election in Corporations where they send Burgesses and yet have like power with the Forty-shillings-men in electing a Knight of the Shire and such a place as Rising-Chase and Old Sarum c. have a like power in this House with the County of York and the Bishoprick of Durham sends none
at all So that it may be rather termed a Representative of the Free Corporations then a Representative of the Freeborn people of England The House of Commons therefore cannot be a Representative of the Freeborn people of England But suppose them the Representatives of the Freeborn people of this Nor the Supreme Authority of the Nation Nation yet cannot they be the Supreme Authority of it for no power can act beyond the power of its being I say therefore that no Representative can be supreme or superior to the cause of its being The House of Commons therefore cannot be granting it the Representative of the Freeborn people of this Nation the Supreme Authority of the Nation But if the house of Commons be not sent by the people and their Representatives Who creates them and by what right do they make a house of Commons Before we answer this Quaere wee will see of what sorts of men a house Of what sorts of men the house of Commons is compounded of Commons is compounded A house of Commons is compounded of three sorts of men viz. Knights of Counties Citizens sent by Cities and Burgesses of Corporations Barons of the Cinque Ports are the same thing differently expressed with Burgesses of Corporations Now that all Cities Burroughs Corporations and Cinque Ports are not so jure naturali nor by any inherent birthright but from their Charter which is nothing else but the Kings grant is so manifest that I think no man in his wits will deny But all Cities and Corporations are not alike in priviledges but more or less as they are impowred by their Charter or Grant of the King Some Corporations have Liberties Priviledges and are impowred to send Burgesses others have Liberties and Priviledges but not qualified to send Burgesses nay some Cities have Liberties and Priviledges but not endewed with this right of having Representative in the house of Commons as the Cities of Durham and Ely And as neither Cities nor Burroughs are endewed with these their Liberties What creates the house of Commons and Priviledges by any inherent birthright so neither are the Counties nor Inhabitants endewed with any right of sending Knights of their Counties by any inherent birthright for then had all the Counties a like right one as another and all the Inhabitans a like vote and they mighr create representatives as often as they should see occasion But all these are most evidently false for we have shewed before that not only the division of this Nation into Counties was an act of the Kings but all Counties are not alike endewed with this Priviledge some Counties in Wales sending but one and the County of Durham none at all Nor have all men a like vote in electing and yet as much subject to Laws made in Parliament as other men but men only who have 40 s. yearly freehold rent nor can these 40 s. a year men when they will send their representatives What then does impower these to send representatives Why let Sir Ed. Coke say Inst 4. p. 1. Knights of Shires Citizens of Cities and Burgesses of Burroughs are respectively elected by the Counties Cities and Burroughs by force of the Kings Writ So that the Kings Writ is the first and efficient cause of the pag. 28. house of Commons as well of the Knights as Citizens and Burgesses the Commons cannot begin nor be dissolved without the King in person or representation If then Rebellion be as the sin of Witchcraft as the Holy Ghost saies Annot. and if crimen lesae Majestatis be the highest crime and impiety as all Lawyers hold and if Gratitude be one the chief of all Moral virtues as all men hold for si ingratum dixeris omnia dixeris no man who is an ingrateful man but has rendred himself as if he had committed all manner of wickedness How impious then is it for men only from the Kings grace endewed with this high favor to convert it in opposition and derogation of that power and person from whence they originally received it But they say if the Commons did it then was it done by the people and so just and not to be questioned as if the people were not a thing to be governed and all as much subject to the King and Laws as every one or that a thing just or unjust in it self were more just or unjust because more or fewer did it Will any man say the crucifying of our Saviour was therefore just because many of the Jews did it or that a rout or riot is therefore lawful because done by many men or that it is not paricide or regicide if many Sons and Subjects kill their Parents and King As all the Members of both houses are created by the King so cannot The Parliament cannot begin but by the King these Members be formed into a body but by the King either by his Royal presence or representation By representation two waies either by a Guardian of England by Letters Patents under the great Seal when the King is in remotis out of the Realm or by Commission under the great Seal of Inst 4. p. 6. England to certain Lords of Parliament representing the person of the King he being within the Realm in respect of some infirmity This House is so far from being the Supreme Authority of the Nation The Jurisdiction of the Commons House that they are not a Court of Judicature nor can impose an Oath or take any mans Examination Yet Sir Ed. Coke says Inst 4. 28. that the House of Commons is to many purposes a distinct Court because he says they cannot be prorogued or adjourned but by its self yet gives no more It is true indeed that to many purposes among themselves they do judge their Members and Elections and have a Committee for Religion but these things are more of custom whether good or bad I cannot tell then of any original right that I know or ever heard of And Sir Ed. Coke Inst 4. 11. says They being the general Inquisitors of the Realm have principal care in the beginning of Parliaments to appoint Committees of Grievances both in Church and Commonwealth of Courts of Justice of Priviledges and of Advancement of Trade They have been wont too ever since the Statute de Tallagie non concedendo of course to grant the King Aids in extraordinary cases The House of Peers assisted as aforesaid are the Supreme Court of The Jurisdiction of the House of Lords Judicature in this Nation not only to judge whether matters presented to them by the Commons be fit or requisite for the King to pass into Laws as Monsieur Bodin well observes who disputes this better then any of our English Lawyers that I know of has done but also of Writs of Error and of matters of Fact either not determinable in other Courts or else when though they are determinable in other Courts yet in regard of nicety or
him who suffers It is injustice for any man unjustly to make use of any law of God or man or Temporal power which must be from some law of God or man to the hurt or prejudice of another and such hurt or prejudice is injury to whom it is done 25. Damage is nothing else but loss Injury is loss unjustly done So How Injury differs from Damage that all Injury is damage but every damage is not injury As a man hath a house c. burnt by lightening this is damage no injury A man is punished justly for some fault this is damage no injury Injury always is done by injustice that is when the doing is countenanced by some Law or Greatness Damage is when the doing is neither countenanced by Law or Power as Neighbors who live by one another do usually do one another Trespass whith is damage but no injury 26. We have declared before that no man ought to make use of Volenti non fit injuria how to be understood or abuse indeed any gifts whereby he does excell another to the damage and hurt of another who is not so well qualified And no question but that God will require of every man an account of all those talents wherewith he did entrust him for good And if he were pleased to punish him so severely who had hid his talent because he had not increased it and done S. Matth. 25 26 c. good how severely then will God take revenge upon him who abuseth those natural gifts wherein he excells another to the hurt and prejudice of his weaker brother But humane laws being made for the rule of outward actions for only God sees the hearts and inward thoughts of men Courts of Judicature cannot judge whether it were this mans folly abused by the craftiness of another but whether this man did this thing or not and no Fool or Madman shall be received against his own act although his Heir shall It is not therefore that an innocent or foolish man may not be injured although he will willing but that he shall not be judged injured by any Civil Court where it may be made appear he was willing 27. Bodin in the sixth book cap. 6. de repub says That Plato judged that pag. 747. Plato's opinion of Justice the best form a Commonwealth which was compounded of Popular command and a Tyrant Note the Grecians did usually call Kings Tyrants and did many times take Tyrant in a good sense yet dissenting from himself he made his Civitas not only in State but also in manner of Governing Popular as one who gave to the multitude of all the Citizens the power of making Laws of creating Magistrates of indicting War of making Peace and lastly of giving rewards and punishments A Civitas being established after this manner he denied it could be happy unless it were governed by a Geometrical proportion for he thought that God the most antient Moderator of this world whom every best Lawgiver ought to imitate does preserve all things in Geometrical proportion He was often wont to boast ãâã ãâã ãâã ãâã ãâã Which things although they be Plato's yet are no where found in his writings But a Popular Empire Rejected by Bodin as repugnant to himself constituted by Plato is plainly contrary to Geometrical proportion because the people follow an Equality of things And Equality agrees with Arithmetical proportion no ways with Geometrical 28. And because Xenophon emulous of Plato thought that Cities and Laws Xenophons opinion of Justice ought to be constituted and distributed in Arithmetical equality induces Cyrus as yet a boy beaten because created a King by his companions he had so commanded the Vestments to be exchanged that the greater were given to the greater and the lesser to the shorter Cyrus so beaten by his Master is taught that he is born a Persian and therefore should use the laws and manners of the Persians which give that to every one which is his property not the Medes who thought that that was to be given to every one that was fit and commodious for him Plato when he was advertised the stripes were to be inflicted upon him not Cyrus rejected Cyropoedia This contention therefore of Xenophon and Plato being divulged by speeches among the Grecians afforded increase to two factions of the Great men and People Some following the Popular state did greatly love the Arithmetical proportion of Justice Others because they did excell in Riches and Nobility were not less in love with the Geometrical proportion agreeing with Aristocracy But it is strange Plato bred in a Popular State should assert Justice to be in Geometrical proportion and Xenophon in a Mungrel Aristocracy made up of two Kings and the Ephori should assert Justice to be in Arithmetical 29. Justice in Arithmetical proportion he says was like Polycretus rule Pag. 751. a. compared of all the most right and as it were Iron macerated with Vinegar so as it should be inflexible The Geometrical form of governing a City did imitate a Lesbian Rule for this was made of Lead and flexible in every part that so it might be accommodated to every thing that nothing might be lost of the matter of it so far as it might be done But this he says after being so flexible loses the name of a Rule 30. But neither of these forms of Justice will down with him For in the Arithmetical form he says That women tender and young children 76â Xenophons ãâã rejected by Bodin and why old men and those afflicted with sickness should have the same punishment for the same offence with robust and stout men which might be fatal to one and not scarce felt by the other Yet was this against the practice of all Democratical States for neither in the Roman nor Athenian States were all men alike punished for the like offence The Romans who were civitate donati were not by the Laws to be put to death nor punished as Slaves for any offence Nor were the Popular States less dissenting from their Principles in conferring rewards and greatness upon men For when were men ever so great as in Popular States as Pompey Caesar Crassus Lucullus Pericles c. 31. Nor is he less out of love with the Geometrical form of Governing Plato's rejected also and why or Justice for then he says all Patricians or Noblemen must marry only with Patricians and Plebeians with Plebeians all places of Honor must be always conferred not for virtue or desert but as men were Great or Noble So that from hence he says were almost perpetual dissentions p. 774. a. between the Senators and Plebeians until the Consulship Censure Preture and the High Priesthood were communicated to the Common people some few excepted 32. Well but because Bodin cannot find Justice to consist in Arithmetical Bodins opinion of Justice nor Geometrical proportion he will try what may be done by Harmonical and says That
this Popes Letter but pleaded the Fundamental Laws and Customs of the Land Consuetudo regni mei est à patre meo instituta ut nullius praeter licentiam Regis appelletur Papae qui consuetudines regni mei tollit potestatem quoque coronam Regis violat It is a Custom of my Kingdom instituted by my Father that no man may appeal to the Pope without the Kings licence He that takes away the Customs of my Kingdom doth violate the Power and Crown of the King And these Laws were no other then the Laws of the Confessor viz. the old Saxon Laws but also in the execution of these things the Bishops of England adhered to the King and Laws and denied their suffrage to their Primate as you may read in the Bishop of Derry's Vindication of the Church of England p. 63 64. 14. After pag. 65. he instances out of Sir Hen Spelman conc an 78. Legations as rare as Appeals before the Conquest that Gregory Bishop of Ostium the Popes Legate did confess that he was the first Roman Priest that was sent into these parts of Britain from the time of Austin and that those Legates were no other then ordinary Messengers or Ambassadors sent from one Neighbour to another Such a thing as Legantine Court or a Nuntio's Court was not known in the British world and long after 15. See Speed in the Life of Stephen para 4. where Stephen having The Pope and all the English Hierarchy conspire with Stephen against Maud the undoubted Heir of Henry the first entred his Government in the year of our Lord 1135. the 2. of December and was crowned at Westminster the 26. of the same moneth being S Stephen's day by William Corbel the Archbishop of Canterbury who with the rest of the Bishops doing him homage and knowing now he would yield to any conditions for performance whereof his brother the Bishop of Winchester did there engage himself for a Pledge they all took their Oath of Allegiance conditionally traiterously I might say to obey him as their King so long as he should preserve their Liberties and the vigor of Discipline And that the Lay-Barons made use also of this policy appeareth by Robert Earl of Gloucester who sware to be true Liegeman to the King as long as the King would preserve to him his dignity and keep all covenants c. And having buried the body of Henry the First he went to Oxford where he acknowledged he attained the Crown by Election only and that the Pope Innocentius confirmed the same 16. The next contest which after Anselm happened between the King The second contest between the King and Pope and from what cause and the Pope was caused by Tho. Becket Archbishop of Canterbury For Stephen the Usurper having made a Law whereby the Temporal Judges might not meddle with Ecclesiastical persons Henry the Second upon many disorders committed by the Clergy did repeal this Law and restored the antient Laws of this Realm commonly called Avitae leges whereby the persons of Priests were not exempted from being judged by the Temporal Judges And though the Archbishop sware to observe the Laws restored by the King yet was he absolved by Pope Alexander 3. Nor could the Archbishop ever after be brought to conform to the Laws called Avitae leges which was the cause of his assassination and of great trouble to the King and Realm And whether this man did deserve to be canonized for his stubborn disobedience to the Laws of his Country which no ways concerned Faith but only Civil and Temporal obedience and those not new neither but a restitution of the antient Laws let any man judge 17. The first occasion of the quarrel between King John and Innocent The quarrel between King John and the Pope the Third was Hubert the Archbishop of Canterbury being dead the Monks of S. Augustine in that City elected without any licence of the King one Rainold and took an oath of him to go to Rome and take his investiture from the Pope The King incensed hereat caused John Gray to be chosen and desired the Pope to ratifie this last choice The Pope notwithstanding confirms the former The King hereupon grows angry and divers of the Monks against their own act refuse to accept him The Pope although Rainold were chosen by the Monks and confirmed by the Pope adviseth the Monks to choose Stephen Langton the Monks do so the King is highly exasperated and forbids all Appeals to Rome and did alleadge that he had Bishops Prelates Nobles and Magistrates of his own who could according to the Laws of the Land decide and determine all Controversies which should arise in Church or Commonweal The Pope insisted upon the election of the Cardinal Stephen Langton was Cardinal of Chirsogone and required the King not only to give him the quiet possession of the See but also to recall all such Monks as were exiled and to restore them to their Goods which were seised on by the King for the last choice and for default to interdict him and the whole Realm The King is so far from obeying that he seised upon the Lands and Goods of those Bishops to whom the Pope had forsooth given the power of Interdiction The Pope constant in his resolutions by Pandulphus and Durant interdicts the King and Kingdom and gives it the French King King John driven into a great strait gives his Crown and Kingdom to the Pope he good man had before given it to the French King Philip the second sirnamed Augustus and his son Lewis had gotten such footing in England that he would not be gotten out The Pope interdicts both father and son but his curses took not such place that they would give over what they had gotten by the first grant nor did these troubles end until the English Nation uniting themselves under Henry 3. did by plain force drive Lewis out of England to such an insufferable height was the Papacy grown in those days 18. Although the stubborn Barons made Henry 3. swear to observe The Bishops in H. 2 his reign conspire against him the Ordinances made in the Mad Parliament at Oxford and the Archbishop of Canterbury and nine other Bishops did denounce a Curse against all those who either by direction arms or otherwise should withstand the Ordinance of the Twelve Peers which gave the exercise of all Regality to them yet did the Pope absolve him from it very easily Addit Matth. Paris 990. 19. How zealous the most noble Prince Edward the first was in the Contests between the Pope and Ed. 2. cause of Christianity and how observant of the Papal power is evident by his victorious Voyage into Holy Land But he afterwards became hated by the Churchmen both in respect of the Statute of Mortmain made in the fourth year of his Reign and also because that by the advice of William Marchyan his chiefest Treasurer he seised into his hands the
to God That is Plough-alms fifteen nights after Easter the Tithes of young living creatures at Whitsuntide and the Tithes of the Fruits of the earth at the feast of All Saints But if any one will not pay his Tithes after the manner aforesaid viz. of the tenth acre of Plough-land then let the Kings Sheriff the Bishop the Lord of the Soil and the Priest of the Church meet and no thank to him restore the tenth part to the Church to which it was due and leave the ninth to him As concerning the other eight parts let the Lord of the Soil have one half and the Bishop the other be he the Kings man or any Nobleman's Of Peter-pence 9. And the money due to Rome is to be paid upon the feast of S. Peter He who shall not pay it shall pay that penny to the Bishop and thirty pence beside and two hundred and twenty shillings to the King Of First-fruits 10. Let the First-fruits be paid at the feast of S. Martin and if a man shall forbear he shall give them elevenfold to the Bishop and two hundred and twenty shillings to the King Of the Tithes belonging to the Church of a Freeman 11. If a Freeman hath a Church upon his Demesnes which hath a Church-yard then it shall be in his power to confer upon his Church the third part of his Tithes But if there be no Burying place belonging to the Church then may the Lord of the Soil give the Priest so much of the nine other parts as shall seem good to him and let the Hearth money be first paid to the Church by every Freeman Of money for Lights 12. And let money be given to Lights thrice every year First upon the feast of Easter let one halfpenniworth of wax be imposed upon every Hide of land and so much again upon the famous feast of All Saints and the like to be done upon the feast of the Purification of S. Mary Of the money called Symbolum animae and of Burial 14. And it is meet that after a grave be opened the Burial-money be forthwith told out And if a man bury one dead out of the bounds of his parish yet shall the Burial-money notwithstanding be restored to the Church to which of right it did belong Of Gods right in observing Festivals and Fasts 15. And let every one defend all Gods right all he can Let him celebrate Festival and Fasting-days also Sunday keep a feast from Saturday noon to Munday light and let every man abstain from bodily labor Of Sunday 16. And we expresly forbid any Market to be kept or any Convention of the people to be made upon a Sunday unless there be urgent necessity And also let every man upon a Holiday abstain from hunting and all bodily labour Of Fasts 17. And we command that every man observe all these Fasts whether of the Ember-weeks or Lent or any other Fast with all godliness And to fast all the days of S. Mary and the feasts of all the Apostles but of Philip and James we command not to be kept Fast because of the Festivity of Easter And upon every Friday if it be not a Festival fast And let no man fast from Easter until Whitsuntide or from Christmas until the Octaba's of Epiphany unless he were willing or injoined by the Priest Of the times of Vacation 18. And we forbid the Ordal upon all Festivals Ember weeks and other right Fasting days and all Pleadings at Law from the feast of the Anniversary of the coming of our Lord until eight days after Epiphany and from Septuagesima until the fifteenth day after Easter And indeed the wise men have ordained that the Annual feasts of S. Edward and S. Dunstan be religiously observed of the Englishmen upon the 15. Kalends of April and 15. Kalends of June Let every Christian man upon these solemn feasts as is meet be peaceable and free from all fraud and malice And if any one did owe any thing to another whether in the nature of pledge or compensation let him either repay it before these days or soon after An Exhortation to Confession and Penance 19. And we command for Gods love that all Christian men understand those things which are necessary for the good of their souls For a time will come when we would rather have obeyed Gods will when we had time given us then to have enjoyed all the goods which all men enjoyed in the world Certainly a reward will be given to every one of us according to the deeds of every one Then woe be to the miserable which in their life deserved the eternal punishments of hell And therefore that we may diligently avoid our misdeeds let us ingenuously confess our sins and abstain from all wickedness for the future and duly compensate and command those Laws to others which shall not be grievous to obey This is right Judgment and with God acceptable and he is truly blessed which by rule shall judge For Almighty God the Creator of all things created us all and with an inestimable price redeemed us viz. with his own life poured out upon us An exhortation to the Eucharist and honest life Cap. 19. And let every Christian man do all those things which conduce to his health and be very careful of his Christendom And he which will do all things necessary for the good of his soul which all ought to do must understand that thrice at least every year he must prepare himself to receive the Eucharist and he who trusts that he shall be acceptable must rightly observe all his words and deeds and religiously keep his oath and faith given and do justice all he can in all parts of our Dominion and diligently follow Gods justice in word and deed So then at length all of us shall abundantly obtain Gods mercy Of Fealty to the Lord. 20. Further we will follow what we teach others always to be faithful to our Lord and defend his honor with all our might and obey his will For whatsoever we shall do to our Lord in right and vertue will be to our self a great ease For in this thing God the Creator of all things and Lord will be faithful to us It is therefore very meet that Lords govern their servants with reason To worship God from the heart and faith 21. And we greatly admonish all Christian men that inwardly from their heart they love God and that they stedfastly hold Christian religion and devoutly obey Gods teachers and diligently learn Gods law and contemplate it and often and much follow it to the profit of themselves That men throughly learn the Lords Prayer and Apostles Creed 22. And we teach that every Christian man so learn that at least he throughly understand the right Faith the Pater noster and Apostles Creed For with one of these every Christian man does pray to God and with the other profess a
often gone out of the Church and Priests houses having restored the thing taken away let him abjure the Province and not return and if by chance he shall return let no man presume to entertain him unless he have leave from the King Of breaking the Peace of the Church If any one shall violently infringe the Peace of the Church the Justice Cap. 7. belongs to the Bishops but if one guilty in avoiding their Judgement or arrogantly contemning it shall despise it let the complaint thereof be brought to the King within forty days and let the Kings Justice make him give Security and Pledges if he can get them until he first give God afterward the Church satisfaction But if within one and thirty days either by his friends or acquaintance or by the Justice of the King he cannot be found out the King shall Outlaw him by the word of his own mouth i. e. he shall be excluded out of all protection of the King But if after he shall be found and can be retained let him be restored alive to the King or his head if he shall defend himself Lupinum enim gerit caput which in English is called ãâã ãâã ãâã ãâã ãâã This is the common and general Law concerning all men Outlawed Of the Tithes to be restored to the Church of Sheep and Hoggs 8. The tenth sheaf of all kinde of corn is due to God and therefore to be restored to God And if any one hath a company of Mares let him restore the tenth colt to God he who hath but one or two for every single colt one single peny In like maner who hath many Cowes the tenth calf who hath but one or two for every calf one single halfpeny and who make Cheese give to God the tenth but if he make none milk the tenth day In like maner the tenth Lamb the tenth Fleece the tenth Cheese the tenth Butter and the tenth Hogg Of Bees In like maner the tenth of the profit of Bees as also of under-Wood In some these two Chapters are joyned of Meadow and Waters and Mills Parks Warrens Fishponds tender Sprouts and Gardens and Merchandize and all other things which God shall give the tenth part is to be restored to him who gave the nine parts together with the tenth who shall have detained it let him be compelled to restitution by the Justice of the Bishop and King if need be For these things St. Augustine hath Preached and are granted by the King Barons and People but afterwards by the instinct of the Devil many have detained it and Priests careless of growing rich did not care to take pains to get them because they had sufficient means of living For in many places now there are three or four Churches where then there was but onely one and so they began to be diminished Of them who are judged to be brought to Judgment or Water by the Cap. 9. Justice of the King In that day wherein Judgment ought to be done let the Minister of the Bishop and his Clerks come thither and in like manner the Justice of the King with Legal men of that Province who may see and hear that all things be rightly done and whom the Lord by his mercy will save let them be quit and freely depart and whom the iniquity of the fault the Lord shall not condemn let the Justice of the King do justice upon them But the Barons who have their jurisdiction of their men let them see that they do so concerning them as they incur not displeasure with God and offend not the King And if a Suit does arise concerning men of other Baronies in their Courts let the Justice of the King be present because without it the Suit cannot be determined If any of the Barons hath not Justice in the Hundred where the Plea shall be holden it shall be determined at the next Church where the Judgment of the King shall be saving the Right of those Barons Of Romescot 10. Every one who shall have Thirty pence of current money in his house of his own property by the Law of England shall pay a Peter penny and by the Law of the Danes half a Mark But that penny ought to be summoned upon the Feasts of the Apostles Peter and Paul and collected at the Feast which is called To the Bonds so that it be not detained beyond that day If any one shall longer detain it let complaint be brought to the justice of the King because this penny is the Alms of the King and it is justice he cause this penny to be restored and the forfeiture of the Bishop and King But if a man hath more houses let him restore the Peter-penny for that wherein he resides upon the feast of Peter and Paul the Apostles Of the Office of the King and of the Right and Appendixes of the 17. Crown of the Kingdom of Britain And the King because he is the Vicar of the highest King and to this purpose ordained that he may both govern and rule the terrene kingdom and people of the Lord and above all things the holy Church and that he defend the same from wrong-doers and destroy and root out workers of mischief Besides these Sir Ed. Coke in Cawdries Case instances in King Kenulph for that King Kenulph by his Letters Patents with the consent and councel of his Bishops and Senators of his Kingdom did give to the Monastery of Abingdon in the County of Berks and to one Ruchnius then Abbot of the said Monastery c. a certain portion of his Country c. and that the said Ruchnius c. should be ever free from Ecclesiastical right or jurisdiction and that the Inhabiters of it from thenceforth be kept under the yoke of no Bishop or their Officials but in all events of things and discussions of causes they be subject to the Decree of the Abbot of the Monastery aforesaid And that this Charter was above * * Counting to the time Sir Ed. Coke wrote 850 years since which was in the year 755. and after confirmed by Edwin of Britain King and Monarch of Englishmen and this Grant did continue until the dissolution of the Abby by Henry the 8. So that the Kings of this Nation have not only of antient time been Nursing fathers to Gods Church and have exercised their Regal power over the persons of all their Subjects in all cases but have even dispensed with and conferred Episcopal jurisdiction But this was only matter of fact and done but only in one place nor was it ever established by a Law before the Statute of Lollard and by Henry the Eight and the First of Eliz. Yet it was afterward as shall appear in the next Chap. used by divers Kings and often adjudged by the Judges before Henry the Eighth CHAP. III. Ecclesiastical Laws made by William the First who began to reign in the year of Christ 1067. THat Nations and Kingdoms
have their origination from God we Introduction have already in its proper place asserted And that these Kingdoms thus created by God have periods alterations and conversions set by him which cannot be foreseen or prevented by man is certainly as cleer and evident as the former and often owned by God himself in Sacred Writ as well over his own people as others But that therefore any man or men should therefore endeavour to make alterations in Kingdoms is like to a man who becaufe all men naturally die thinks he may kill any man and father the fact upon God And if God even over his own peculiar people did for the sins of the Kings and people especially the Israelites so often convert the line of the Kings then can it not in reason be expected in this Iron and much more sinful Age that God should every where continue a fixt and certain succession of Kings according to the ordinary course of Nature viz. Primogeniture But that therefore the Pope or any other creature may arrogate to themselves a right or power superior to the Law of Nature is no less absurd then that a Son may kill his Father because all Fathers have periods set by Nature which they cannot pass And that all Subjects do by birth owe a natural subjection to rightful Princes in whose dominion they were born which relations can never be dissolved but by God himself we have in their proper places demonstrated Yet may the exercise of this power be suspended so long as such Subjects come into the power of other Princes whether it be by conquest or otherwise and do owe them a temporary obedience so long as they continue there and their posterity born in their dominions owe such Princes a natural obedience which can never be dissolved And also that since there is no other Judge under Heaven to decide the controversie of Princes but their swords which can never be alledged by any Subjects who have Laws to decide their differences such decision is good as to the exercise of any Princes power over all them who fall under ir and all Subjects born in such exercise of power or dominion become natural Subjects to any Prince who by conquest acquires the dominion of another we have also demonstrated in its proper place Yet whether it were of old that Popes did arrogate to themselves this right of deposing Temporal Princes or debarring them of their right which about this time was frequently asserted by and practised by the Popes and which Pope Alexander was pleased to confer upon the Conqueror against all Right and Law to the manifest prejudice of Eadgar Athelin let us see the Epistle of S. Eleutherius to King Lucius as it is cited in chap. 17. of S. Edovards Laws In the year from the passion of Christ 169. or 156. our Lord Eleutherius the Pope wrote to Lucius King of Britain at the Petition of the King and Peers of the Kingdom of Britain You have required of us that the Roman Laws and of Cesar be transmitted to you which you would use in the Kingdom of Britain We can always reprove the Roman Laws and those of Cesar but not at all the Law of God For ye have by Gods mercy of late received into your Kingdom of Britain the Law and Faith of Christ you have of your self in your Kingdom sufficient Authority from whence through Gods grace by the advice of your Kingdom to make a Law and by it through Gods patience you shall rule the Kingdom of Britain And you are the Vicar of God in your Kingdom according to the Kingly Prophet The earth is the Lords and the fulness of all the world and all who inhabit therein And again according to the Kingly Prophet Thou hast loved Justice and hated iniquity and therefore thy God hath anointed thee with oyl of gladness above thy fellows And again according to the Kingly Prophet God is thy Judgement c. Therefore neither the Judgement nor Justice of Cesar for they are sons of the King Christian Nations and people of the Kingdom who live under your Protection and Peace and Reign and are according to the Gospel Even as a hen gathereth her chickens under her wings c. But they are Nations and your People of the Kingdom of Britain and who divided you ought to congregate recall nourish hold with your hand protect and rule into one for concord and peace and to the Faith and to the Law of Christ and his holy Church and always to defend it from evil doers and malitious men and its enemies Wo to the Kingdom whose King is a boy and whose Princes eat together in the morning I Do not call a King because of his small and tender age but because of his folly and iniquity and rage according to the Prophet King Men of blood and deceitful shall not live out half their days c. By eating we understand the Pallat by the Pallat Luxury by Luxury all things filthy and evil according to King Solomon Wisdom shall not enter into the soul of the evil doer nor shall dwell in a body subject to sins Rex dicitur à Regendo non à Regno A King thou shalt be so long as thou rulest well which thing if thou wilt not do the name of King shall not remain in thee and thou shalt lose the name of King which God forbid God Almighty grant to you so to Rule your Kingdom of Britain that you may Reign with him for ever whose Vicar you are in the Kingdom aforesaid who with the Father and Son c. Of the Right and Ecclesiastical freedom of Asylum's Cap. 1. That is to say Peace to the holy Church Of whatsoever forfeiture any one is guilty this time and he can come to the holy Church let him have peace of life and member and if any one hath set his hand against that which the Mother-Church shall require whether it be an Abby or Church of Religion let him restore that which he hath taken out and one hundred shillings for forfeiture and concerning the Mother-Parish-Church twenty shillings and concerning a Chappel ten shillings And according to the peace of the King in the Laws of the Mercians he shall make amends with En perchenâlaâ one hundred shillings accordingly as of Heinefare and prepensed lying in wait Of Peter-pence or Romescot Cap. 18. A Freeman who hath Field-Beasts valued at thirty pence shall pay a Peter-peny For four pence which the Lord shall give all his Borderers and his Boner and his Servants be quit A Burger who hath of his proper goods so much as shall be esteemed half a Mark let him pay a Peter-peny He who in the Law of the Danes is a Free-man and hath field-cattel which are valued worth half a Mark in silver ought to give a peny to St. Peter and for that peny shall all be quit who reside in his Demains Of them who do not pay the Roman
an Englishman or thus deny it let him take eleven and he be the twelfth c. Of Homicides by men Ordained Cap. 73. If a Bishop kill a man let it be recorded and let him repent twelve years seven years in bread and water and five let him fast three days in a week and on others let him use common sustenance If a Priest kill a man or a Monk let him lose his Order and repent ten years six in bread and water and four let him fast three days in a week on others let him use his meat If a Presbyter wound a man let him fast one hundred day If a Deacon kill a man let him be degraded and repent seven years four in bread and water and three let him fast three days in a week upon other let him use common meat If a Clerk shall kill a man let him repent six years four in bread and water two years three days in the week If a Laick kill a man let him repent five years three in bread and water and two years let him fast three days in the week If a man kill a man in Orders or his neighbor let him depart out of his Countrey and go to Rome and make the Pope and his Councel let him in like maner repent of Adultery or Fornication or lying with a Nun. These Laws are likewise set out by Mr. Abraham Whelock in the Appendix to his History of Bede Sir Ed. Coke Candrys Case says Henry the first did Ordain Anno 16. Regni sui as well in regard of his Ecclesiastical as Regal power that whensoever the Abbot of Reading shall die that all the Possessions do remain entire and free But how this should make any thing for the Kings Ecclesiastical Right in all Cases I do not understand for this Ordinance was onely concerning the Possessions of the Abbey and it is no Question but all the Bishopricks as well as Abbeys were originally of the Kings foundation and it appears by the Margent that the King was the particular Founder of this Abby what then hinders but that the King might dispose of the Revenues as he should think fit without having any Ghostly power in him Ecclesiastical Laws made by Henry the third Magna Charta FIrst we have granted to God and by this our present Chapter have confirmed Cap. 1. for us and our heirs for ever that the Church of England shall be free and shall enjoy all her whole Rights and Liberties inviolable Reserves to all Archbishops Bishops Abbots Priors Templars Hospitalers Cap. 38. According to Sir Edward Coke Inst 2. yet the Statute-book in large divides this Act but into thirty seven Chapters and all persons Ecclesiastical all their free Liberties which they have had in time passed and all these Customs and Liberties aforesaid which we have granted to be holden within this Realm as much as appertains to us and our heirs we shall observe And all men as well Spiritual as Temporal as much as in them is shall observe the fame against all persons likewise And for this our Gift and Grant of these Liberties and of other contained in our Charter of Liberties of our Forest Archbishops Bishops Abbots Priors Earls Barons Knights Freeholders and other our Subjects have given to us the fifteenth part of their moveables and we have granted to them on the other part that neither we nor our heirs shall procure or do any thing whereby the Liberty in this Charter contained shall be infringed or broken And if any thing be procured by any person contrary to the premisses it shall be of no force nor effect In the Reign of Hen. 3. Cawdries Case 3 H. 3. tit Proh 13. 4 H. 3. c. In all the time of Henry 3. and his Progenitors Kings of England and ever since if any man did sue afore any Judge Ecclesiastical within the Realm for any thing whereof that Court by allowance and custom had not any lawful cognisance the King did ever by his Writ under the Great Seal prohibit them to proceed Answ It is true indeed that not only Probate of Testaments but Cognisance of Tythes Granting of Letters of Administration Mortuaries Pensions Reparation of Churches do not belong to Ecclesiastical cognisance by any Divine positive institution but by allowance and custom of England And if all Customs suppose some Grant originally from Supreme humane Powers then what hinders but that the King might prohibit any Judge Ecclesiastical within the Realm for any thing whereof that Court by allowance and custom had not lawful conusance for Cujus est velle ejus est nolle And if the suggestion made to the Plea King whereupon the Prohibition was grounded were after found untrue then the King by his Writ of Consultation under the Great Seal did allow and permit them to proceed Also in all the Reign of H. 3. and his Progenitors Kings of England if any Issue were joyned upon Loyalty of Marriage General Bastardy or such like the King did ever write to the Bishop of the Diocese as Mediate Officer and Minister of his Court to certifie the Loyalty of the Marriage Bastardy or such like All which prove that those Courts were under the Kings jurisdiction and commandment It is true that not only all Courts and planting of Christianity were originally by the Kings command or permission but the persons of all men within the Realm are in his power And Marriage and Bastardy being so essential and whereupon the strength of mens estates and inheritances do depend what hinders the King to write to the Bishop to certifie the Loyalty of the Marriage And if it pleases him to do it as his mediate officer who shall contradict is Well let it be granted the Kings of England in cases of Bastardy and Loyal Matrimony have written to the Bishop of the Diocese as his mediate officer yet it will not follow that the Bishop is the Kings mediate officer in all things and cases which relate to his Episcopal function and jurisdiction Ecclesiastical Laws made by Edward the First THe King willeth that the peace of the holy Church be maintained in Stat. West an 3. Ed. 1. 1275. all points and that Religious Houses shall not be overcharged nor any Purveyance be made of any Prelate without the owners consent They who shall offend and be thereof attainted shall be committed to the Kings prison and after shall make fine and be punished according to the quantity and manner of the trespass and after as the King in his Court shall think fit c. It is provided also That when any Clerk is taken for guilty of felony Cap. 1. and is demanded by the Ordinary he shall be delivered to him according to the priviledge of the holy Church on such peril as belongeth to it after the custom aforetimes used And the King admonisheth the Prelates and enjoineth them upon the faith that they ow to him and for the common profit and
peace of the Realm that they which be indicted of such offences by solemn Inquest of lawful men in the Kings Court in no manner shall be delivered without due purgation so that the King shall not need to proide any other remedy therein The Statute of Circumspectè agatis made 13 Ed. 1. 1285. Certain Cases wherein the Kings Prohibition doth not lie Cap. 1. The King to his Judges sendeth greeting Use your selves circumspectly in all matters concerning the Bishop of Norwich and his Clergy not punishing them if they hold plea in Court Christian of such things as be meerly Spiritual that is to wit of Penance injoined by Prelates for deadly sin of Fornication Avowtry and such like for the which sometimes corporal penance and sometime pecuniary is enjoined specially if a Freeman be convict of such things As also Prelates do punish for leaving the Church-yard unclosed or for that the Church is uncovered or not conveniently decked in which cases none other penance can be enjoined but pecuniary Item If a Parson demand of his Parishioners Oblations or Tithes due and accustomed or if any Parson do sue against another Parson for Tithes greater or smaller so that the fourth part of the value of the benefits be not demanded Item If a Parson demand Mortuaries in places where a Mortuary hath been used to be given Item If a Prelate of a Church or a Patron demand of a Parson a Pension due to him All such demands are to be made in a Spiritual Court And for laying violent hands on a Clerk and in case of Defamation it hath been granted already that it shall be tryed in a Spiritual Court when money is not demanded but a thing done for punishment of sin and likewise for the breaking of an Oath In all cases afore-rehearsed the Spiritual Judge shall have power to take knowledge notwithstanding the Kings Prohibition Statutum de asportatis Religiosorum made Anno 35. Ed. 1. 1307. Cap. 1 Of late it came to the knowledge of our Lord the King by the grievous complaint of the Honorable persons Lords and other Noblemen of his Realm That whereas Monasteries Priories and other Religious Houses were founded to the honor and glory of God and the advancement of the Holy Church by the King and his Progenitors and by the said Noblemen and their Ancestors and a very great portion of Lands and Tenements have been given by them to the said Monasteries Priories and Houses and the Religious men serving God in them to the intent that Clerks and Laymen might be admitted in such Monasteries Priories and Religious Houses according to their sufficient ability and that sick and feeble men might be maintained Hospitality Alms-giving and other charitable deeds might be done and that in them prayers might be said for the souls of the said Founders and their heirs The Abbots Priors and Governors of the said Houses and certain Aliens their Superiors as the Abbots and Priors of Cistercienses and Promonstratenses and of the Order of S. Augustine and S. Benedict and many more of other Religion and Order have at their own pleasures set divers insupportable tallages payments and impositions uyon every of the said Monasteries and Houses in subjection unto them in England Ireland Scotland and Wales without the privity of our Lord the King and his Nobility contrary to the laws and customs of the said Realm and thereby the number of the said Religious persons and other servants in the said Houses and Religious places being oppressed by such tallages payments and impositions the service of God is diminished Alms be not given to the poor the sick and feeble the healths of the living and the souls of the dead be miserably defrauded Hospitality almsgiving and other godly deeds do cease And so that which in times past was charitably given to godly uses and to the increase of the service of God is now converted to an evil end by permission whereof there grows great scandal to the people and infinite losses and disheritances are like to ensue to the Founders of the said Houses and their Heirs unless speedy and sufficient remedy be provided to redress so many and grievous detriments Wherefore our Lord the King considering that it would be very prejudicial to him and his people if he should any longer suffer so great losses and injuries to be winked at And therefore being willing to maintain and defend the Monasteries Priories and other Religious houses erected in his Kingdom and in all Lands subject to his dominion and from henceforth to provide sufficient remedy to reform such oppressions as he is bound By the counsel of his Earls Barons Great men and other Nobles of his Kingdom in his Parliament holden at Westminster in the 35. year of his reign hath ordained and enacted Religious persons shall send nothing to their Superiors beyond the Sea Cap. 2 That no Abbot Prior Master Warden or any other Religious person of whatsoever condition state or religion he be being under the Kings power or jurisdiction shall by himself or by merchants or others secretly or openly by any device or means carry or send or by any other means cause to be sent any Tax imposed by the Abbots Priors Masters or Wardens of Religious houses their Superiors or assessed amongst themselves out of the kingdom and his dominion under the name of a rent tallage or any kind of imposition or otherwise by way of exchange mutual sale or other contract however it may be termed Neither shall depart into any other country for visitation or upon any other colour by that means to carry the goods of their Monasteries and Houses out of the Kingdom and Dominion aforesaid And if any will presume to offend this present Statute he shall be grievously punished according to the quality of his offence and according to his contempt of the Kings prohibition No Impositions shall be taxed by Priors Aliens Moreover our Lord the King doth inhibit all and singular Abbots Priors Masters and Governors of Religious houses and places being Aliens to whose authority subjection and obedience the Houses of the same Orders in his kingdom and domion be subject that they do not at any time hereafter impose or by any means assess any tallages payments charges or other burdens whatsoever upon the Monasseries Priories or other Religious houses in subjection to them as is aforesaid and that upon pain of all they have or may forfeit By whom the Common Seal of an Abbey shall be kept and how used And further our Lord the King hath ordained and established that the Abbots of the Orders of Cisterciensis and Promonstratensis and other Religious Orders whose Seal hath heretofore been used to remain only in the custody of the Abbot and not of the Covent shall hereafter have a Common Seal and that shall remain in the custody of the Prior of the Monastery or House and four of the most worthy and discreet men of the Covent of the same House to
St. 27 H. 8. cap. 15. Spiritual and sixteen Temporal to examine the Laws and Constitutions heretofore made according to the Statute of 25 H. 8. 9. But no Laws or Constitutions shall be made without the Kings assent nor contrary to the Kings Prerogative or the Laws of the Land If any person shall extoll the Authority of the Bishop of Rome he shall 28 H. 8. c. 10. incur the penalty of a Praemunire provided Anno 16 Ric. 2. Every Ecclesiastical and Lay-Officer shall be sworne to renounce the said Bishop and his Authority and to resist it to his power and to repute any Oath taken in maintenance of the said Bishop or his Authority to be void And the refusing of the said Oath to be Treason Makes all Bulls and Dispensations from the Bishop or See of Rome to 28 H. 8. c. 16. any of the Subject of this Realm void The King may nominate such number of Bishops Sees for Bishops 31 H. 8. c. 9. Cathedral Churches and endow them with such possessions as he will 1. If any person by word writing printing ciphering or otherwise do preach teach dispute or hold opinion That in the blessed Sacrament 31 H. 8. c. 14. called the Statute of the Six Articles of the Altar under form of bread and wine after the consecration thereof there is not really the natural body and blood of our Saviour Jesus Christ conceived of the Virgin Mary or that after the said consecration there remains any substance of bread or wine or any other substance but the substance of Christ God and man Or that in the flesh under the form of bread is not the very blood of Christ Or that with the blood under the form of wine is not the very flesh of Christ as well apart as though they were both together Or affirm the said Sacrament to be of other substance then is aforesaid Or deprave the said blessed Sacrament Then he shall be adjudged a Heretick and suffer death by burning and shall forfeit to the King all his lands tenements hereditaments goods and chattels as in case of High Treason 2. Or if any person preach in any Sermon or Collation openly made or teach in any Common School or Congregation or obstinately affirm or defend That the Communion of the blessed Sacrament in both kinds is necessary for the health of mans soul or ought to be administred in both kinds Or that it is necessary to be received by any person other then by Priests being at Mass and consecrating the same 3. Or that any man after the Order of Priesthood received may marry or contract matrimony 4. Or that any man or woman which advisedly hath vowed or professed or should vow or profess chastity or widowhood may marry or contract marriage 5. Or that Private Masses be not lawful or not laudable or should not be used or be not agreeable to the Laws of God 6. Or that Auricular confession is not expedient and necessary to be used in the Church of God He shall be adjudged suffer death and forfeit lands and goods as a Felon If any Priest or other man or woman which advisedly hath vowed chastity or widowhood do actually marry or contract matrimony with another Or any man which is or hath been a Priest do carnally use any woman to whom he is or hath been married or with whom he hath contracted matrimony or openly be conversant or familiar with any such woman both man and woman shall be adjudged Felons Commissions shall be awarded to the Bishop of the Diocese his Chancellor Commissary and others to enquire of the Heresies Felonies and offences aforesaid And also Justices of Peace in their Sessions and every Steward Under-Steward and Deputy of Steward in their Leets or Law-day by the oath of twelve men have authority to enquire of the Heresies Felonies and offences aforesaid See the 7. Chap. of B. Bramhalls Just Vindication of the Church of England where he endeavours to shew that not only the Emperor the King of France nay and the King of Spain have in effect done the same things with Henry the Eighth upon occasion or at least plead for it although for their interests they have not continued the exercise of their Jurisdiction as the Kings of England have done A short view or reflexion upon Henry the Eight and his Reformation How zealous a Defender of the Pope and See of Rome Henry the Eight K. H. 8. a zealous defender of the Pope and Papacy was in the beginning of his Reign is evident by his book written against Martin Luther For not being born Henry the seventh's eldest son his Father being a wondtrful frugal Prince and observing good natural parts in him bred him up in literature and destinated him to the Archbishoprick of Canterbury as being the cheapest and highest preferment he could give him But his elder brother being dead and after him his father The King esteeming it a great honor to imploy himself in so famous a controversie as was then maintained by the Wits of Christendom in defence and opposition of the Church of Rome wrote a book of the Seven Sacraments defending also the Papacy and oppugned the Doctrine of Luther This thing was so grateful to the Pope that Leo 10. honored him with the Title of Defender of the Faith But after he had been married to his brothers wife above twenty years and inflamed with lustful affection to Anne Bullein a Paragon and Minion From what cause the King became estranged from the Pope of the Court he became he said troubled in conscience for having married his brothers wife and therefore desired that the Pope would examine the case and satisfie his scruple of conscience It is a very remarkable thing that this ungodly Dispensation of Julius 2. for H. 8. his marrying with his brothers wife should be the cause of the King and Kingdoms defection from the Papacy under Clement 7. The Pope to satisfie the King gave the Cardinals Wolsey and Campeius a power Legatine to hear and determine the validity or invalidity of the marriage but the Queen refusing to submit to their determination appealed from them to the Pope The Pope had now a Wolf by the ears whom he could neither keep nor well let go For in pronouncing the marriage void he feared to incense Charls the Fifth being Nephew to Queen Katherine and the most potent Prince in Christendom and in confirming it he feared to lose Henry the then most beloved Son of the Church and great Defender of the Papacy not only in writing but also in joining with and assisting the French King Francis the First for freeing him from captivity being a prisoner under Charls The Pope therefore desires the advantage of time and proceeds slowly towards a determination The King as impatient in his desires expects a sentence from the Pope which not being to be had he procures Instruments from the Universities of Cambridge Oxford and Paris together
with the Opinion of Learned men That the marriage with his Brothers wife was contrary to the Law of God and void The King not expecting the Popes sentence anno 1533. marries his beloved Anne but such love is usually too hot to hold for about two years after he cut off her head yet the King did not wholly renounce the Papacy but still expecting the Popes sentence The Pope for the reasons aforesaid not desiring to end the business The slow proceedings of the Pope but to expect advantage from time reduces the matter into several points or heads which he would have particularly disputed and at the time of the Kings marriage with Anne was not got further then the article of Attentates in which the Pope gave sentence against the King that it was not lawful for him to put away his wife by his own authority without the Ecclesiastical Judge For which cause the King in the beginning of 1534. denied the Pope his obedience commanding his Subjects not to pay any money to Rome nor to pay the ordinary Peter-pence This infinitely troubled the Court of Rome and they daily consulted of a remedy Some thought to proceed against the King with censures and to interdict all Christian nations all commerce with England But the moderate counsel pleased best to temporise with him and to mediate a composition by the French King K. Francis accepted the charge and sent the Bishop of Paris to Rome to negotiate a Pacification with the Pope where they still proceeded in the cause gently and with resolution not to come to censures if the Emperor did not proceed first or at the same time with his forces They had divided the cause into twenty three articles and then they handled whether Prince Arthur had had carnal conjunction with Queen Katherine in this they spent time till Midlent was past when the 19. of March news came that a Libel was published in England against the Pope and the whole Court of Rome and besides a Comedy had been made in presence of the King and Court to the great disgrace and shame of the Pope and every Cardinal in particular For which cause all being inflamed with choler ran headlong to give sentence which was pronounced in the Consistory the 24. of the same month That the marriage between Henry and Katherine was good that he was bound to take her to wife and that in case he did not he should be excommunicated But the Pope was soon displeased with this precipitation For six days His rash censure repented of after the French Kings letters came That the King was content to accept the sentence concerning Attentates and to render obedience upon condition that the Cardinals whom he mistrusted should not meddle in the business and that persons not suspected should be sent to Cambray to take information âand and the King had sent his Proctors before to assist in the Cause at Rome Wherefore the Pope went about to devise some pretence to suspend the precipitate sentence and again to set the cause on its feet But the King so soon as he had seen it said It was no matter for the Utterly loses the obedience of England Pope should be Bishop of Rome and himself sole Lord of his Kingdom And that he would do according to the antient manner of the Eastern church not leaving to be a good Christian nor suffering the Lutheran Heresie or any other to be brought into his Kingdom From that time forward Henry the Eighth of a zealous Assertor of the No anger lost between the King Pope Papacy both by pen and purse became the first and greatest Opposer of it of all the Western Christian Princes for the Eastern Christian Princes except sometimes the Emperors of Greece and the Kings of Holy Land did seldom or never submit to the Papacy in her Spirituals yet did he afterwards seed to be reconciled to the Pope even by means of his Nephew Charls the Fifth Nor were the Popes much behind hand with him For besides Clement's petty Excommunication Paul the Third Anno 1538. thundred out such a terrible Excommunication against him as the like was never heard of which deprived him of his kingdom and his adherents of whatsoever they possessed commanding his Subjects to deny him obedience and Strangers to have no commerce in the kingdom and all to take arms against and persecute both him and his followers granting them their states and goods for their prey and their persons for slaves But the Popes anger ended in words whereas the Kings deeds took place against the Pope But what there was in all the Kings reign which might be called Reformation What was the Kings Reformation I do not understand For whatsoever the King took from the Pope except Peter-pence he ascribed to himself If the Pope would be Head of the Catholique Church the King would be Head of the Church of England If the Pope challenged Annates and First-fruits of the Bishops and Clergy the King would do no less If the Pope did give Abbots and Priors power being Ecclesiastical persons to make divers Impropriations to their benefit the King will take a power to take them all away and convert them into Lay-fees and incorporate them so into particular mens estates that they shall never return to the Church more Nor had he any love or desire of Reformation of the Church but only to the Church-lands for all the Rites Ceremonies and Religion of the Church of Rome was continued and that with such bloody cruelty that a Stranger going over Smithfield one day and seeing two men there executed one for denying the Kings Headship of the Church and another for subscribing to the Six Articles cryed out Bone Deus quomodo hic agunt vivi hic suspenduntur Papistae ibi comburuntur Antipapistae And so zealous did he continue herein that Pope Paul the Third after he had fulminated so dreadfully against him Hist Conc-Trid fol. 90 proposed him for an Example to be imitated by Charls the Fifth Although such was the temper of this Prince that he never spared man The exclusion of the Papai jurisdiction was an act of the King Kingdom and Church of England in his rage woman in his lust nor any thing which might be called sacred in his avarice yet so absolute was he that his Divorce was attested by both the Universities at home besides that at Paris abroad his freeing himself and the Nation from the jurisdiction of the Pope was not only assented to by a Synod and Convocation of all the Clergy of England but the English and Irish Nobility did make their submissions by an Indenture to Sir Anthony Sellinger then chief Governor of Ireland wherein they did acknowledge King Henry to be their lawful Soveraign and confessed the Kings Supremacy Bram. Vind. of the Church of England p. 43. in all causes and utterly renounced the Pope But Divorce banishing the Papal authority
suffet imprisonment for six moneths without bail or mainprize And for the second offence shall suffer a years imprisonment and be deprived of all his spiritual promotions and for the third offence shall suffer imprisonment during life It was Enacted that the Justices of Oyer and Terminer and Justices of Assize should have power and authority in the open and general Sessions to hear and determin the offences committed against this Act yet so that every Archbishop and Bishop had liberty to joyn and associate himself to the said Justices of Oyer and Terminer or to the Justices of Assize All books called Antiphoners Missals Grails Portuasses Primers in Latine An. 3. 4. Ed. 6. Cap. 10. or in English and other books used for service in the Church saving such as are set forth by the Kings Authority shall be clearly abolished All Images graven painted or carved taken out of any Church or Chappel and the aforesaid books shall be defaced or openly burnt Such form and manner of making and consecrating of Archbishops and Anno 3 4. Ed. 6. Cap. 12. Bishops Priests and Deacons and other Ministers of the Church as by six Prelates and six other men of this Realm learned in the Law of God by the King to be appointed and assigned or by most of the number of them shall be devised for that purpose and set forth under the Great Seal before the first of April next coming shall be lawfully exercised and used and none other An Act for uniformity of Prayer and administration of the Sacraments An. 5. 6. Ed. 6. Cap. 1. in the English Tongue and that every person upon every Sunday and Holiday having no lawful cause to be absent do resort to his Parish-Church and they which refuse are to be punished by the censure of the Church and that all persons who shall be at any other common prayer or Sacraments shall for the first offence suffer Imprisonment for six moneths without bail or mainprise for the second Imprisonment during a whole year and for the third Imprisonment during life All the Sundays of the year the Feast of our Lord Jesus his Circumcision of the Epiphany of the Purification of the blessed Virgin of St. Matthew An. 5. 6. Ed. 6. Cap. 2. the Apostle of the Annunciation of the blessed Virgin of St. Mark the Evangelist of St. Philip and Jacob the Apostles of the Ascension of our Lord Jesus Christ of the Nativity of St. John the Baptist of St. Peter the Apostle of St. James the Apostle of St. Barthelomew the Apostle of St. Matthew the Apostle of St. Michael the Archangel of St. Luke the Evangelist of St. Simon and Jude the Apostles of All Saints of St. Andrew the Apostle of St. Thomas the Apostle of the Nativity of our Lord of St. Stephen the Martyr of St. John the Evangelist of the holy Innocents Munday and Tuesday in Easter-week Munday and Tuesday in Whitson-week are to be observed and kept for Holy days and none other And that every even or day next going before any of the aforesaid days of the Feasts of the Nativity of our Lord of Easter of the Ascension of our Lord Pentecost of the Purification of the Annunciation of the blessed Virgin of all Saints and of all the Feasts of the Apostles other then the Feasts of St. John the Evangelist and Philip and Jacob shall be kept for fasting days and none other Archbishops Bishops in their Dioces and all other having Ecclesiastical or Spiritual Jurisdiction may enquire of every person offending in the premises and punish every offender by censures of the Church and enjoyn him such penance as by the spiritual Judge shall be thought meet This Statute does not abrogate abstinence from flesh in Lent and Fridays and Saturdays or any day appointed to be kept by vertue of an Act made the second and third Ed. 6. Cap. 19. When any Holy day happens on the Munday the fast of that day shall be kept upon the Saturday immediately before and not upon the Sunday A view of the Reformation of Ed. 6. and of the lawfulness of it That the Book of commom Prayer Administration of the Sacraments The Reformation made by Ed. 6. was not meerly a civil sanction and other rites and ceremonies of the Church after the use of the Church of England was framed and composed by the Archbishop of Canterbury and certain of the most learned and discreet Bishops of the Land assembled to that purpose by the King is clearly expressed in the Preface to the Act of the 2. 3. Ed. 6. Cap. 1. The right that Christian Kings have to call and assemble Synods It is no new thing for Kings to assemble the Bishops and Church to redress and reform errors Councels and Convocations for the redress and reformation of errors and corruptions in the Church is properly the subject of another Treatise but that the Kings and supream Powers before Christianity under the old Law from Moses to Maccabees did always use it and that the first great Nicene Councel the second general Councel at Constantinople the third at Ephesus the fourth at Calcedon the fifth at Constantinople the sixth at Constantinople the seventh at Ephesus were all called by Christian Emperors is manifested by the Bishop of Winchester Andrews in the Sermon of the Right and Power of calling Assemblies nor were the general Councels convoked by Emperors but the Emperors and Kings did convoke and assemble Provincial and National Assemblies and Synods He shews that the Bishop of Syracuse in Sicily and Restitutus Bishop of London in Britain were summoned to a Synod in France by the Emperor Constantine ' Writ onely this was in the beginning of his Reign in the latter end of it in the thirtieth year of his Reign and the year before his death he called the Councel at Tyre and from thence removed it to Jerusalem and from thence called them to appear before himself at Constantinople After him Constans called one at Sardis Valentinian at Lampsacus Theodosius at Aquileia Gratian at Thessalonica Nay when the Emperors were professed Arrians even then did the Bishops acknowledge their power to call Councels came to them being called sued to them that they might be called came to them as Hosius to that of Arimine Liberius to that of Sirmium and that of Seleucia sued for them as Liberius to Constantius as Leo to Theodosius for the second Ephesine Councel Innocentius to Arcadius and sometime they sped as Leo and sometime not as Liberius and Innocentius and yet when they sped not they held themselves quiet and never presumed to draw themselves together of their own heads After the Empire fell in pieces and the Western Empire fell into the hands of Kings in Italy Theodoric called one at Rome Alaric at Agatha In France Clowis the first Christian King there called one at Orleans Childebert at Auvern Theodebert called another at Orleans and Cherebert at Toures And
excommunicated or damned who differ in some things from the doctrine of the Pope who appeal from his decrees and hinder the execution of the ordinances of him or his Legates Although the Sesession of the Church King and Kingdom of England The reformation of King 1 d. was not Schismatical from the Papacy were an Act of Schism yet being done in the Reign of H. 8. one of the greatest favorers of the Papacy that ever was King of England and to his death as great an assertor of the Rites Ceremonies and Religion of it and in such a state independent from the Church of Rome was the Church and Kingdom at the time of Edwards Reformation whatsoever therefore his Reformation was yet could it not be Schismatical Whatever the Romanists pretend to unity and peace in their Church yet The rites and ceremonies of Edwards reformation were more uniform then before it is most manifest that in the Realm of England and Dominion of Wales in several places were used divers forms of Prayer commonly called the Service of the Church viz. that of Sarum of York of Bangor and Lincoln but also of late divers and sundry forms and fashions were used in the Cathedral and Parishes Church of England and Wales as well concerning the mattens or morning prayer and evening song as also concerning the holy Communion commonly called the Mass with divers and sundry rites and ceremonies concerning the same and in the administration of other Sacraments of See preamble to the Statute of 2 3. Ed. 6. Cap. 1. That the Scriptures Lords Prayer and Creed should be read in the English tongue is no new thing in England the Church whereas the service enjoyned in the Reign of Ed. 6 was uniform in all places of England and Wales as well in Parish Churches as Cathedrals In the Reign of King Ethelbald in the year of our Saviors incarnation 748. in a convocation held in the Prouince of Canterbury Cuthbert the Archbishop of his Clergy did Enact that the sacred Scriptures should be read in their monasteries the Lords Prayer and Creed taught in the English tongue Speed in the Reign of Ethelbald para 4. page 343. and how much it was against the Word of God and the custom of the ancient Church to use a tongue unknown to the people in common prayer and administration of Sacraments see the conference at Westminster an primo Eliz. which were never yet answered that I know of If any thing Heretical had been contained in the common Prayer administration Edwards reformation was not Heretical of Sacraments c. made in the Reign of Ed. 6. it would have been sufficiently shot at having so many adversaries at home and abroad but no such crime was ever that I ever heard of imputed to it if there be let the adversaries of it yet shew it affirmanti incumbit probatio If then not onely the Kings and supreme powers always under the old Covenant King Edwards Reformation was warrant-able materially and formally had this right of invoking the high Priest and other Priests and if God always punished the Kings of Judah and Israel for suffering the people to commit Idolatry and if God himself so often commends the zeal and reformation of Jehoshaphat Hezekiah Asa Josiah c. and if ever since Christianity the Bishops by that Divine Canon to Timothy have always had in 1 Tim. cap 2. their particular Churches right of composing publick Liturgies and in national Synods a right of composing publick and national Liturgies And the Liturgy of Edward being composed and received by the Bishops of the Church of England to that end convened and assembly by the King this Liturgy being neither schismattical nor containing any thing heretical is both for matter and form warrantable Object If the Sacriledge and extention of the civil Jurisdiction in giving the civil Magistrate licence to take cognizance of the publique Liturgy and administration of the Sacraments be objected The answer is easie Let the Courtiers and Parliament answer for it the Church was patient not agent in them The Church of Rome having robbed the poor laity of one half of the institution of the Sacrament of the Lords Supper and kept the people in such The King and Church had great reason to make Reformation in Religion stupid ignorance that in the publick worship and service of God they should neither use their reason nor understanding by imposing it upon them in an unknown tongue as if in the publick worship and service of God he were not to be served by intellectual and rational creatures and had filled the Mass with more prayers to the Virgin Mary and Saints which could no ways relieve them and so at best super fluous and vain there was great reason in the King and Church to a make a reformation of the Religion and publick Worship and Service of God Of Queen Maries Ecclesiastical Laws Although King Ed. were a Prince of transcendent Vertue and Learning far above his years yet doubtless his youth was not onely much abused in his Reign where a man might have seen all the woes pronounced by God upon that Nation where the King is a childe or where a company of men in Parliament arrogate to themselves the Politick capacity of a King abstracted from his person but also at his very death caused not without suspicion of poyson was he deluded upon specious pretences by his whole Councel but principally by the Duke of Northumberland to make way for the Lady Jane Gray in the time of his sickness married to his fourth son Guilford Dudley to declare the said Lady Jane the rightful heir and successor to the English Monarchy to the manifest wrong and injury not onely of Queen Mary and Elizabeth afterward Queens of England but also of Mary Queen of Scots heir to Margaret the eldest daughter of Henry the seventh whereas the Lady Janes Title was descended from Mary the younger daughter of H. 7. yet it so pleased God that this unjust Will should onely bring destruction both to the Lady Jane and her husband whereas the Ladies Mary and Elizabeth and the Posterity of Mary Queen of Scots did all succeed and enjoy the possession of the English Diadem of which they were debarred by this Will of King Edward That the Title of Head of the Church was continued by Queen Mary appears by the Parliament begun and holden at Westminster the fifth of October in the first year of her Reign in the first and second session of it where she is stiled our Gracious Soveraign Lady Mary by the Grace of God Queen of England France and Ireland Defender of the Faith and in Earth Supreme Head of the Church of England and Ireland but in the second Parliament of her Reign being holden at Westminster the second of April the first year of her Reign the Title of Supreme Head of the Church of England and Ireland is not mentioned Declares
Queen Mary to be born in lawful Matrimony and all sentences Stat. An. Pri. Cap. 1. sess 2. Mariae of divorce to the contrary repealed particularly the sentence of Thomas Cranmer Archbishop of Canterbury touching the Kings marriage with Queen Katherine and the two Acts of Parliament of the 25 H. 8. 22. 28 H. 8. 7. confirming the same A Repeal of the Statute of 1 Ed. 6. 2. made against such as speak unreverently St. An. Pri. Ma. sess 2. Cap. 2. of the body and blood of Christ and of the Statute of 1 Ed. 6. 2. touching Election of Bishops and the 2 Ed. 6. 1. concerning the uniformity of service and administration of the Sacraments and of 2 Ed. 6. 21. made to take away all positive Laws ordained against the marriage of Priests and of the 3 Ed. 6. 10. made for the abolishing of divers books and Images and of the 3 Ed. 6. 12. made for the ordering of Ecclesiastical Ministers and of the 5 Ed. 6. 1. made for the uniformity of common Prayer and Administration of Sacraments and of the 5 Ed. 6. 3. made for the keeping of Holy days and Fasting days and of the 5 Ed. 6. 12. touching the Marriage of Priests and legitimation of their children All such divine service and administration of Sacraments as were most commonly used in England in the last year of H. 8. shall be used through the Realm after the 20 day of December Anno Dom. 1553. and no other kinde of service nor administration of Sacraments It is Enacted That if any person or persons of their own power and authority after the 20. of December shall willingly and of purpose by open or St. An. 1 Mariae Sess 2. Cap. 3. overt word fact c. maliciously or contemptuously neglect vex or disturb c. any Preacher or Preachers licensed allowed or authorized to Preach by the Queens Highness or by any Archbishop or Bishop of this Realm or by any other lawful Ordinary or by either of the Universities of Oxford or Cambridge or otherwise lawfully authorized by reason of his Cure or Benefice c. in any open Sermon Preaching or Collation in any Church Chappel or Churchyard c. Or if any person shall wilfully disturb c. any Parson Vicar Parish-Priest Curat or other lawful Priest saying or celebrating the Mass or other divine service sacraments or sacramentals as was commonly frequented and used in the last year of H. 8. or afterward should be allowed and set forth or authorized by the Queen Or if any person shall contemptuously unlawfully or maliciously deface spoil abuse or unreverently handle or order the most blessed comfortable and holy sacrament of the body and blood of our Lord and Saviour Jesus Christ commonly called the Sacrament of the Altar being in any Church Chappel or other decent place or the Piece or Canapy wherein the same Sacrament is or shall be or pull down deface spoil or otherwise break any Altar or Altars or any Crucifix or Cross in any Church Chappel or Churchyard That then every such offender his ayders and abettors shall be apprehended c. by the Constable or Churchwarden of the place wherein the said offences shall be committed Which persons so apprehended c with convenient speed shall be brought and carried to any Justice of Peace within the said Shire c. where the said offence shall be committed and the said Justice of Peace upon due accusation shall forthwith commit the said person or persons to safe custody as by the discretion of the said Justice shall be thought meet and within six days next after such accusation the said Justice with other Justices of Peace in the said Shire City c. shall diligently examine the acts and offences aforesaid And if two of the said Justices of Peace shall upon examination finde the person or persons so accused guilty of any of the said offences by two sufficient witnesses or by confession the said Justices of Peace shall commit the person or persons so accused to the Gaol of the County City Burrough c. where the said offences were committed without bail or mainprize by the space of three moneths and further to the next quarter sessions to be holden in the said shire city burrough c. next after the end of the said three months which quarter sessions the party offending upon his repentance and reconciliation shall be discharged out of prison upon sufficient security for his good behaviour for one whole year but if he or they will not repent and be reconciled then to be committed again to the said Gaol there to remain until he or they shall repent and be reconciled for their offences If any person shall receive the offendor or disturbe the arrest he shall forfeit to the Queene her Heires and Successors for every such offence the summe of five pounds If any offendor bee not taken but escape hee shall forfeit to the Queene for every such escape five pounds The Justices of Peace Justices of Assize Justices of Oyer and Terminer all Mayors Bayliffs Justices of Peace within any City Borough or Town-corporate have power and authority to enquire into heare and determine the offences and misdemeanors aforesaid and to set fines and amerciaments therefore This Act doth not take away any authority jurisdiction c. of Ecclesiasticall Lawes then in force This Statute repeales all Statutes made against the Church of Rome particularly Anno 1 2 Phil. Mar. cap. 8. the Statute of 21 H. 8. 13. made against plurality of Benefices taking of Farmes by Spirituall men and non residence The Statute of 23 H. 8. 9. That no person shall be cited out of his Diocess wherein he or she dwelleth except for certain cases Stat. 24 H. 8. 12. That Appeals in such cases as had been proved in the See of Rome should not from henceforth be had nor used but within this Realm Stat. 25 H. 8. 19. entituled The submission of the Clergy to the Kings Majesty Stat. 25 H. 8. 20. concerning restraints of Payments of Primates and First-fruits of Arch-bishopricks Bishopricks to the See of Rome Stat. 25 H. 8. 21. concerning the exoneration of the Kings Subjects from exactions and impositions before that time paid to the See of Rome and for having licences and dispensations within this Realm without suing further for the same Stat. 26 H. 8. 1. concerning the Kings being supreme head of the Church and to have Authority to reform and redresse all errors heresies and abuses in the same Stat. 26 H. 8. 14. for nomination and confirmation of Suffragans within this Realm Stat. 27 H. 8. 15. whereby the King should have power to nominate 32. persons of his Clergy and Lay Fee for making Ecclesiasticall Lawes Stat. 28 H. 8. 10. Extinguishing the Authority of the Bishop of Rome Stat. 28. H. 8. 16. For release of such as then had obtained pretenced licences and dispensations from the See of Rome Stat.
28. H. 8. 7. for the establishment of the succession of the Imperiall Crown of this Realm that concerneth a Prohibition to marry within the Degrees expressed in the said Act. Stat. 31 H. 8. 9. authorising the King to make Bishops by his Letters Patents Stat. 32 H. 8. 38. concerning precontracts of Marriages and touching degrees of consanguinity Stat. 35 H. 8. 3. for ratification of the Kings Stile The corporall oath made in the Stat. of 35 H. 8. 1. that every Subject of this Realm should be bound to take against the power authority and jurisdiction of the See of Rome Stat. 37 H. 8. 17. That the Doctors of the Civill Law which were married might exercise Ecclesiasticall jurisdiction So much of that Statute of the first Ed. 6. 1. as contains certain Provisions Pains Penalties and Forfeitures for and against such as should by open preachings expresse words sayings writing printing overt-deed or act affirme or set forth That the King of this Realm for the time being is not or ought not to be the supreme head in earth of the Churches of England and Ireland nor of any of them or that the Bishop of Rome or any other person or persons other than the K. of England for the time being is or ought to be supreme head of the same Churches or any of them as in the said Act more at large may appear It is enacted that these clauses and other of the foresaid Act concerning the Supremacy and all and every branch article words and sentence in the same sounding or tending to the Derogation of the supremacy of the Popes Holiness or the See of Rome and all pains penalties and forfeitures made against them that should by any means set forth or extol the said Supremacy should from thenceforth be utterly void It did moreover generally repeal all clauses sentences and articles of every other Statute made since the 20 H. 8. against the supreme authority of the Popes Holiness or See Apostolick of Rome The Lords Spirituall and Temporall and Commons professing themselves reduced and received by their Majesties intercession to the unity of Christs Church and obedience of the Apostolick See of Rome and the Pope governing the same did make humble suite to their Majesties to be Intercessors that by authority of the Popes Holiness and by the ministration of Cardinall Poole by dispensation tolleration or permission respectively as the case shall require be abolished these Articles following and generally all others when any occasion shall so require may be provided for and confirmed 1. That all Bishopricks Cathedrall Churches Hospitalls Colledges Schooles and other such foundations now continuing made by authority of Parl. or otherwise established according to the order of the Lawes of this Realm since the Schisme may be confirmed and continue for ever 2. That Marriages made infragradus Prohibitos consanguinitatis affinitatis cognationis spiritualis or what might be made void propter impedimentum Publicae honestatis justitiae or for any cause prohibited by the Canons only may be confirmed and children born of those Marriages declared legitimate so as those Marriages were made according to the Lawes of the Realm for the time being and be not directly against the Lawes of God nor in such case as the See Apostolick hath not used to dispence withall 3. That institution of Benefices and other promotions Ecclesiasticall and dispensations made according to the form of the Act of Parliament may likewise be confirmed 4. That all Judiciall Processes made before any Ordinaries of this Realm or before any Delegates upon any Appeals according to the order of the Lawes of this Realm may likewise be ratified and confirmed 5. That the Lands and Goods of Bishopricks Monasteries Chanteries c. dispersed abroad to sundry persons by gift exchange purchase c. according to the Lawes of the Land for the time being shall so continue It was enacted that the title of supreme head of the Church never was nor could be attributed to by any King or Governor It was enacted that all Bulls Dispensations and Priviledges obtained before the 20 year of H. 8. or any time since of the See of Rome and not containing matter prejudiciall to the Imperiall Crown or Lawes of this Realm should be put in execution This Statute did restore the Pope and Apostolick See together with the Jurisdiction the Bishops had in the Realm to all the Authority they had before the 20 of H. 8. It is a very remarkable thing that this Statute does affirme that nothing done or moved in this Statute should be prejudicall to the Liberties of the Crown before the 20 of H. 8. and that the Statute of 24 H. 8. 12. and the Statute of 25 H. 8. cap. 20. which takes away all Ecclesiasticall Jurisdiction from the Pope and vests it in the King should be but declaratory of the ancient and common Law of this Land See Coke de jure Regis Ecclesiastico 28. a. b. 31. one of these must necessarily be false Thus did Queen Mary restore by Parl all the Papall Jurisdiction which Description of Queen Mary was exercised before the 20 of Henry the 8. and would have restored all the Abbey and Chantery Lands taken away by her Father and Brother had it been in her power but many alienations descents and purchases having been made of them she was not able to performe it being a Princess no doubt wondrous free from sacriledge zealous and constant in her Religion mercifull when her Religion was not concerned and just Her mercy appears in her not only pardoning all the Councell who had subscribed to her disinheriting but it was thought she would not have taken away the life of the Lady Jane although guilty of so high a crime as having actually invaded the Crown if the Duke of Suffolk her Father formerly pardoned by the Queens meer grace had not most unjustly and unthankfully excited her Subjects against her which together with Wiats Rebellion for her own security did necessitate her for her own security to execute her Her justice appears in this the Lord Sturton having been at variance with one Hargill and his Son Gentlemen knocked the poor Gentlemen on the head and after cut their throats and buried their bodies in a Pit 15. foot deep hoping this villainy would never come to light or if it did he assured himself of the Queens favour being zealously addicted to the Popish Religion which did him not good for the Queen abhorred and rejected all mention of Pardon for him only he had this grace that the other Murderers were hanged in a hempen but he in a silken halter Ecclesiasticall Lawes made in the Reign of Queen Elizabeth IT is declared that in the Reign of H. 8. divers good Lawes and Statutes Anno 1. Eliz. cap. 1. were made as well for the utter extinguishing of all usurped and forrein Powers and Authorities of this Realm and other her dominions and Countries as also for the restoring and
uniting to the Imperiall Crown of this Realm the ancient Jurisdiction Authorities Superiorities and Preheminencies to the same of right belonging and appertaining By reason whereof her most humble Subjects from the time of the 25 H. 8. were continually kept in good order and were disburdened of divers great and intollerable charges and vexations before that time unlawfully taken and exacted by such foreign Power and Authority as before that was usurped * And to the The Statute of 1 2 Ph. Ma. cap. 8. which restored to the Pope all which this Stat. takes away declares that nothing was done prejudiciall to the Crown in so doing intent that all usurped power Spirituall and Temporall might for ever be extinguished and never be used or obeyed in this Realm or any other her Majesties Dominions It was therefore by the Authority of that Parliament enacted That no forrein Prince Person Prelate State or Potentate Spirituall or Temporall should at any time after the last day of that Session of Parliament use enjoy or exercise any manner of Power Jurisdiction Authority Preheminence or Priviledge Spirituall or Ecclesiasticall within this Realm or within any other the Queens Dominions or Countries that then were or hereafter should be but from henceforth the same should be clearly abolished out of this Realm and all other her Dominions for ever And it was then also established and enacted That such Jurisdiction Priviledges Superiorities and Preheminences Spirituall and Ecclesiasticall as by any Spirituall and Ecclesiasticall Power or Authority had heretofore been or might lawfully be exercised or used for the visitation of Ecclesiasticall state and persons and for reformation order and correction of the same and of all manner of errors heresies schismes abuses offences contempts and enormities should for ever by authority of that Parliament be united and annexed to the Imperiall Crown of this Realm And that the Queen her Heirs and Successors Kings or Queens of this Realm should have full power and authority by virtue of that Act by Letters Patents under the Great Seal of England to assigne name and authorize when and as often as the Queen her Heirs and Successors shall think meet and convenient and for such and so long time as should please the Queen her heirs and successors such person or persons being naturall born Subjects to the Queen her heirs or successors as the said Queen her heirs or successors should think meet to exercise use occupy and execute under the said Queen her heirs and successors all manner of Jurisdictions Priviledges and Preheminences in any wise touching or concerning any Spirituall or Ecclesiasticall Jurisdiction within these Realms of England or Ireland or any other her Dominions and Countries and to visite reform redress order correct and amend all such errors heresies schismes abuses contempts and enormities whatsoever which by any manner spirituall or ecclesiasticall Power Authority or Jurisdiction could or might lawfully be reformed ordered redressed corrected restrained or amended to the pleasure of Almighty God the encrease of virtue and conservation of the peace and unity of this Realm And that such person or persons so to be named assigned authorized and appointed by the said Queen her heirs and successors after the said Letters Patents to him or them made and delivered as is aforesaid should have full power and authority by virtue of that Act and of the Letters Patents under the said Queen her heirs and successors to exercise use and execute all the premisses according to the tenor and effect of the said Letters Patents any matter or cause to the contrary in any wise notwithstanding This Statute doth create the oath of Supremacy to be taken by all men who hold any Office or take from the Queen her heirs and successors any Fees or Wages within this Realm or other her Highnes Realms or Domiminions the form and tenor of it is I A. B. doe utterly testifie and declare in my conscience that the Queens Highness is the only supreme Governor of this Realm and all other her Highness Dominions and Countries as well in all Spirituall or Ecclesiasticall things or causes as Temporall and that no forrein Prince Person Prelate State or Potentate hath or ought to have any Jurisdiction Power Superiority Preheminence or Authority Ecclesiasticall or Spirituall within this Realm and therefore I doe utterly renounce and forsake all forrein Jurisdiction Powers Superiorities and Authorities and do promise that from henceforth I shall bear faith and true allegiance to the Queens Majesty her Heirs and lawfull Successors and to my power shall assist and defend all Jurisdictions Priviledges Preheminences and Authorities granted or belonging to the Queens Highness her Heirs and Successors or united and annexed to the Imperiall Crown of this Realm So help me God and the contents of this Book If any person dwelling or inhabiting within this Realm or any other of the Queens should within 30. dayes after the determination of the Session of that Parliament by Writing Printing Teaching c. maintain any forrein Power or Jurisdiction Ecclesiasticall or Spirituall or shall advisedly put in use any such forrein Power or Jurisdiction within any of her Highness Dominions he and his Aiders Abettors Counsellors c. shall forfeit to the Queen her Heirs and Successors all his goods and chattels as well reall as personall If any person so convict be not worth in Goods and Chattels the summe of 20 s. every such person upon conviction over and besides the forfeiture of his Goods and Chattels shall suffer imprisonment by the space of a whole year without Bail or Mainprise And that all and every the Benefices Prebends and other Ecclesiasticall promotions and dignities of every person spirituall so offending and being attaint shall be utterly void and the Patron and Donor may present as if the Incumbent were actually dead For the second offence the party offending shall incur the danger of a Premunire For the third offence after conviction and Attainder the party offending shall suffer death and forfeiture of all his Goods as in case of High Treason The offender must bee impeached for preaching teaching or speaking any thing against the Premisses within a yeere after such preaching teaching or speaking and if any person shall be imprisoned for preaching teaching or speaking against this Statute and if be not indicted within the space of one half yeer next after his offence that he be discharged and set at liberty No matter of Religion or cause Ecclesiasticall made by this Parliament shall be judged Error Heresie Schism or schismaticall opinion Such Persons as shall bee authorized by Letters Patents under the Broad-seale of England shall have jurisdiction power or authority spirituall to visite reform order or correct any errors heresies schisms abuses or enormities But by virtue of this Act they have not authority to determine or adjudge any thing to bee heresy but only such as heretofore have beene determined by Canonicall-Scripture or the 4 first generall Councells or any
forty pounds and for every yeere after the summe of sixtie pounds untill hee or shee shall receive the Sacrament as aforesaid and if he or she who hath received the Sacrament as aforesaid shall after offend in not receiving the Sacrament as aforesaid by the space of one whole yeere that then he shall forfeit for every such offence the summe of sixty pounds the one moity to the King the other to him who will sue for the same in any of the Courts of Record in Westminster or before any Justices of Assize or before Justices of Peace at their generall Quarter-Sessions by Action of Debt Bill Plaint or Information wherein no Essoyne Protection or Wager of Law shall be allowed The Churchwardens and Constables of every Towne Parish or Chappel for the time being or some one of them or if there be none then the chief Constables of the Hundred where such Town Parish or Chappell is or one of them as well in places exempt as not exempt shall once every yeere present the monthly absence from Church of all popish Recusants within such Townes and parishes and shall present the names of every of the children of the said Recusants being above the age of nine yeeres and as neere as they can the age of the said children as also the names of the Servants of the said Recusants at the next generall or quarter-Sessions of that shire limit division or liberty All such Presentments shall bee Recorded in the said Sessions by the Clerke of the Peace or Towne-clarke for the time being without any Fee and for default of every such Presentment the said Churchwardens Constables or High-constables shall forfeit twenty shillings and for default of recording such presentment without a Fee the Clerke of the Peace or Town-clerke shall forfeit 40. s. Every Presenement made by any Churchwarden constable or High-constable as aforesaid whereby any Recusant shall happen to be convicted shall be rewarded by having 40. s. to be levyed out of such Recusants goods and estate in such manner as by the more part of the Justices shall be ordered by warrant under their hands and seales The Justices of Assiize and Justices of Quarter-sessions have power to heare and determine of all Recusants as well for not receiving the Sacrament as for not coming to Church and have also power to make Proclamation that the body of every such offendor shall be rendred to the Sheriff of the county or the Baylif or keeper of the Goale of the liberty before the next Assizes Generall or Quarter-sessions and if then the offendor shall not make his appearance upon Record that every such default shall be deemed as a sufficient conviction by verdict of 12 men This Statute recites the penalties imposed by the 29 Eliz. 6. upon a Recusant convict and that every conviction shall be certified into the Exchequer as is in the statute of 23 El. 1. concerning Recusants monethly forfeitures yet by this statute the King may refuse the 20 l. a moneth and take the 2 parts of the Recusants lands yet the King shall not take into his two parts the Mansion house nor shall demise nor lease over the 2 third parts or any part thereof to any Recusant nor to the use of any Recusant and whosoever shall take any lease of the King of such lands shall give such security as the Court of Exchequer shall allow not to suffer any waste to be committed upon the Premisses For the better tryall how the Kings subjects stand affected in point of loyalty and due Obedience it is Enacted That after the end of the session of Parliament any Bishop of the Diocesse or any two Justices of peace whereof one of the Quorum within the jurisdiction of their sessions may require any person of the age of 18 yeeres or above being or which shall bee convict or indicted for any Recusancy except noblemen and noble women for not repairing to Divine service according to law or have not received the Sacrament twice within the yeere next past or any person passing through the County or Liberty and unknowne except as is before excepted that being examined by them upon oath shall confesse or not deny himself to be a Recusant or shall confesse or not deny that he hath not taken the Sacrament twice within the yeere to take this Oath hereafter upon the holy Evangelists which said Bishop or two Justices shall certifie in writing subscribed with his or their hands at the next generall or Quarter-sessions the Christian name Sirname and place of abode of every person which shall take the said Oath which Certificate shall be there Recorded and kept among Records of the said sessions If any person other then noblemen and noble women shall refuse to answere upon Oath to such Bishop or Justices of Peace or take the said Oath duely tendred then the said Bishops or Justices of Peace shall commit the same person to the common Goale without Baile or Mainprize untill the next Assizes or quarter Sessions where the said Oath shall be againe tendred unto them by the Justices of Affize or Justices of Peace or the greater part of them and if such person shall then refuse to take the Oath he shall incur the penalty of a praemunire except women Covert who upon refusall shall only be committed to the common Goale there to remain without bail or mainprize untill they take the said Oath The Tenour of the Oath I A. B Doe truly and sincerely acknowledg professe testify and declare in my Conscience before God and the World that our Soveraign Lord King James is lawfull and rightfull King of this Realm and of all other his Majesties Dominions and Countries and that the Pope neither of himselfe nor by any Authority of the Church or See of Rome or by any other meanes with any other hath any power or authority to depose the King or to dispose of any of his Majesties Kingdomes or Dominions or to authorize any forreigne Prince to invade or annoy him or his Countries or to discharge any of his subjects of their Allegiance and Obedience to his Majesty or to give licence or leave to any of them to beare Arms or raise tumults or to offer any violence or hurt to his Majesties Royall Person State or Government or to any of his Majesties Subjects within his Majesties Dominions Also I sweare from my heart that notwithstanding any Declaration or Sentence of Excommunication or Deprivation made or granted or to be made or granted by the Pope or his Successors or by any authority derived or pretended to be derived from him or his See against the said King his Heires and Suceessors or any absolution of the said Subjects from their obedience I will beare faith and true Allegiance to his Majesty his Heirs and Successors and him and them will defend to the uttermost of my power against all conspiracies and attempts whatsoever which shall be made against his or their Persons their Crowne and Dignity
said Justices of peace or any of them or shall hinder or disturb any such Justices or any person authorised by them to seize the same shall forfeit all such armour and amunition to the King and beimprisoned by warrant from any of the Justices of the County during the space of three moneths without bayl or mainprize This Act nor any thing therein shall not abridge the authority and jurisdiction of Ecclesiasticall censures See Statute 6 anno 7 Jacobi who shall take the oath of obedience to the King and by whom it shall be ministred and within what time If any married woman being lawfully convict as a popish Recusant for not coming to Church shall not within three moneths after such conviction conform her self and repair to Church and receive the Sacrament according to Law then shall shee be committed to prison by one of the Kings Privy Councell if she be a Baroness or if she be under that degree by two of the Justices of the peace of the County whereof one of the Quorum without Bail or Mainprise untill she conform her self to come to Church and receive the Sacrament unlesse the Husband shall pay to the King ten pounds a moneth or the third part of his Lands and Tenements so long as the Wife remaining out of prison shall continue a convicted Recusant during which time and no longer she shall have her liberty If the giving of the temporall powers cognizance of crimes meerly spirituall Annot. be objected to Edw. 6. Queen Elizabeth and King James I think no man will undertake to answer for all things done by men yet thus much may be answered that it was no new thing for the Statute of 2 H. 5. cap. 7. gives Justices of peace and Justices of assise full power and authority to enquire of these who hold Errors Heresies and Lollardy and of their maintainers and that the Sheriff and other Officers may arrest and apprehend Anno 1. Sess 2. cap. 2. them and that this was done by Queen Mary See Mary Of King James AS there was never any Prince who had a more clear and undoubted King James his Title and Reception right and title to the English Diadem then King James for besides that he was Heir to both Houses of York and Lancaster as is most truly acknowledged by both Houses of Parliament Anno 1. cap. 1. Jac. he was derived by a long descent of Royall Ancestors from Malcolm Conmor or Cammore King of the Scots and the Lady Margaret being the name of her from whom the united Title of both Houses of York and Lancaster descended upon him Sister and sole Heir of Edgar Atheling Son and Heir of Edward eldest son of Edmond surnamed Ironside so that all titles as well of right of blood as of conquest might so truly be ultimately resolved into him that in the whole world no just exception could be taken against them so never was any Prince received with so little opposition and contradiction by all sorts of his Subjects both in England and Ireland where all those long rebellions and commotions did expire with Queen Elizabeth and in both Kingdomes all became so pacate and calme that during all his Reign in neither Nation was any sword drawn in opposition to him There was such havock made in the Reign of H. 8. Ed. 6. of all Church His care of the Church Lands upon pretence forsooth of Reformation that to stay it there was a Law made in the first of Queen Eliz. cap. 19. that all Gifts Grants Feofments Fines and other Conveyances made by any Arch-bishop or Bishop of any Honours Castles Manors Lands Tenements or other Hereditaments being parcell of the possession of his Arch-bishoprick or Bishoprick or united or appertaining or belonging to any of the same to any person other then the Queen her Heirs and Successors whereby any Estate should or might pass from the Arch-bishop or Bishop other then for the term of 21 years or three lives reserving the old Rent or more shall be utterly void Cambden Eliz. Reg. pag. 36. takes notice of the great abuse made by the Courtiers of that clause or exception of the Queen c. And indeed William of Burley had by the Queens permission so gelt the Bishoprick of Ely by virtue of this clause that it lay void above twenty years before any man of abilities or honesty would take it so pol'd and maimed although some were conunitted to prison for refusing of it But King James as his first and chiefest care by an Act of Parliament in the first year of his Reign cap. 3. made a Law that all assurances afterward made to the King of any of the Lands of Arch-Bishops or Bishops should be void so that the rapine and prey made upon the Church was first restrained totally by him King James was not only a devout observor of the Government Rites His care of Religion and Ceremonies of the Church of England but made it one of his chiefest cares to have brought an Uniformity as well in Scotland as in England and proceeded so far as to settle Episcopacy among them naming thirteen new Bishops for so many Episcopall Sees as had been anciently in that Church three of which received consecration from the Bishops of England and conferred it on the rest of their Brethren at their comming home Which Bishops he armed also with the power of an High Commission the better to keep down the insolent and domineering spirit of the Presbyterians In order to the other he procured an Act to be passed in the Assembly at Aberdeen 1616. for composing a Liturgy and extracting a new book of Canons out of the scattered Acts of their old Assemblies At the Assembly held at Perth anno 1618. he obtained an Order for the receiving the Communion kneeling for the administring Baptisme and the Lords Supper in private houses in cases of extreme necessity for Episcopall confirmation and finally for the celebrating the Anniversaries of our Saviours birth his Passion Resurrection and Ascension and the coming down of the Holy Ghost all which he got confirmed in the following Parliament So far did this wise King advance the work of Uniformity before his engaging in the cause of the Palatinate his breach with Spain and the warre which issued thereupon did divert his thoughts To his peacefull disposition and his care of the Church and Religion His great learning and clemency in the next place may be truly added his great abilities in learning so far transcending not only the Kings of the present age his contemporaries but all his predecessors and surely scarcely to be paralled by any of his time as his many learned works testifie To these other virtues may be added a mind no wayes vindicative although sometimes transported with present passion yet of some small continuance that in person or estate he was never noted to punish any man rashly or extrajudicially And although he was no great lover
of the Commons Lawes of this Land yet a great assertor of them and in disgrace with him would oftentimes affirm that there was no time whenever he could speak reason but the King would hear him With the reputation of these virtues he governed these Islands in greater peace then posbly in the ordinary nature of things could be expected In the 3. year of his Reign viz. Anno Dom. 1605. was a most hainous and The cause of the many Laws made against Popish Recusants vile attempt intended not only against the very Person of the King but even of his Posterity which had not advanced the designe of the conspirators and the Church and all the Nobility not of their faction with the Commons in Parliament assembled And the conspirators had proceeded so far that they had not only made provision to have effected their purpose and intended the fifth of November being the day for the convention of the Parliament after their Proroguement and therefore probably expecting not only a more then usuall convention both of the Lords and Gentry but even of the King himself to have blown up the Parliament House But the designe being as foolish as desperate was discovered the night before it should have been executed although it is thought that it was known even to the King himself and the Earl of Salisbury before as by accident and so had no other effect then what the conspirators might reasonably have expected had it succeeded viz. ruine to themselves for their faction being so very few in proportion to the rest of the Nation and without either money Forts or Army in reason they could not have done any thing considerable in order to their further designes and severe Lawes against all which might be suspected to be of their faction to prevent any such further attempts It is true where Tacitus observes that the conspiracies of Subjects where His defects and frailties they succeed not doe advance the Soveraignty and verefied in this attempt of the Gunpowder-Treason for how many Lawes were that Parliament and afterward enacted against all Popish Recusants we have before shewed yet so it happened and so usually happens when not carefully minded by Princes that another faction far more formidable both to King and Church openly pretending assistance to the King and Church in persecuting this faction secretly acquired strength to themselves in so doing Nor was this unseen by this wise King being naturally a greater enemy to the Faction persecuting the persecuted but either not having that magnanimity which is so requisite in a Soveraign or apprehending he had not means sufficient to goe through he neglected to apply such medicines as were necessary to the curing of this Gangrene so dilating it self both in Church Court and State but desiring Peace especially at home although almost upon any termes he rather sought to repell the breaking out of Puritanisme during his Reign then to eradicate it for the future Add hereunto that being excessively addicted to Hunting and not greatly loving the Common Lawes and finding it impossible to govern this Nation otherwise and minding controversies in Divinity more than the management of his temporall affaires and though free from Sacriledge and Corruption in his person yet carelesse of it in his Favourites and Countrymen and nothing so prudent a Manager of the Revenues of the Crown as his Predecessor whereby being forced to recede from many of his Regalities the Reins of Government both in Church and State became so loose that in the ordinary nature of things it was very difficult they should be reassumed by his Successor Ecclesiasticall Laws made by King Charles THere were some few Lawes made against Interludes c. on the Lords day and 10. groats penalty for offence to be levied by Justices and Constables which a man may read in the first Car. 1. 3 Car. 1. There had never in any time been before this Kings Reign so long Peace The state of the Church State in the beginning of K. Charles his Reign viz. for neer 80 years in this Nation as in the beginning of his Reign but neither doth peace make mens minds peaceable nor were things otherwise well disposed for the continuance of it for not only the zealous and obsequious duty which the Subjects paid to the Royall name in the person of Queen Elizabeth was quite dead and almost forgotten the great wisedome and learning of his Father not to be hoped for in the tender years of the Son the Exchequer without money and yet the King engaged in a Warre against the Spaniard for recovery of the Palatinate but the Puritan Faction which Queen Elizabeth desired so much to suppresse and so much hated by his Father was grown so farre up in Church State and Court that in all they were far more numerous both in England and Scotland and all forein Plantations then all his other Subjects Nor was the condition of Ireland better for not only the Protestant party were jarring among themselves but the Popish intent upon their destruction which after they did execute in a terrible manner To these may be added the government both in Church and State so neglected that the exercise of any Lawes to reduce them to conformity would be imputed to have been Innovations and Tyranny The Kings Councell either uncapable of giving counsell or not faithfull to their Prince Nor was there any thing left to oppose all these growing calamities but the hopefull virtues of a young Prince unacquainted in Temporall affaires and a stranger to all worldly calamities which are of no more power to protect him against seditious and rebellious Subjects then the Lawes of God and all which may be called sacred will retain men in obedience where they are not restrained by a present coercive power But these stormes which after brought this Saintlike Prince and this wofull Church State to so lamentable a condition as they lately lay under did not breake out in the very beginning of his Reign but in all three Nations did gather into such black clouds in all his reigne that almost at once breaking forth in such a terrible Tempest as upon the matter it so overwhelmed King Church and Government that there was scarce any footsteps of them left I had here designed to have inserted a short History of the chiefe occurrences of his Reigne and by what degrees this saint-like Prince became a victim to the rage and lust of his seditious subjects and have the papers now by me but in regard it must needs rub soares which may rather in their tendernesse anger then ease them and also because the History of his life hath been by others more fully written but most of all because it is his Majesties pleasure to have the memory of things rather buried in oblivion then renued I shall forbeare and doe no more then give the description of him and shew the consequence of his calamities The Description of King
not truly have ever made use of any thing in his writings to their advantage certainly therefore in his writings he was no seditious man but it may be our reverend Historian though blinde yet sees more then any body else It is true indeede that he lived in disfavour with two Kings yet as it becomes not subjects to dispute the actions of Prince so is no man therefore to be censured because in disfavour often times the best of Princes have not things and men truly represented to them This I am sure of having so powerfull opponents at Court if any crime much lesse then that of sedition could have been found against him it would have beene improved to the utmost advantage nor did he neglect to be reconciled to his chiefest adversary and to that purpose married his youngest daughter to his brother being in person and fortune little inferior to any Subject of her time which did him no good Othermen though little versed in the things they lay to his charge doesay in the generall That in his writings he was no friend to eyther King or Church This is so generall a charge as no particular answere can be given to it yet thus much may be said that being a Lawyer by profession I hope it is not to be a crime in any Subject much lesse in him to be a lover and honourer of the Lawes but being a Subject and no Legislator and commenting upon the Laws he must comment upon the Lawes as they were made hee could not make them better nor worse if Lawes made were derogatory to eyther Crowne or Church it was the vice of the times and no fault of his Yet I have often heard that hee was the first Grantor and a great favourer of Prohibitions to the utter ruine of all Ecclesiasticall jurisdiction How unjust the first charge is there is no man any way versed in our Lawes but must needs understand and for the latter if any one can shew wherein he so far favored them that he ever granted any not warrantable by the Law and they say somthing For his care of the Church it sufficiently appeareth in his endeavoring the passing of a Law that every Patron should be sworn as well as the incumbent against Simony and also that Patron who should Symonically promote any Clerke should not only forfeit that avoydance but the advowson to the King as also when upon pretence of concealement the Deane and Chapters Lands of Northwich were begged of the King he did not only freely proffer the Chapter to have defended their cause in person though then very aged but stated it and gave it them in writing to be kept for the future in case any after that pretence might be made which was preserved by the Deane and Chapter among their Archives untill the generall deluge of our late dissention swallowed up this among their other things and so gratefull an acknowledgment did the Society make that upon his next Progresse into Norfolke they desired that he would lay his bones in that Cathedrall whose right he had so defended So devout a Son he was of the Church of England in the observation of the Rites and Liturgy thereof that I am confident that in neere forty yeers before his death if sicknesse or publick imployment or somthing extraordidinardy not divert him scarce one day passed wherein he was not twice a devout assistant in the offering up of the publique Service of the Church nor was he lesse severe to himselfe in his person then just to his publick imployments being never so much as suspected of any notorious or scandalous vice These virtues and his learned labours wherein he has as well deserved of his Country as any man before him shall erect him a monument of same to posterity when as the malice and ignorance of his adversaries shall be forgotten For mine owne part it is true that I have ultimately resolved my subjection as a man and my faith as a Christian into two principles the one into the Law of Nature the other into the Scriptures Dominium fundatur in natura at no time or place did ever men live out of Society and Dominion is necessary to Society but faith is divinely revealed in the Scripture and this hapned in succession of time neyther is it yet received by neer one tenth part of mankinde nor will I ever hope to mend what God hath made It is therefore an idle thing to object Imperium in Imperio against it neyther is the objection to any purpose or understood by the objectors for it is the same God which hath engraven lawes of Nature in the mindes of men and who hath divinely revealed himselfe in the Scriptures not is there any thing in either which is repugnant on contrary but rather the one doth confirme and support the other there is no better plea for mens subjection to eyther Kings Fathers or Masters then is contained in the Scriptures nor doth Christianity any waies repugne the Regality of Princes but it is as entire over the persons of all men in all Cases as where men are not Christian Were not those the best Christians who in the primitive times lived under heathen Emperors and persecutors without any civil disturbance on their parts and cannot Christians be as good under Christian Kings or is the case of Kings worse for their being Christian Let any one shew me any thing in all the Scriptures which doth countenance sedition and I will abjure my Christianity yet I will shew him almost infinite places which without all contradiction commands obedience to higher Powers They are therefore Wolves in Sheeps clothing who abuse that ghostly Power left us by our Saviour for the benefit of mans salvation into licentiousness against their temporall obedience due as well by the Law of Nature as those by divine positive institution as if men being qualified to perform the acts of Ghostly power were free from naturall subjection which as Priests they ought to preach as Gods Ordinance R. 13. deserve rather to persecuted to death then obeyed when they do so and by consequence Master Hobbs understands not himself when hee makes his convenient argument against Christianity upon supposition Cap. 6. Art 11. de cive that if one man may command the same thing upon the penalty of temporall death and another forbid it upon pain of eternall the whole structure of his civitas might be dissolved which is no great matter if it were But I pray what doe those men doe which resolve all subjection into the civitas and the civitas into the civil part and the civil part into the wills of men into do or dedi and not dabo or faciam which make the Lawes of Nature voluntary and depending upon the wills of men which make this civitas made by the wills of men superiour to the Law of Nature and impossible to command any thing contrary to it and yet as ridiculously as blaspemously make tyranny
unto thee only the Lord thy God be with thee as he was with Moses Whosoever he be that does rebel against thy commandment and will not hearken unto thy words in all that thou commandest him he shall be put to death Jos 1. 16 17 18. 13. Anarchy is like a vacuum in Nature so abhorrent that the World The state of Man out of power is Tyranny will rather return into Chaos then suffer it And therefore Cicero lib. 3. de legibus says truly Sine imperio neque domus ulla nec civitas nec gens nec hominum universum genus stare nec ipse denique mundus potest 'T is no wonder therefore if seditious men when they have put themselves out of power are glad to submit to Tyranny rather then be overwhelmed with the Chaos and confusion of Anarchy Yet it is said Judg. 17. 6. 21. 25. In those days there was no King in Annot. Israel but every man did what was right in his own eyes So it may seem that men may subsist in an Anarchy It is true indeed there was no man that was King in those days in Israel nor was there then that absolute necessity of one for God had given them Property and did govern the Israelites and they did enquire judgment of God who did answer cap. 20. 18. And men did in those dayes commerce and exchange one with another which is evident by Micha's contracting with her Levite-Priest for ten shekels of silver by the year a suit of apparel and his victual ch 17. 10. 14. Princes do transgress their power when they command any Wherein Princes do transgress their power thing contrary to what God hath commanded or derogatory to the worship and service of God when they make unjust War when they pronounce Judgment not according to the declared and known Laws but punish either by passion or to please factious men as in the Earl of Straffords Case or pass sentence against one unheard as in Cromwell Earl of Essex his Case I say not punish upon passion or to please men For as the state of Annot. affairs may be stated Princes may punish though not in a Judicial manner as when Subjects are in Arms against their Soveraign Nor do I think that any uninterested Casuist will deny that Henry the Third of France did justly put Henry Duke of Guise to death though not judicially the Duke having taken Arms against him and made him flie out of Paris fomented seditions against him and taken pensions of the King of Spain to maintain war in France and become so popular as the King had no means to proceed legally against him 15. * How careful Princes ought to be in commanding or making of Laws The perfection of Government consists first and chiefly that the Governor have a perfect and indubitable Title against which no just exception can be taken Secondly that the Governor makes it his chiefest care that the Religion or Worship and Service of God be duly administred And thirdly that he does endeavor by known and established Laws to administer Judgment and Justice indifferently to his Subjects with careful moderation of the severity of the Laws whereas men by no fault of theirs incur the severity of them And lastly by all just and due means to endeavor the preservation of his Subjects from the oppression and violence of Foreiners and to maintain Peace and Commerce with his neighboring Nations Such was our Government before our unhappy differences and such by Gods grace do I hope to see it again 16. It were a fine may-game to be a King if Kings might make their How careful Princes ought to be in commanding or making Laws Will the rule of their actions It is true indeed God hath not in all things commanded Kings what Laws they shall govern their Subjects by yet this natural law are all Princes obliged to that their Laws by which they govern do more relate to the good of their Subjects in general then their own particular interest And no question but a King commits a more grievous sin doing any unjust thing to any of his Subjects then if another had done it in regard of the relations which are between them as a Fathers doing an unjust thing to his Child is a greater sin then if another had done it by how much by the Law of Nature he ought to have done well to his Child rather then another Princes therefore by the Law of Nature in governing ought to have more respect to the general good of their Subjects then their own particular interest Yet is Magnificence a Royal virtue and therefore ought not the Revenues of the Crown to be parted with by which it should be maintained Nor would it conduce to the benefit of the Subjects in general to make the Revenues of the Crown poor Where Majesty grows contemptible the exercise of Regal power is never permanent Princes therefore ought to have a great care that by their vices prodigality of the Revenues of the Crown remiss governing or by so giving it over to others that they so much neglect it in themselves as to make themselves vile and contemptible 17. Though God hath not commanded Kings in all things what are Princes ought not to be obeyed when they command in derogation of Gods Majesty 1 Sam. 12. 14. vers 25. the Laws by which they shall govern and therefore divers Kings govern their Subjects by several Laws as their Subjects differ in nature and manners Yet hath he forbidden all Kings to make Laws derogatory to his Divine Majesty Samuel therefore threatens Saul as well as the Israelites that if he or they disobey God and do wickedly they shall perish both they and their King And it was to Saul that God said that Rebellion was as the sin of witchcraft and stubborness as the wickedness of idolatry Nor was the sin of the Israelites in committing idolatry under the Kings of Judah and Israel the less though the King commanded it Nor did God scarce 1 Sam. 15. 23. ever shew a greater miracle then in delivering the Three Children and Daniel disobeying the Kings wicked commandment Princes therefore ought not to be obeyed in commanding things derogatory to the Majesty of God 18. Nor ought Princes to be obeyed when they command any thing Or contrary to Religion contrary to Religion for The kingdom of Heaven and the righteousness thereof is first to be sought But the kingdom of Heaven is only to be sought by Faith and Religion Daniel therefore sinned not when he obeyed not Darius in praying to God Nor do all our Parliamentary Laws add any thing to the obligation of mens worship and service of God in the Unity and Form of the Church of England for men were as much obliged in Conscience before such Laws as after Not but that Kings ought to have as great or greater care of preserving unity and peace in Gods Church as in their
Temporal Dominions and therefore may punish disturbers of the peace of the Church as well as the State Yet when the Temporal Magistrate shall arrogate to himself a power which our Saviour only left to his Church and make all Ecclesiastical rights and constitutions depending and subordinate to the Civil whereby the Enemies of our Church have taxed our Religion not for Christian but Parliamentary no doubt but it is a crying sin and I wish there had never been any such thing among us 19. And as God is to be obeyed before men in all things which concern Or the Laws of Nature Faith and Religion so in the observance of the Laws of Nature is God to be obeyed before men As if a King commands me to dishonor my parents this can be but a Humane law but to honor my parents is a law which God hath written in my heart and therefore ought to be preferred If a King commands his Subjects to dishonor him or to deny obedience to him this is but a Humane law whereas by the law of Nature I ought to honor and obey my King I therefore ought not to obey such a law Amurath the Second of that name King of the Turks upon a Vow resigned his Kingdom to his son Mahomet yet upon the League made by Uladislaus King of Pole and Hungary with other Christian Princes against him he resumed his Regal authority and so kept it until his death And so might Charls the Fifth if he had pleased nor was Philip any other then an Instrument of his Fathers during his Fathers life The King makes a Law giving the succession of the Crown from the right Heir This ought not to be received for Princes inherit by a higher Law then Humane 20. The King commands a Judge to pervert Judgment the Judge Or to pervert Judgment ought to give true Judgment for all Humane Laws in peaceable times ought to be â priori and proclaimed that all men after such a time should observe them This verbal command of the King wanting this formality and it being impossible for the Judge to observe both these commands he ought notwithstanding this verbal command to give Judgment according to Law The King when there is no necessity or publick danger commands me Quaere who am no publick Executioner without any Judicial sentence to put a man to death for which he can make no compensation As Davids commanding Joab to murder Uriah although we find David only reprehended and punished therefore yet sure if Joab had not fulfilled Davids wicked command he had not sinned But you may object Who shall judge whether this thing commanded be repugnant to Gods Majesty Mans faith Religion or the Law of Nature the King or the Subject I say though the Subject hath not an equal right of judging with the King whether this thing should be a Law or not yet every Subject hath a Conscience as well as the King which must dictate Whether Kings divest themselves of Regality by commanding what they ought not to him whether he ought to do or not to do such a thing 21. But if the King commands things contrary to Gods Majesty and Divine Laws ought he not to be obeyed in those things which do not contradict them It is so mad and wild an objection as it is scarce worth an answering unless a man will affirm that my doing of an act which I ought not to have done does divest me of Humane nature or that a Fathers or Masters commanding his Son or Servant what he ought not doth annihilate the relations of Father and Son Master and Servant or that Humane acts may dissolve Humane relations A Prince therefore ought to be obeyed in those things which he ought to command as Prince although he command such things as he ought not 22. It may be it will be objected That Temporal punishments being Though inflicting punishment for not observance the usual concomitants for not observing Humane Laws a good and conscientious man may be punished for what he ought not to have done I say his case is the same with his Lords and Saviours and all those blessed and glorious primitive Christians and Martyrs who suffered for the testimony of a good conscience Nor hath God made Heaven so easie a prize that it should be always won easily and delicately but many times by suffering and martyrdom 23. It is the most usual thing with seditious men before they enter Whether Princes ought to be resisted where they are not to be obeyed into open sedition to prepare mens mindes with certain Cases wherein Princes commanding things derogatory to Gods Honor or the Subjects Liberty that then in the preservation of themselves and Gods honor they ought to defend themselves from the raging Tyrannie of Princes and to be sure that whatsoever they command these good men will judge contrary to Gods Honor and the Liberty of the Subject It is worth the while if a mans patience will give him leave to look back upon the thing calling it self Parliament how after they had made the King grant whatsoever they could think might be beneficial to the Subjects though I might be sworne they never intended as plainly appeared afterward the good benefit or liberty of the Subject what pious ways they invented to make themselves great and so good a Prince nothing and odious to his Subjects As the demanding of six men holding intelligence with his Subjects who had been in open hostility and rebellion against him an affront not to be endured by any King to an ordinary and Legal Trial this was not only denied but Voted a Breach of the Priviledge of Parliament whenas the Priviledge of Parliament extends not to so much as breach of the Peace much less to Treason They pretend though most falsly that in case of extreme danger and necessity the Militia is in the Parliament meaning themselves excluding the King And then create Dangers and write Letters how great Fleets of Danes Swedes Hollanders c. were seen at Sea It must be from Westminster then for there were the Letters written and the Fleets never since heard of Then permit if not command the most insufferable affronts and indignities that ever were offered to Majesty yet if the King but offers to increase his Guard this is Voted no less then a raising of War against his Parliament and Subjects whilst all the while against the Lex consuetudo Parliamenti Inst par 4. 14. without any cause moving them they maintain an illegal Rout of men for their Guard and go armed themselves Nay what needs a man instance particulars All the Kings commands in prosecution of the Laws were Voted breaches of the Priviledges of Parliament and the Liberties of the Subject We will therefore shew that this Assertion is not only contrary to all Faith in both Testaments but also destructive to all Humane Society 24. There is no man sure will deny but
from the company of Tamar whenas he hated her because he had abused her but it was in Joseph that he refused to accompany his Mistress whenas he might have securely enjoyed her Nor is it any virtue for any man to do or forbear any thing for feare of punishment for so horses dogs and other irrational creatures will do or not do many things for feare of stripes which are commanded or forbidden by their Masters Nor is it any virtue in a Judg to pronounce true judgment if he be hired thereunto by any reward or bribe Where therefore neither worldly pleasure profit love feare hate nor any sublunary thing but it may be loss to all these do not move a man to the doing or not doing of what in conscience he ought to do or forbear there nothing less then Gods grace and power in such a man can be the true and efficient cause of such an action 6. It is a most admirable thing to consider how notwithstanding all Why only Man can do virtuous Actions the various natures dispositions and events of things this one Providence foresees and provides for all created things in the whole universe until she brings them all to their designed end Nor does this providence foresee and provide for all things from an eternal and fatal decree impelling all actions of all creatures For then there could be no such thing as good or bad men but God were the efficient cause of vice as well as virtue in men but by a mean foresight or knowledg does often determin necessary effects from contingent causes Which does not only plainly appear from very many places of Scripture as that the men of Keilah would have delivered David if he 1 Sam. 23. 12. had not escaped thence that God would have destroyed Niniveh within forty daies if the men had not repented that God would have gathered the children of Jerusalem together as a Hen gathereth her Chickens but Matth. 23. 27. they would not that if the mighty works had been done in Tire and Sidon which were done in Chorazin they had repented in dust and ashes c. Matth. 11. 21. but also all Gods promises and cursings upon men do depend upon their obedience or disobedience to what he commands And however this rigid opinion of Fate and the eternal determination of all things be asserted by the Stoicks yet do not I think that the most wicked man that ever was did ever attribute any wicked action to any such cause but pretended conscience pleasure profit or his own will never Gods It is true indeed that God hath made man in flesh and blood and so prone to desire many things which he ought not But though diverse men do naturally affect and desire things they ought not yet God hath so made every man a free Lord of all his actions that there is no man but may chuse whether he will do or not any thing to the attaining of his appetitions and affections And mans excellency above other creatures consists in this that his actions are not determined by his objects as other creatures are but he may freely do this action as it is moved in him from the appetition of pleasure profit pride c. or abstain from it as he apprehends it forbidden by him who may forbid And so may any man freely do or endeavor to do any thing which he ought to do though to his temporal disadvantage but this having no Temporal motive must proceed from Gods grace which no creature upon earth can do but only man only man therefore can do virtuous actions CHAP. III. Of Judgment 1. JUdgment is the definitive of him who by right commands permits What is Judgment or forbids a thing either by himself or instrument whether any thing be done conformable to a Law commanding permitting or forbidding it 2. Herein judgment differs from a Law A Law is the declared will of How it differs from a Law him who by right commands permits or forbids a thing together with a penalty annext for not observance after some reasonable time fixt whereby the obliged may take notice of such declaration Judgment is the sencence of him who so commands forbids or permits whether such an act were an omission or transgression of any Law so declared 3. Justice is the upright doing of any just or legal action conformable to the Law of him who by right commands Judgment is the discerning of How Judgment differs from Justice a good or bad action 4. All judgment must necessarily be the act of three persons at least What persons are necessary in Judgment viz. the Judge the accuser and the party accused or as we say the Judge the Plaintiff and Defendant 5. The end or ratio finalis of Judgment is either to determine differences The end of Judgment or punish offenders CHAP. IV. Of Equity 1. EQuity is twofold either a remission or moderation of the Laws How manifold is Equity when the execution of Laws will rather kill then cure a distemper in the Subject as when many Subjects either upon passion or being seduced have so far transgressed Laws that they have forfeited by Law their lives and estates yet in such case are not supream powers rigidly to exact all which the Law gives them but it is equity so to punish the principal Authors and other Subjects that others may be deterred from the like and the generality offending preserved So where the Law commands upon penalty and it becomes impossible for the Subject to perform as it ever was and will be there it is equity to remit the penalty Where therefore the Law obliges a Tenant to pay his Landlord such a Rent yet if by inundation of waters sterility of the season c. it comes to pass that the Tenant by no fault of his either cannot or it will be the ruine of himself and family to pay it there it is equity in the Landlord to remit or moderate what by Law he might justly exact Or secondly a supplement of the Law in cases wherein things in conscience ought to be done yet for want of some formalities or niceties they cannot in strictness of Law be exacted 2. Equity is when with a sincere intention men although it be to How Equity differs from Judgment their prejudice endeavor to please God Judgment a giving sentence according to Laws 3. In Courts of Judicature the Judges proceed according to the declared The necessity of Courts of Equity Laws and ought not in judgment to vary or swerve from them but proceed as they are impowred by Law and their Commission and Laws are made usually ad terrorem rather to affright men then to punish all offenders which Laws were they not moderated it were impossible for all men to subsist under the burden of them nor is there any man but has need of Gods mercy and the Kings Courts of Equity therefore are as necessary
It was afterwards in open Parliament by grievous complaint of all the St. 25. Ed. 3. Commons of this Realm shewed that the grievances and mischiefs aforesaid did daily abound to the great damage and destruction of this Realm more then ever before viz. that of late the Bishop of Rome by procurement of Clerks and otherwise had reserved and did reserve daily to his collation generally and especially as well Archbishopricks Abbeys and Priories as all other dignities and other benefices of England which were of the Advowry of people of the holy Church and gave the same to Aliens as well as to Citizens and taketh of all such benefices the first fruits and many other profits and a great part of the treasure of this Realm was carried away and dispended out of the Realm by the Purchasers of such graces and also by such privy reservations many Clerks advanced by the true Patrons which peaceably holden their advancements by long time were suddenly put out Wherefore the said Commons did pray the said Soveraign the King that since the right of the Crown of England and the Law of the said Realm was such that upon mischiefs and damages which hapned to this Realm he ought and was bound of the accord of his people therefore to provide remedy and Law c. The said King Ed. 3. seeing the mischiefs and damage aforesaid c. and forasmuch as he was bound by his Oath to see the same to be kept as a Law of this Realm though that by sufferance and negligence it had been sithence attempted to the contrary also having regard to the grievous complaints made to him by his people in divers his Parliaments holden heretofore willing to ordain remedy for the great damage and mischiefs which had hapned and daily did happen to the Church of England by the said cause by the assent of all the great men and the commonalty of the said Realm to the honor of God and profit of the said Church of England and of his Realm did order and establish that the free election of all Archbishops Bishops and all other dignities and benefices electory in England should hold from henceforth in the manner as they were granted by the Kings progenitors and founded by the ancestors of other Lords and that all Prelates and other people of the holy Church which had Advowsons of any benefices of the Kings gift or of any of his progenitors or of other Lords and Donors to do divine service and other charges thereof ordained should have their collations and presentments freely as they were enfeoffed by their donors and in case that reservation collation or provision be made by the Court of Rome of any Archbishoprick Bishoprick Dignity or other Benefice in disturbance of the election collation or presentments aforesaid That at the time of the avoidance that such reservations collations and provisions ought to take effect the said Ed. 3. and his heirs should have and enjoy for the same time collations to the Archbishopricks and other dignities elective which is of his Avowry such as his Progenitors had before that free election was granted since that the elections were first granted by the Kings progenitors upon a certain form and condition as to demand license of the King to chuse and after the election to have his Royal assent and not in other manner which condition not kept the King ought by reason to resort to his first nature Upon complaint made by the great men and commons it was assented St. 27 Ed. 3. and accorded by the King great men and commons aforesaid that all the people of the Kings Allegiance of what condition that they be which shall draw any out of the Realm in plea whereof the conusance pertaineth to the Kings Court or of things whereof Judgement were given in the Kings Court or which did sue in any other Court to defeat or impeach the Judgments given in the Kings Court should incur the danger of a Premunire Made to confirm the Acts made the 25. and 27. years of the said Kings Reign but those that made those good Laws against such capital offenders St. 28 Ed. 3. Cap. 1. 2. 3. 4. were cursed defamed and reproved by such as maintained the usurped jurisdiction of the Church of Rome against which an especial Act of Parliament was made by the King and his whole Realm prohibiting thereby such defamations and reproofs In the Reign of Richard the second Against an Incumbent of the Church of England another sueth a provision 12 Rich. 2. tit Jurisdict 18. in the Court of Rome and there pursueth until he recovereth the Church against the Incumbent and afterward brought an action of account against him as receiver of divers sums of money which in troath were the oblations and offerings which the Incumbent had received and the whole Court was of opinion against the Plaintiff and thereupon he became nonsuit It is declared by that Parliament that the Crown of England hath been St. 16 R. 2. Cap. 5. so free at all times that it hath been in subjection to no Realm but immediately subject to God and none other and that the same ought not in any thing touching the Regality of the same Crown be to the Bishop of Rome nor the Laws and Statutes of this Realm by him frustrated or defeated at his will to the perpetual destruction of the King his Soveraignty Crown and Regality and of all his Realm And the Commons in that Parliament affirmed that the things attempted by the Bishop of Rome be declared against the Kings Crown and his Regality used and approved in the time of all his Progenitors In the Reign of H. 4. H. 4. fol. 9 It is resolved that the Popes Collector though he hath the Popes Bull to that purpose hath no jurisdiction within this Realm and there the Archbishops and Bishops c. of this Realm are called the Kings spiritual Judges By the ancient Laws Ecclesiastical of this Realm no man could be convicted of Heresie being high-Treason against the Almighty but by the Archbishop Fitz. nat B. 269. Candries Case and all the Clergy of that Province and after abjured thereupon and after that newly convicted and condemned by the Clergy of that Province in the general councel of the convocation but the St. of 2 H. 4. Ca. 15. doth give the Bishop of the Dioces power to condemn a Heretick and that before that Statute he could not be committed to the secular power to be burnt until he had once abjured and was again relapsed to thar or some other Heresie whereby it appeareth that the King by the consent of Parliament directed the proceedings in the Court Ecclesiastical in case of Heresie and other matters more Spiritual Well but suppose the King did so it proves nothing for it is but matter of Fact But it does not appear neither that this direction of the King by consent of Parliament did direct the proceedings in the