and ought to give Example to the Inferiour Magis Exemplis quam praeceptis ducimur QUERY XIV Whether a Subject of one Kingdom guilty of Treason flying into another Kingdom ought to be remitted to his own Soveraign SOL. It is holden and so it hath been resolved that divided Kingdoms under several Kings in League one with another are Sanctuaries for Servants or Subjects flying for safety and upon demand are not by the Laws and Liberties of Kingdoms to be delivered And this Opinion seems grounded upon the Law in Deut. c. 23. v. 15. Thou shalt not deliver unto his Master the Servant which is escaped from his Master unto thee When the Lord Paget and Arundel came into France Sir Edward Stafford Queen Eliz. Ambassadour there Camb. El. 1584. diligently observed them yet could by no means discover what they attempted he desir'd nevertheless of the French King that they with Morgan and other English who were practising against their Prince and Country might be removed out of France To which he received this answer That if they attempted any thing in Frence the King would punish them according to Law That all Kingdoms were free for Fugitives and that it was the great concernment of Kings to maintain every one the Priviledges of his own Kingdom That Queen Eliz had not long since received into her Kingdom Montgomery the Prince of Conde and others of the French Nation and that Sagury the King of Navarr's Embassadour was in England at this very time practising to move new troubles against the French King King H. 8. in the 28th year of his Reign being in League with the French King and in Enmity with the Pope who was in League likewise with France and had sent Cardinal Poole Embassadour to the French King of whom K. H. 8. demanded the said Cardinal being his Subject and Attainted of Treason and to that end caused a Treatise to be publisht that it ought to be done Jure Gentium sed non praevaluit Ferdinando King of Spain upon request made by H. 7. to have Edmond de la Poole Earl of Suffolk Attainted of High-Treason by Parliament A. 19. H. 7. at first intending to observe the Priviledge and Liberty of Kings in protecting such as came to him for succour and protection delivered him not yet in the end upon the earnest request of the King and his promise not to put him to death he caused the said Earl to be delivered up to the King who kept him in Prison and construing his promise to be but personal commanded his Son Henry after his death to execute him which he caused to be done in the fifth year of his Reign I shall add one more Example of a Remission out of Zouch Cum quidam Stywardus Scotus Treat de Judicio inter Gentes qui Mariam Scotorum Reginam vneno tollere conatus est in Anglia deprehenderetur Ed. Sextus Rex Angliae eum in manus Regis Galliae tradidit ut debito supplicio Remitteretur quod Nonnullis displicuit quia etsi ratio suadeat ut qui in Patria deliquit in Patria Puniatur aliter tamen de consuetudine quod Remissionem usurpatum est Having now run thorough the several Query's which your Lordships have thought fit to propose I Shall venture to set one step further and start Another of my Own with some Offers toward the Solution of which I will make an end Viz. QUERY XV. Whether in any Case it be Lawful for Subjects to Oppose their Prince SOL. It must be resolv'd in the Negative And that in any Case or upon any Pretence whatsoever it is utterly unlawful for Subjects joyntly or singly collectively or representatively to make any violent Opposition against their Soveraign or to Resist him either in an Offensive or a defensive way This Assertion you will find to be a Truth that is Consonant to Holy Writ Reverend Antiquity Sound Reason and to the Municipal Laws of the Land all the Sophistries and Argumentations that Seditious and corrupted men are able to produce to the contrary notwithstanding I. To begin with Holy Scripture It is clear from Deut. c. 17. v. 12. which commands the Israelites to put away evil from amongst them by bringing to Publique Justice all such Mutinous and Presumptious persons as refus'd to Obey the High Priest and the Judge that God imposed an Obligation even upon his own People not to Resist the Supreme Magistrate And v. 13. makes the Reason of this Severity to be to preserve the People from being Poyson'd in their Allegiance by the Malignity of such Examples That all the People under what Notion or Qualification soever may hear and fear and do no more presumptuously The same express Warrant of the Word and to the self-same purpose there is in Joshua C. 1. v. 18. Whosoever he be says the Almighty speaking to him that doth rebel against thy Commandment and will not harken to thy words in all that thou commandest him he shall be put to death Saul is generally condemned for persecuting David and attempting upon his Life And yet though David had him twice at his mercy he was not to be prevail'd upon to do him any Harm 1 Sam c. 24. v. 6. and C. 26. v. 11. For who says he can lay his hand upon who can touch who can stretch forth his hand against the Lords Anointed and be Guiltless Now the Signification of the Scripture-phrase Touch or stretch forth the hand against the Lords Anointed is of a Large Extent And the Guilt of this Horrid Crime may be incurr'd either by lifting up our heels in scorn against our King Psal 41. v 9. By taking up Arms in our own defence for whosoever Resisteth the Power Resisteth the Ordinance of God Rom. 13. By not bringing to light such Traiterous Conspiracies as we know to be forming against him Lev. 5. By not endeavouring to defend him when we see him in danger for Qui non vetat peccare cum possit jubet By striking at his Crown usurping upon his Prerogative or depriving him of his Revenue Jer. 18. v. 18 By Speaking or even Thinking evil of him for as the Tongue can strike without a Hand so the Heart can curse without a Tongue Or in a Word by any sort of indignity or out-rage offer'd either to his Authority or Person But to proceed Doth not Saint Paul enjoyn that every Soul be Subject to the Higher Powers for there is no Power but of God and they that Resist shall receive to themselves Damnation Nay and doth not Saint Peter also inculcate a Patient Toleration of injuries and recommend unto our imitation the Example of our Blessed Saviour who when he was reviled reviled not again 1 Pet. 2. v. 19.20 21 22. when he suffered he threaten'd not but referr'd the Vengeance to him that judgeth Righteously If ever man had just Cause to Resist then had he yet would he not do it but check'd Saint
Prospect of the Extent of his Lordships Jurisdiction and Power and the Rules he ought to judge by Although the Power and Authority of the Lord High-Steward hath been since the Reign of King H. 4. but hac vice yet is the hac Vice limited and appointed as when a lord of Parliament is Indicted of Treason or Felony then the Grant of this Office under the Great Seal of England is to a Lord of Parliament reciting the Indictment Nos considerantes quod Justitia est virtus Excellens Altissimo complacens eaque prae omnibus uti volentes ac pro eo quod Officium Seneschalli Angliae cujus praesentia pro administratione Justitiae Executione ejusdem in hac parte faciend Requiritur ut accepimus jam valeat de fidelitate Strenuitate provida Circumspectione Industria Vestris plurimum confidentes Odinavimus Constituimus Vos ex hac causa causis Seneschallum Nostrum Angliae ad Officium illud cum omnibus eidem Officio in hac parte debitis pertinentibus hac vice gerend accipiend exercend Dante 's concedentes vobis te nore praesentium plenam sufficientem Potestatem Authoritatem ac Mandatum speciale Indictamentum praedict c. So that this Great Officer is wholly restrained to proceed only upon the recited Indictment At every Coronation he hath a Commission under the Great Seal hac Vice Cok's Litt. 79. a. b. 4 Inst 59. to hear and determine the Claims for Grand Serjeanties and other Honourable Services to be done at the Coronation for the solemnizing thereof for which purpose he holds his Court some convenient time before the Coronation The first Person that was created hac Vice for solemnizing the Coronation of H. 4. was Thomas his second Son and upon th eArraignment of Thomas Holland Earl of Huntingdon the first that was created Steward of England hac Vice was Edward Earl of Devon Lastly The Order and manner of Arraigning a Peer of the Realm before this Creat Officer is to be consider'd As the Peers of the Realm who are Tryers are not sworn so the Lord High-Steward being Judge is not sworn likewise yet ought he to proceed according to his Letters-Patents Secundum Legem consuetuainem Angliae Co. Litt. 142. a. 4 Inst f. 60. for all Commissions and Charters for Execution of Justice are facturi quod ad Justitiam pertinet secundum Legem consuctudinem Angliae But admit the Commission should be Secundum sanas Discretiones vestras How then I answer Discretio est discernere per Legem quid sit Justum that is to discern by the right Line or Law and not the warpt measure of private Opinion Si a Jure discedas vagus eris erunt omnia incerta 'T is certain he that out-runs the Law hastens to his own destruction Commissions then that Authorise proceeding secundum sanas discretiones c. in sense are secundum Legem c. The Earl of Hantingdon was Indicted of High-Treason in London 1 H. 4. f. 1. a. by a Commission before the Mayor and Justices for that he with other persons agreed to go a Mumming which the French call Ma querade on the Night of Epiphany in which they intended to kill the King then at Windser And after the King granted a Commission to the Earl of Derby reciting That whereas George E of H. was Indicted of High-Treason and that he would that right should be done and because the Office of the Steward of England is now void he grants it to the said E. of Derby to do Justice to the said E. of Huntingdon commanding by the same Commission all the Lords to be attendant upon him and Precept was likewise given by the same to the Constable of the Tower to be attendant on him and to bring the Prisoner viz. the E. of H. before the said E. of D. on the day appointed whereupon the E. of D. the same day sat in Westminster-Hall under a Cloth of Estate by himself and the E. of Westmerland and other Earls and Barons sat at a considerable distance and all the Justices and Barons of the Exchequer sat round a Table and after three O Yes's made and the Commission read the Justices deliver'd the Indictment to the Lord Steward which was deliver'd to the Clerk of the Crown who read it to the said E. of H. which he confessed whereupon Hill the King's Serjeant prayed Judgment which the Lord Steward after he had rehearsed the whole matter pronounced in this manner That the E. of H. should be taken back to the Tower of London and from thence be drawn to the Gallows and there hanged and being yet alive cut down and his Entrails drawn out of his body and burnt and that he should be beheaded and quartered Et sic Deus propitiatur Animae suae The Justices then said that if the E. of H. had deny'd the Treason the Lord Steward should have demanded of every Lord in open Court what they thought in their Consciences beginning with the Pulisny Lord and if the greater number said Guilty then the Judgment to be given as above I refer your Lordships to Cambden's Annals of Q. Eliz for the manner of the Tryal of Tho. Howard Duke of Norfolk before George Talbot E. of Shrewsbury Lord High-Steward upon that occasion Sir Ed. Coke describes the manner how a Peer is to be tryed in case of Treason c. before the Lord High-Seward of England He Must be Indicted before Commissioners of Oyer and Terminer or in the King's Bench if the Treason or misprision Felony or misprision of Felony be committed in that County where the King 's Bench sit when he is Indicted then the King by his Commission under the Great Seal of England constitutes some Peer of the Realm to be hac Vice Steward of England who is Judg in this case The Commission recites the Judgment generally as 't is found and Power given to the Lord Steward to receive the Indictment c. and to proceed secundum Legem consuetudinem Angliae A Commandment is also given by the same to the Peers of the Realm to be attendant and obedient unto him as also to the Lieutenant of the Tower to bring the Prisoner before his Lordship Then a Certiorari is awarded out of Chancery to remove the Indictment it self before the Lord Steward which may either bear date the same day of the Stewards Commission or any day after The Lord Steward directs his Precept under his Seal to the Commissioners to certifie the Indictment such a day and place He also makes two other Precepts one to the Constable or Lieutenant of the Tower to bring the Body of the Prisoner before him at such a day and place as also to a Serjeant at Arms to summon Tot tales Dominos Magnates Proceres hujus Regni Angliae praedicti R. Comitis E. Pares per quos rei veritas melius sciri poterit quod ipsi
Peters forwardness that way with a Whoso taketh up the Sword Mat. 26. v. 52. shall perish by the Sword We find in the Creed that Pontius Pilate is Recorded by the Holy Ghost which influenced the Church in the composing of it this now was certainly done for our Edification and to insinuate that as we tender our Salvation by our Faith in Christ we must be careful of paying a Chearful Obedience to the Lawful Commands of the Magistrate and to submit humbly and Suffering to those that are otherwise And this Obligation continues even though the Prinoe should be a Heathen and the Cause we smart for Christ and his Church II. As to Reverend Antiquity Saint Ambrose upon the Point of Non-Resistance discourses to this effect I have not so learn'd Christ says he as to seek by force to oppose Authority I can mourn and Lament but for Other Resistance I neither will nor ought to make any Saint Cyprian speaks to the same purpose It is out of a Principle of Conscience says he that none of us make any Opposition when we are unjustly Seiz'd upon or study a Revenge upon our Tormentors for the Numerousness of our Party were otherwise sufficient to bear us out in such a Design And so does Tertullian We are not says he despoyl'd of our Goods they are only Sequestred for our benefit and entrusted in safe hands God keeps them for our use and will return them with ample Encrease If you abstain from Fighting he will Espouse your Quarrel and question not but your Enemies will have the worst on 't for your Wounds will Save you and if you fall Martyrs you will rise Saints What cannot our sufferings bring about They make even God himself our Debtor he owes us Heaven for our selves and he owes Hell for our Enemies But yet we breath our Souls in prayer that he may be entreated not to pay This. What Example now can there be more Glorious or more Instructive then that of the Theban Legion recorded in Ecclesiastical Story The Emperour Maximinian commanding his army to offer Sacrifice to False Gods this Band consisting of about 7000 men remov'd their Quarters to the end that they might avoid giving offence but yet he presses them to bear a part in this Diabolical service and upon their humble refusal puts them forthwith to a Decimation which they chearfully submit unto praying fur their Murtherers The Tyrant would not yet be sotisfied but renew'd his Commands to the Remainder of them and finding them still to continue Resolute rather to die than to disobey God he butcher'd them all without the least Resistance on their part This was truly to Confess him that was led as a sheep to the Slaughter Nay so very Fruitful are the Antient Fathers in Instances of this quality that it would be but Superfluous to recount any more of them the General Practice of the Primitive Christians being so evident in this point that the greatest Sticklers for that sin of Witchcraft Rebellion have not the Confidence to deny it III. That a Liberty to Resist those in whom the Law has plac'd the Power of the Sword is Repugnant to Sound Reason I shall endeavour to make out by the following Arguments 1. Such a License to Subjects against their Rulers is destructive of the very Nature of Government and of Humane Society for it dissolves the sinews of the State and splits it into as many Factions as it has Enemies And it is impossible to conceive Two Equal Supremacies of Power in the Nation and yet the Kingdome to remaine One. For this it is that distinguishes England France Spain and all other Independent Kingdomes one from another But then it is Childish to Fancy the Policy of any Monarchy much less of our own to be so grosly defective as to be the Author of its own ruine by dividing the State Legally against it self So that to take up Arms without or against Authority is down right Rebellion and the Consequence Murther and Rapine 2. It is both Reasonable and necessary that all Governments should have a Supereminent Coercive Power over Particular Persons for otherwise a City would immediately be hurry'd into an Anarchy and that which ought to be One Entire Body become so many Independnet men 3. That which to One Private Person is due as a Man the same is also due to Another and if I may assume to my self a power of judging when to Resist my Prince every private man may do so too Now what Peace what Society can there be hop'd for where every one is at freedom to discharge himself from the Obligation of all Humane Laws and to oppose them at pleasure Or what Obedience can consist with such Resistance Nor will such Libertines know where to stop for it is usual for them to fall foul upon all such as have a deeper sense of Honesty and Allegiance than themselves And what Law of God or Man was ever heard of that approv'd of my Murthering a Loyal man becuase I my self am a Rebel Beside that this Lewd Opinion Equally wounds the very Assertors of it for any body may be allow'd to do That to Them which they have done to their Rightful Prince and his Faithful Subjects 4. Now Touching the Muncipal Laws of the Land that this Resistance is against Them I shall make it Evident Bracton says Si ab eo scil Rege Petatur cum Breve non Currat contra Ipsum locus erit supplicationi Lib. 5. c. 8. quod factum suum Corrigat Emendat quod quidem si non fecerit satis suffieit ei ad paenam quod Dominum Expectet Vltorem Nemo quidem de factis suis presumat desputare Multo fortius contra factum suum venire If a Subject find himself agriev'd by the King he is put to his Petition because no Writ can lie against him for Redress which if he will not vouchsafe it is a sufficient Penalty that he is to expect Punishment from the Almighty No man may presume to question what He does much less to Oppose him Fleta concurs with Bracton in this point Vid. Lib. 1. c. 17. And Lombard writes thus Nemo Dominum says he judicet vel judicium proferat super eum cujus Ligius sit So likewise the Statute of 25. Ed. 3. c. 2. de proditionibus makes it Treason to compass the Death of the King And to what end should these or any other Provisions against Treason have been establish'd if Resistance were in Any Case Lawful Or what does the Oath of Aliegiance signifie if the people may take up Arms against their Prince at pleasure The Form of it runs thus You shall swear that from this day sorward you shall be True and Faithful unto our Soveraign Lord King Charles and Truth and faith shall bear of Life and Member and Terrene Honour and you shall neither know nor hear of any ill or Dammage intended unto him that you shall not defend c. My Lord Coke comments upon it that the Subject and Effect of this Oath is due by the Law of Nature the Form and Addition is ex provisione Hominis To Conclude the Famous Bishop Marks is Positive That a King by Lineal Succession being Lawfully invested cannot upon Imputation either of Negligence or Tyranny be Opposed or Deposed by his own Subjects Thus having given a dsecription of the Lord High-Stewards Office and the manner how a Peer is to be Arraigned before him with such Solutions to several Queries as I have collected out of the Books of Law and History I shall conclude all with this Advertisement That the surest way to escape both the Guilt and Punishment of High-Treason is to Fear God and Honour the King Eccles 13. v. 28. The Counsel given us by the wisest of Kings is worthy to be adverted to Think not evil of the King in thy Heart neither utter it with thy lips least a Bird of the Air carry the voice and that which hath wings discover the matter Let us detest the Principles believ'd and practis'd by those Audacious Violators of Royal Majesty the Spawn of Loyola and keep fast to the Doctrine of our own Church which positively Asserts That the sacred Bond of Subjects in Obedience to their soveraign is inviolable and cannot be dissolved either upon the account of supposed Crimes in the person of the Prince as Tyranny Insidelity Heresie c. Or by any Acts of the Bishops of Rome as Dispensations Excommunications c. It was once said in Vnlonger's Case that he that is throughly Popish may easily be wrapt from his Loyalty FINIS