The Case of our Affaires IN LAW RELIGION And other Circumstances briefly Examined and Presented to the CONSCIENCE Printed in the Yeare 1643. The Case of our Affaires in Law Religion and other Circumstances briefly examined c. THough the Bonds of all Dutie are originally and principally founded in God and tied by Religion yet seeing all civill Duties relate to the particularitie of the humane Ordinance and according to the nature of it is with more or lesse importance to be exacted What Subject soever would finde the true rule and bond of his obedience must in the first place look what the State is wherein he lives and in whom the Soveraignitie is to which his obedience and faith is inevitably bound Our State of England even by the declaration of our Lawes is a Kingdom an Empire a well regulated Monarchie the Head thereof a Supreme Head a Soveraigne a King whose Crown is an Imperiall Crown the Kingdom His Kingdom His Realme His Dominion the People His People the Subject His Subject not onely as they are single men but even when being in Parliament assembled they make the Bodie Representative of the whole Kingdom considered apart without the King so that the very Parliament it selfe is also by our Lawes called His Parliament the King alone by Law hath power to call together in Parliament that Representative Bodie and at His pleasure to dissolve it He personally hath Homage and Oath of fidelitie of all the Peeres as of His Barons and all the Commons in Parliament do by Law swear Alleageance to Him as to the Onely Supreme Governour and to assist and defend all Jurisdictions Priviledges Preheminences and Authorities belonging to Him His Heires and Successours or annexed to the Imperiall Crown of the Realme By the same Oath also is every Officer of considerable trust in Church and Common-wealth assured to His Majestie and not onely they but every single man of twelve yeares of age ought by Law in some or other of His Majesties Leetes to swear Alleageance to His Majestie and never in our Law have we known an Oath of obedience to be made unto the Parliament or any other Power in any case either of mis-government or danger how extraordinary soever This Soveraignitie in the King appeares not onely by that Oath of Supremacie but by the constant acknowledgement of our Acts of Parliament both antient and moderne which alwayes stile the King Our Soveraigne Lord the King that is not Soveraigne Lord to every single man onely as the Observer traiterously and foolishly would make it but the universalitie of us even to our Bodie Representative in Parliament For we must note that though we have among us many that are called Lords even by our Acts of Parliament themselves yet being Lords without relation to the communitie or publique they are never called Our Lords but The Lords with addition of such or such place or Office and they indeed are Lords singulis not universis for every particular man may call such a Lord My Lord but the Communitie may not call him Our Lord for to be Our Lord is to be Lord of the Communitie and that belongeth onely to Our Soveraigne Lord the King Our very Acts of Parliament declaring this State to be a right Imperiall Kingdom a Kingdom we know consisteth of no more than two formall parts onely that is to say a Soveraigne Head and a Subject Bodie and then it clearly followeth that what cooperation soever there be of any of the Members with the Head for the doing of any necessary Act of State whatsoever necessitie there be of the concurrence of those Members and howsoever they may seem to be Parties Orders or States co-equally authorised in the power of acting with the Head yet plainly there neither is nor can be any co-ordination nor co-equalitie of any Estate Order or Degree of the Subject with the Soveraigne nor any competition of the Subjects power in his concurrence with the virtuall and primary influence of the Soveraignes power but a plain subordination and subjected ministration of the one under the Soveraignitie of the other as in the further examination of their differing interests will manifestly appear We see the Soveraignitie of this State clearly vested in the King by Law established in Him and inseparably annexed to His Person by which He hath also inseparably both the Soveraigne power and Soveraigne judgement but as in judging and determining matters of private interest His power is not absolute but is restrained to judgement not judgement arbitrary in His owm Person but judgement to be administred by the proper sworne Judges of His Courts of Law so in matters of publique affaire for so much as concernes the making of Law His power and judgement are so restrained to the concurrence of the Nobles and Commons in Parliament as that He cannot make any settled Law without their consent but then in all other things that are not expresly restrained by any Law as in providing for the present safetie against suddain danger which Senates are so unapt to do as that the famous Roman Senate was ever fain to choose a Dictator to do it for them likewise in levying of Armes suppressing of tumults and rebellions convoaking of Parliaments and dissolving of them making of Peeres granting libertie of sending Burgesses to Parliament treating with Forraigne States making of War League and Peace granting safe conduct and protection indenizing giving of Honour rewarding pardoning coyning and the like in all these and divers other points of Regalitie the Soveraignitie both of judgement and power ever hath been and still is in the King alone freely and at his own discretion is secured to him by tâ—â— Oath of Supremacie whereby as aforesaid the vvhole Representative of Commons all Magistrates and men in place both in Church and Common-vvealth svvear To assist and defend all jurisdictions priviledges preheminences and authorities belonging to the Kings For it is plain that seeing that by the Lavv of God and Nations to be King is to be Supreme Judge and Lavv-giver vvhosoever is King is supreme in every thing vvherein he is not especially restrained and his restraint being by the peculiar Lavves of his Kingdome he can be no further restrained than the knovvn Lavves thereof expresly manifest The great restraint of regall absolutenesse in our State is in the tvvo points of declaring and making of Lavv in neither of vvhich doth the King depart vvith any vvhit of his Soveraignitie In the point declaring of Lavv the King is restrained ordinarily to the mediation of his Judges vvho to declare the Lavv by deliverie of the genuine sense and interpretation of Lavv according to to art and rules of science are in their respective Courts the proper and authorised Judges and Interpreters of Law and do by their interpretation and judgement then binde both the King and Subject Next above them upon errour supposed in their judgement the House of Lords who anciently were exercised
without any claime of right made by the two Houses and our Law hath not a surer badge of right than continuall and unquestioned possession Besides the Parliament it selfe 7. E. 1. declares unto the King that To him of right belongs straightly to defend that is to forbid all force of Armes and thereunto they are bound to assist him as their Soveraigne Lord The Statute 11. H. 7 18. reciteth Where every Subject by the dutie of his Alleageance is bound to serve assist his Prince and Soveraigne Lord at all seasons when need shall require c. In the 3. of Edw. 3. The House of Commons disclaime the having cognizance of such matters as the guarding of the Seas and Marches of the Kingdom And by the Statute 25. E. 3.2 It is made High Treason for any to meddle with the Militia so farre as To levie Warre against the King or to aide them that do it And we all know that to levie Warre without Commission from the King or to give aide unto it is by our Law to levie War and give aide against our Soveraigne Lord the King His Crown and Dignitie And we never knew of any exception out of that Law in case the Warre were levied by Authoritie of the two Houses And when we have not in our power to search the Parliament rols for clearing these things If besides our published Statutes our Law-bookes have any authoritie we have not onely Bracton whom they insist upon but other authentique Law-bookes concurring with him who all speaking of the King and the Houses do expresly say that seeing The King hath no Peere The King cannot be iudged by them So that whatsoever authoritie is in the constant practice of the Kingdom and whatsoever authoritie in the known and published Lawes and Statutes all do conclude the Soveraignitie in the person of the King and the alleageance faith obedience of the Subject even of the Subject virtually united in the Bodie Representative to be inevitably devinct and obliged to the person of the King The Soveraignitie both of the frame of the State and positive Lawes of the Kingdome being fixed in the person of the King and the Alleageance of the Subject by Law inevitably thither assigned then comes in Religion and fortifies and enforces all those bonds of dutie and obedience and that under the severe menace of damnation which when it is in divers precepts and examples well known unto us abundantly set forth in the Scriptures It will not be safe for us to let slip the consideration of two examples especially The Children of Israel being redeemed out of Egypt baptized in the Red Sea and brought for triall into the wildernesse as they were the type of the Church of God in all Kingdomes whatsoever in this world so Moses their Governour was the type of that regall power under which the Church of God in this world was generally to be governed so as though he were not a King in point of interest for the people were not yet in the Countrey that was to be the Kingdom neither was Moses of the Tribe to whom the Kingdom was promised yet saith the Text He was King when the heads of the people were assembled Moses so personating the kingly Office when as yet there was no expresse command concerning obedience and subjection more than Honour thy father and thy mother and he that curseth father or mother let him die the death It happened that Corah Dathan and Abiram rebelled against him and their rebellion was but this they in the behalfe of the Congregation of the Lord because that it was holy every one of them and the Lord among them question Moses his Soveraignitie charge him and Aaron that they exalted themselves above the Congregation of the Lord and that Moses had not kept touch with them to bring them to a Land that flowed with milke and honey but sought to starve them in the wildernesse while blinding the eyes of the people he might in the mean time make himselfe a Prince over them and out of jealousie of this they refused obedience to Moses and would not come at him when he sent to call them and so much was their cause believed to be just and right as that they were seconded with two hundred and fifty Princes of the Assemblie famous in the Congregation all of them so confident that they durst joyne issue with Moses and put themselves upon triall by Gods immediate judgement in the case and they were also backed with many thousands of the people This was the Rebellion the Judgement we all know to be most exemplar Judgement that ever was given in any case The Heads of the Rebellion Corah Dathan and Abiram with their wives their children and all their substance were swallowed up of the earth they went down quicke into Hell saith the Psalmist The two hundred and fifty that invaded the holy Office were slain with fire from Heaven and fourteen thousand and seven hundred of the people that favoured their attempts and murmured at the Judgement were in an instant in lesse than Aaron could get his Censer with fire from the Altar and run among them consumed in a speedy plague It will be objected that Moses was a man of extraordinary calling and that Rebellion against an ordinary Governour though a soveraigne King is not like Rebellion against a Governour of so extraordinary calling and priviledge all that granted yet this exemplar Judgement comes home to manifest the hainous sin of rebelling against Kings at this day Moses had an extraordinary calling he could not else have been a type of regal Authoritie but in type He was King when the heads of the people were assembled He had the Priest made subordinate to him He shall be unto thee instead of a mouth and thou shalt be unto him instead of God And had the Magistracie derived from his Authoritie to beare the burthen with him God took off the spirit that was upon him and put it upon the seventie two Elders So Moses was clearly endued with regall power and for trangression against that very Authoritie of his was the Judgement made so exemplar It could not be exemplar in regard of any other Authoritie which he had then and no other since either had or could have but that we may know the Judgement was exemplar against Rebellion against regall Dominion which would often be committed in the later dayes the holy Ghost speaking against the seducers deceivers wch in the later dayes should make perilous times describes them not onely by being Cursed speakers disobedient to parents that is as well to Civil parents as Natural traiterous headie high-minded resisting the truth like them that resisted Moses Despising Dominion despising Government speaking evill of Dignities of those that are in Authoritie of those things which they know not c. but by this likewise that They perish in the gainsaying of Corah The other
the most soveraigne Court because every compleat and perfect Act of it is the Act of the personall will and power of the Soveraigne himselfe Standing in His highest Estate Royall and through the concurrence of those that are the instrumentals of His restraint more freely and absolutely working there than in any other time and place he can do For as a man that yeildeth himselfe to be bound by keepers hath the use of his strength taken from him but none of the naturall strength it selfe much lesse any of it transferred to them that bound him but whensoever they loose his bonds he again workes and acts by virtue of his own naturall strength and not by any received from them So the naturall right and interest of the Soveraignitie being soly in the King and the Peeres and Commons being onely interessed in the Office of restraining for the regular working of true legitimate Soveraignitie in whatsoever the Peeres and Commons by consenting remit the restraint the King in that willeth and worketh absolutely by the power of his own inherent Soveraignitie And whatsoever Act of the Court so passeth the hands of all the three Orders does in truth virtually proceed from the King as from the true and proper efficient thereof which does not obscurely nor rarely appear in our Acts of Parliament but plainly and frequently throughout the whole Bodie of our ancient Lawes The King Willeth the King Commandeth the King Ordaineth Provideth Establisheth Granteth c. And yet though properly they be the Acts of the King in Parliament yet are they also truly the Acts of the whole high Court of Parliament because that every of the three Estates contribute their power according to the diversitie of their office and interest the two Houses by remitting through the consenting the restraint and the King by using his then unrestrained power We are also to consider that though this high Court of the three Orders be the supreme Judicatorie of the Kingdome yet it hath not that superioritie of judgement ascribed to it for any soveraigne facultie it hath in discerning the true dictate and result of Law no more than of any other particular Science as of Divinitie Philosophie Physicke Mathematiques c. for the judgement of Sciences belongeth to the professours thereof and the judgement of Law as well as of other Sciences But the high Court of Parliament is the supreme judge for the great trust the Law reposeth in the concurrence of all the three Orders who have meanes to have the best information of Law that the whole profession doth afford and are supposed to use it and likewise for the great power they have to binde all other judgement and to make their sentence Law though as we have said it were not Law before But we are further to observe that in the point of making of Law the Law restraining thus the Soveraigne power to the consent of the Peeres and Commons the more that by this regulation it purged it from destructive exorbitances the more tender it grew of the just and legitimate rights thereof remaining and therefore considering the person of the Soveraigne to be single and his power counterpoised by the opposed wisedome of the two numerous Bodies of the two Houses it allowed unto the King power to sweare unto himselfe a Bodie of Councell of State which our Lawes sometime call His Grand Councell and to sweare unto him also Counsellours at Law even the Judges themselves and others learned in the Law faithfully to advise him in his Government that he may neither do nor receive wrong especially not in Parliament where the wrong may be perpetuall And if upon a generall pretence of evill counsell without any instance in what his Majestie be deprived of the use and assistance of and assistance of any of his sworne Counsell especially in Parliament time when the Soveraignitie may be so easily overmatched it will make such a breach of the priviledge of the first of the three Orders in Parliament as will destroy the true frame of Parliaments diminish the power of the Crown and bring the settled estate of the Kingdome into the calamitous innovation of an unsettled and ever changing Forme of Government and so into all manner of miserie and confusion The Soveraignitie in the King alone is so clearly acknowledged by our Law as that unlesse we would reiect the iudgement and recognition of all our Parliament and especially of all our most sincere and unquestioned Parliaments all the time of Queen Elizabeth and ever since all which do not onely affirme but sweare it it would be idle to go about to make praise of it But when the incredible perversenesse of some and in particular of him that writes The treacherie and disloyaltie of Papists c. does not onely affirme the contrary but would pretend to prove it It cannot be a digression in a word or two to give some answer to his reasonings I shall passe over Minshaw's Dictionarie Speed Stowe Vowell Foxe and others whose authoritie he is not ashamed to cite for determining matter in Law and which if indeed it were a question were of the greatest consequence that ever was stirred in Law And because he so much insists upon Bracton I shall briefly examine Bracton and the Authours integritie in citing him and others And first that all men may know how little authoritie in Law Bracton either now hath or anciently hath had Our yeare-bookes tell us that in the 35. H. 6. It was declared by the whole Court that Bracton was never held an Authour in our Law and then it is not materiall what is the opinion of one that is of no authoritie But if he were yet those words in Bracton so much insisted on Rex habet superiorem Deum Legem item Curiam suam c. are not indeed Bractons assertion For Bracton speaking of the Kings Deeds and Charters and affirming which we would be loath should be Law at this day that Neither the Iustices nor private men may dispute the Kings Deed but that if there be doubt of his Deed or Charter the resolution must come from the Kings own interpretation and will c. Then goes he on thus But some may say saith he that the King may do justice and well and if so he may by the same reason do ill and so put a necessitie upon him that he mend the injurie least both King and Iustices fall into the judgement of the living God for the injurie The King hath a Superiour to wit God also the Law by which he is made King also His Court to wit the Earles and Barons c. Now whosoever considers the place it is all a reasoning which Bracton supposes some other to make and no affirmation of his own and that is also plain by his words in another place where speaking of the King If Iustice saith he be demanded of him seing no Writ lies against him one must petition that