inferior Court of Iustice whatsoever hath such a Priviledge by the Common law and statutes of the Realm that the King himself hath uo negative voice at all somuch as to stay or delay for the smalest moment by his great or privy seale any legall proceedings in it much lesse to countermand controle or reverse by word of mouth or proclamation any resolution or judgement of the Iudges given in it If then the King hath no absolute Negative overruling voice in any of his inferiour Courts doubtlesse he hath none in the supreâ—mest greatest Court of all the Parliament which otherwise should be of lesse authority and in farre worse condition then every petty sessions or Court Baron in the Kingdome The sole question then in debate must be Whether the King hath any absolute Negative over-ruling voice in the passing of publike or private Bills For resolving which doubt we must thus distinguish That publike or private Bills are of two sorts First Bills only of meere grace and favour not of common right such are all generall pardons Bills of naturalization indenization confirmation or concession of new Franchises and Priviledges to Corporations or private persons and the like in all which the King no doubt hath an absolute negative voice to passe or not to passe them because they are acts of meere grace which delights to be ever free and arbitrary because the king by his oath and duty is no way obliged to assent thereto neither can any subjects of justice or right require them at his hands it being in the Kingsfree power to dispence his favours freely when and where he pleaseth and coÌ„trary to the very nature of free grace to be either merited or coÌ„strained SecoÌ„dly Bills of common right and justice which the King by duty and oath is bound to administer to his whole kingdome in generall and every subiect whatsoever in particular without denyall or delay Such are all Bills for the preservation of the publike peace and safety of the kingdome the Liberties Properties and Priviledges of the Subiect the prevention removall or punishment of all publike or private grievances mischiefes wrongs offences frauds in persons or callings the redresse of the defects or inconveniences of the Common Law the advancing or regulating of all sorts of Trades the speedy or better execution of Justice the Reformation of Religion and Ecclesiasticall abuses with sundry other Lawes enacted in every Parliament as occasion and necessity require In all such Bills as these which the whole state in parliament shall hold expedient or necessary to be passed I conceive it very cleare that the king hath no absolute negative voyce at all but is bound in point of office duty Oath Law Iustice conscience to give his royall assent unto them when they have passed both houses unlesse he can render such substantiall reasons against the passing of them as shall satisfie both Houâ—eâ— This being the onely point in controversie my reasons against the Kings absolute over-swaying negative Voyce to such kinde of Bills as these are First because being Bills of common right and Iustice to the Subiects the denyall of the Royall assent unto them is directly contrary to the Law of God which commandeth kings to be just to doe judgement and justice to all their Subjects especially to the oppressed and not to deny them any just request for their reliefe protection or wellfare Secondly because it is point-blanke against the very letter of Magna Charta the ancient fundamentall Law of the Realme confirmed in at least 60. Parliaments ch 29. WE SHALL DENY WE SHALL DEFERRE both in the future tense TO NO MAN much lesse to the whole Parliament and Kingdome in denying or defâ—rring to passe such necessary publike Bills IVSTICE OR RIGHT A Law which in terminis takes cleane away the Kings pâ—etended absolute negative Voyce to these Bills we now dispute of Thirdly Because such a disasseâ—tâ—ng Voyce to Bills of this nature is inconsisent with the very office duty of the king and the end for which he was instituted to wit equall and speedy administration of common right justice and assent to all good Lawes for protection safety ease and benefit of his Subjects Fourthly Because it is repugnant to the very Letter and meaning of the kings Coronation Oath solemnly made to all his Subiects TO GRANT FVLFILL and Defend ALL RIGHTFVLL LAWES which THE COMMONS OF THE REALME SHALL CHVSE AND TO STRENGTHEN AND MAINTAINE THEM after his power Which Clause of the Oath as I formerly manifested at large and the Lords and Commons in their Remonstrance of May 26. and Nov. 2. prove most fully extends onely or most principally to the kings Royall assent to such new rightfull and necessary Lawes as the Lords and Commons in Parliament not the king himselfe shall make choise of This is infallibly evident not onely by the practise of most of our kings in all former Parliaments especially in king Edward the 1 2 3 4. Rich. 2. Hen. 4 5 and 6. reignes whereof the first Act commonly in every Parliament was the confirmation of Magna Charta the Charter of the Forest and all other former unrepealed Lawes and then follow sundry new Actâ— which the Lords and Commons made choise of as there was occasion and our Kings assented to confessing they were bound to doe it by their Coronation oath and duty as I shall manifest presently but likewise by the words of the Coronation oaths of our ancienter Kings already cited in the first part of this Discourse and of our Kings oaths of latter times the Coronation Oaths of King Edward the 2. and 3. remaining of Record in French are in the future tense Sire grantes vous a tenir et garder LES LEYS et les Coustumes DROITVRELES les quiels LA COMMVNANTE de vostre Royaume AVRESLV les defenderer et assorcerâ—r al honeur de Diâ—u a vostre poare Respons Ie le FERAI in the future too The close Roll of An. 1. R. 2. M 44. recites this clause of the Oath which King Rich took in these words Et etiam de tuendo custodiendo IVST AS LEGES consuetudines ecclesiae ac de faciendo per ipsum Dominum Regem eas esse protegendas ad honorem Dei CORROBOR AND AS quas VVLGVS IVSTE ET RATIONABILITER ELEGERIT juxta vires ejusdem Domini Regis in the future tense And Rot. Parliament 1. H. 4. p. 17. expresseth the clause in King Henry his Oath thus Concedis IVSTAS LEGES consuetudines esse tenendas promittis per te eas esse protegendas ad honorem Dei CORROBORANDAS QV AS VVL GVS ELEGERIT secundum vires tuas Respondebit Concedo Promitto In the Booke of Clarencieux Hanley who lived in King Henry the 8. his reigâ—e this clause of the Oath which this king is said to take at his Coronation is thus â—endred in English Will you GRANT FVLFILL defend ALL
these â—iberties and that which we have sworne ALL OF US ARE BOUND TO OBSERVE But where the Acts to which the assent is gained are unjust or illegall such to which the King was not bound by Oath or duty to consent but meerely out of necessity to avoid imminent danger of death or other mischiefe and where the whole Parliament was enforced as well as the King there the acts may be avoided by Duresse as is evident by the Statutes of 11. and 21. of R. 2. c. 12. by the Statute of 31 H. 6. c. 1 which makes voyd all the Petitions granted by this King in a former Parliament the 29. of his Reigne and all indictments made by Duresse through the Rebellion Tyranny and Menaces of Iack Cade and his rebellious rout of Traytors and by 39. H. 6. c. 1. 15. E. 3. stat 2. and 17. E. 4. c. 7. Yet these enforced unjust Bills being publike Acts done in a legall forme are not meerly void but good in Law till they be repealed and nullified by a subsequent Parliament as is evident by the next forecited Statutes even as a Marriage Bond or deed made by Duresse or Menace are good in Law and not meerly void but voidable only upon a Plea and Tryall And if subsequent Parliaments refuse to repeal these forced Laws and to declare the Royall assent thereto by coertion void or illegall the King cannot avoid them by Duresse because his Royall assent is a judiciall Act in open Parliament which his oath and duty obliged him to give and the Lawes are rather the Parliaments Act which was not forced then his owne but they remaine in full vigour as if he had freely assented to them which is most evident by the Statutes made in 10. and 11. R. 2. which though extorted from the King by Duresse against the will and liberty of the King and right of his Crowne as is pretended and declared in the Statute of 21. R. 2. c. 12. yet they continued in full strength for ten yeares space or more during which time there were no lesse then 8. Parliaments held under this King because these Parliaments refused to reverse them upon this pretext of Duresse and the Parliament of 1 H. 4 c 2 3 4. received and confirmed them From all which premises I humbly conceive I may infallibly conclude That the King in passing the fore-mentioned kinde of Bills of Common Right and Iustice for the Kingdomes and the Subjects weale and safety hath no absolute negative voyee but must and ought of common right and Iustice by vertue of his Royalloath and duty to give his ready and free assent unto them without any tergiversatiâ—n And so the Parliament in their Declarations to this purpose hath no wayes invaded nor injured his Majesties just Prerogative royall in this particular Nor yet those members in it eclipsed his royall grace who have upon occasion given affirmed the Petition of Right the Bills for Trieniall Parliaments which before by Law were to be annuall at least the continuance of this Parliament without adjournment for the Kingdomes necessary preservation the acts against Shipmoney Forest-Bounds c. illegall new invented grievances and oppressions not heard of in former Kings Reigns and the Statutes for the suppression of the Star-Chamber High Commission Knighthood and Bishops votes lately growen intollerable grivances and mischeifes to the Realme Especially since his Majesties Reigne to bee no acts of most transcendent Grace such as never any Prince before vouchsafed to his people as they are daily cried up in Presse and Pulpet but Bills of meere Common Right and Iustice which the King by his Royall Office Oath Duty in Law and Conscience ought to assent unto and could not without apparent injustice deny to passe when both Houses urged him thereunto the rather because the unhappy fractions of all Parliaments and Grievances of these Natures under his Majesties own Reign and Government occasioned by his evill Councellers were the sole grounds and just occasions of enacting these necessary Laws for the Subjects future security if the sword now drawen to suppresse the Parliament and cut these Gordians or rather Cobwebs as Diogenes once termed Laws a sunder deprive them not of their benefit before they scarce enjoy it I should now here proceed to manifest the Parliaments taking up of defensive Armes against his Majesties Malignant Army of professed Papists Delinquents and pillaging murthering Cavaleers whose grand designe is onely to set up Popery and an absolute tyrannical Government over our consciences bodies estates in defense of their own persons priviledges the Subjects Laws Liberties Properties and our Protestant established Religion devoted by Papists to eternall ruine as we have cause to feare to be just lawfull and no treason nor rebellion at all against the King neither in point of Law nor conscience And that the Parliaments assessing of men towards the maintenance of this necessary defensive warre by an Ordinance of both Houses onely without the Kings assent now wilfully absent from and in armes against his Parliament and People with their distraining and imprisoning of such as refuse to pay it and their confinement and securing of dangerous Malignants to be justifiable by Law and ancient presidents with other particulars not yet so fully discussed by any as is desired But this part being already growne somewhat large and having lingred much longer at the Presse then I expected I have thought it more convenient to reserve the remainder for a future Treatise by it selfe then to hinder the state of the present benefit which it may receive by this through Gods blessing ere the other can â—ee compleated which I hope will fully un-blindfold the hood-winkt world and either satisfie the consciences or stop the mouthes of all who are not wilfully malicious against the Truth and Parliaments proceedings and the Soveraigne Power of Parliaments and Kingdoms over their Kings themselves which I shall more copiously manifest in the Appendix FINIS partis secunda THE THIRD PART OF THE SOVERAIGNE POWER OF PARLIAMENTS and KINGDOMES Wherein the Parliaments present Necessary Defensive Warre against the Kings offensive Malignant Popish forces and Subjects taking up Defensive Armes against their Soveraignes and their Armies in some Cases is copiously manifested to be Iust Lawfull both in point of Law and Conscience and neither Treason nor Rebellion in either by inpregnable Reasons and Authorities of all kindes Together With a Satisfactory Answer to all Objections from Law Scripture Fathers Reason hitherto alledged by Dr. Ferne or any other late opposite Pamphleters whose grosse Mistakes in true Stating of the present Controversie in sundry points of Divinity Antiquity History with their absurd irrationall Logicke and Theologie are here more fully discovered refuted than hitherto they have been by any Besides other particulars of great concernment By WILLIAM PRYNNE Utter-Barrester of Lincolnes Inne 2 Sam. 10. 12. Be of good courage and let us play the men for our People and for the City of
and for the common profit of the Realme of England our Soveraigne Lord the king hath ordained c. for the quietnesse of his said people the Statutes and Ordinances following c. cap. 2. with 2. H. 4. c. 1. Our soveraign Lord the king greatly desiring the tranquility and quietnes of his people willeth and straitly commandeth that the peace within his Realme of England be surely observed kept so that all his lawful subjects may from henceforth safely and peaceably goe come and dwell after the Law and usage of the Realme and that Iustice and right be indifferently ministred to every of his said subjects as well to the poore as to the rich in his Courts 1. H. 4. Henry by the Grace of God c. to the honour of God and reverence of holy Church for to nourish peace unity concord of all parties within the Realm of England and for the reliefe and recovery of the said Realm which now late hath been mischievously put to great ruine mischief and desolation of the assent c. hath made and established c. 6. H. 4. c. 1. For the grievous complaints made to our Soveraigne Lord the king by his Commons of the Parliament of the horrible mischiefes and damnable custome which is introduced of new c. Our soveraign Lord the King to the honor of God as well to eschew the dammage of this Realme as the perils of their soules which are to be advanced to any Archbishopricks or Bishopricks c. hath ordained Divers such recitalls are frequent in most of our statutes in all Kings raignes viz. 37. E. 3. c. 2 3 4 5. 3. R. 2. c. 3. 5. R. 2. Stat. 1. 2. 6. R. 2. Stat. 1. 7. R. 2. 8. R. 2. For the common profit of the said Realme and especially for the good and just government and due execution of the common Law it is ordained c. 10. R. 2. Prologue c. 1. 11. R. 2. c. 1. 12. R. 2. 13. R. 2. Prologue c. 3 5 6. 14. R. 2. 21. R. 2. 1. H. 4. 5. c. 7. 1. H. 6. 8. H. 6. Prologue c. 25. 10. H. 6. c. 3. 12. H. 6. c. 12. 39. H. 6. Prologue 1. R. 3. c. 2. 6. 8. 3. H. 7. c. 5 6. 11. H. 7. c. 18. But I shall conclude with some more punctuall ones 18. E. 3. stat c. 1 2. To nourish love peace and concord between holy Church and the Realme and to appease and cease the great hurt and perils impertable losses and grievances that have been done and happened in times past and shall happen hereafter if the thing from henceforth be suffered to passe c. for which causes and dispensing whereof the ancient lawes usages customes and franchises of the Realm have been and be greatly appaired blemished and confounded the Crown of the king minished and his person falsly defrauded the treasure and riches of his Realme carried away the inhabitants and subjects of the Realme impovirished troubled c. the King at his Parliament c. having regard to the quietnesse of his people which he chiefly desireth to sustaine in tranquility and peacâ— to governe according to the Lawes Vsages and Franchises of this Land as HE IS BOVND BY HIS OATH MADE AT HIS CORONATION following the wayes of his Progenitors which for their time made certaine good Ordinances and provisions against the said grievances c. by the assent c. hath approved accepted and confirmed c. 2. R. 2. c. 7. Because the King hath perceived as well by many complaints made to him as by the perfect knowledge of the thing c. the King desiring soveraignly the peace and quietnesse of his Realme and his good Lawes and Customes of the same and the Rights of his Crowne to be maintained and kept in all points and the offenders duly to be chastised and punished AS HE IS SWORN AT HIS CORONATION by the assent of all the Lords c. hath defended c. And moreover it is ordained and established c. 3 R. 2. Rot. Parl. Num. 38. 40. The Commons desiring a grant of new power to Iustices of Peace to enquire into extortions the Bishops conceiving it might extend to them made their protestation against this new grant yet protested that if it were restrained only to what was law already they would condiscend to it but not if it gave any new or further power The King answers that notwithstanding their protestation or any words conâ—eined therein he would not forbeare to passe this new grant and that BY HIS OATH AT HIS CORONATION HE WAS OBLIGED TO DO IT And 6 H. 6. c. 5. We for as much as by reason of our Regality WE BE BOVNDEN TO THE SAFEGVARD OF OVR REALM round about willing in this behalfe convenient hasty remedy to be adhibite have assigned c. By these with infinite such like recitalls in our ancient and late statutes in the Kings owne Proclamations Commissions yea and in writs of law wherein wee find these expressions Nos qui singulis de regno nostro in EXHIBITIONE IVSTITIAE SVMVS DEBITORES plaenam celerem justitiam exhiberi facias Nos volentes quoscunque legios nostros in curiis nostris c. justitiam sibi c. nullatenus differri Ad justitiam inde reddendam cum omni celeritate procedatis Nos oppressiones duritias damna excessus gravamina praedictae nolentes relinquere impunita volent esque SALVATIONI QVIETI POPVLI NOSTRI hac parte PROSPICERE VT TENEMVR eidm celeris justitiae complementum debitum festinum iustitiae complementum fieri facies Nos huiusmodi praeindicio precavere volentes prout ASTRINGIMVR IVRAMENTI VINGVLO Quiaâ— iudicia in curia nostra cito reddita in suis roboribus manuteneri volumus defendi prout AD HOC IVRAMENTI VINCVLO ASTRINGIMVR TENEMVR c It is most apparent that the Kings of England both by their oath duty and common right even in point of justice and conscience are bound to assent to all publike Acts as are really necesâ—ary for the peace safety ease weale benefit prevention of mischiefs and redresse of greivances of all or any of their subjects without any tergiversation or unnecessary delayes when they are passed and tendered to them by both Houses and that in such acts as these they have no absolute Negative voice at all but ought to give their speedy free and full consents thereto unlesse they can give satisfactory reasons to the contrary Sixthly All our ancient Kings of England as the premises with all publike usefull statutes enacted in their reigne evidence have alwayes usually given their free and full consents in Parliament to such publike acts as these without deniall or protraction conceiving they were bound by oath and duty so to doe and if they ever denyed their royall assents to any Petitions or Bills of the Lords and Commons of this nature they alwayes gave such good
contradiction of which we have sundry presidents not onely in profane but Sacred story Physicians in points of Physick Lawyers of Law Divines of Divinity Souldiers of Warre Pilots of Navâ—gation and so all Artists in their severall Arts not only instruct but over-sway their princes without finall contradiction This being a known received Mâ—xime in Law Vnicuique in sua arte peritest credendum And shall not then the Grand Counsell of the Realme in all publike State-affaires and Bills of Consequence muâ—h more over-rule the king then his privie Counsell Especially since in the Statutes of 1. H. 4. c. 6. 4. H. 4. c. 1. it is enacted to the end that the King may not be deceived in his Grants and Gifts annuall or in fee or in any offices by him to be made given or granted HE WIL by the assent of the Lords spirituall and temporall and at the request of the Commons BE COVNSELLED BY THE WISE MEN OF HIS COVNSEL IN THINGS TOVCHING THE ESTATE OF HIM AND HIS REALME and that he will make no such gifts nor grants saving to such persons as the same deserveth and as best shall seem to the King AND HIS COVNSELL And sith it is THE DESIRE OF ALL THE ESTATES OF THE REALM that nothing should be so demanded of the King he wills that all those that make any such demand contrary to this statute shall be punished by advise of him and his Counsell and that â—ee that maketh such demand shall never have the thing so demanded A Law now meet to be put in execution Thirteenthly If the king should have an absolute Negative Voyce in refusing such publike Bills as are necessary and expedient for the common good and safety of his people It would rest in the meere power and pleasure of a willfull or misadvised king seduced by evill Counsellours to deprive the kingdome of the principall use benefit and privilidges of Parliament the making of good and wholsome laws for the good government of the Realm the removall or prevention of emergent grievances or dangers and execution of publike Iustice on Delinquents to the great perill preiudice if not ruine of the Realm And our Annuall or Trienniall Parliaments should serve then to no other purpose but to supply the king with subsidies or keep the Wool sacks Benches from growing mouldy whilst the Lords and Commons sate upon them rather-like so many Cyphers without a â—iguâ—e then a Court of Parliament if the Lawes of the Realme were in the Kings hand or breast alone as Richard the 2. sometimes said they were an Article objected against him at his deposing contrary to that approved resolution of Aristotle whatsoever seâ—ms good to the major part of the Governours of the Common-wealth that is established for a law which holds good in the Kingdome of Aragon at this day where the King in making publike Lawes hath no absolute negative Voyce nor yet in summoning of Parliaments which are constantly held at their set times every yeare or two at furthest whether the king will or not Fourteenthly God himself the King of kings and Lord of Lord held this a principall part of his soveraign divine prerogative to give his people from heaven when they needed and required it right Iudgments and Lawes of truth good statutes Commandements for their good and welfare Neh. 9. 14. Exod. c. 19. and 20. and 21. Deut. 4. 8. to 41. and chap. 5. throughout Neither doth will or can he deny any Iust or necessary suite prayer or petition that his poor servants and creatures though but dust and ashes ioyntly or severally put up unto him but most willingly grants without the least deniall or unnecessary delay what ever good and needfull things they require at his hands And can or dare kings then claim a greater an higher prerogative over their kingdomes subiectâ— then God himselfe the King of kings doth overh is creatures or arrogate to themselves an absolute Negative voice where God himselfe whose servants and vicegerents only kings are neither hath nor will have any but utterly disclaimes it God forbid that any such arrogant thought should ever enter into the hearts of any Christian kings who being in truth but servants to not absolute Lords over their kingdomes in whom the soveraign legislative power and authority resides must and ought by the Lawes of God and man rather condescend to their parliaments and kingdomes iust requests in assenting to necessary wholsome iust Lawes then their parliaments and kingdomes quietly submit to their uniust disassents unto them to the publike preiudice as is cleare by 2. Sam. 8. 4. to the end Act. 13. 36. Finally our Ancestors were so farre from beleeving that our kings havean absolute negative voyce in such Bills as these that they have not only constrained our kings by threates yea force of Armes to summon and continue Parliaments but likewise compelled them to give their Royall Assents to Magna Charta Charta de Foresta Confirmatio Chartarum Articuli super Chartas with sundry other publike statutes of Right and Iustice for the common good and subiects safety and to ratifie them with their hands seales Oaths Proclamations the Bishops solemne excommunications yea and the Popes leaden Bulls against their will and liking as I have plentifully manifested in the former part Which forced assents have beene held good in Law to binde these kings and their successors with this distinction where the Lawes to which this assent was forced are convenient necessary or essentiall for the kingdomes welfare the subiects iust Liberty and such as the king by duty and oath is bound to assent to there if they compell the king to give his assent in case of wilfull deniall the assent is binding and shall not be avoided by Duresse because the King doth no more then he is obliged by Law Oath and Duty to condiscend to Upon which ground a Tenant inforced to attorne to a grant of a reversion by imprisonment upon a Quid juris clamat shall never avoid this attornmâ—nt by Duresse nor an Obligation made by one taken in execution for payment of a just debt nor the just judgment of a Iudge given by menaces shall not be avoyded This is cleere by Magna Charta and other Lawes gotten at first by Duresse and Menaces from our Kings and yet firme and binding when even thus assented to because just and necessary as King Henry 3. An 12 22. confessed Who when the Barons demanded of him the confirmation of the great Charter and their Liberties according to his Oath upon the conclusion of the peace with Lewis William Brewer one of the Kings Counsell answering that the Liberties they demanded must not be observed because they were violently extorted and words hereupon growing between the Barons and him and the Arch-bishop of Canterbury kindling at it the young King prudently closed up the whole strife with this speech All of us have sworne to
onely the beating but killing of such persons who assault their Masters persons goods or houses as is expresly resolved by the Statute of 21. E. 1. De malefactoribus in Parcis By 24. H. 8. cap. 5. Fitzherbert Corone 192. 194. 246. 258. 261. 330. 21. H. 7 39. Trespas 246. Stamford lib. 1. cap. 5. 6. 7. 22. Ass. 46. 11. H. 6. 16. a. 14. H. 6 24. b. 35. H. 6. 1. a. 9. E. 4. 48. b. 12. E. 4. 6. a. 12. H. 8. 2. b. Brooke Coron 63. Trâ—spas 217. Therefore they may justly defend themselves resist oppose apprehend and kill his Majesties Cavalliers notwithstanding any Commissions and make a defensive Warre against them when as they assault their persons houses goods or habitations without any Treason Rebellion or Crime all against the King or Law Thirdly It is past dispute That the Sheriffes Iustices of Peace Mayors Constables and all other Officers of the Realme may and ought by our Lawes and Statutes to raise the power of the Counties and places where they live and command all persons to arme themselves to assist them upon their Command when they see just cause which commands they are all bound to obey under paine of imprisonment and fines for their contemptuous disobediene herein to suppresse and withstand all publicke breaches of the Peace Riots Routs Robberies â—raies Tumults Forcible Entries and to apprehend disarme imprison and bring to condigne punishment all Peace-breakers Riotors Trespassers Robbers Plunderers Quarrellers Murtherers and Forces met together to doe any unlawfull Hostile act though by the Kings owne precept and in case they make resistance of their power they may lawfully kill and slay them without crime or guilt if they cannot otherwise suppresse or apprehend them yea the Sheriffes and all other Officers may lawfully raise and arme the power of the County to apprehend Delinquents by lawfull Warrants from the Parliament or Processe out of other inferiour Courts of Iustice when they contemptuously stand out against their Iustice and will not render themselves to a Legall triall in which service all are bound by Law to assist these Officers who may lawfully slay such contemptuous Offenders in case they cannot otherwise apprehend them All which is Enacted and Resolved by 19. E. 3. cap. 38. 3. Ed. 1. cap. 5. 2. R. 2. cap. 6. 5. R. 2. cap. 5. 6. 7. R. 2. cap. 6. 17. R. 2. cap. 8. 13. H. 4. cap 7. 1. H. 5. cap. 6. 2. H. 5. cap. 6. 8. 19. H. 7. cap. 13. 3. E. 6. cap. 5. 1. Mar. cap. 12. 31. H. 6. cap. 2. 19. E. 2. Fitz Execution 247. 8. H. 4. 19. a. 22. Ass. 55. 3. H. 7. fol. 1. 10. 5. H. 7. fol. 4. Register f. 59. 60. 61. Fitz. Coron 261. 288. 289. 328. 346. Stamford lib. 1. cap. 5. 6. Cooke lib. 5. fol. 92. 9. 3. with sundry other Bookes and Acts of Parliament and Walsingham Hist. Angliae pag. 283. 284. Yea the Statute of 13. Ed. 1. cap. 38. recites That such resistance of Processe out of any the Kings Courts much more then out of the Highest Court of Parliament redounds much to the dishonour of the King and his Crowne and that such resisters shall be imprisoned and fined because they are desturbers of the Kings Peace and of his Realme And the expired Statute of 31. H. 6. cap. 2. Enacted That if any Duke Marquesse Earle Viscount or Baron complained of for any great Riots Extortions Oppressioâ—s or any offence by them done against the Peace and Lawes to any of the Kings Liege people should refuse to obey the Processe of â—he Kings Court under his Great or privie Seale to him directed to answer his said offenes either by refusing to receive the said Processe or despiting it or withdrawing hâ—mselfe for that cause and not appearing after Proclamation made by the Sheriffe in â—he County at the day prescribed by the Proclamation that then hee should for this his contempt forfeit and lose all his Offices Fees Annuities and other possessions that he or any man to his use hâ—th of the gift or grant of the King or any of his Progenitors made to him or any of his Ancestors And in case he appeares not upon the second Proclamation on the day therein to him limited that then he shall lose and forfeit his Estate and place in Parliament and also All the Lands and Tenements Whâ—ch he hath or any other to his use for terme of his life and all other persons having no Lands not appearing after Proclamation were to be put out of the Kings Protection by this Act. Such a heinous offence was it then repuâ—ed to disobey the Processe of Chancery and other inferiour Courts of Iustice even in thâ— greatest Peeres how much greater crime then is and must it be contemptuously to disobey the Summons Processe and Officers of the Parliament it selfe the supremest Court of Judicature especially in those who are Members of it and stand engaged by their Protestations trusts and Places in it to maintaine its honour power and priviledges to the uttermost which many of them now exceedingly vilifie and trample under feete and therefore deserve a severer censure then this statute inflicts even such as the Act of 21. R. 2. c. 6. prescribed to those Nobles unjustly fore judged in that Parliament That their issues males now begotten shall not come to the Parliaments nor to the Councells of the King nor his heires nor be of the Kings Counsell nor of his heires Therefore it is undubitable that the Sherifes Iustices of Peace Majors Constables Leivtenantes Captaines and other Officers in every County through the Realme may by their owne Authority much more by an Ordinance and Act of association of both houses raise all the power of the County all the people by vertue of such commands may lawfully meete together in Armes to suppresse the riots burglaries rapines plunders butcheries spoyling robberies and armed violence of his Majesties Cavaleers and apprehend imprison slay arraigne execute them as common enemies to the kingdomes peace and welfare even by the knowne Common Law and Statutes of the Realme and feise Delinquents notwithstanding any royall Commission or personal commands they may or can produce Fourthly it is most certaine that every Subject by the very Common Law of the Realm yea Law of Nature as he is a member of the State and Church of England is bound both in duty and conscience when there is necessary occasion to Array and Arme himselfe to resist the invasions and assaults of oâ—en enemies of the Realme especially of Forraigners as is cleare by infinite * Presidents cited by the Kings owne Councell and recited by Iudge Crooke in his Argument concerning Ship-money in both the Houses two Remonstrances and Declarations against the Commission of Array and the Answer of the first of them in the Kings name all newly Printed to which I shall referre the Reader for fuller Satisfaction and by the expresse statutes of 1 E. 3. c.
Charter have confirmed FOR US AND OUR HEIRS FOR EVERMORE these liberties underwritten to have and to hold to them and their Heirs OF US AND OUR HEIRS FOR EVERMORE c. together with the whole tenour and title of this Charter and the two last Chapters of it All those customs and liberties aforesaid which we have granted to be holden within our Realme as much AS APPERTAINETH TO US AND OUR HEIRS WE SHALL OBSERVE And for this our gift and grant of those Liberties c our Subjects have given us the fifteenth part of all their moveables And We have granted to them on the other part that NEITHER WE NOR OUR HEIRS shall procure or doe any thing whereby the Liberties in this Charter contained shall be infringed or broken We confirme and make strong all the same FOR US AND OUR HEIRS PERPETUALLY not the Parliament All these I say infallibly demonstrate that this Statute of Magna Charta did never extend unto the Parliament to restraine its hands or power but onely to the King his Heirs Officers Courts of Justice and particular subjects So that the Parliaments imprisoning of Malignants imposing Taxes for the necessary defence of the Realm and seizing mens goods or imprisoning their persons for non-payment of it is no wayes within the words or intent of Magna Charta as Royallists and Malignants ignorantly clamour but the Kings his Officers Councellours and Cavallâ—ers proceedings of this nature are cleerly most direct violations of this Law And that which puts this past dispute are the severall Statutes of 25. Edward 3. cap. 4. Statute 5. 37. Edward 3. cap. 18. 38 Edward 3. cap. 9. 42. Edward 3. cap. 3. 17. Richard 2. cap. 6. and the Petition of right it self all which expresly resolve that this very objected Law of Magna Charta extends onely to the King himselfe his Privy Councell Iudges Iustices Officers and inferiour Courts of Iustice but not unto the supream Court of Parliament which no man for ought I finde ever yet held to be absolutely obliged by it before the Kings late recesse from Parliament The next Statute is that of 34. Edward 1. cap. 1. No tallage nor aid shall be taken or leavied BY US AND OUR HEIRS not the Parliament in our Realme without the good will and assent of the Archbishops Bishops Earls Barons Knights Burgesses and other free men of the Land which the Statute of 25. Edward 1. thus explains But by the common consent of the Realme The Statute of 14. Edward 3. cap. 21. and Statute 2. cap 1. thus If it be not by common consent of the Prelates Earles Barons and other great men and Commons of our said Realme of England AND THAT IN PARLIAMENT The Statute of 25. Edward the third cap. 8. thus If it be not BY COMMON CONSENT AND GRANT IN PARLIAMENT The Statute of 36. Edward the third cap. 11. thus That no Subsidie nor other charge be set nor granted upon the Woolls by the Merchants nor by NONE OTHER from henceforth WITHOUT THE ASSENT OF THE PARLIAMENT The Statute of 45. Edward 3. cap. 4. thus it is accorded and stablished That no imposition or charge shall be put upon Woolls Woollsels or Leather other then the custome and subsidie granted to the King WITHOUT THE ASSENT OF THE PARLIAMENT and if any be it shall be repealed and holden for none And the Petition of Right 3. Caroli thus By which Statutes and other good Statutes of this Realm your Subjects have inherited this freedom that they should not be compelled to contribute any Taxe Tallage Custome Aidâ— or other like charge not set BY COMMON CONSENT IN PARLIAMENT Now it is as evident as the noonday sunshine that these Acts onely extend to the King his Heirs Councell Officers inferiour Courts and private Subjects onely and that the Parliament is precisely excepted out of the very intent and letter of them all having free power to impose on the Subjects what Aids Taxes Tallages Customes and Subsidies the shall deem meet by the expresse provision of all these Laws concerning the granting and imposing of Subsidies Therefore by the direct resolution of these Acts the Kings his Councellors present contributions assessements and ransoms imposed on the Subjects are illegall against the letter and provision of all these Acts but the Parliaments and Houses lawfull approved and confirmed by them True will Royallists and Malignants answer who have no other evasion left but this If the King were present in Parliament and consenting to these contributions and taxes of the twentieth part there were no doubt of what you alleage but because the King is absent and not only disassents to but prohibits the payment of this or any Parliamentary Assessements by his Proclamations therefore they are illegall and against these Laws 1 To which I answer First that the King by his Oath duty the ancient custom and Law of the land ought of right to be alwayes present with his Parliament as he is now in point of Law and not to depart from it but in cases of urgent necessity with the Houses free consents and then must leave Commissoners or a Deputy to supply his absence This is not onely confessed but proved by a Booke lately printed at Oxford 1642. with the Kings approbation or permission intituled No Parliament without a King pag. 5. to 16. where by sundry presidents in all Kings Reignes it is manifested That Kings were and ought to be present in their Parliaments which I have formerly cleared If then the King contrary to these Presidents his Oath Duty the Laws and Customs of the Realme the practice of all his Progenitors the rules of nature which prohibit the head to separate it selfe from the body and will through the advice of malignant Councellours withdraw himselfe from his Parliament yea from such a Parliament as himselfe by a spceiall Act hath made in some sort perpetuall at the Houses pleasure and raise an Army of Papists Delinquents Malignants and such like against it and that purposely to dissolve it contrary to this very Law of his for its continuance why this illegall torâ—ious act of his paralleld in no age should nullifie the Parliament or any way invalid its Imposicions or Proceedings for their own the Kingdoms Peoples and Religions preservation all now indangered transcends any reasonable mans capacity to apprehend 2 The right and power of granting imposing assenting unto Assâ—ssements Taxes Suosiâ—iâ—s and such like publique charges in Parliament for the publique safety rests wholly in the Commons and Lords not King and is their owne free act alone depending no waies on the Kings assent nor necessarily requiring his personall presence in Parliament This is evident First by the expresse letter of the forecited Acts No Subsidy Tax Ayde Talleage or Custome shall be set granted taken or leavied but by common consent and grant of the Prelates Earles Barons Knights Burgesses and other free men of the Realme in Parliament or without the assent
Commons and the Lords and they the whole Realm and all the people of England so that what ever Tax is imposed and assented to by them or by both Houses onely without the King who represents no man but Himselfe alone is in point of Law imposed and assented to by all the Commons and whole Realm of England as the recitals in all our Statutes and Law-bookes resolve though the King assent not to it If therefore as our Law-books clearely resolve without dispute and the experience of all Corporations Parishes and Mannors evidenceth past contradiction all Ordinances and Bylaws made for the common good of Corporations Parishioners Tenants of a Mannor and the like by all or the greater part of the Corporations Parishioners Tenants and Taxes imposed by them for the Common good as repairing of Churches High-waies Bridges reliefe of the poore and the like shall binde the rest even in point of Law without the Kings assent Then by the same or better reason the imposiâ—ions and Taxes now laid upon the subjects by the assent and Ordinances of both Houses of Parliament representing the whole Commons and Realme of England who actually assent likewise to these Taxes and Assessements in and by them must and ought in point of Law to oblige all the Subjects in this case of necessity at least as long as the Parliament continues sitting and this their representation of them remains entire especially being for the necessary defence of the Parliament Kingdome Religion all our lives estates liberties lawes against an invading Army of Papists and Malignants in a case of extraordinary extremley This I shall further cleare by some ancient and late judgements in point Mâ—ch 14. Ed. 2. rot 60. in the Kings Bench William Heybâ—rne brought an Action of Trespasse against William Keylow for entering his house and breaking his chests and taking away 70 pounds in money the Defendant pleading Not guilty the Jury â—ound a speciall Verdict that the Scots having entred the Bishopricke of Durham with an Army and making great burning and spoyles thereupon the Commonalty of Durham whereof the Plantiffe was one met together at Durham and agreed to send some to compound with them for a certaine summe of money to depart the Country and were all sworne to performe what compositions should be made and to performe what Ordinance they should make in that behalfe and that thereupon they compounded with the Scots for 1600 Maâ—kes But because that was to be paid immediately they all consented that William Keylow the Defendant and others should goe into every mans house to search what ready money was there and to take it for the raising of that summe and that it should be suddenly repaid by the Communalty of Durham And that thereupon the Defendant did enter into the Plaintiffs house and broke open the chest and tooke the seventy pounds which was paid accordingly towards that composition And upon a Writ of Error in the Kings Bench it was adjudged for the Defendant against the Plaintiffe that the action did not lie because he himselfe had agreed to this Ordinance and was sworne to performe it and that the Defendant did nothing but what he assented to by Oath and therefore is accounted to doe nothing but by his consent as a servant to him and the Commonalty of Durham therefore he was no trespâ—sser Which case was agreed for good Law by all the Iudges in the late Case of Ship-money argued in the Exchequer Chamber though neither King nor Parliament consented to this Taxe or Composition This is the Parliaments present case in effect The King having raised an Army of Papists Delinquents Forraigners Irish Rebels disaffected Persons and actually invading the Kingdom and Parliament with it Hereupon the Parliament were inforced to raise an Army to defend themselves and the Realm against these Invasions For maintenance where of they at first made use onely of voluntary contributions and supplies proceeding onely from the liberality of some private persons best affected to the publike service Which being xehausted the Lords and Commons considering what a solemne Covenant and Protestation themselves had made and taken and the Subjects likewise throwout the Realm to maintain and defend as farre as lawfully they might WITH THEIR LIVES POWER AND ESTATES The true Reformed Proteâ—tant Râ—ligion c. As also THE POWER AND PRIVILEDGES OF PARLIAMENT THE LAWFULL RIGHTS AND LIBERTIES OF THE SUBJECT And every person that maketh this Protestation in whatsoever he shall do in the lawfull pursuance of the sam c. as in the Protestation made by both Houses consents when fullest And considering that the whole Commons and Kingdoms assents were legally and actually included in what they assented in Parliament for the necessary defence of the Realm the Subjects Parliaments Priviledges Rights and the Reformed Religion all actually invaded endangered by an Ordinance of both Houses without the Kings consent then absent from and in open hostilitie against them impose a generall Assessement upon all the Subjects NOT EXCEEDING THE TWENTIETH PART OF THEIR ESTATES And for non-payment prescribe a distresse c. Why this Assessement in this case of necessitie being thus made by assent of both Houses and so of all the Kingdom in them in pursuance of this Protestation should not as legally yea more justly oblige every particular subject though the King assented not thereto as well as that agreement of the men of Durham did oblige them even in point of Law Justice Conscience transcends my capacitie to apprehend and if the first Case be Law as all the Judges then and of late affirmed the latter questionlesse must be much more Legall and without exceptions M. 32. and 33. Eliz. in the Kings Bench in the Chamberlain of Londons case it was adjudged That an Ordinance made by the Common Councell of London only that all Clothes should be brought to Blackwell-hall to be there veiwed searched and measured before they were sold and that a penny should be paid for every Cloth for the Officer that did the same and that six shillings eight pence should be forfeited for every Cloth not brought thither and searched was good to binde all within the Citie and that an Action of Debt would lye at the Common Law both for the duty and forfeiture because it was for the publike benefit of the City and Common-Wealth M. 38. Eliz. in the Common-Pleas it was adjudged in Clerks Case That an Ordinance made by assent of the Burgesses of Saint Albanes whereof the Plaintiffe was one for assâ—ssing of a certain summe of Money upon every Inhabitant for the erecting of Courts there the Terme being then adjourned thither from London by reason of the Plague with a penalty to be levyed by distresse for non-payment of this Tax was good to bindâ— all the Inhabitants there because it was for the publike good Mich. 31. and 32. Eliz. in the Kings Bench Williamâ— Iefferies Case and Pasch. 41. Eliz. Pagets Case it was
resolved That the Church-Wardens with the greater part of the Parishioners assents may lay a Taxe upon all the Parishioners according to the quantitie of their Lands and Estates or the number of Acres of Land they hold the Taxe there was four pence an Acre for Marsh-Land and two pence for Earable for the necessary reparation of the Church and that this shall binde all the Inhabitants so as they may be Libelled against in the Spirituall Court for non-payment thereof and no prohibition lieth The like hath been resolved in sundry other Cases And by the Common-Law of England whereby the breach of Sea-Walls the Country is or may be surrounded every one who hath Lands within the levell or danger which may have benefit or losse by the inundation may and shall be enforced to contribute towards the repair and making up of the Sea-walls and a reasonable Tax assessed by a Iury or the Major-part shall binde all the rest because it is both for their own private and the common good If the Law be thus unquestionably adjudged in all these Cases without the Kings assent then much more must this Assessement imposed by both Houses be obligatory in point of Law and Justice though the King consented not thereto since the Houses and whole Kingdom consented to it for their own defence and preservation Sixthly This is a dutie inseparably incident by the Fundamentall Law and originall compact of every Kingdom Citie Corporation Company or Fraternitie of men in the World that every Member of them should contribute proportionably upon all occasions especially in Cases of imminent danger toward the necessary charges defence and preservation of that Kingdom Citie Corporation Company or Fraternitie of which he is a Member without which contribution they could be neither a Kingdom Citie Corporation Company Fraternitie or have any continuance or subsistence at all Which Contributions are assessed by Parliaments in Kingdoms by the Aldermen or Common-Councell in Cities by the Master and Assistants in Fraternities and what the Major part concludes still bindes the Residue and the dissent of some though the Major or Master of the Company be one shall be no obstacle to the rest This all our Acts concerning Subsidies Aydes Tonnage and Poundage the daily practice and constant experience of every Kingdom Citie Corporation Company Fraternitie in the World manifests past all contradictions which being an indubitable veritie I think no reasonable man can produce the least shadow of Law or Reason why the Parliament representing the whole Body of the Kingdom and being the supream Power Counsell in the Realm bound both in Dutie and Conscience to provide for its securitie may not in this Case of extremitie legally impose this necessary Tax for their own the Kingdoms Subjects Laws Religions preservations of which they are the proper Judges Gardians and should not rather be credited herein then a private Cabinet Court-Counsell of persons disaffected to the Republike who impose now farre greater Taxes on the Subjects and plunder spoyl destroy them every where directly against the Law of purpose to ruine both Parliament Kingdom Religion Laws Liberties and Posteritie Seventhly It is confessed by all That if the King be an Infunt Non-Compos absent in Forraign remote parts or detained prisoner by an Enemy that the Kingdom or Parliament in all such Cases may without the Kings actuall personall assent create a Protector or Regent of their own Election and not onely make Laws but grant Subsidies impose Taxes and raise Forces for the Kingdoms necessary defence as sundry domestick and forraign Presidents in the preceding Parts and Appendix evidence And Hugo Grotius Iunius Brutus with other Lawyers acknowledge as a thing beyond all dispute Nay if the King be of full age and within the Realm if a forraign enemy come to invade it and the King neglect or refuse to set out a Navy or raise any Forces to resist them The Lords and Commons in such a Case of extremitie may and are bound in Law and Conscience so to do for their own and the Kingdoms preservation not onely in and by Parliament but without any Parliament at all if it cannot be conveniently summoned lawfully raise forces by Sea and Land to encounter the Enemies and impose Taxes and Contributions to this purpose on all the Subjects by common consent with clauses of distresse and imprisonment in case of refusall as I have elsewhere proved And if in Case of invasion even by the Common-Law of the Realm any Captains or Souldiers may lawfully enter into another mans ground and there encamp muster or build Forts to resist the Enemy or pull down the Suburbs of a Citie to preserve the Citie it self when in danger to be fired or assaulted by an Enemy without the speciall consent of King Parliament or the Owners of the Lands or Houses without Trespasse or offence because it is for the publike safetie as our Law Books resolve Then much more may both Houses of Parliament when the King hath through the advice of ill Councellors wilfully deserted them refused to return to them and raised an Army of Papists and Malignants against them and the Realm now miserably sacked and wasted by them as bad as by any forraign Enemies both take up Arms raise an Army and impose Assessements and Contributions by Ordinances unanimously voted by them against which no Lover of his Country or Religion no nor yet the greatest Royallist or Malignant can with the least shadow of Law or Reason justly except Eightly If they shall now demand what Presidents there are for this I Answer First That the Parliament being the Soveraign Power and Counsell in the Realm is not tyed to any Presidents but hath power to make new Presidents as well as new Laws in new Cases and mischiefs where there are no old Presidents or vary from them though there be ancient ones if better and fitter Presidents may be made as every Court of Justice likewise hath Power to give new Judgements and make new Presidents in new Cases and may sometimes swerve from old Presidents where there were no ancient Presidents to guide them even as Physitians invent new Medicines Chyrurgions new Emplaisters for new Diseases Ulcers or where old Medicines and Balsomes are inconvenient or not so proper as new ones And as men and women daily invent and use new Fashions at their pleasure Tradesmen new Manifactures without licence of King or a Parliament because they deem them better or more comely then the old Secondly I might demand of them by what old domestick lawfull Presidents His Majestis departure from the Parliament His Levying Warre against it His proclaiming many Members of it Traytors and now all of them Traytors and no Parliament His unvoting of their Votes in Parliament out of Parliament His imposing of Taxes and Contributions in all Countries where His Forces are beyond mens estates and annuall revenues His burning sacking pillaging murdering ruining of His own
Authorities I shall onely subjoyne these 5. undeniable arguments to justifie Subjects necessary defensive wars to be lawful in point of conscience against the persons and Forces of their injuriously invading Soveraignes First it is granted by all as a truth irrefragable that kings by Force of Armes may justly with safe conscience resist repulse suppresse the unlawfull warlike invasive assaults the Rebellious armed Insurrections of their Subjects upon these two grounds because they are unlawfull by the Edicts of God and man and because kings in such cases have no other meanes left to preserve their Royall persons and just authoritie against offensive armed Rebellions but offensive armes Therefore Subjects by the selfe-same grounds may justly with safe consciences resist repulse suppresse the unjust assayling military Forces of their kings in the case fore-stated though the king himselfe be personally present and assistant because such a war is unlawfull by the resolution of God and men and against the oath the duty of kings and because the subjects in such cases have no other meanes left to preserve their persons lives liberties estates religion established government from certaine ruin but defensive Armes There is the selfe same reason in both cases being relatives therefore the selfesame Law and Conscience in both Secondly It must be admitted without debate that this office of highest and greatest trust hath a condition in Law annexed to it by Littletons owne resolution to wit that the King shall well and truely preserve the Realme and do that which to such Office belongeth which condition our king by an expresse oath to all his people solemnely taken at their Coronation with other Articles expressed in their oath formerly recited is really bound both in Law and Conscience exactly to perâ—orme being admitted and elected king by the peoples suffrages upon solemne promise to observe the same condition to the uttermost of his power as I have elsewhere cleared Now it is a cleare case resolved by Marius Salamonius confirmed at large by Rebussus by 12. unanswerable reasons the Authorities of sundry Civill Lawyers and Canonists quoted by him agreed by Alberiâ—us Gentilis and Hugo Grotius who both largely dispute it That Kings as well as Subjects are really bound to performe their Covenants Contracts Conditions especially those they make to all their Subjects and ratifie with an Oath since God himselfe who is most absolute is yet most fiâ—mely oblieged by his Oâ—thes and Covenants made to his despicable vile â—reatures sinâ—ull men and never violates them in the leaâ—â— degree If then these conditions and Oathes be firme and obligatory to our kings if they will obstinately breake them by violating their Subjects Lawes Liberties Properties and making actuall warre upon them the condition and Oath too would be meerely voyde ridiculous absur'd an high tâ—king of the Name of God in vaine yea a plaine delusion of the people if the whole State or people in their owne defence might not justly take up Armes to resist their kings and their malignant Forces in these perâ—idious violations of trust conditions oaths and force them to make good their oaths and covenants when no other meanes will induce them to it Even as the Subjects oath of homage and allegiance would be meerely frivilous if kings had no meanes nor coercive power to cause them to observe these oathes when they are apparently broken and many whole kingdomes had been much overseene in point of Policie or prudence in prescribing such conditions and oaths unto their kings had they reserved no lawfull power at all which they might lawfully exercise in point of conscience to see them really performed and duely redressed when notoriously transgressed through wilfulnesse negligence or ill pernicious advice Thirdly when any common or publick trust is committed to three or more though of subordinate and different quality if the trust be either violated or betrayed the inferiour trustees may and ought in point of Conscience to resist the other For instance if the custody of a City or Caâ—tle be committed to a Captaine Leiutenant and common Souldiers or of a ship to the Master Captaine and ordinary Mariners If the Captaine or Master will betray the City Castle or ship to the enemie or Pirates or dismantle the City wals and fortifications to expose it unto danger or will wilfully run the ship against a rocke to split wrecke it and indanger all their lives freedomes contrary to the trust reposed in them or fire or blow up the City Fort ship not onely the Leiutenant Masters Mate and other inferiour Officers though subject to their commands but even the Common Souldiers and Marriners may withstand and forcibly resist them and are bound in Conscience so to doe because else they should betray their trust and destroy the City Fort ship and themselves too which they are bound by duty and compact to preserve This case of Law and conscience is so cleare so common in daily experience that no man doubts it The care and safety of our Realme by the originall politicke constitution of it alwayes hath beene and now is committed joyntly to the king the Lords and Commons in Parliament by the unanimous consent of the whole kingdome The king the supreame member of it contrary to the trust and duty reposed in him through the advise of evill Councellors wilfully betrayes the trust and safety of this great City and ship of the Republicke invades the inferiour Commanders Souldiours Citizens with an Army assaults wounds flayes spoyles plunders sackes imprisons his fellow trustees Souldiers Marriners Citizens undermines the walls fires the City ship delivers it up to theeves Pyrates murtherers as a common prey and wilfully runnes this ship upon a rocke of ruin If the Lords and Commons joyntly intrusted with him should not in this case by force of Armes resist him and his unnaturall instruments there being no other meanes else of safety left them they should sinfully and wilfully betray their trust and be so farre from keeping a good Christian Conscience in not resisting by force that they should highly sinne against Conscience against their trust and duty against their naturall Country yea and their very Allegiance to the king himselfe by encouraging him in and consenting unto these proceedings which would make him not to be a king but Tyrant and destroy him as a king in the spoyle and ruine of his Kingdome thereby endangered to be consumed and tempt God himself as Pope Nicholas and Gratian resolve in these words If there be no necessity we ought at all times to abstaine from warres but if inevitable necessity urge us we ought not to abstaine from warres and warlike preparations for the defence of our selves of our Country and paternall Lawes no not in Lent least man should seeme to tempt God if when he hath meanes he provide not for his owne and others safety and prevents not the Detriments of holy religion Fourthly those injuries which
from the ancient forme of the Oath which is extant in the Library of the Chapter of Belvace to which Philip the first is found to have sworn yet notwithstanding they are plainly enough expressed Neither is the King girt with a sword annointed crowned by the Peeres who even themselves are adorned with Coronets or receives the Scepter or rod of Iustice or is proclaimed King before THE PEOPLE HAVE COMMANDED IT Neither doe the Peeres themselves swear fealty and homage to him untill he shall have given his faith unto them That he will exactly keep the Lawes Now those are that hee shall not waste the publike Patrimony that he shall not impose nor enjoyn customes Taxes Tributes at his owne pleasure Nor deneunce warre or make peace Finally that he shall determine nothing concerning the publike affaires but in a publike Councell Also that the Senate the Parliaments the Officers of the Kingdome shall constantly enjoy their severall authorities and other things which have been alwayes observed in the Realm of France Yea verily when he enters into any Province or City hee is bound to confirm their priviledges and he binds himselfe by Oath to preserve their Lawes and Customes Which custome takes place by name among those of Tholouse Dolphenie Britanny Province and Rochel whose agreements with Kings are most expresse all which should be frustrate unlesse they should be thought to hold the place of a condition in the contract Yea Charles the 7. made a peace with Philip Duke of Burgundy whose Father Iohn he had â—reacherously slain with this expresse clause contained in it confirmed with the Kings own Seale That if he should break this Agreement his Tenants feudataries and subjects present and to come should not be thence forth bound either to obey or serve him but rather the Duke of Burgundy and his Successours and that they should be freed and absolved from all the fealty Oathes promises obligations and duties whatsoever under which they were formerly obliged by Charles The like we read between King Lewis and Charles the Bald. Yea Pope Iohn the 22. in the Treaty between Philip the long of France and the Flâ—mmings caused it to be set downe That if the King did infringe the Treaty it might be lawfull for his Subjects to take Armes against him And if was usuall among the first Kings of France in their Treatises with other Princes to sweare that if they brake the Treaties made by them their Subjects shall be free from their obedience as in the Treaty of Arras and others The Oath of the ancient kings of Burgundy is extant in these words I will conserve Law justice and protection to all men In England Scotland Sweden Donmarke there is almost the same custome as in France and verily no where more directly then in Spain For in the Kingdome of Arragon many ceremonies being dispatched between him who represents the justice of Arragon or publike Majesty who sits in an higher Throne and having read the Lawes and conditions which he is to observe who is to be crowned King Who both fealty and homage to him the Nobles at last speake thus to the King in their owne language We who are as powerfull as you for so the Spanish Idiom imports and can doe more then you have chosen you King upon these and these conditions Between you and us there reignes one greater then you to wit the Iustice of Arragon Now lest he should think he had sworn those things onely perfunctorily or onely for to observe the old custome these very words are wont to be repeated every third yeere in the publike Assembly But if he shall grow insolent trusting to his Royall power shall violate the publike Lawes finally shall neglect the Oath he hath taken then verily by the Law it selfe he is deemed excommunicated with that grandest excommunication or Anathema wherewith the Church in former times excommunicated Iulian the Apostate whose force truly is such that no more prayers may be conceined for him but against him and they themselves are clearly absolved from their Oath and Obligation by that Law whereby a vassall out of duty ought not to obey an excommunicated Lord neither is bound to do it by his Oath which is ratified among them by the Decree both of a Councell and of a Parliament or publike Assembly Likewise in the kingdome of Castile an Assembly being summoned the King that is to be crowned is first publikely admonished of his duty after which most expresse conditions are read which pertaine to the profit of the Republike Then the King sweares that he will diligently and faithfully observe them then at last the great Master of the Knights binds himselfe to him by Oath whom the other Princes and Deputies of Cities afterwards follow every one in his order which also is in like manner observed in Portugall Leon and the other kingdomes of Spain Neither verily were lesser principalities instituted by any other Law There are extant most expresse agreements of the Brabanders of the other people of Belgia Austria Carintha and other provinces made with their princes which verily have the place of conditions But the Brabanders expresly that place might not be left to any ambiguity have expressed this condition For in inaugurating their Duke in ancient conventions wherein there is almost nothing wanting for the preservation of the Republike they being all read over before the Duke they protest openly and plainly to him that unlesse he shall observe them all That it shall be free for them to chuse another Duke at their pleasure Which conditions he embracing and willingly acknowledging he then binds himselfe by Oath to observe them which was also observed in the inauguration of Philip the last King of Spaine In sum no man can deny but that there is a mutuall binding contract between the King and subjects to wit That he raigning well shall be well obeyed Which verily is wont to be confirmed with an Oath by the King first afterwards by the people Now verily I demand here why any man should sweare but that he may shew that he speaks from his heart and seriously whether truly is there any thing more agreeable to nature then that those things which have pleased us should be observed Moreover why doth the King swear first at the peoples stipulation or request but that he may receive either a tacit or expresse condition But why is a condition annexed to a contract but onely to this end that if it bee not fulfilled the contract should become voide in Law it selfe But if through default of performing the condition the contract be voide in Law it selfe who may call the people perjured who shall deny obedience to a King neglecting that condition which hee might and ought to fulfil violating that law to which he hath sworn Yea who on the contrary would not account the King faedifragous perjurious altogether unworthy of that benefit For if the Law freeth the Vassal from the bond of
against the tyranny of the Prince if they be able c. Thus and much more this Lawyer almost verbatim out of Iunius Brutus I might add to him the like determinations of Henricus Bocerus De jure pugnae hoc est Belli Duelli Tractatus Methodicus Tubingae 1591. lib. 1. cap. 5. c 29. p. 141 Justus Eccardus De Lege Regia the last Edition Alhuseius Polit. c. 4. p. 146. to 153. Haenon Disputat polit The Treatise De Iure Magistratus in Subditos where this Position is largely and learnedly debated confirmed both from Law History Theology Reason Hugo Grotius de Iure Belli pacis lib. 1. c. 4. sect 7. to the end p. 87. c. Albericus Gentilis de Iure Belli l. 1. c. 11. p. 84. c. 25. p. 205. l. 3. c. 9. 22. p. 546. 686. with others But since Iunius Brutus compriseth the quintessence of all the rest I shall trouble you onely with his Discourse Vindiciae Contr. Tyrannos Quaest. 3. p. 177. to 106. To passe by his Discourse concerning the resisting of Tyrants who usurp a Dominion without any Title whom every man may justly resist and suppresse and are bound in duty so to doe as he there proves at large I shall only transcribe what concernes them who have a lawfull Title First saith he we ought to consider that all Princes are born men We cannot therefore expect to have only perfect Princes but rather we ought to thinke it well with us if we have gained but indifferent ones Therefore the Prince shall not presently be a Tyrant if he keep not measure in some things if now and then he obey not reason if hee more slowly seek the publike good if he be lesse diligent in administring Iustice or lesse fierce in propulsing warre For seeing a man is not set over men as if he were some God as he is over beasts but as he is a man born in the same condition with them as that Prince shall be proud who will abuse men like Beasts so that people shall be unjust who shall seek a God in a Prince and a Divinity in this frail Nature But truly if he shall willingly subvert the Republike if he shall wilfully perveâ—t the Lawes if he shall have no care of his faith none of his promises none of Iustice none of piety if himselfe become an enemy of his people or shall use all or the chiefest notes we have mentioned then verily he may be iudged a Tyrant that is an enemy of God and men Therefore we treat not of a Prince lesse good but of the worst not of one lesse prudent but of a malicious and subtile one not of one unskilfull in Law but of a contemner of Law not of an unwarlike one but of an enemy of the people and waster of the Realme A Senate may assist him with prudence a Iudge with the knowledge of the Law a Captain in the skilfulnesse of warre but this man wisheth the Nobles Senators Captains of Warre one neck that he might cut them off at one stroake neither hates he any more then them The first verily though he may lawfully be removed yet however he may be tolerated the latter contrarily by how much the longer he is tollerated the more intollerable he becomes Moreover as euery thing is not lawfull to a Prince so often times that which is lawfull to the people is not expedient For frequently it may fall out that the remedy which is used may be worse than the disease Therefore it becomes a wise man to try all things before he use the hot Iron and use all remedies before he take up armeâ— If therefore those who represent the people perceive any thing to be done against the Republike by force or fraud let them first admonish the Prince neither may they expect till the mischiefe grow heavie and acquire forces Tyranny is like an heptick Feaver which at first is easie to be cured difficult to be discerned afterward it becomes easie to be known but very difficult to be cured Therfore they shall withstand the beginnings neither should they pretermit any thing though the smallest But if he shall proceed and not repent though frequently admonished but tend onely to this that he may commit any thing without punishment then verily he is really guilty of Tyranny and they may act against him whatsoever they may use against a Tyrant either by Law or just force Tyranny is not onely a crime but the head and as it were the heap of all crimes A Tyrant subverts the Republike makes a prey of all lyeth in wait for the life of all violates faith to all contemnes all the Religion of a sacred Oath Therefore is he so much more wicked then any Theefe murtherer sacrilegious person by how much it is the more grievous to offend many and all then particular persons Now if all these be reputed enemies if they be capitally punished if they suffer paines of death can any one invent a punishment worthy so horrid a crime Moreover wee have proved that all Kings receive their Royall Dignity from the people that all the people are better and higher then the King that the King is onely the superiour minister and Ruler of the kingdome the Emperour of the Empire but the people are the true head Therfore it follows that a Tyrant who commits felony against the people as the Lord of the fee hurts the sacred Majesty of the Realm and Empire Becoms a Rebel and therfore falls into the danger of the same Lawes and demerits more grievous punishments Therfore saith Bartolus he may be deposed by a Superiour or be most justly punished by the Julian Law for publike violence Now all the people or those who represent them as Electors Palatines Nobles the Assembly of the Estates c. are his Superiour But and if he shall proceed so farre that he cannot be expelled but by armed violence then verily it shall be lawfull for them to call the people to Armes to raise an Army and to practise force policy stratagems as against an adjudged enemy of his Country and of the Common-weale Neither shall the Officers of the Realm in this case fall into the crime OF SEDITION For in a sedition there must needs be two points which when for the most part they contend about contradictories it followes that the cause of one is just the other unjust That cause must verily be just which defends the Lawâ— which protects the common good which shall preserve the Realme especially by this meanes contrarily that cause is uniust which violates the Laws defends the breakers of the Lawes protects the subverters of the Countrey That is iust which will destroy tyrannicall government that uniust which would abolish iust government That lawfull which tends to the publike good that unlawfull which tends to the private Therefore saith Thomas because a tyrannicall kingdome which is not ordained to the common good but principally for the benefit of the
to slay a brother than any other person A wickednesse more horrid than that of the Tyrants themselves by how much it is worse to slay a good just pious innocent man than a Theefe imposter â—orcerer Hereticke more flagitious to assault God than any man and finally by how much perfidiousnesse in an equall fact exceeds ignorance But whether shall it be lawfull to determine the same of those who give no assistance to those who are oppressed with Tyranny or defend the Republicke against Tyranny since a reason cannot be given of so sâ—raite an alliance of so strict a Covenant when as I say we doe not here discourse of the Church which is but one of all men which being one and universall is committed to every one But of the Republicke which may be different from that of others and being different is committed severally to others A Neighbour saith Christ is not a Jew to a Jew onely but to a Samaritan and to any man Now we ought to love our Neighbours as our selves Therefore a Jew if he would discharge his duty is bound to deliver from a theefe if he be able not a Jew onely but likewise every stranger yea likewise one unknowne Neither will any one dispute whether it be just to defend himselfe seeing verily it is more just to defend another than himselfe in this respect wherein things are more just which meere charity doth than those which either anger or revenge or other perturbation of the minde doe and no man holds a meane in revenging his owne injuries but in other mens although more grievous even the most immoderate may hold a meane But we may learne from the heathens themselves what humane society and what the common nature of all men require of us in this thing For Cicero saith there is one nature of all men that even nature it selfe prescribes this that a man ought to take care of a man who ever he be even for this very cause that he is a man If otherwise all humane consociation must necessarily be dissolved Therefore as there are two foundations of justice first that no hurt be done to any next that the profit of all if it may be done be advanced So also there are two kinds of injustice one of those who offer injury the other of those who propulse not wrong from those to whom it is offered if they be able For he who doth unjustly against any one incited either by anger or other perturbation he seemes as it were to offer violent hands to his companion but he who doth not defend or resist an injury if he can is as much in fault as if he deserted either his Parents or Friends or Country So that what the one doth anger is judged to doe which is reputed a short fury what the other an evill minde truely which is a perpetuall tyranny And however his fury may be excused the others destinated counsell can by no meanes be excused Thou wilt say I feare that while I repulse an injury from him I should doe an injury to the other Yea verily thou wilt cover thine injustice with a pretext of Justice Whereas if thou consultest with thy selfe not justice moves thee to desert thy duty but rather some other cause For as he saith in another place either thou wilt not undertake enmities or labour or cost or else thou art so hindered with negligence sloathfulnesse idlenesse or with thy studies or certaine imployments that thou sufferest those to be deserted whom thou oughtest to protect But while thou sayest thou dost thine owne businesse lest thou mightest seeme to doe wrong to any thou runnest into another kinde of injustice For thou desertest the society of life because thou bestowest on it nothing of thy study nothing of thy paines nothing of thy goods These things Ethnickes Philosophers and Politicians hold truely more piously than many Christians in this age Hence a neighbour is bound by the Lawes of the Romans to take away a servant from a cruell Master But among the Aegyptians he who had casually found a man to be beaten by Theeves or to suffer any injury and had not rescued him if he could was guilty of death if not hee was bound to accuse the Theeves before the Magistrate Which if he had neglected he was beaten with a certaine number of stripes and punished with a three dayes fast Now if this verily be lawfull in one neighbour towards another yea lyeth upon him out of duty to assist every one he meets against a Theefe shall it not be much more lawfull to a good Prince not onely to ayde and patronize servants against a raging Master or children against a furious Father but a Kingdome against a Tyrant a Republike against the private lust of one man a people a Lord I say against a publike servant and agent Yea verily if he shall neglect it shall not he merit the name and punishments of a Tyrant as the other of a theefe Hence Thucydides saith Not onely those are tyrants who reduce others into servitude but much rather those who when they may repulse that violence take no care to doe it but especially those who will be called the defenders of Greece and the Common Country but yet helpe not their oppressed Country and rightly for a Tyrant is in a sort compelled to retaine violently the Tyranny which he hath violently invaded because as Tyberius said he seemeth to hold a Wolfe by the eares which he cannot retaine without force nor yet let goe without danger Therefore that he may extinguish one crime with another hee commits many wickednesses and is compelled to injure others lest he should be injurious to himselfe But that Prince who idlely beholds the wickednesses of a tyrant and the ruine of the blood of innocents which he may hinder because he doth as it were take pleasure in the gladiatory sport is by so much more criminous than the Tyrant as he who sets sword-players to fight is guiltier than the man-slaying Gladiator as much as hee who slayes a man for pleasure sake is more criminous than he who doth it by constraint or out of feare or necessity If some oppose But it is a fault for any to intermeddle with or thrust himselfe into anothers businesse Terentian Chremes may answer I am a man I thinke no humane thing strange unto me If others that they may seeke lurking holes for their impiety object that there are distinct limits distinct jurisdictions now it is not lawfull to thrust a sickle into anothers Corne Neither truely do I advise that by this pretence thou shouldest invade anothers territories usurpe anothers jurisdiction to thy selfe draw thy neighbours corne into thine owne floore which most doe under this pretext I doe not say that by the example of that arbitrator of whom Cicero thou thy selfe shouldest judge the thing controverted to thy selfe but rather that thou shouldest restraine a Prince invading the Kingdome of Christ containe a tyrant within his limits
reasons for it as satisfied both Howses witnes their answers to infinite Petitions yet extant among the Parliament records Therefore the King now is as much obliged thereto as they Seventhly If the King in point of law should have an absolute negative voice in denying his assent to publike Bills of meere right and justice then he should have power by law to deny justice and right and to doe wrong and iniustice to his people a prerogative which neither God himselfe nor any lawfull Monarch ever yet chalenged but renounced with greatest detestation I read in Plutarch that when a flatterer said to king Antigonus that all things were honest and iust to Kings he answered only indeed to Kings of Barbarians but to us honest things are to be accounted for honest only just things for just And that Acrotatus gave the like answer to his parents when they pressed him to do an uniust thing Quoâ—iam vult is me optima agâ—re optimuÌ„ auteâ—â— est cum privato tum multo etiaÌ„ magis Principiid quod est justum agam quâ—â—ultis quae viro dicitis detrectabo Yea our law expresly denies the king any such uniust prerogative by these unquestionable maximes the King neither can nor ought by law to do any wrong seeing he is Gods Vicar and the fountaine of Iustice. Et hocsolum Rex NON POTEST FACERE quod NON POTEST INIVSTE AGERE which our law-books make no defect of power but one of the highest branches of the Kings Prerogative for confirmation whereof I shal only cite one notable Record 7. H. 4. Rot. Parl. Num. 59. The Commons complained that by the favour of Ordinaries divers incumbents were outed of their benefices by superinstitutions upon presentations of the King contrary to the statute in that case provided and were denied a Scire faciâ—s without a speciall licence or command of the King first obtained to the great offence of God and against reason and law BECAVSE SVCH AN ACT CANNOT BE ANY PREROGATIVE AT AL IN OVR LORD THE KING WHICH IS DEROGATIVE TO THE EXECVTION OF RIGHT AND IVSTICE Wherefore they petitioned the King that he would be pleased to grant and command the Chancellor to deliver a writ of Scire facias to every of his Leiges who are outed of their benefices or possessions by the foresaid title of the King and that thenceforth the Chancellors shall be bound to deliver by authority of their Offices this Writ of Scire facias at the sute of the parties and further to doe right to the parties without suing to the King and without other warrant from him To which the King gives this answer The King wills that the said statute bee firmly held and kepe and farther willeth and granteth that if hee presents to any benefice which shall bee full of any Incumbext that the Presentee of the King shall not bee received by the Ordinary to such a benefice untill the King hath recovered his presentment by processe of Law in his owne Court and if any Presentee of the King bee otherwise received and the Incumbent outed without due Processe as aforesaid the said Incumbent may commence his sute within one yeare after the Induction of the Kings Presentee or later And further the King wills that no ratification granted for the Incumbent after that the King hath presented and taken his sute shall bee allowed pending the plea nor after the judgement given for the King but that such judgement shall bee fully executed as reason demands Lâ—e here the Commons and Parliament affirme and the King himselfe subscribes thereto That the King neither hath nor yet can have any Prerogative at all which is derogative or any impediment at all in the execution of Right and Justice and disclaime a negative voyce or power in him in granting a scire facias to particular Incumbents unduly outed of their Living by a pretended prerogative power against Reason and Law Therefore à fortiori the King by his prerogative neither hath nor can have any absolute Negative voice at all to hinder the passing of publike Bills presented to him by both Houses for the due execution of right and iustice and the weale peace or safety of the whole Kingdome That speech of King Zedâ—kiaâ— to his Princes though in a bad case is an undoubted verity here Behold he is in your hands FOR THE KING IS NOT HE THAT CAN DOE ANY THING AGAINST YOU and likewise of King David to his people 2 Sam. 18. 3. 4. WHAT SEEMETH TO YOU BEST I WILL DO In one word as it is no impotency in God but a part of his owne divine prerogative that he cannot possibly ly that he cannot deny himself that he is immutable and changeth not that he cannot do injustice And as it was the Apostles highest priviledge 2 â—or 13. 8. We can do nothing against the truth but for the truth So it is no note of impotency but of highest Soveraignty in our Kings that in all Bills of publike Right and Common Iustice they have no Negative voice or power at all to withstand or deny their passing for then they should have a prerogative to deny common Right and Iustice and so to doe publike injustice which God himselfe whose vicegerents they are is uncapable of and never derived to them I will close this reason with that memorable speech of that great heathen Emperour Iulius Caesar which he somtimes used at Rome in the Councell-house Touching all other affaires that are to be taken in hand for your sake I am both your Consul and your Dictator but as touching any wrong to be done to any man I am as a private man without office Eighthly Our Kings have ever claimed this as an absolute duty from their subjects in Parliament to grant them such speedy free and competent ayds subsidies customes for the necessary defence of themselves and the Kingdome and support of their royall estates as the urgency of their publike warres and affaires required and the subjects though they have sometimes denied subsidies to their Princes upon reasonable causes and excuses alleadged by them expressed in our Historians yet have always held it their BOUNDEN DUTY to grant such ayds in Parliament when and sometimes before they have been required and have really done it without refusall when they saw just cause to grant them as all the old and new Acts for the grant of Customes Subsidies Dismes Quindismes Tonnage and Poundage Polemoney with other such aides in all our Kings-Reignes abundantly evidence Therefore the King who is as much obliged by oath and duty to aid his subjects and provide for their common protection weale peace ease as they are to provide for His and the Kingdomes safety is by like reason as much obliged in duty not to deny them such publike Acts as they are not to deny him such publike aides Ninthly Kingdomes and Commonweales were existent before Kings for there must be
for me that this cause of honesty alone perchâ—â—ce hath never mâ—ved any man to that honest defence Guicciardines mouth sayd truely no Prince will make warre for Peâ—ant unlesse perswaded wâ—â—h desire of his owne gaine yet that is ignominous to Princes and saâ—ours not of justice but I had rather concurre with Leo the Philosopher We know very few to keepe true love for its sake alone to be stirred up to succour those that are intangled in misery but on the contrary side that the number is very great of those that for hope of getting any thing come to helpe the unworthy which is a more mild saying and I thinke more true But I seeke another thing it is compleate justice which defends the weake so Ambrose and the Canon Law and I seeke for that Iustice. The Romans also joynâ—d this cause with others by which they were moved often times to make warre the defence of the Lucans saith Dionysius was the manifest cause of the Samnitic all warre which might have a shew of honesty as common and a Nationall custome of the Romans to ayde those that fled unto them but the secret cause which did more urge was the power of the Samnites was great and greater would it have beene if the Lucans had beene subdued so the reason of profit lyes hid and therefore seemes not so good as it is honest and yet we call profitable also good and just and the one is made just by the other therefore what if they be deare unto us whom we should defend Vlpianus saith that for love and friendship for no other reason defence ought not to be omitted The defence of those that ought to be deare unto us is from nature witnesse M. Tullius What if our allies and confederates He that keepes not of an injurie from his fellow when he can is as well in fault as he that doth it Amâ—rose and even we our selves are hurt when our fellowes are hurt as in Livie Iohn Bodin judgeth amisse that an ally and a confederate is not bound to helpe his fellow if there be no caution of helpe in the league and the contrary is now shewed by us and also shall be shewed in the third booke What if they be of the same stocke and blood Agesilaus made warre against the Persians that he might bring the Greekes of Asia into liberty And the pettie Kings of Germanie by an old custome of the Nation thinke it an haynous offence not to be assistant to those that implore mutuall helpe although there is there besides a certaine body of a Common-wealth as it is reported long since that there was of the Achai What if of the same Religion Nations are joyned together by the tye of Religion more than either by the communion of another law or contract of a league and therefore if we implore nature by communion the law of Nations by covenant the Common-wealth by lawes by common Religion the most powerfull thing of all we implore the bowels of men and of the holy One who is the head of that communion So there was warre with the Persians because their fugitives were not delivered them and they were not delivered by the Romans who would not dispise the humble professors with them of the same religion who fled from the Persian cruelty Thus Iustinus answered the Persian that he could not but receive those of the Christian Religion falling away to him from the Persian who compelled them to forsake Christian Religion And our writers doe thus resolve that warre may be made if any converted to Christian Religion should be oppressed by their Lords and that for the right of society contracted from conversion What if neighbours for what had I not very many very just tyes of familiarity of neighbourhood of country of friendship to defend Plancus saith Cicero And here is our case q We are in danger if our neighbours house be on fire for if fire have fiercely taken hold of some houses they will hardly be defended but that the next houses will be burnt which was elsewhere in Salust and now in Ovid. s Fire that is neere is hardly kept off from houses it is good that we abstaine from neere adjoyned places which verses are proverbiall in this thing and proverbes adde some credit This notes something that as it is lawfull to pull our neighbours house downe least the fire should come to us and that question of a house infected is the same although touching this it is answered contrary Yet the House infected with Leprosie was pull'd downe And in many cases it is so that we may doe ill to others that it be not ill with us We must beware of all contagion especially of our neighbours the ill contagions of a neighbouring People are hurtfull The Romans saith Florus as a certaine infection ranne over all and taking in all the neerest people brought all Italy under them and whatsoever Dominion they had Before fire is the vapour and smoake of the Chimney Syracides also So we see smoake from our neighbours fire and will we not runne and put out the fire where it is It is written againe that it is lawfull for any to helpe his neighbour against an injury yea he seemes to be partaker of a fault who doth not ayde his deadly foe even speaking against help nor yet desiring it Concerning which I have noted before and will note further in the Chapter following CHAP. XVI Of ayding Subjects that are Strangers against their Lord. I Demand if wee may justly defend Subjects also that are Strangers against their Lord What if their cause also be unjust Ambrose noteth those three gods Iupiter Neptune and Pluto have thus Articulated lest upon their intrenching on one anothers jurisdiction they might make Warre among themselves they should not usurpe the rule of the Sea c. They say likewise that we gods have this Law none of us will crosse the desire of him that willeth but wee yeeld alwaies one to another Which being the fictions of very wise men are applyed unto Princes of the earth But even without any circumstance at all the Corinthians speake thus to the Athenians We doe plainely deny that any is forbidden to punish his owâ—e for if thou shalt defend those that have offended even your owne Subjects will defend themselves from you Yet I thinke not Subjects of other men are altogether strangers from that neerensse of nature and union of Society you doe also cut off the unity of mankinde whereby life is sustained as excelently Seneca And if we make not Princes lawlesse tyed to no Lawes nor Conditions It is necessary that there be some to admonish them of their duty and may hold them fast bound which reason I expounded in the second Booke of Embassies Neither will I heere infer any confusion of kingdomes or any inspection of one Prince over
another Prince neither doe I suffer those things to bee distinguished which are most firmely glued together by nature I meane that kinred with all among all Neither here otherwise may one Prince have inspection over another Prince but such as may happen by every other Warre wherein one Prince carries himselfe as a judge both of himselfe and of another If a question were among private men it were most unjust to goe to a Forraigne Prince about it Also if there arise a difference betweene a private man and his Soveraigne there are Magistrates appointed which may be sought unto But when the controversie is touching the Common-wealth there neither are nor can be any judges in the City I call that a publike matter when such and so great a part of the Subiects is moved that now there is need of Warre against those that defend themselves by Warre And as if those should come into part of the Principality of the publike and are Peeres to the Prince who can doe so much as hee Even as one King is said to be equall to another who can resist another offering wrong however greater and more powerfull although I say not these things of the Subjects themselves unlesse it be in respect of Forraigne Princes which will ayde the Subject against their Soveraigne and who can ayde them no otherwise then in a controversie as I have expounded of the Common-wealth And indeede if the Subjects be used more cruelly and unjustly this opinion of defending is approved even of others who both bring that laudable example of Hercules the Lord of Tyrants and Monsters There is also the example of Constantine who ayded the Romans against Maxentius as I noted before We defend Sonnes against injust Fathers Adde now those golden Sayings of Seneca That being cut off whatsoever it was whereby he did cleave unto me the Society of humane right is cut off If he doe not impugne my Countrey but is burdensome to his owne and being bannished my Countrey doth vexe his owne yet so great naughtinesse of minde hath cut him off although it maketh him not an enemy yet hatefull unto mee And the reason of the duty which I owe unto mankinde is both more precious and more powerfull with me then that which I owne to one single man Thus verily or else we make all men forreigners to all Princes if we determine that they can doe according to their pleasure and lust Now what if the cause of the Subject be unjust The foresaid Authors deny that men ought to ayde uniust Forraigne Subjects least any by so ayding introduce the same Law into his owne Kingdome which the Corinthians did before Yea Aristotle thinkes that neither a wicked Father is to be loved nor assisted with helpe But this is false of a Father as I taught in a certaine Disputation perhaps it is more true that those may be defended of us by war who are unjust For if it be a just warre which is to repulse a wrong although they that repulse an injury have given occasion to the warre the same it seemes may be determined in the defence of others even of Subjects for the same reason Surely there is that iniquity in Warre that it will make the same man to pronounce law to himselfe in his owne cause or verily willing to pronounce it Vpon which pretence another Prince may bring ayde on the contrary side that things may more civelly be composed without warre And this is that which Pyrrhus did when he came to ayde the Tarentines against the Romanes he admonished them first that they would by their owne endeavour put an end to the Controversie although neither the Romans would not unjustly hearken unto the King or because they might deservedly suspect him as being sent for by enemies armed with enemies ready to fight for enemies and of kinne to enemies Hee that stands armed with another is said to bring helpe and ayde unto him neither is there neede to proove any thing against that at all Even he that armes himselfe is beleeved to thinke upon warre And if he that is the friend of an enemie bee excluded from being a witnesse much more from being a Iudge For it is easier if any be received for a witnesse then a Iudge The friend of my enemy is not presently ment my enemy as neither my friends friend is my friend but there is a great suspition of them both and of the friend of an enemy the more But I returne to the question We are bound both to defend justly unjust Sonnes against the cruelty of a Father or Servants against the cruelty of a Master and we laudably indeavour that by fury here is Warre no not wicked men should be chastened and punished for fury and warre have no measure And he that led by humanity or pitty or any other approved and just cause hath received another mans Servant is not bound by the Statute of a corrupt Servant and that reception is accompted in the nature of good c. Even he is commended who being angry with his servants committed them to be punished by another this commendation being added because he himselfe was angry Therefore a good Prince will have the Liberty of rage against his own Subjects to be taken from him being angry as a good Father as a good Master and he will alwaies judge That Kingdomes were not made for Kings but Kings for Kingdomes which is most true This also of Plato availeth that we ought to use Eloquence chiefely to accuse our friends to whom it is the best thus to be drawn from future evils And so I thinke that we may defend unjust Forreigne Subjects yet to this end onely for the keeping off immoderate cruelty and too severe punishment Seeing it is not inhumane to doe good to those that have offended Yet I dare affirme that this reason of bringing helpe doth seldome stand alone but that another of necessity and profit may be pretended or truely shewn as is said before Behold now is the greatest question If the English have justly ayded the Hollanders because their cause was unjust the Hollanders were even now Subjects to the Spaniards both which notwithstanding are false It was said that a Warre was to bee undertaken upon that occasion that a good Peace might be obtained of the Spaniard which otherwise as is thought could not have beene had And so truly Warre is lawfully undertaken as our men alledge And the most wise reason of the Physicians maketh for it That if any Feaver be slow which holds the body and which yeelds to no cure then the Disease is to be changed yea to bee augmented and heightned For when it doth not receive cure for the present as it is it may receive that cure which is future But even Warre might have beene undertaken without that evill of an unfaithfull Peace As there be many bonds of neerenesse