by some of the Kings Ministers in the House of Commons That if the King were not supplyed by Parliament he must and would betake himself to new Counsells The plain English whereof was understood to be That the King would find out some other Course for his supplies without making use of his People in Parliament And this Opinion that Parliaments would for some time be laid aside gave Boldness and Incouragements to all Promoters and Projectors to set on foot many Monopolies and Projects which were still countenanced by the colour and pretence of Law And amongst the rest and indeed striking at the Root of the Subjects Propriety was that of the Ship-mony brought forth * And the Attorney Noy hath the name to have been the Father of it He was in his time held to have been a great Oracle of the Law and had been in former Parliaments a great Patriot and Propugner of the Subjects Liberty and his Opinion was of high Authority in point of Law with the King and with all Men He assured the King that there might be means found out of the Kings own especially in times of Necessity for him to supply himself justly and according to the Law And so propoundeth this Project of the Ship-mony The King relyed not upon the single Opinion of his Attorny But as a good Prince ought to do He took the further Advice of the Judges who are his proper Counsel in matters of the Law and with whom he ought to Consult And they are sworn to Counsell him faithfully The Major part of them which involveth the rest approved this Project as legal But the King would not content himself with their Verbal Advice But required the then Lord Chief Justice and the Judges to set down the Case and their Opinions of it under their hands which they did accordingly So that it being to be presupposed that the King mote than in the points of administring Justice cannot have a distinct knowledge either of the Extent of his own Prerogative or the abstruse Cases of the Law In a point so much concerning him as the relieving of him in his great wants by ways avowed to him to be just and legal what more upright or prudent Course could a Prince take than to be advised not by young Men or Favorites at Court but by his learned Counsell and his grave Judges sworn to advise him faithfully according to their best skill who if they have behaved themselves wickedly or corruptly upon their heads let Judgement light But let the King and his Throne be free But many Men conceiving and not without Reason That this private and extra judicial Opinion of the Judges was not to be a binding Rule did not acquiesce therin but did refuse the Payment of the Ship-mony and did indeavour to defend this their refusal by a due and legal way of Process and particularly Mr. John Hamden And the Business was brought to an Issue and to a publique Tryal in the Exchequer-Chamber which is the highest and supremest Judicature under the Parliament which the Kingdom of England knoweth in point of Law for it is a Court composed of all the Judges of the several Tribunals for the ending of such difficult and dubious Cases as have not been formerly over-ruled or wherein there is found a difference in Opinion amongst the Iudges themselves And herein the Counsell on both sides whether the Case be betwixt Party and Party or the King and Subject do not only plead but argue the Case in Law and the Iudges do commonly before they give Sentence argue themselves the Case in point of the learning of the Law All which solemnities passed in this Case without any interruption by the King And after divers daies hearing and arguing Iudgment passed for the King by Plurality of Votes for the fewer Votes are involved in the Iudgment of the Major part as there is a Necessity they should be in all Counsells and Iudicatures otherwise Controversies could not be ended unless there were an unanimous Agreement in all that had Votes which seldom happeneth But in this Case three parts of fower Agreed in the Iudgment for the King So that if the Iudges have erred now in Iudicature being sworn to do equal Justice betwixt the King and the Subject as they did before in their Advice unto the King being sworn to Counsell him faithfully the greater is their fault and Offence But I must confess I am not able to set out the Kings Transgression This Case yet passed further For it being brought into the Parliament by way of Grievance the Iudgement was not only reversed all Records burnt and all Courses given way unto by the King which the Houses themselves could think on That no such Excesse might be attempted again in future times But the Lord Keeper and the Iudges were without any Interposition of the King left unto the Justice of the Parliament And the Lord Keeper and divers of them were by the House of Commons impeached of high Treason So the King having no hand in the setting it on foot nor in the erroneous Iudgement nor having protected the Parties culpable from Punishment But the Grievance being redressed and sufficient Caution and Provision assented unto by the King for the preventing of the like for the future I could not deduce from hence any Argument of the Kings intention to subvert the Law or of any justifiable ground of taking arms against him And what is said in this Case of the Ship-mony doth likewise hold in the Cases of Monopolies which are alwaies suggested to be for the good of the Subject as well as legal and beneficial to the King who never granteth any of them without Reference In point of Conveniency or Disâ—dvantage to the Subject they are usually referred to some of his privy-Counsell In point of Law to some of his learned Counsell In point of his Benefit to some Officers of his Revenew Who if they have erred or were corrupted and the King by their ill Advice drawn to pass any unfit or illegal thing I have known the Parliament for the space of these forty years address themselves by Petition unto the King for Redress but unto the Referrees for the Fault and the Causers of the Grievances And if they could get the said Grievances redressed and the Referrees brought to punishment they alwaies esteemed it so gracious a Proceeding from the King towards them that usually it was acknowledged with the return of some Gift or Supply But that any Argument should be deduced from thence of any Intention in the King to subvert the Laws I never knew it Neither have I known that the King hath ever proceeded in matters of this kind but in the manner here set down And in this Parliament all Projects and Monopolies were put down and all men that either had a Hand or Interest in them unless it were such as the House of Commons thought fit for Causes known unto themselves to
the Pope no such Superior Jurisdiction Neither if he did are there any such Ecclesiastical Censures issued out against him as might warrant so much as his Catholique Subjects to take arms against him So that whatsoever Pretences may be in some Cases concerning such Princes as I have above specified wherein I shall not presume to deliver any Opinion yet in the present Case of King CHARLES there can be no colourable pretence of taking arms against him or of deposing him which I understand to be in effect when he is divested oâ— his just Regal Power Or of the imprisoning of his person which I understand to be not only when he is in Bonds or lockt up in a Room but when the liberty of going and the freedom of speaking is restrained to such places or persons as others shall please and he remain under the Guard of Armed men not of his own choosing but imposed upon him by others It must be acknowledged that the Kings of England derive their Title and Right from William the Norman who although he came in by Conquest yet his Successors considering that a Right acquired by Force may likewise be recovered by Force by those upon whom the forceable Intrusion was made were pleased by way of pact and stipulation to limit and qualifie that Imperium absolutum which is acquired by Conquest And the People of England thereupon did submit themselves to his Government and became his Subjects and his Liege-men And thereby was Constituted Imperium legitimum a just and Rightfull Soveraignty the Kings remaining with Supreme Power and the People with Common Right whereby they were freed from the Servitude of Conquest and remained under a free Subjection whereunto they had by their Consent submitted themselves The Kings likewise did recede from Absolute and Arbitrary Power and remained with Supreme but not with Absolute Empire By free Subjection I understand when a People live under Laws to which they have given a free Consent and not under the meer Will of the Prince And that they retain such a Propriety in that which is their own that without their Assent or legal forfeiture it cannot be taken from them And this is a true difference betwixt a Free Subject and a Slave or Servant Quicquid acquirit servus acquiritur Domino Liber quod acquirit acquirit sibi Whatsoever a servant getteth he getteth for his Lord Whatsoever a Freeman getteth he getteth for himself And so although that Dominion of all belongeth to the Prince Propriety belongs to every man Dominium totius apud Caesarem Proprietas apud singulos The Difference that I understand betwixt a Supreme and Absolute Empire is That in Absolute Empire the Rule of the Peoples Obedience is only the Soveraigns Will So it is in Turky Muscovia and all such Princes as retain entire the Right of Conquest and was in some sort under the Roman Emperor after the Lex Regia was established by the Peoples Consent whereby they transferred their entire Right unto the Emperor Supreme Empire I understand to be when a King hath a Supremacy and Soveraingnity over all but his Absolute Power is limited and restrained by reciprocal Pacts Laws and Stipulations betwixt Prince and People which is the Case of the Crown of England And to these Pacts the King and People are equally bound before God and Man And the King is as much bound to Iustice and to the protection of his Subjects and to the observance of the Laws not only out of Religion but out of Moral Honesty as the Subject is to Obedience And he is not only accomptable to God but his People have just and legal waies to seek Redress wherein he shall do Wrong notwithstanding that Axiome of our Common Law * That the King can do no Wrong which is very false in many senses and may be very well called fictio Iuris a kind of Metaphysical Fiction For Kings may do Wrong and be as wicked as other men and may commit Murther and lye with other mens Wives and wrongfully take take other mens Estates which no Fiction of the Law can make not to be Wrong although his Person be exempt from punishment And that abstract Consideration of the King for his just Power and Office as it hath been often ill used heretofore in way of Assentation So there hath been as ill use made of it in these troubles when the taking of arms and the fighting against him was pretended not to be against the King but against CHARLES STEWART But to speak in Terms intelligible a King both may do Wrong and the People may seek their redress in such sort as the Law of the Land alloweth And the difference betwixt King and Peoples failing in their reciprocal Duties is not but that they do Wrong alike offend God alike and are both of them liable to be questioned according to the extent of the Law by both their Consents established The Subjects transgressing the Law shall be punished according to the quality and measure of their Delicts Felony by loss of their Goods and Chattels and by a milder Death Treason by a more severe Death and Confiscation both of Goods and Inheritance But hereof they must be convict per pares by People of their own Condition and adjudged by a Superiour Iurisdiction which can be derived only and singly from the King So that the King not having his Peer or any of his own Condition cannot have a legal Tryal And having no jurisdiction superior to himself cannot be adjudged or sentenced by any For neither the Extent of the Law nor any Condition of the Pacts or Stipulation do reach to the punishing of the Person of the King or the forfeiture of his Dominion over us It is true that in civill things Tryals may be and often are brought against the King And Kings do give way That the Iudges be sworn to do equal Iustice betwixt them and their Subjects And in point of Oppression and Wrong we may Remonstrate our Grievances and challenge Redress by our Petitions Which if they be not condescended unto we may insist upon them as our right and claim them as a due and not as of grace And although we do it by way of Petition that is but a dutifull form of Subjects bringing their Plea against the King For in other sort he ought not to be impleaded Besides these Petions of Right we may as it hath been formerly said remonstrate enter our Protestations and take all those Courses which the Laws allow Neither ought the King to take Offence at these legal Contestations with him because by his assent unto the Laws he hath assented unto them Nay he ought in them to do us Right being bound thereunto by the Law of God and by his Oath and by moral Honesty and Iustice But if he fail in all these Duties our Jurisdiction reacheth not to his personal Punishment therein he is sub nullo nisi sub Dâ—o and the Law stoppeth there
break in amongst us we shall remain the Scorn or the Pitty of them I am far from thinking that any of your Lordships are less inclined to an Accommodation than my self but some body must be the mover And those miserable spectacles which mine eyes have of late years beheld in the Palatinate and in Germany make me zealous and importunate that they be prevented here if such be Gods holy will if not yet I shall have this particular Comfort what fortune soever shall befall me That as I am assured that I have had no hand in any those things which have caused the unhappy differences betwixt the King and his People so I shall appeal unto your Lordships if I have not been subservient unto your Lordships in all things that might have removed these misunderstandings and to have imployed my Indeavours and solicitation even unto Importunity for the setting on foot some way of Accomdation wherby only our unspeakable Calamities and very near at hand can be diverted from us Nineteen Propositions sent unto his Majesty the 2 of Iune 1642. 1. THat the Lords and others of your Majesties privy Counsell and such great Officers and Ministers of State either at home or beyond the Seas may be put from your Privy Counsel and from those Offices and Imployments excepting such as shall be approved of by both Houses of Parliament And that the Persons put into the Places and Imployment of those that are removed may be approved of by both Houses of Parliament And that Privy Counsellours shall take an Oath for the due execution of their Places in such form as shall be agreed upon by both Houses of Parliament 2. That the great Affairs of the Kingdom may not be concluded or transacted by the Advice of Private Men or by any unknown or unsworn Counsellors but that such matters as concern the Publique and are proper for the high Court of Parliament which is your Majesties great and supreme Counsel may be debated resolved and transacted only in Parliament and not elsewhere And such as shall presume to do any thing to the contrary shall be reserved to the Censure and judgment of Parliament And such other matters of State as are proper for your Majesties privy Counsel shal be debated and concluded by such of the Nobility and others as shall from time to time be chosen for that Place by Approbation of both Houses of Parliament And that no publick Act concerning the Affairs of the Kingdom which are proper for your Privy Counsell may be esteemed of any Validity as proceeding from the Royal Authority unlâ—ss it be doâ—e by the advice and consent of the Major part of your Counsell attested under their hands And that your Counsell may be limitted to a certain Number not exceeding twenty five nor under fifteen And if any Counsellors place happen to be void in the Interval of Parliament It shall not be supplyed without the Assent of the Major part of the Counsell which choice shall be confirmed at the next sitting of Parliament or else to be void 3. That the Lord High Steward of England Lo. High Constable Lo. Chancellor or Lo. Keeper of the Great Seal Lo. privy Seal Earl Marshal Lo. Admiral Warden of the Cinque Ports chief Governor of Ireland Chancellor of the Exchequer Master of the Wards Secretaries of State two chief Iustices and chief Barons may alwaies be chosen with the Approbation of both Houses of Parliament and in the Intervals of Parliaments by Assent of the major part of the Câ—unsel in such manner as is before exprest in the choise of Counsellors 4. That he or they unto whom the Government and Education of the Kings Children shall be committed shall be approved of by both Houses of Parliament and in the Intervals of Parliament by the Assent of the Major part of the Counsell in such manner as is before exprest in the choise of Counsellors And that all such servants as are now about them against whom both Houses shall have any just exceptions shall be removed 5. That no Mariage shall be concluded or treated for any of the Kings Children with any forein Prince or other Person whatsoever abroad or at home without the Consent of Parliament under the penalty of a praemunire unto such as shall conclude or treat any Mariage as aforesaid and that the said penalty shall not be pardoned or dispensed with but by the Consent of both Houses of Parliament 6. That the Laws in force against Iesuits Priests and Popish Recusants be strictly put in Ececution without any toleration or dispensation to the contrary And that some more effectual Course may be enacted by authority of Parliament to disable them from making any Disturbance in the State or eluding the Law by Trusts or otherwise 7. That the Votes of Popish Lords in the House of Peers may be taken away so long as they continue Papists And that your Majesty will consent to such a Bill as shall be drawn for the Education of the Children of Papists by Protestants in Protestant Religiâ—n 8. That your Majesty will be pleased to consent that such a Reformation be made of the Church Government and Liturgy as both Houses of Parliament shall advise wherein they intend to have consultation with Divines as is expressed in their Declaration to that purpose And that your Majesty will contribute your best assistance to them for the raising of a sufficient maintenance for preaching Ministers thorought the Kingdome and that your Majesty will be pleased or give your Consent to Laws for the taking away of Innovations and Superstition and of Pluralities and against scandalous Ministers 9. That your Majesty will be pleased to rest satisfied with that Course that the Lords and Commons have appointed for ordering of the Militia untill the same shall be further setled by a Bill And that your Majesty will recall your Declarations and Proclamations against the Ordinance made by the Lords and Commons concerning it 10. That such Members of either House of Parliament as have during this present Parliament been put out of any Place and Office or otherwise have satisfaction for the same upon the Petition of that House whereof he or they are Members 11. That all privy Counsellors and Iudges may take an Oath the form whereof to be agreed on and setled by act of Parliament for the maintaining of the Petition of Right of certain Statutes made by this Parliament which shall be mentioned by both Houses of Parliament and that an Inquiry of all the breaches and violations of those Laws may be given in charge by the Iustices of the Kings Bench every Term and by Iudges of Assise in their Circuits and Justices of the Peace at the Sessions to be presented and punished according to Law 12. That all the Iudges and all the Officers Places by Approbation of both Houses of Parliament may hold their Places Quamdiu bené se gesserint 13. That the Iustice of Parliament may pass upon all Delinquents
as well as Iustice And is so expresly declared and annexed unto the King by the Stat. of the 27 H. 8. c. 24. The Revenues of the Church have been annexed unto it for the better part of one thousand years 7. The taking away of the Lands of Bishops and Cathedral Churches confirmed by many Charters from all our Kings have Prescription of many hundreds of years and are firmly annexed to the Church as Law Charters or Prescription can settle them Now if these Revenues shall be taken away and disposed of without processe of Law without the Kings consent who is sworn to uphold them and is founder of them all without the consent or forfeiture of the Possessors What man can think he hath a better Title to any thing he holdeth or assure himself of any Land or other thing he possesseth for one day longer than Houses shall please Besides it is against Magna Charta the Law and the Kings Oath and the Usance of the Kingdom in all times 8. The Court of VVard For the King to have Wardships is an inheritance and Right of the Crown approved by the Common Law of Enland and acknowledged and submitted unto in all Ages And the Court of Wards is setled and established by Act of Parliament in the time of H. 8 And it was indeavoured to be compounded for at a valuable consideration in the time of King Iames and by him refused because it was so great a flower of his Crown as was not fit to be severed from it And now if the Houses should force a Bargain at their own pleasure and their own price it were contrary to all Law all Reason and Moral Iustice and to the disherison of the Crown The detaining of the Kings Children under their governance 9. Touching the Kings children The ordering of their Education and their future Mariage cannot belong unto the Houses but unto the King by all divine human Laws and by the Law of Nature Neither is the contrary anywhere practised but by the great Turke No new Oaths can be imposed upon the Subject but by the warrant of an Act of Parliament 10 Touching imposing of new Oaths as is declared by the Petition of Right and is so setled by the Act of 3. Car. and hath been so declared during this Parliament by the two Houses upon occasion of the new Canons as appears in the Collection of their own Orders pag. 159.160.908.910 And we find the two Oaths of supremacy and Alleageance the first in 1. Eliz. the second in 3 Iac. were both framed and injoined to be taken in and by several Acts of Parliament and yet now do the Houses presse Oaths upon their fellow Subjects utterly inconsistent with the other legal Oaths which they have formerly taken and for the refusal of their Oath of Covenant and of their Negative Oath in expresse tearms to abjure their Alleagiance to their Soveraign they condemn them of Malignancy a new word of Art not formerly known to the Laws of England 11. Concerning Treason It is defined by the Act of the 25. Ed. 3. cap. 2. and afterward 1 H. 4. 2 Ma. that Act was confirmed and enacted That nothing should be adjudged Treason but what is declared to be so by the Statute of the 25. Ed. 3. or should be afterwards declared to be Treason by Parliament which is understood to be by Act of Parliament which cannot be without the Kings Royal assent and therefore in the Reign of H. 8. we find several Treasons enacted to be so by Parliament which afterwards were all repealed by that of the 2 Mar. And again in the Reign of Queen Mary Queen Eliz. and King Iames new Treasons declared by new Acts of Parliament in their several times But now in this present Sessions the two Houses in many several Cases singly of themselves without the solemnity of an Act by an Ordinance only have ordered that men should die as Traitors and lose their whole Estates without pardon or mercy for such supposed crimes as formerly were so far from being Treason as that they are not legally crimes or misdemeanors as may be instanced in divers particulars out of their own Coll. of Orders The treating with forein Princes and States 12. The treating with forein Princes and Staâ—es the making of Peace and War and the sending of Ambassadors or Messengers to those purposes are Acts meerly regal and inherent in the Crown and never questioned till now By the Statute of 2. H. 5. cap. 6. The breaking of Truce and Safe-Conducts is enacted to be Treason so much it importeth the Honour of the Crown The King may out of doubt conclude Peace or proclaim War without his Houses of Parliament But to contribute to the maintenance of a forein War the Assent of the Houses is necessary it being in their free liberty to give or not to give Subsidies or other Aides to that purpose But for the making of Peace or War they have no Votes but it is in the sole power of the King Yet doubtlesse Kings do the more prudently when they take the advice and affections of their people along with them in those weighty affaires especially in making a War with a forein Prince or people otherwise they shall hardly have the Assistance of their purses 13. The nominating of Judges Sheriffs Justices c. without which the Kings of England can hardly make or maintein a War to their Advantage The nominating of Iudges Sheriffs Iustices of Peace c. was never pretended unto by the Parliament but in tumultuous and rebellious times and the Kings of England for some hundred of yeers last past have nominated and appointed them by their Writs or Commissions under their great Seal And by the Acts of 9. Ed. 2. the Statute of Lincoln and 12. R. 2. cap. 2. it is appointed how the choice of Sheriffs and other publique Ministers of Iustice shall be recommended to the King and that the King hath the sole appointing of them And it is so setled by Act of Parliament the 37. H. 8. That such nominations do and shall wholy belong unto the King and his Successors c. By these Animadversions it will clearly appear That the particulars which are mentioned in the 57 and 58 pages of this Discourse are meerly usurped and intruded upon by the Houses but de jure do solely and wholly belong unto the King or can have no life without him which was thought fit rather to be added by this Appendix than by inserting them in the Discourse it self for not interrupting the Series thereof FINIS See the Speeches made for AccoÌ„modation before the War was actually begun in Append pag. 1. 9. Proofs out of the old Testament * Deut. 24.16 Ezech. 18.20 2 Kings 14.6 * Psal. 82. v. 6. * Deut. 1.17 2 Chro. 19. v. 6. Proofs out of the New Testament * Rom. 13. v. 2. See the Propositions in Append pag. 13. Vide Stat. 1. Jacobi cap. 1. in App. pag. 18. wherin the Soveraignty of the King is fully set down Lib. 5. Orat. in Auretium Epist. ad Demetrianum Niceph lib. 7. cap. 6. Tertulliun in Apologetico * Mat. 26.53 54. * 2 Kings 6. v. 16 17 18. c. Act. 12. v. 11. Act. 27.24 Act. 16.26 36. The Protestant churches declare against Subjects taking Arms against their Princes Confessio Aâ—gust 〈…〉 6. Gallia Art 40. Helvet Art 26. Scot. Art 24. Anliae Art 27. Osor de Iur. Majest. fol. 140. Pierre 〈…〉 in his â—â—â—fence of 〈◊〉 Faith Pag. 3.4 Admitting all the Positions either by Protestants or Papists were true which allow Subjects to take Arms against their Princes yet they agree not with the present Case Shewing that the Tenents of Roman Catholiques are not applicable to the present Case Sheweth that the opinions of such Protestants as allow in some cases of subjects taking of arms against their Prince if they were true yet are not applicable to the present case * Exceptio firmat Regulam in non exceptis In Appendice page 17. In Appendice pag. 18. See the Stat. in Append. pag. 19. * â— Lod. Vives If all sin be the transgression of some Law I would be satisfied how men are become Delinquents that have transgressed against no law The most miserable condition of the Kings Loyal Servants by no prudence to be prevented nor they by any Innocency to be preserved * In what sort the Project of the Ship-mony was set on foot the fault wherof cannot with any Iustice be attributed to the King The fault of Monopolies not to be attributed to the King but to evil Ministers and Referrees A Princes Religion ought not to be a ground of Rebellion or disobedience 〈…〉 Hen. 3. King of Fr. by Iacque 〈◊〉 Hen. 4. King of by Fr. by 〈…〉 The Prince of 〈◊〉 by 〈…〉 The Non-conformists themâ—selves 〈◊〉 out 〈◊〉 Pâ—â—tell aâ—â— 3 â—â—c 1605. 〈…〉 clear to this point Vide Art 4 6 9. in Ap. pag. 19. The King caused Pr. Charles his Son and Heir to become a Suter unto the Houses for the saving the Earls life who came in person and propounded it as the first Request he had ever made unto them but could not obtain it In â—ppendice pag. 1. A. The Right of all thâ—se specified particulars from the lâ—tter A. to the Letter B. are fully shewn to belong unto the King and that the Houses can have no colour of pretence unto them In App. pag. 20. * Dic Lunâ—e 4 Maâ—i 1646. Oâ—dered that whosoever should â—aâ—â—our or conceal the King and not 〈◊〉 it c. should be proceeded 〈◊〉 as a Traitor and dâ— without mercy B. * Phil. 3. v. 6. * 1 Tim. 1 v. 13. John 16.2 Matth. 7.12 * Le Roy ne fait toâ—t is only to be understood in the ordinary course of justice which the King administring by his Ministers and not in Person it is they that are the wrong doers and not the King and the subjâ—ct against 〈…〉 his Remedy Wisd. 6. v. 1 2 3 4 5 6. Matt. 7.12
binding and obliging which are deduced from the word of God I shall therefore first begin with those religious and pious Motives which have in Conscience restrained me from taking Arms against the King or making to him any hostile Resistance For I desire it to be understood that when I speak of Resistance I alwaies understand Actual and Hostile Resistance For I well know that in things in themselves sinfull mala in se I ought rather to obey God than Men And in such Cases suffering is a full performance of our Duty of Obedience Nay in Cases only illegal non illicita but illegalia against publique or private Right as if a Prince shall infringe the known undoubted Prilileges of the Kingdom or of Parliament or command that which is destructive unto them The Weapons of our Resistance ought to be Replyes Petitions Remonstrances Nay we may withold our free-will-Offerings though not our Tributes of Dutie we may stop our voluntarie supplies of giving Subsidies we may make a stand in the transactions of affairs untill the King condescendeth to do us Right as hath been often practised As it was in the Case of the Earl of Arundel who being restrained and kept from sitting in Parliament in the year 1626. by the King without cause shewn The House of Peers sate many daies silent without debating or transacting any Business untill he should be restored to his libertie and place in Parliament or cause shewed for his detention But to take Arms or to use Acts of force this is the Resistance which ought not to be used and is neither justifiable by the Laws of God nor of the Kingdom And this Resistance I am far from being satisfied in my Conscience may be used by any subjects against their lawfull and undoubted Soveraign The places in Scripture both in the old and new Testament commanding by positive precept our obedience and forbidding Resistance to the Powers ordeined over us by God are many But the Arguments of necessary deduction are infinite whereas Resistance is no where commanded or allowed And the Arguments by way of Deduction which are made use of to tollerate the Subjects taking of Arms against their Soveraign are by putting some places of Scripture upon wrack and torture to make them speak their sense whereas it is an undeniable Rule in Schools That Inferences and deductions cannot justifie the breach of plain duties injoyned by any one positive precept of Scripture In the old Testament it was death to disobey much more hostilely to resist the supream Authority by positive precept Deut. 17.10 Joshua 1.18 So it was to resist Parents And certainly in States and Common-wealths tam Pater Nemohe is Pater patriae and all the civill power that was of old in Paternall Iurisdiction is now by the Consent and Common Agreement of the People placed in the supream power of a State and the same obedience is due to it and resistance to it as unjustifiable And such as will indulge to the People a freedome to resume their first Original Power grounded upon that Maxime Omnis homo nascitur liber every man is born free seduce them by so false a Principle that the contrary of it is the truth Nullus homo nascitur liber no man is born free Neither was there ever yet in this world anyone man born free It is true there was one man created free our first father Adam But all his Children and all his Descent after him were born under Paternall Iurisdiction Nay our blessed Saviour speaking of him as a Man and Son to the blessed Virgin was born under this Paternal Jurisdiction and filial Obedience whereunto he submitted himself as is plainly set down Scripture Luke the 2.51 where it is said He went with Joseph and his Mother and was subject unto them Now this Paternal Jurisdiction which was at first the sole Soveraignty which governed the world By reason of Partiality in Parents Oppression by such as were the strongest and a multitude of inconveniences and confusions when the World was become numerous and full of People and every family become a Realm As it was too narrow so it grew to be so hurtful unto Mankind That men were forced for their own preservation Common Justice and comfort of life to transfer this paternal Jurisdiction all but filial and personal Duty of honoring and obeying Parents into Magistracy and willingly divested themselves for their own good of that Native Libertie which they had before And as the right power of Government is the same which it was in paternall Iurisdiction only by the Consent of the People changed into another hand So the Obedience unto it ought to be the same And the fifth Commandement of obeying Parents is by all understood to extend unto the Magistrate to whom the people having by consent tranferred the power of paternal Jurisction are likewise by Divine Precept bound to obedience and the People cannot still retein unto themselves that which by common consent they have divested themselves of and transferred to others So was it in the Common-Wealth of Rome when by lex Regia the people had transferred all their power to the Emperour they were not to resist And it was to those Emperours to whom our Saviour and his Apostles injoined Obedience not only for Wrath but for Conscience sake and not unto the good only but unto the froward David was pursued by Saul unjustly his life sought by him yet his Conscience check'd him when he had only cut off the lap of Sauls garment 1 Sam. 24.5 6. But when the attempting upon his person was mentioned he then cryed out Who can stretch forth his hand against the Lords Anointed and be guiltlesse 1 Sam. 26.9 Nay when he might have slain Saul and he was desired by Abishai that he might strike him to the ground he did not only forbid him but called unto Abner telling him he deserved to die that he had not more carefully kept and guarded his Master vers. 15 16. which sheweth that not only not to hurt but to preserve is our Duty And truly if I should have lift up my hand or drawn my Sword against the King I fear I should not have been so happy as divers have been that have gone the other way in finding out such satisfactory Arguments or distinctions as would have rid or cured me of that horrour of Conscience which would have made me most miserable in the height of all prosperitie and successe All the whole context of the old Testament incite to the obedience to the honouring fearing and reverencing of the King And all the Attempts that have been made upon the persons of Kings or their Government are either condemned as wicked or else were by the extraordinary and especial Commandement of God making use of wicked men to be the Executioners of his just Judgments Besides the Government of the Jewish Commonwealth was a Theocratia an immediate Government of God himself and by the Consent of all Divines
Protestation was by my self taken in the House of Peers and subscribed by me wherein I Promise Vow and Protest in the presence of God as far as lawfully I may with my Life Power and Estate according to the Duty of my Alleageance to Maintain and Defend his Majesties Royal Person Honour and Estate Now how the taking arms against him and the assailing and pursuing of him in Battel can be for the defence of his Royal Person or the seizing of all his Revenew for the Maintenance of his Estate or the divesting of him of all Power and Authority with so many other sad things that against him have been said and done and which my Pen blusheth to set down can be for the Defence and Maintenance of his Honour or how the Stile of Majesty which in this Pootestation we give him the Usage of him considered can be otherwise judged of but as a Scorn and Derision I understand not sure I am that I took the said Protestation in earnest and with an Attestation of God that I would faithfully perform it And so by his holy Assistance I will ever do according to the express words in the said Protestation with my Life Power and Estate Neither am I in any kind able to conceive how it is possible for any Christian Man that hath taken the former Oaths and Protestation of Adhering Defending and Assisting of the King against all Persons whatsoever to swallow much lesse to digest the new Negative Oath which in the subsequent words I A. B. do swear from my heart That I will not directly nor indirectly adhere unto or willingly assist the King in this War or in this Cause against the Parliament c. I am likewise as much unsatisfied of the late National Covenant how it may stand or be reconciled to these former Oaths and Protestation But in regard that is a Businesse of great Consequence and length I will set down in a Tract apart those Scruples which hitherto have deterred my Conscience from venturing upon it That these Oaths have been established by lawfull Authority they were made and enjoined by free and unquestionable Parliaments whose Acts I speak not of Ordinances but of Acts wherein the Royal Assent hath concurred are of that high and Soveraign Authority that the Law admitteth of no Plea nor averment against them And this I am confident will be by all acknowledged They have likewise been legally administred by the Ministers that by the said Acts have thereunto been appointed and ordained and for the Justness and Righteousness of them the Confirming of them by so many several Acts of Parliament by which Laws no person can have a Voice in Parliament but stands to all intents and purposes as a person that had not been elected or returned if he sit in the House before he have taken the said Oaths And the continuing of the enjoyning of them by the Houses unto this day must clear all Dispute or Question of that kind For the Houses do not admit of Members unto their Houses nor Officers into their places until they have first taken the said Oaths in such sort as by the Statutes is ordained So that it is clear that they are aswell as others satisfied in the goodnesse of them Besides the subject matter of these Oaths is just and righteous in it self being only in pursuance of those duties of Obedience which are commanded us both by the Law of God and the Land and which are extra juramentum obligantia obliging in themselves though there were no Oath It is further to be observeed That besides the legal penalties that may be injoyned for the refusing or breaking of rhese Oaths they contain something further than temporal Punishment can reach unto they carry with them The heavy Iudgement of God declared in Scripture against the breakers of solemn Oathes And in this Case there is yet much more added for we accompany the breach of them with the most horrid and fearfull Execration that any Christians can draw upon themselves renouncing the Help and Protection of God Almighty and the Benefit of our Reemption contained in the Holy Gospel if we fail in the performance of them which I understand to be quantum in nobis est if we do not indeavour to do the utmost in our power to keep them But voluntarily for Fear or Interest not only to break them but to do that which by the very plain words is contrary to the said Oaths and is contrary to that sence in which I took them as I understand the taking of armes against the King to be with many other things of necessity following thereupon I durst not adventure upon that which my Conscience judged so great an Impiety CHAP. VI Setting down the unlawfulness of Hostile Resistance drawn from Humane Laws HAving thus set down those Reasons which deterred my Conscience from making Hostile Resistance unto the King which have been deduced out of the Word of God the Doctrine and Practice of holy Men and the Obligation of sacred Oaths I shall now propose my Scruples drawn from humane Laws but especially from the Laws of our Kingdom By the Common Law of England many things were Treason But because the Common Law is not composed in one intire body or Text and it was difficult for the unlearned and Lay-People to inform themselves exactly and distinctly what was Treason and what was not the goodness of the King and the wisedom of the Parliament in the time of Edw. the 3. was such that for the avoiding of the insnaring of the People in so high a Penalty and Destruction as followeth the being convicted of Treason It was thought fit that all those things which for the future should be esteemed or adjudged Treason should be particularly and distinctly set down in one Law and exclusively to all things else which was accordingly done in the Statute of the 25 Edw. 3. And in case it should so fall out that any matter should arise besides those particulars specified in the said Statute No judgement should passe thereon but it should be reserved till the next Parliament But for those Cases in the said Statute expressed they were enacted to be Treason and so to be adjudged by the ordinary course of Iustice And in regard that in the troublesome and disorderly time of Richard the 2. the prevailing party which still swayed the Parliament had made and unmade many several Treasons as suited to the Designs and Interests of those that had the Power In the first year of Hen. the 4. all those newsprung-up Treasons were revoked and abolished and Treason again reduced to the Statute of 25 Edw. the 3. The like inconveniences growing in the Wars betwixt the Houses of York and Lancaster and afterwards by the fierceness of Hen. the 8. who upon the alterations he had made in Religion had so insnared the Subject that the Protestants of the reformed Religion could not by reason of the six Atticles escape the
and telleth us satis sufficit ei ad poenam quòd Deum habet ultorem It will be a sufficient punishment to him that he hath God for an Avenger Yet are we not altogether left without remedy For Kings although they be Gods Vice-gerents yet they cannot work as God worketh saying Fiat and it was done Kings must work by mediate Instruments And if they Command illegal things the Executioners of them are responsable and must make satisfaction to the Parties injured And therefore the King ought not immediately to imprison nor in Person to execute any thing because that in Case of wrong-doing the Subject would be left without Remedy in regard the Kings Person is not to be impleaded by Law I know the usual Objections In Case Kings will do that which they ought not to do and will by their own immediate Warrants Commit and be the Personal Actors of the Injuries or not suffer the Executioners of their unlegal Commands to be legally proceeded against shall the Subject be left wholly without Remedy and the People be debarred of the benefit of that Right of Nature in-bred in all Creatures of self preservation Yes We must be contented with that Condition wherein God hath placed us and wherein by our own Consents and Stipulations of subjection we have placed our selves and may only right our selves by those means which by the laws whereunto we have given our assent are permitted unto us Neither is our native Liberty hereby ravisht from us but as we have parted with it by our own Consent and Agreement So we cannot resume it but by those waies which we have reserved in the Stipulations of our submission And besides that herein there is no Injury for that Volenti non fit Injuria It would be more hurtfull to mankind if it were otherwise For there is a necessity that in all sorts of Governments aswell as in Monarchy there should he an Impunity and Power somewhere of not being questioned else all would presently fall into Anarchy and Confusion Neither could there be a final ending of Controversies if there were not a Dernier Ressort and last Appeal wherein we are bound to acquiesce And this Power must be trusted in some hand and that must of necessity be where the Soveraign Power remaineth else there mstu be supposed a Superiour Power to that Soveraign Power and so in infinitum untill we come to some such Power that hath nothing above it and then that must be trusted and must be submitted unto without being accomptable to any but to God because on earth there can be to it no Superiour Iurisdiction And this Power is in the King of England in all things except such wherein he himself or his Ancestors have by Lawes and Stipulations limâ—ted their Absolute Power as hath been above set down As enacting or repealing Laws without his Parliament levying of Moneys and many other things wherein He and his Ancestors have restrained their Power And this we are by the Law of God and of the Land bound to obey and not to make any resistance but what the Law alloweth us We must in the rest have recourse unto God if our Princes be wicked Neither may we mutiny or repine at God when we have ill Kings more than when he sendeth Diseases Plagues Caterpillers Blightings or Blasts For wicked Kings are but Blastings of the People that God is pleased to punish Neither must we think our Condition worse than that of wicked Kings notwithstanding their temporall Impunity For certainly it is much better both in regard of Punishment in the World to come and commonly in this For the next World As their Sin is greater So it is declared that their Punishment shall be greater Heare o ye Kings and understand c. Because being Ministers of Gods Kingdom you have not judged aright nor kept the Law nor walked after the Counsel of God Horribly and speedily shall he come upon you for a sharp Iudgment shall be to them that are in high places For mercy will soon pardon the meanest but mighty men shallbe mightily tormented Wheras Subjects which suffer with patience because they are so commanded by God make him their Debtor by their sufferings and he alwaies payeth faithfully who saith that if we suffer with Christ we shall also reign with him And for this World Their Wickednesse and Oppression is ever accompanyed with those Fears Distractions and Horrours of Conscience which have ever been unseperable from Tyrannies by which their lives are rendred more uncomfortable than the unhappiest of their Subjects And for the most part their ends are as miserable as their lives For what they fear and by their Tyrannie seek to prevent doth commonly fall upon them Their People do Revolt and Rebel And although they be never so well Catechâ—zed in the points of Obedience yet their Natural Inclination to return to Liberty much more to cast off unjust Burthens and Oppressions is such that slight and weak Arguments will easily perswade them to that whereunto they are so strongly inclined and the least pretence of Religion or colour of Reason or Lawfulness countenancing or tolerating the freeing themselves from Subjection in any Case will be more prevalent with them than the most positive Precept of Gods Word injoining Obedience And if in any Case taking of Arms be admitted Theirs shall ever be that case And if the wickedness of their Prince shall be allowed as a ground for Rebellion Their Prince shall ever be the most wicked And of this all Ages have produced many examples and especially these latertime through all the Estates of Christendom And although the Christian churches of all Professions as before is shew'd declare against the Doctrine of Resistance Two or Three hot-headed-men writing or preaching suitable to their Affection Desires will prevail against the Authority of all the Churches of Christendom And wicked Princes will find that Precepts in this Case will not serve the turn But it wil be in this point of Resistance as Tacitus saith of Divinations in Rome which was a wickedness that had been and ever would be forbidden yet ever would be reteined semper vetabitur semper retinebitur And so Princes that will highly oppress and make their Will and not the Laws the Rule of their government though to resist be a wickedness and that it is against the Law of God and Man to do it yet where the wrongs are great and a fair opportunity offered of prevailing It will be ever done For that amongst men there are a Thousand for One that prefer their own Interests or Inclination before Duty or Conscience And certainly a prudent and foreseeing Prince that will impartially examine things cannot but expect it should be so For why should he suppose that other men wil be more honest or more religious than himself And when he breaketh through all the Bonds and Tyes of Oaths of Divine Precepts and Moral Iustice only to stretch and extend
his Power and Greatness why should he not expect that Subjects should make as bold to transgress the same Duties in hope of recovering Liberty with the false shew whereof people are apter to be further transported than by any earthly desire whatsoever Neither will the fear of Death or Danger restrain them because they will not attempt untill opportunity make them hopefull of prevailing and then they conceive by Power to provide for their own Impunities But besides this proness in people to be easily led perswaded into Rebellion under the false and specious shew of recovering liberty The great Monarchs Princes of Christendom have been in great part the fomentors upholders of Rebellion and their Doctors have not so much by their preaching and writing beaten it down as the Princes themselves have by their Examples and Actions given encouragement unto it for although I shall ever speak with Reverence of Princes and their Actions yet I shall hope that the humble representation of this truth will receive a fair interpretation For it is undeniably true that in this later Age all the great Monarchies and States of Christendom have been made unhappy by Intestine Wars which have been fomented if not contrived and designed by one Christian Prince against another every one countenancing and encouraging Rebellion untill it become his own Case and then he is offended of this I shall give no particular instances the Notariety of it is too great and I fear every State may too easily apply it to what they have done And it may be feared that the sad Condition of almost all the States of Christendom at this present day may feel something of Gods Iudgements who hath said With what measure ye mete it shall be measured to you again And wicked Kings as they are sure they shall not escape the severe Iudgment of God in the next world if they do believe the Scripture So if they will believe Antient Histories of what hath passed in former times or their own experience of what they see daily with their eyes or that they do believe that God will repay unto them that which they have either countenanced or contrived against others they must expect to have troublesome and uncomfortable lives accompanied with Hatred Hazard and Infamy And if these considerations will not restrain them yet we must not be wicked because they are so Neither will God admit of Recrimination for our Excuse Our Duty of not resisting is positive upon pain of damnation from which no good Success or Prevailing can keeâ— us although it may save us from the Gallows Besides this great hazard of our Souls Moral Prudence should teach us That a Civil War is commonly a Cure much worse than the Disease For no Oppression nay no Tyranny bringeth with it half those Miseries and Calamities which of necessity do ever accompany an Intestine War Wicked Kings may be Cruel Covetous and Licentious But their Oppressions and their Lusts are restrained to some Wickednesses and to some Persons But in a War Rapes Murthers Robberies Sacrileges and all Impieties break in and all sorts of People are made miserable which the poor Kingdom of England hath found by sad experience where within these five years last past more hath been taken from the Subject than would have been exacted by Subsidies Projects or any unjust Taxes whatsoever by the worst of Kings in the space of one hundred And so all other wickednesses proportionably have been increased I shall conclude this Discourse with my humble and hearty Prayers to God Almighty to avert his heavy displeasure from that most unhappy Kingdom which I have seen the most prosperous and flourishing of all the Kingdoms of Europe And by our own Dissention is now become of all other the most miserable And so like to continue unless it shall please God so to dispose the minds both of King and People that they may really desire and endeavour a just moderate equitable Accommodation Whereby they and the Kingdom may be again put into the Way of recovering some measure of happiness It not being to be doubted but that the many Afflictions which have happened to the King will adde much of Wisdom and Circumspection unto his other Virtues And the publique Calamities that have befallen the Kingdom and the Distractions that the War hath visibly brought both in Church and Commonwealth wil make the people value and esteem Peace and not so Wantonly be again ingaged in new Miseries And although unto me in regard of mine Age and other Considerations there remaineth little Hope of ever seeing my Country again Yet where or howsoever it shall please God to dispose of me I shall dye with Comfort if I may judge it in a probable way of recovering some measure of its antient Happiness and Honor THE APPENDIX Containing Many PARTICULARS Specified in the First Part of this DISCOVRSE With the Citations of the Chapters and Pages where they are Cited CAEN 1647. A Speech made by the Right Honorable IOHN Earl of BRISTOL in the High Court of Parliament MAY 20 1642. Concerning an Accommodation MY LORDS I Have spoken so often upon the subject of Accommodation with so little acceptance and with so ill successe that it was in my Intention not to have made any further estay in this kind but my zeal to the peace and happiness of this Kingdom and my apprehensions of the near approaching of our unspeakable miseries and calamities suffer me not to be Master of mine own Resolutions Certainly this Kingdom hath at all times many advantages over the other Monarchies of Europe As of Situation of plenty of rich commodities of Power both by Sea and Land But more particularly at this time when all our neighbouring States are by their sevetal interests so involved in War and with such equality of Power That there is not much likelihood of their Mastering one another nor of having their differences easily compounded And thereby we being only admitted to all Trades and to all places Wealth and Plenty which follow where Trade flourisheth are in a manner cast upon us I shall not trouble your Lordships by putting you in mind of the great and noble undertakings of our Ancestors Nor shall I pass higher than the times within mine own remembrance Queen Elizabeth was a Princess disadvantaged by her sex by her age and chiefly by her want of Issue yet if we shall consider the great effects which were wrought upon most of the States of Christendom by this Nation under her prudent government the growth of the Monarchy of Spain chiefly by her impeached The United Provinces by her protected The French in their greatest miseries relieved Most of the Princes of Germany kept in high respect reverence towards her and this Kingdom and the peace and tranquillity wherein this Kingdom flourished and which hath been continued down unto us by the peaceable government of King Iames of blessed memory and of his now Majesty