a Law not to kill one another which I no where find nor he proves nor do I see any colour of reason to believe Nor had Adam any power to restrain his Sons or give them Law as Father for if you believe him he tells you that Dominium paternum non oritur ex Cap. 9. art 1. generatione I would further be satisfied how this civil pact can give the Civitas that which none of them have viz. Property and power of life and death without which can be no Civitas or Supreme Power or any Power at all if we be Christians and believe God who says By me Kings reign and Pro. 8. 5. Princes decree justice or judgment and that All powers are of God and the Rom. 13. 1. powers that be are ordained of God If they be then Gods ordinances and ordained of him then can they not be an artifice and invention of any Man but are and ever have been whether Do or Dedi ever had been or not And let any man judge whether he does not contradict himself He Cap. 5. art 4. says That the concord and consent of the Multitude is not sufficient long to preserve Peace but that it behoveth that something more be done that they who have once consented to peace and mutual aid for the common good should not afterward when any Private good varies from the Publique again disagree be restrained by Fear And Art 5. he says Aristotle reckons among living creatures which he calls Politick not only Man but also many other as the Ant and Bee who although they be destitute of reason by which they can make covenants and submit themselves to Government yet nevertheless by consenting that is by desiring the same things and by avoiding the same things they so direct their actions to one common end that their Companies are obnoxious to no seditions Yet are not their Companies therefore Civitates nor are those Creatures to be called Politick because their Government is only consent or many wills to one object not as is necessary in a City one will Observ Now mark here he says Consent only makes no Civitas yet where he would prove the beginning of his Institutive or Politick Government from Scripture he says Tale fuit initium regni Dei c. Such was the Cap. 11. art 1. Kingdom of God over the Jews instituted by Moses If you will hear my voice c. ye shall be to me a Priestly Kingdom And all the People together answered We will do whatsoever the Lord hath spoken Observ So here let any man see this great Master of Learning and Reason make the Initium of this Institutive or Politick Civitas to be derived from the Consent of the Multitude and in the same breath before the Multitude did consent he makes God only by his servant Moses first to will and after that the People to consent You come behind and I follow after whither of us went before But suppose the beginning of this Civitas had its beginning from the Observ 2. Consent of the People yet does he contradict himself as much as before for then this Initium is the Initium caput corpus finis of it for here is nothing added to it So that either here is no Civitas and so Mr. Hobbs says not true and has taken great pains to no purpose or else this Civitas is wholly made from the Consent of the Multitude which is absurd and contrary to Art 4. 5. Cap. 5. Well let us see whether he hath better success with Art 6. then the 4. and 5. where he says Because the conspiracie of more Wills to the same end is not sufficient for the preservation and stable defence of Peace Doubtless it is not less then a Judgment upon him that he should call such a consent as he here speaks of a Conspiracie which all men take in ill sence of men consenting to do some evil act it is requisite that the will of all be one concerning those things which are necessary to peace and defence But this cannot be unless every man so subjects his will to the will of another viz. of another Man or Court that whatsoever he wills concerning those things which are necessary to the common peace be accounted the will of them all and every one of them And Art 7. he says This submission to the will of one Man or one Council then is made the will of them all when every one of them obligeth himself by pact to every one of the other not to resist the will of that Man or that Council to which he has submitted himself And this a little after he says is called Unio and this Union so made Art 9. is called Civitas or Societas civilis or Persona civilis Observ If this Unio or Civitas or Societas or Persona civilis be so necessary to all Governments and that it must and therefore may be made by mens pacts one with another I wonder why the Children of Israel should be 1 Sam. 8. 5. so zealous to have a King to judge them like all the Nations if they could by their pacts have made one without ever asking one at Gods hands Nor was there at that time or ever before any such thing as ista Curia or Democracy ever heard of For the Children of Israel desired a King to judge them like to all the Nations and at that time was Codrus King of the Athenians Smendes or Semendes King of the Sicyonians Aletes King of the Corinthians Eurysthenes King of the Lacedemonians So that in those days not among the Grecians was there ever so much as Aristocracy or Democracy heard of Nor was there ever any place in the world where there were men inhabiting without Government For that place When there was no King in Israel we shall answer afterwards Nor was there originally ever any Government but Monarchy and that never from any Pacts of men And this Government so continued everywhere until it was violated by seditious and rebellious men And whereas he makes this Civil Pact to be so necessary and antecedent to all Civil Government I would fain know of Mr. Hobbs whether Saul David Solomon Jehu Hazael Cyrus c. were not as much Kings or Civitates as he calls them as if they had all this Covenanting and making Pacts one with another That this mans will should be the will of them all Not to resist the will of David Solomon Hazael c. in those things which they deemed necessary for the peace of the Israelites Persians Syrians c. But if these were Civitates as if Mr. Hobbs be a Christian which I think may be a question he must needs confess and yet not made so by his Civil pacts nor indeed any other Then is this Unio so far from being essential or necessary to the making of a King or Civitas that as to the right of a King it is no matter whether it be made
those that are Deciners elswhere to enquire of the offences personal and of all the circumstances of offences done in those Hundreds of the wrong done by the Kings or Queens ministers and of the wrong done to the King and the Commonalty But this ought not to be done by Bondmen or Women but by the Oath of Twelve Freemen The County-Court which the Sheriffs hold from moneth to moneth County-court sec 9. or from five weeks to five weeks according to the greatness or largeness of the County Of Court-Barons and Hundred Courts Court-Baron c. sec 10. The other mean Courts are the Courts of every Lord of the Fee c. Pipowders sec 11. Courts of Pipowders And that from day to day speedy Justice be done to Strangers in Fairs and Markets as of Pipowders according to the Law of Merchants Court of Admiralty The King hath soveraign jurisdiction upon Admiralty sec 12. the Sea Courts of the Forrest The Kings Ministers of his Forrests have Courts-Forest see 13. power by authority of their office to swear men without the Kings Writ for safeguard of the peace and the Kings right and the common good c. He treats of the Professors of the Law as Counters who are Serjeants and Pleaders Of Attornies Of Ministers of Justice as Viscounts Coroners Escheators Bailiffs of Hundreds c. And also by the antient Kings Coroners were ordained in every County and Sheriffs to keep the Peace when the Earls were absent from their charges and Bailiff in lieu of the Hundredors c. Of the Prerogatives of the King as of Deodands Alienation to Aliens Teeasure found Wreck Waif Estray Chattels of Felons and Fugitives Honors Hundreds Soakes Gaoles Forrests chief Cities chief Ports of the Sea great Manors These held the first Kings as their right and of the residue of the Land did enfeoff the Earls Barons Knights Serjeants and others to hold of the King by Services provided and ordained for defence of the Realm It was ordained that the Knights Fee should come to the eldest by succession of heritage and that Socage Fee should be partable between the Male-children and that the Liege-Lords should have the Marriage He treateth in the first Chapter of Crimes and their divisions of the crime of Majesty of Fausonnery of Treason of Burning of Homicide of Felony of Burglary of Rape c. In the second of Actions of Judges of Actors c. In the third of Exceptions dilatory and peremptory that is Pleas to the Writ and in Bar c. of Trial by Juries and by Battel of Attaints of Challenges of Fines c. In the fourth of Judgments and therein of Jurisdiction of Process in criminal causes and in Actions real personal and mixt So as in this Mirror you may perfectly and truly discern the whole Body of the Common Laws of England Thus far Sir Edward Coke Mr. Lambert in his unfolding the difficult things and words in his translation of the Saxon Laws says King Alured when he had made a League with Guthrun the Dane having followed the most prudent counsel given by Jethro to Moses first divided England in Satrapias Centurias Decurias He called Satrapiam 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which signifies to divide He called Centuriam 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and Decuriam 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is a company of Ten men and by those names they are called to this day And that no man might be ignorant the Decuria did consist of Ten men whereof all of them were pledges that every one should be forth-coming to any Action in Law and if any one did any damage the other were bound to make it good and from hence the other nine were called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is Free-pledges we in the Pleas of Courts call them Francos plegios The tenth man 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 called the Decurio or Tithingman by which name he is most known to the Eastern English at this day Others call him 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 others call him 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is the first or chief Surety or Pledge The Kentish men call him Borsholder corruptly for 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is the first Surety Centuria or a Hundred was made up of ten Decuria's as one Hundred is made up of ten times ten This viz. Hundred the men beyond Trent called by another name not unknown to the common people 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Wapentac Alured then further ordained That every man of free condition should be enrolled in some Hundred and be conjoined into some Ten-men company That of lesser businesses the Decurions or Court-Leet might judge and if any weightier matter were it should be deferred to the Hundred or County-Court Lastly that the Alderman and Sheriff I take it he calls them Senator Praepositus should compound the most difficult Suits and of greatest moment in that frequent Convention from all parts of the Shire or County And what the manner of judging was King Etheldred in the fourth Chapter of his Laws which he enacted in a full Senate or Parliament at Vanatnigum 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Woodstock expounds almost in these very words In all and every Hundred let there be Assemblies and that Twelve elderly men of free condition together with the Sheriff Praeposito be sworne that they will not condemn the Innocent or absolve the Guilty So that Mr. Lambert seems to be of opinion that the Common-Law had its origination from King Alured or Alfred who was King of all England and a most victorious pious prudent and glorious Monarch about the year of our Lord 890. And from a most deplorable condition by reason of the Danish invasion and robbery reduced it to a most quiet calm and laid that foundation upon which the body of the Common-Law is since builded But whosoever was the first Founder and Establisher of them certain it is they were antient and Laws which better suit to the nature and disposition of English-men then any other that are or ever were in the world would do 2. As those general Usages or Customs which are generally observed Particular Usages are called the Common-Law so there are almost infinite particular Usages Prescriptions and Customs in several parts of this Nation which are observed as Laws by the Inhabitants of those places and to all intents and purposes have the effect of Laws 3. Statute-Laws are Acts of Parliament which are neither general Statute-Law nor particular Customs but are Laws made by the Kings of this Land in Parliament upon sundry and diverse occasions according to the then occasions as they represented themselves For although all innovations are dangerous and therefore if it were possible no doubt it were best that humane Laws as the Laws of Nature might be immutable and eternal but as God hath created all things transitory and nothing in this world the same the next
all Humane Laws and their rightful Superiors There neither is nor ever was any Government in the World good or bad just or unjust that did ever permit subjects without authority from it to take up arms And by our Countrey-Laws If any man levy war to expulse strangers to deliver men out of prison or against any Statute or any other end pretending Reformation of their own head this is a levying war Nota. against the King because they take upon them the Royal Authority which is against the King Inst 3. p. 9. 10. All Stipulations Oaths Promises c. made by Subjects against All Oaths Promises c. made against Prince or Laws are void Husbands by right may command their Wives their Prince or Laws are void and not to be performed for they were Subjects and obliged to their Prince and Laws before they made such Oath Stipulation Promise c. 11. God is not onely the Author of Government and Obedience of Order and Society in Nations and Kingdoms but also in Man and Wife for being reasonable and sociable Creatures does imply a necessity of mutual commanding and obeying God first created man and by so creating him gave him the power and dominion over the woman It is therefore an act 1 Tim. 2. 13. Justice and injustice in a Wife of Justice in every Wife uprightly to fulfil the Law or Command of her Husband to the benefit of him or another he commanding nothing derogatory to the Laws of God or his Countrey and a sin of injustice in the Wife to falsifie or abuse any Law or Command of her Husband to the hurt or prejudice of her Husband or another 12. God is not less the Author of Power or Right of Command in Of Justice and injustice in Wives and Children Parents then in Husbands As therefore it is an act of Justice for Wives and Children uprightly to do any act which is commanded them by their Husbands and Parents they not commanding contrary to the Laws of God or their Countrey so it is injustice in Children as well as Wives to falsifie any Command or Law of their Parents to the hurt or prejudice of another 13. Suppose the Father and the Husband command the Wife contrary Whether the Wife ought to obey the Father or Husband things whereby it becomes impossible that the Wife should serve both Which ought she to serve I say the Husband For though the Fathers power be from God and so inseparable by any act of Man yet is not God obliged to his own Laws but may give that which he gave the Father to another And Matrimony being an Institution of God in Paradice and the Husbands power from the Law of Nature that is from God the Wife becomes subject to her Husband retaining notwithstanding her piety and observance which is always due to her Father 14. All Societies that is all companies of Men whether of Master Masters of Families by right command their Servants Cicero lib. 1. de leg and Servants of Father and Children of Husband and Wife of King and Subjects are contained in the mutual Offices of commanding and obeying It is true that Cicero says Cum dico legem à me dici nihil aliud intelligi volo quam imperium sine quo nec domus ulla nec civitas nec gens nec hominum universum genus stare nec rerum natura omnis nec ipse mundus potest Where therefore the Laws of Nature are not sufficient there must be a supply of Humane Laws Object We have shewed before that the Power or Right of Command which Kings have over their Subjects which Husbands have over their Wives which Parents have over their Children is from the Law of Nature that is from God immediately I say they command by the Law of Nature For all right of command which is not from any Humane Law is from the Law of Nature but Kings Parents and Husbands have a right of command and not from any Humane Law they have it therefore from the Law of Nature Sol. But though Masters of Families have a right of command over their Servants yet formally they do not command by the same right that Kings Fathers and Husbands do For I deny that ever any Master of a Family had his power from any Law of God I except the Israelites or Nature but that ever since there were Families the Masters or Mistresses of the Families derived and had their power or right of command over their Servants from their Countries Laws If Adams Family be objected I say that Adam commanded not as Master of a Family onely but as a Universal Monarch not onely over all the Creatures irrational that God had made but also over his Wife and Posterity as King and not as Father and Husband onely For no Father or Master of a Family can create any property in his Son or Servant nor had ever any Subject who was not an Israelite property from any Law of God or Nature But it is evident that Cain had property in the Fruit of the Gen. 4. 3 4. Ground and Abel in his Flocks they therefore derived it from Adam as King 15. Since Humane Laws are necessary for the conservation of all Of Justice and injustice in Servants Societies of Men and the Masters power not being contrary to any Law of God or Nature the Master of every Family hath right of command over his Servants by the Laws of his Countrey he commanding nothing repugnant to the Laws of God or his Country It is therefore Justice in every Servant uprightly to execute such commands of their Masters and injustice to falsifie or abuse such commands to the hurt or prejudice of another 16. Suppose the Father makes his Son a Servant for every Father hath Whether the Son ought to prefer the commands of of his Father or Master the same right over his Childes person that a King hath over his Subjects and the Father and Master command the Son contrary things Which shall the Son serve I say the Fathers power being from the Law of Nature and so inseparable by any act of Man the Son ought to serve the Father but the Father being as much in the power of his Soveraign as the Son in his Fathers the Father shall make good to the Master whatsoever he shall be damnified by such command the Laws of the Fathers Countrey obliging Subjects to perform their Contracts 17. Suppose the Master command contrary to the Laws of God or his How far the Servant owes his Master subjection Country and the Servant executes such command shall this excuse the Servant No for being a Servant does not free him from the obligation of the Laws of God or his Country as a Subject Well but if the Master commands upon corporal punishment for the Masters power obligeth to corporal punishment to do something contrary to the Laws I answer That jus vitae necis which Masters had
over their Servants is generally restrained every where as well among Mahumetans as Jews and Christians where men are of the same faith So that Masters cannot put their Servants to death as Masters for any crime If they otherwise punish them unjustly the Servants have their remedies by the Laws of their Country Object 1 But who shall judge whether this be contrary to the Laws of God or his Country the Master or the Servant I say not the Servant Object 2 But if the Servant may not judge yet has he not a Conscience as well as his Master I answer That Ignorance and an ill-set Conscience excuseth no more from doing what he ought and Servants actions in general ought to be done about the Masters persons or affairs in which it is a very hard matter for the Master to command any thing contrary to the Law of God or his Country But if the Master does command his Servant to do any act in prejudice to another if it be not so much as the Master cannot make satisfaction as to kill or maim another the Laws do make a favorable construction of what is done by the Servant as Servant and punish the Master as commanding and not the Servant as doing in order to such commands In a Masters commands to a Servant is usually implied a Warranty which secures the Servant for doing what he commands him 18. It is Injustice in any man to tell another that he gave such a price Injustice in Commutation for such a commodity whenas he gave not so much thereby to deceive another who believes him and gives him thereafter to a greater value then the thing is worth I say this is a sin of injustice in the Seller for in Lying he did falsifie the Law of the God of Truth to the damage of the Buyer 19. In Justice commanded no man ought to do more or less but to the Of permissive Justice in a King utmost of his power ought to do what is commanded him in that formality as it is commanded In Justice permissive it is not always so but the utmost or rigid exacting of what is permitted is highest injury As a King is permitted to execute his Laws but the rigid executing of all Laws against all Offenders at all times without any consideration of inability or other circumstance of person time or place is highest injury to his Subjects For it is impossible though Laws should be general and not respect the persons but the good of the Subjects that all Laws can at all times be alike observed by all Subjects And therefore though it be permitted to a King to execute all his Laws or else he should have none to be executed yet in the execution of them he ought to weigh circumstances of person time and place whether it were the malice or defence of the person offending or whether he were able to fulfill such Law or not c. Or otherwise Summum jus est summa injuria 20. As a King so ought not a Subject rigidly to exact of another In a Subject whatsoever is by Law permitted him at all times As a Tenant by sterility of the year inundation of waters c. is so damnified that he is not able fully to satisfie his Landlord but to his utter ruine I say in such case the Landlord ought to remit of what by rigor of the laws he might justly take Or if in such case the Landlord shall rigidly exact his utmost due to his Tenants ruine when it is not the Tenants fault such exaction such summum jus est summa injuria A man is permitted to sue any man for triflings tres passes of pedibus ambulando c. yet if upon all occasions a man shall sue every man that steps out of the footpath such a man will be counted a wrangling knave and such suing summa injuria Yet is not the Law in fault but the men for if it were not permitted to men to exact their rents and sue for small trespasses then would no Tenant pay rent nor should any man be secure of enjoying what he is possest of 21. It is true that Aristotle says That he is a just man that keeps the laws Who is a just man Eth. lib. 5. cap. 2. 3. and that he is an unjust man who commits contrary to laws and that therefore one Justice contains all other virtues God having made Man as well a sociable as reasonable creature and a free Lord of all his actions whose will may freely imperate his actions not as it is with irrational creatures whose objects determine their actions as he pleaseth neither did ever yet in this world any man do any act virtuous or vitious but it was freely in his own choise whether he had done it or not And by making him sociable made him more excellent then the other creatures of this orb We do not therefore look for Justice in so large a sense as Aristotle here takes where every particular or personal virtue may be taken for Justice 22. We take that virtue to be Justice which conduceth to the preservation The excellency of Justice of Society for other personal virtees as Temperance Chastity Frugality c. although not as virtues yet may they be found in other creatures which is only proper to Man and wherein Man does excell all other creatures And no question but that the meanest Servant uprightly and conscientiously performing the trust and command which his Master commands him is as just and honest a man as the greatest man whatsoever 23. Nor is it less true that Aristotle says That he that commits any Who is an unjust man thing against the Laws is an unjust man and so the commission of any thing against the Laws is a sin of injustice and every sin a sin of injustice But by reason of humane frailty it is very difficult if not impossible for the most just man not to be an unjust man where injustice is taken in such a latitude And in this sense the most just and righteous Subject that ever was stands in need of Gods mercy and the Kings But the injustice we look for we take in a more restrained notion not every unlawful act done upon ignorance or passion c. but where men premeditately and wilfully make the laws of God or man a cloke and pandar to shelter and hide their unjust and illegal actions They that tread under foot all Sacred and Civil sanctions intended for the conservation of peace and society among men to set up themselves above all laws of God or man and to make way for their own lusts in stead of Divine and Humane laws They who the Prophet David says imagine mischief as by a law Such men such actions are Psal 94. 20. most properly unjust men and acts of injustice 24. Injustice differs from Injury only in agencie and patiencie in him How Injustice differs from Injury who does and in
the Lord of the Ground go with the Priest and without thanks take away and restore to the Church what shall belong to it and leave the Ninth part to him who would not pay the Tenth let them divide the rest into two parts let the Lord have one half the Bishop the other be he a Kings man or another Romfeath ought to be restored upon the Feast of St. Peter in bonds he who shall keep it beyond that time let him restore that penny to the Bishop and thirty pence let him add to the King 50 s. Who shall keep Cherisceat beyond the Feast of St. Martin let him restore it to the Bishop and pay eleven fold and to the King 50 sol Who married shall commit adultery let the King or Lord of him have the superior the Bishop the inferior Who shall commit perjury upon holy things * * Laying his hand upon the book I think let himlose his hand or half his were viz. half the Cap. 11 price of his head and this is common to his Lord and the Bishop Who shall bear false witness let him not afterwards be admitted for witness but restore to the King or the Lord of the Soyl Helfeng ' * * Neither Mr. Lambert nor Whelock give any construction of Helfeng that I can finde Who shall kill a man in Orders or malign him let him make him amends as is right and the amends of the Altar according to the dignity of his Order to the King or Lord sufficient breach of the peace or deny it with full purgation Plena lada neget If any man guilty of death desires confession let it never be denied him but if any man shall do it let him pay the King one hundred and twenty shillings or swear with five men that he did it not If a free-man work upon Holy days let him amend his helfeng and at least diligently make composition with the Lord. If any man by force holds the Rectitudes of God Rectitudines Dei let a Dane pay lahite an Englishman full witam or deny it with eleven * * Or twelve in Mr. Seldens Ms and Mr. Whelocks if he should there wound any man let him amend this and restore full witam and redeem his hand of the Bishop or lose it If he kill a man let him be outlawed and every man that desires right follow him with clamor if it comes to pass that he be killed by this that he resisted right if this thing be verified let him be unrevenged He who shall make a breach of his Order let him amend it according to the dignity of the Order wera Wita Lahilita * * Lastita Mr. Seldens Mr. Whelocks Ms and with all mercy Let every widow be without a husband twelve moneths afterwards she may choose whom she will and if within a year she take a husband let her lose her Morgangifan * * Dower and all her money which she had from her first husband and let her husband forfeit to the King the price of his head or to whom the King shall grant it If a man unjustly hold a fugitive of God let him restore him to right and pay to him whose he shall be and satisfie the King according to Legergild If any man hath a man excommunicated or keep him outlawed and all his forgiveness and all amendment commonly made better by Christ and the King is utterly lost wheresoever the Law of God shall be refused to be justly kept according to the word of the Bishop and it will be expedient that he be compelled by the Secular power Because Justice and Secular distriction are necessary for the most part in Divine Laws and Secular Institutes for that otherwise many men cannot be recalled from their ill ways many will not be inclined to the worship of God and observance of the Law from whence by the much infesting of ill men it is provided for the profitable dispensation of peace that the more weighty pleas and things more to be punished be brought to Justice alone or the mercy of the Prince that pardon may be more abundantly had to men desiring it and punishment to sinners but in causes which may be amended for the compassion of the Saints it is permitted that the earthly Lords by their leave may presume to take pecunial amends according to the Law of the Countrey Of the kindes of Causes Cap. 21. There are also some kindes of Causes put before as we have said to be more freely expedited in the amendment of which the King does more particularly communicate wheresoever they are done in Divine or Secular things over Kings men and Ecclesiastical and of Barons men and he hath totally or particularly * * Or acephalos âcefalos pauperes sive socham of which are Adultery Fornication homicide in a Church breach of the peace or order or Christianity or Legality if it be needful to be done by the Secular power that right may be done De Christianâ consuetudine locutionum secundum quod sunt 64. Towards the latter end interline 25. and end A Priest who leads a regular life in a simple accusation may swear alone in a threefold with two of his Order a Deacon in a simple compellation may accompany himself with two Deacons in a threefold with six A Countrey Priest may purge himself as a regular Deacon a Priest accused by his Bishop or Archdeacon may swear himself the sixth of lawful Priests as they are prepared at Mass Of killing a Minister of the Altar 66. If any should kill a Minister of the Altar let him be outlawed before God and man unless he repent with worthy satisfaction and justly compound with his parents or throughly deny it with purgation of his head * * Werilada and begin this within thirty nights before God and man above all he hath If any Minister of the Altar kill any man or if it be extraordinarily declared by bad actions let him be both deprived of his Order and go on Pilgrimage as the Pope shall enjoyn him and amend the work But if he will purge himself he may do it triply but unless he shall begin this within thirty nights let him be outlawed before God and men If any man any ways afflict any man Ordained with stripes or bonds let him make him amends as is meet and to the Bishop the amends of the Altar according to the dignity of his Order to the King or Lords sufficient breach of the Kings peace * * Mundbrecho or deny it with sufficient purgation * * Plenlada If any man condemned to death desires to be confessed let it never be denied him but if any man should deny him let him give the King in satisfaction one hundred shillings or swear with six men that he did not do it If any man by force takes away Gods rights let a Dane amend with Lah sliht full Wytam with
said Justices of peace or any of them or shall hinder or disturb any such Justices or any person authorised by them to seize the same shall forfeit all such armour and amunition to the King and beimprisoned by warrant from any of the Justices of the County during the space of three moneths without bayl or mainprize This Act nor any thing therein shall not abridge the authority and jurisdiction of Ecclesiasticall censures See Statute 6 anno 7 Jacobi who shall take the oath of obedience to the King and by whom it shall be ministred and within what time If any married woman being lawfully convict as a popish Recusant for not coming to Church shall not within three moneths after such conviction conform her self and repair to Church and receive the Sacrament according to Law then shall shee be committed to prison by one of the Kings Privy Councell if she be a Baroness or if she be under that degree by two of the Justices of the peace of the County whereof one of the Quorum without Bail or Mainprise untill she conform her self to come to Church and receive the Sacrament unlesse the Husband shall pay to the King ten pounds a moneth or the third part of his Lands and Tenements so long as the Wife remaining out of prison shall continue a convicted Recusant during which time and no longer she shall have her liberty If the giving of the temporall powers cognizance of crimes meerly spirituall Annot. be objected to Edw. 6. Queen Elizabeth and King James I think no man will undertake to answer for all things done by men yet thus much may be answered that it was no new thing for the Statute of 2 H. 5. cap. 7. gives Justices of peace and Justices of assise full power and authority to enquire of these who hold Errors Heresies and Lollardy and of their maintainers and that the Sheriff and other Officers may arrest and apprehend Anno 1. Sess 2. cap. 2. them and that this was done by Queen Mary See Mary Of King James AS there was never any Prince who had a more clear and undoubted King James his Title and Reception right and title to the English Diadem then King James for besides that he was Heir to both Houses of York and Lancaster as is most truly acknowledged by both Houses of Parliament Anno 1. cap. 1. Jac. he was derived by a long descent of Royall Ancestors from Malcolm Conmor or Cammore King of the Scots and the Lady Margaret being the name of her from whom the united Title of both Houses of York and Lancaster descended upon him Sister and sole Heir of Edgar Atheling Son and Heir of Edward eldest son of Edmond surnamed Ironside so that all titles as well of right of blood as of conquest might so truly be ultimately resolved into him that in the whole world no just exception could be taken against them so never was any Prince received with so little opposition and contradiction by all sorts of his Subjects both in England and Ireland where all those long rebellions and commotions did expire with Queen Elizabeth and in both Kingdomes all became so pacate and calme that during all his Reign in neither Nation was any sword drawn in opposition to him There was such havock made in the Reign of H. 8. Ed. 6. of all Church His care of the Church Lands upon pretence forsooth of Reformation that to stay it there was a Law made in the first of Queen Eliz. cap. 19. that all Gifts Grants Feofments Fines and other Conveyances made by any Arch-bishop or Bishop of any Honours Castles Manors Lands Tenements or other Hereditaments being parcell of the possession of his Arch-bishoprick or Bishoprick or united or appertaining or belonging to any of the same to any person other then the Queen her Heirs and Successors whereby any Estate should or might pass from the Arch-bishop or Bishop other then for the term of 21 years or three lives reserving the old Rent or more shall be utterly void Cambden Eliz. Reg. pag. 36. takes notice of the great abuse made by the Courtiers of that clause or exception of the Queen c. And indeed William of Burley had by the Queens permission so gelt the Bishoprick of Ely by virtue of this clause that it lay void above twenty years before any man of abilities or honesty would take it so pol'd and maimed although some were conunitted to prison for refusing of it But King James as his first and chiefest care by an Act of Parliament in the first year of his Reign cap. 3. made a Law that all assurances afterward made to the King of any of the Lands of Arch-Bishops or Bishops should be void so that the rapine and prey made upon the Church was first restrained totally by him King James was not only a devout observor of the Government Rites His care of Religion and Ceremonies of the Church of England but made it one of his chiefest cares to have brought an Uniformity as well in Scotland as in England and proceeded so far as to settle Episcopacy among them naming thirteen new Bishops for so many Episcopall Sees as had been anciently in that Church three of which received consecration from the Bishops of England and conferred it on the rest of their Brethren at their comming home Which Bishops he armed also with the power of an High Commission the better to keep down the insolent and domineering spirit of the Presbyterians In order to the other he procured an Act to be passed in the Assembly at Aberdeen 1616. for composing a Liturgy and extracting a new book of Canons out of the scattered Acts of their old Assemblies At the Assembly held at Perth anno 1618. he obtained an Order for the receiving the Communion kneeling for the administring Baptisme and the Lords Supper in private houses in cases of extreme necessity for Episcopall confirmation and finally for the celebrating the Anniversaries of our Saviours birth his Passion Resurrection and Ascension and the coming down of the Holy Ghost all which he got confirmed in the following Parliament So far did this wise King advance the work of Uniformity before his engaging in the cause of the Palatinate his breach with Spain and the warre which issued thereupon did divert his thoughts To his peacefull disposition and his care of the Church and Religion His great learning and clemency in the next place may be truly added his great abilities in learning so far transcending not only the Kings of the present age his contemporaries but all his predecessors and surely scarcely to be paralled by any of his time as his many learned works testifie To these other virtues may be added a mind no wayes vindicative although sometimes transported with present passion yet of some small continuance that in person or estate he was never noted to punish any man rashly or extrajudicially And although he was no great lover
Nor was that less abhorrent to me which men in this factious age beg for a Principle viz. That all men by Nature or the Law of Nature are in a like equal condition and that the Laws of Nature are eternal and immutable even by God himself And yet by a continued violence upon these eternal and immutable Laws men should every where in the world live in Society or in the mutual offices of commanding and obeying Yet did not I so confidently resolve these things as to exclude what I could argue against them I therefore did suppose in my self a company of such men as were in a parity of condition yet could I never conceive it possible that ever any Civitas or Supreme power could be derived or created by them For either this Civitas must be superior to the Cives or People that made it or not If it were not superior to it then could it not govern or rule them for dominion is always placed in the superior part If superior to it then was the Creature or Instrument superior to the Cause and Creator which is most absurd Nor was it to me less monstrous to imagine that any thing could give or transfer that to another which it self hath not but this people or multitude who should make this civitas had neither Jus vitae or necis nor Property seperately nor conjunctly they could not therefore endue another with that power which none of them nor all of them together had and without which there can be no supream power which may protect and defend Subjects But I did not insist onely upon this but supposed that the cives could make a civitas which should be superior to them and endew it with a power which none of them nor all of them had yet was I no less perplexed then before who these cives which should make this civil Pact should be and who should be subject to it If onely those be the cives who made this civitas and they onely subject to it then were Women and Children who were none of the cives that made this civitas free and independent from it Nor could all the people or multitude of both Sexes and all Ages in such an imaginary state be the cives which must constitute this civitas by virtue of the civil Pact For many must necessarily be so yong as not being compotes mentium they could have understanding sufficient for the doing such an act And if no Laws oblige Men to their Pacts and Contracts done under such an age then sure it must be unreasonable that Children and Infants should be obliged to their act if they then did it or therefore obliged because others had done it upon whom they had no dependence Well but suppose these men in such a condition to be qualified to do such an act yet did another doubt arise which I could no ways salve viz. Who should define at what age the Men should be who should constitute this civitas Well I went yet further I supposed it granted That it should be agreed at what age Men in such a condition might give up their wills and constitute a civitas yet was it not in reason probable that this civitas should be of one days continuance For being formally constituted of such individual cives it could not be of any longer continuance then the cause Sublata causa tollitur effectus but the next day some of the cives would be probably dead and others grown up to be of age who were none of those individuals which did constitute the civitas Well but I supposed the cives who made Formae rerum sicut numeri consistunt in indivisibili They could not therefore be the cives that did constitute the civitas and by consequence no such could remain as the civitas this civitas to be immortal and no posterity yet could not I in reason expect it to be of any continuance for cujus est velle ejus est nolle and not onely all just and legal actions but all Arts and Sciences may truly and ultimately be resolved into their first Principles without any diminution to them The People therefore constant in nothing but inconstancy could not in reason be expected constant and obedient to their Creature the civitas onely and yet so in nothing else Besides I always did believe and yet do that all Mens Pacts and Wills must be conformable to the Laws of every place and where they are against them then do they oblige no further then to Repentance Much more therefore ought all mens Wills and Pacts to conform and submit to the Laws of Nature and never transgress that and that all Pacts and Acts of mens Wills made against it oblige to nothing but Repentance Nor is there any thing more abominable then to conceive that the Acts of mens Wills should irritate the Law of Nature which they say is immutable by God Hence it is I conceive that Mr. Hobbs will not have all men to be of a like and equal condition lege naturae but jure naturae and therefore most absurdly makes jus naturae to be contrary to lex naturae and yet oftentimes in his Preface and Cap. 8. Art 10. confounds jus with lex and that the Acts of mens Wills to make them in a better estate then God hath made them should be the Law of Nature or of God Whereas on the contrary If no man that ever was born in the World which was not a Posthumus King but was born in subjection not onely to his Parents or as a Servant in a Family but to something superior to these then cannot the will of that man nor all the men in the World alter or make that man in another condition then that whereof neither any act of his will nor the will of any man else was the cause But yet did not I conclude things onely as I was an intellectual or rational Creature but being a Christian I submitted all my Reason and Understanding to the most high Authority of sacred Scripture in those plain places which admit of no Controversie where both in the Old and New Testament the first causes of supream Power are owned to be Gods Ordinance Rom. 13. By God Kings raign and Princes decree Prov. 8. Justice and there can be no power but from above Joh. 19. 11. And all power is in relation to something subject to it But because I would not seem to see only with mine own eyes I desired yet to be better informed of these things and from whom better then Mr. Hobbs and Hugo Grotius Men no doubt of as eminent learning and parts as any this last Age hath produced these Men both derive their civitas from such Principles as is before spoken of viz. From the Pacts and contracts of Men in a parity and equal condition but so far was I from being convinced that if I understand them aright I was amazed to see such inconsistible
Right or Law ab hac Grotius juris significatione flowed another larger which he saies a little after consists in discerning what delights or hurts us and in judging how things should be wisely distributed Observ What is there in this which is proper to Man does not every other Creature by an instinct in nature which God has given instead of reason discern much better then any Man does what thing delights and hurts them and all oviparal creatures more wisely distribute to their young ones then the wisest Man can to his Children He defines jus naturale to be Dictatum rectae rationis indicans actui Lib. 1. cap. 1. para 10. alicui ex ejus convenientia aut disconvenientia cum ipsa natura rationali inesse moralem turpitudinem aut necessitatem moralem ac consequenter ab auctore naturae Deo talem actum aut vetari aut praecipi The Law of nature is the dictate of right reason shewing to any action from its convenience or disconvenience with Rational nature that there is in it a Moral turpitude or a Moral necessity and consequently such an act is commanded or forbidden by God the Author of Nature Observ Would not any man after all this adoe expect that Grotius had defined something But if definitio be exclusio aequivoci then is that no definition which may signifie one thing as well as another and if humane actions convenient or disconvenient with Rational nature may be prudent and profitable aswell as Just and Moral then is there not in every action convenient and disconvenient with the Rational nature a Moral turpitude or necessity and so every such action is not the Law of Nature and so neither commanded nor forbidden by God But I forgive Grotius in this not having defined any thing less equivocally as also his every where confounding jus with lex in regard the Romans Civilians and generally Lawyers do so yet thus much I do affirm that if jus and lex according to Calepine do differ as Genus and Species or at least as the cause and effect for it is impossible there should be lex lata where there was not jus legislativum superior and the cause of the Law then he which writes of these things must distinguish and define them or he shall never write clearly or be clearly understood in any thing which he writes of them But though he makes jus naturale to be dictatum rectae rationis viz. a liberty or abstinence to every Man to do or not do whatsoever is reasonable Lib. 1. cap. 1. Parag. 10. to him and that this jus is the Law of God and unalterable by God himself yet without giving any reason for it he saies Sciendum est praeterea c. It is to be further known that natural Right or Law does not only act concerning those things which are above a Mans will but concerning many things which follow a mans will So Dominion which is now brought in use mans will brought in But being brought in it is wickedness in me to take against thy will that which Natural law or right Jus naturale shews to be of thy dominion Observ So that his Principles before were either equivocal or obscure And here is one which signifies contradictory and impossible things These things therefore granted and being the easie and known Principles upon which Grotius laies his foundation and so plain and perspicuous as no exception nay not so much as equivocation can be taken against them any of them or any part of them Sure he shall not need much to use the help of Geometry to build a most exact and noble Structure which shall not only be a Land-mark but also a Sea-mark for all Kings and Common-wealths now and hereafter to govern and steer their actions by tam per mare quà m per terram as well by Land as Sea but also a secure Rule for Subjects to continue their obedience until they pretend a necessity for rebellion if otherwise they cannot find some relief out of such popular Orators as Cicero Demosthenes Cleon c. which Grotius shall esteem of like weight with any testimony of Scripture It is a most pleasant thing to see the excellencie of Truth in her pure and simple nakedness how plain easie and beautiful she appears whereas Falshood with all the art learning and industry of man is still rendred more perplext confused and dark by how much is added to it And therefore to what a volume here has Grotius increased his Jus Naturale Sometime it is Jus divinum voluntarium jus divinum jus humanum jus humanum voluntarium jus gentium jus civile jus latius patens jus arctius patens jus constitutum jus immutabile jus commune jus gladii jus divinum perfectius jus belli solenne jus belli minus solenne jus precarium jus revocabile jus usufructuarium jus temporarium jus armorum movendorum magistratuum minorum jus naturae pro certo statu jus rectorium jus aequatorium jus superveniens regis jus externum jus internum jus exterorum supervenienti dominio jus pignoris jus retentionis jus servitutis jus luendi pignoris jus transeundi jus morandi jus habitandi jus habendi loca deserta jus reductive jus restrictive jus gentium improprie jus derelictum jus quaesitum jus feciale jus externum efficax jus reale jus inventionis jus primi occupantis jus proprietatis jus possessionis jus dominii jus herile jus paternum c. Whereas if he had made use of that plain and short Sentence which the greatest Glory of all the Heathen Roman Emperors professed he learned Alex. Severus of the Christians Quod tibi fieri non vis ne feceris alteri it would have signified infinitely more then is contained in all the confused obscurity which he imposes upon the world in this Book De Jure Belli Pacis founded upon this false and feigned Principle of the Original right and power of the People from whence he derives all power in Government For art thou a Subject thou wouldest not willingly any man should forceably or fraudulently take any thing which the Law has given thee from thee Do not thou so by another Is he a King he would not have his Subjects wronged by another Let not him wrong another Kings Subjects If one Subject does another wrong the Law is open he who is wronged may have relief by Action or Complaint not by Arms. If one King does wrong to another he who is wronged has God and his sword to defend himself and do justice upon his Adversary And whether the doing or not doing such a thing be wrong or injury is every King and not Grotius Judge and God the Judge of every King It is true that in all Faculties whatsoever and in all Arts and Sciences men must use Terms to express what they conceive by any general Notion and Thesis Et ab universalibus ad particularia ratiocinando oritur scientia and must alter their Terms
King comes to be in the exercise of another Kings power he is subject to that King so long as he continues in the exercise or dominion of that King By more reason therefore ought the Subjects of any Prince to be in subjection to Supreme powers so long as they continue in the exercise of their power whether it were by Conquest or not Besides God hath ordained Supreme powers for mens preservation not their destruction And there must be some visible power upon earth which may put a period to and decide differences or they will be endless But there is no power under heaven but their sword that can put a period to the differences of Princes what therfore in such case the sword decides ought to be obeyed and the conquered Subjects nay Princes who come into the dominion or exercise of anothers power ought to be subject to it so long as they continue therein God therefore pronounceth Zedekiah a Rebel against Nebuchadnezzer But this reason cannot 1 Chro. 36. 13. hold for Subjects against their Soveraign where the Law may decide their Regal power cannot be transferred nor communicated by any humane or voluntary act differences and where by no Law of God or Man they are permitted to take the sword 26. Cujus est velle ejus est nolle No power less then that which made any thing can alter it But Regal power is Gods ordinance therefore nothing less then the power of God can alter transfer or communicate it Yet is the exercise of it subject to violence As Gravia sursum levia deorsum feruntur yet may a man by violence throw a stone upward and depress smoke from ascending without altering the nature of either So though Regal power cannot be transferred nor communicated by Man yet is the exercise of it not only subject to violence and usurpation but also being voluntary may be suspended by Supreme powers themselves without any diminution of the power or right of exercise of it When therefore Subjects or Enemies do unjustly invade and possess the Dominion of another this possession does not divest the right or jus ad rem of that other but only suspend the exercise of the others power or right during such usurpation So may a King by a league or peace with others by his act suspend the exercise of his power in any place unjustly usurped from him by others yet without diminution of his power or right to that place But this act cannot oblige his Successor nor himself after such term but they have a just cause of war if it be noâ— restored Having thus far treated of the efficient or final cause of Regal power it is time to descend to the Attributes of it CHAP. III. Of the Attributes of Regal power and incidently of the Power of Magistrates 1. WHo hath the Supreme power hath the sword of Justice to punish The sword of Justice is his who hath the Supreme power them who transgress Laws and endeavour to cause sedition He is the Minister of God to thee for good but if thou do that which is evil be afraid for he beareth not the sword in vain for he is the Minister of God a revenger to execute wrath upon him that doth evil Rom. 13. 4. And Gods rod in his hand Exod. 17. 9. 2. The end of all Government is either to preserve the governed inwardly The power of making War and Peace belongs to the Supreme power in peace or to defend them from the outward violence and opposition of others In vain therefore should Government be if he who hath the Supreme power may not as well defend Subjects from the violence of others outwardly as to preserve them from factions and feditions within And this power God gave to Moses Joshuah David and all the Kings of Judah nor can any King be a Supreme Prince without it nor the governed in a probable condition of hoping for preservation from it 3. Judgment is the determining of a good or bad action which cannot All Judgment is with him be in any who is subject to another What therefore could be a more subtile temptation of the Devil to our first Parents then to tell them Gen. 3. 5. that by eating the forbidden fruit they should be like to God knowing good and evil Solomon as the most requisite thing prays to God that he would give him an understanding heart that he might be able to judge between good and bad 1 King 3. 9. And The King by judgment establisheth the land Pro. 29. 4. And Give the King thy judgments O God and thy righteousness to the Kings Son that he may judge the people according to right and defend the poor Psal 72. 1 2. 4. The right of making Laws is with him The Scepter shall not depart Jus legislativum penes eum from Judah nor a Lawgiver from between his feet until Shilo come Gen. 49. 10. Submit your selves therefore to every ordinance of man for the Lords sake whether it be to the King as Supreme 1 Pet. 2. 12. And this is the onely visible means by which Subjects may become safe rich and happy 5. In punishment Equals cannot judge Equals much less can Inferiors That he does all things without punishment judge Superiors But a Supreme Prince cannot have an Equal much less a Superior therefore a Supreme Prince cannot be punished If a Supreme Prince might be punished for any thing he doth then cannot he do any thing but he will be liable to punishment for so doing For what property can he give to one which will not offend some other Nor did the veriest Thief or Murderer ever suffer punishment but some of his Comrades would seek revenge and if they might would punish the Lawgiver Besides who shall judge his Prince If any one then every one may Let no man therefore be hasty to go out of his sight nor stand in an evil thing for he doth whatsoever pleaseth him Where the word of a King is there is power and who shall say unto him what doest thou Eccles 8. 3 4. The Lord forbid that I should do this thing unto my Master the Lords Anointed to stretch forth my hand against him seeing he is the Lords Anointed 1 Sam. 24. 6. It may seem to some that this unlimited power of doing any thing Annot. with impunity will only beget a confidence in Kings of doing what they list without ever taking care of their duty in preserving their Subjects from intestine broils and factions and from the outward force and violence of their Enemies whereas more narrowly looked into no men are so subject to care and have their wills less then they For private men if they do any thing in their passion their fame and fortunes are alike neither much removed from their persons few take notice of it But they who are set in high place all men take notice of their actions In the greatest Fortune therefore is the
unto thee only the Lord thy God be with thee as he was with Moses Whosoever he be that does rebel against thy commandment and will not hearken unto thy words in all that thou commandest him he shall be put to death Jos 1. 16 17 18. 13. Anarchy is like a vacuum in Nature so abhorrent that the World The state of Man out of power is Tyranny will rather return into Chaos then suffer it And therefore Cicero lib. 3. de legibus says truly Sine imperio neque domus ulla nec civitas nec gens nec hominum universum genus stare nec ipse denique mundus potest 'T is no wonder therefore if seditious men when they have put themselves out of power are glad to submit to Tyranny rather then be overwhelmed with the Chaos and confusion of Anarchy Yet it is said Judg. 17. 6. 21. 25. In those days there was no King in Annot. Israel but every man did what was right in his own eyes So it may seem that men may subsist in an Anarchy It is true indeed there was no man that was King in those days in Israel nor was there then that absolute necessity of one for God had given them Property and did govern the Israelites and they did enquire judgment of God who did answer cap. 20. 18. And men did in those dayes commerce and exchange one with another which is evident by Micha's contracting with her Levite-Priest for ten shekels of silver by the year a suit of apparel and his victual ch 17. 10. 14. Princes do transgress their power when they command any Wherein Princes do transgress their power thing contrary to what God hath commanded or derogatory to the worship and service of God when they make unjust War when they pronounce Judgment not according to the declared and known Laws but punish either by passion or to please factious men as in the Earl of Straffords Case or pass sentence against one unheard as in Cromwell Earl of Essex his Case I say not punish upon passion or to please men For as the state of Annot. affairs may be stated Princes may punish though not in a Judicial manner as when Subjects are in Arms against their Soveraign Nor do I think that any uninterested Casuist will deny that Henry the Third of France did justly put Henry Duke of Guise to death though not judicially the Duke having taken Arms against him and made him flie out of Paris fomented seditions against him and taken pensions of the King of Spain to maintain war in France and become so popular as the King had no means to proceed legally against him 15. * How careful Princes ought to be in commanding or making of Laws The perfection of Government consists first and chiefly that the Governor have a perfect and indubitable Title against which no just exception can be taken Secondly that the Governor makes it his chiefest care that the Religion or Worship and Service of God be duly administred And thirdly that he does endeavor by known and established Laws to administer Judgment and Justice indifferently to his Subjects with careful moderation of the severity of the Laws whereas men by no fault of theirs incur the severity of them And lastly by all just and due means to endeavor the preservation of his Subjects from the oppression and violence of Foreiners and to maintain Peace and Commerce with his neighboring Nations Such was our Government before our unhappy differences and such by Gods grace do I hope to see it again 16. It were a fine may-game to be a King if Kings might make their How careful Princes ought to be in commanding or making Laws Will the rule of their actions It is true indeed God hath not in all things commanded Kings what Laws they shall govern their Subjects by yet this natural law are all Princes obliged to that their Laws by which they govern do more relate to the good of their Subjects in general then their own particular interest And no question but a King commits a more grievous sin doing any unjust thing to any of his Subjects then if another had done it in regard of the relations which are between them as a Fathers doing an unjust thing to his Child is a greater sin then if another had done it by how much by the Law of Nature he ought to have done well to his Child rather then another Princes therefore by the Law of Nature in governing ought to have more respect to the general good of their Subjects then their own particular interest Yet is Magnificence a Royal virtue and therefore ought not the Revenues of the Crown to be parted with by which it should be maintained Nor would it conduce to the benefit of the Subjects in general to make the Revenues of the Crown poor Where Majesty grows contemptible the exercise of Regal power is never permanent Princes therefore ought to have a great care that by their vices prodigality of the Revenues of the Crown remiss governing or by so giving it over to others that they so much neglect it in themselves as to make themselves vile and contemptible 17. Though God hath not commanded Kings in all things what are Princes ought not to be obeyed when they command in derogation of Gods Majesty 1 Sam. 12. 14. vers 25. the Laws by which they shall govern and therefore divers Kings govern their Subjects by several Laws as their Subjects differ in nature and manners Yet hath he forbidden all Kings to make Laws derogatory to his Divine Majesty Samuel therefore threatens Saul as well as the Israelites that if he or they disobey God and do wickedly they shall perish both they and their King And it was to Saul that God said that Rebellion was as the sin of witchcraft and stubborness as the wickedness of idolatry Nor was the sin of the Israelites in committing idolatry under the Kings of Judah and Israel the less though the King commanded it Nor did God scarce 1 Sam. 15. 23. ever shew a greater miracle then in delivering the Three Children and Daniel disobeying the Kings wicked commandment Princes therefore ought not to be obeyed in commanding things derogatory to the Majesty of God 18. Nor ought Princes to be obeyed when they command any thing Or contrary to Religion contrary to Religion for The kingdom of Heaven and the righteousness thereof is first to be sought But the kingdom of Heaven is only to be sought by Faith and Religion Daniel therefore sinned not when he obeyed not Darius in praying to God Nor do all our Parliamentary Laws add any thing to the obligation of mens worship and service of God in the Unity and Form of the Church of England for men were as much obliged in Conscience before such Laws as after Not but that Kings ought to have as great or greater care of preserving unity and peace in Gods Church as in their
Dissolution of Abbies and all were easily passed and assented to in Parliament But whatsoever the King were otherwise yet sure the Popes passion The Pope was more unjust in his censures then the King was in excluding the Papal jurisdiction against him carried them to greater extravagancies and exorbitancies then were on his part against them For suppose that the Pope had de facto the Investitures of Bishops Peter-pence Annates and First-fruits paid them and did exercise a jurisdiction over all the Church and Clergy yet no question all these things were by the grants and permission of precedent Kings and if Kings may grant and permit these things then what hinders but that they may recall them for Cujus est velle ejus est nolle Besides we have already shewed that although there were not that bitter personal spite between the Kings of England and and the Popes formerly as was between Henry 8. and Clement 7. and Paul 3. yet did many of them ascribe as little to the Pope as Henry did But for a Pope to deprive a Christian Prince of his kingdom over whom he had no manner of right his Adherents of whatsoever they possessed to command his Subjects to deny their obedience to their Soveraign and Strangers not to have any commerce in the kingdom and all to take arms against him and his followers granting them their estates and goods for a prey and their persons for slaves is so unlike to the example and precept of S. Peter whom they pretend to succeed who not only suffered death under Temporal power but inspired by God does command so expresly obedience to Kings not as subordinate to himself 1 Pet. 2. 13. but as supreme And of our Saviour himself who both suffered himself under Temporal power and paid tribute to Caesar and took not away but fulfilled the Moral Law which commands obedience to Princes and Higher powers and whose kingdom was not of this world that sure no Turk or Infidel was so much an enemy to Christians or indeed rather to mankind as to have desired it The state of the Church and of the Ecclesiastical Laws made by Edward the sixth THe time of this Kings reign being a Child and therefore woful and of his Father were perillous days The Father in his Laws scarce ever took advice but from his passion lust or avarice the Son although a Prince of infinite hope and goodness yet wanting the authority and reputation requisite in a Soveraign was either not able to restrain or else perswaded it was beneficial to give reins to a company of Sacrilegious Harpies and Courtiers to make a total prey not only upon all Colledges Free-Chappels Chantries and all their Lands except them of the Universities and some few other which by the Statute of 1 Ed. 6. cap. 14. were given to Camb. pref Eliz. Reg. Life of Ed. 6. the King upon specious pretences but the Lands of the Bishops generally became a prey unto them So much worse is it for every thing to be lawful then that any thing should be Law It was enacted That if any man spake irreverently or contemptuously An. 1. Ed. 6. c. 6. of the Sacrament of the Altar he should be imprisoned and fined at the Kings will and pleasure and that Justices of Peace might enquire of offenders Yet should not the person offending be arraigned or tryed unless the Bishop of the Diocese or his Chancellor or Deputy learned were required to be at the Quarter-Sessions to which purpose a new Writ was made Rex c. Episc L. salutem Praecipimus tibi quod tu Cancellarius tuus vel alius deputatus tuus sufficienter eruditus sitis cum Justiciariis nostris ad pacem in com nostro B. conservand assignat apud D. tali die ad sessionem nostram tunc ibidem tenend ad dand consilium advisament eisdem Justitiariis nostris ad pacem super arraiment deliberationem offendet contra Formam statuti concernend sacrosanctum Sacramentum Altaris And by this Satute it was Enacted that the Sacrament should be delivered to the people under both Kindes viz. of Bread and Wine From thenceforth no Conge deslier shall be granted nor any Election An. 1 Ed. 6. Cap. 2. shall be made of any Archbishop or Bishop by the Dean and Chapter but when any Archbishoprick or Bishoprick shall be voided the King by his Letters Patents may confer the same to any person whom he shall think meet c All summons citations and other proces Ecclesiastical shall be made in the name and with the stile of the King as in the Writs of the common Law and the test thereof shall be in the name of the Archbishop or Bishop c. All persons that have the exercise of Ecclesiastical Jurisdiction shall have in their Seals of Office the Kings Arms with certain characters under them for the knowledge of their dioces but the Archbishop of Canterbury shall use his own Seal and his own name in all faculties and dispensations A man speaking against the Kings Headship of the Church shall being An. 1 Ed. 6. Cap. 12. thereof attaint or convict forfeit all his Goods and Chattels to the King and suffer imprisonment during the Kings will and pleasure for the first offence and for the second offence forfeit to the King the whole issues and profits of all his Lands and all his Goods and Chattels and suffer perpetual imprisonment and for the third offence shall be adjudged a Traytor and suffer death and forfeit all his Goods and Chattels Lands and Tenements as in cases of High Treason And it shall be deemed Treason for any by Printing Writing or Deed to affirm the King not to be Head of the Church An Act for uniformity of Service and administration of Sacraments being An. 2 3 Ed. 6 Cap. 1. before divers and different viz. of Sarum of York of Bangor and of Lincoln and divers and sundry forms and fashions were used in Cathedrals and Parish-Churches of England and Wales as well concerning Mattens or Morning Prayer and the Evening Song as also concerning the holy Communion commonly called the Mass with divers and sundry rites and ceremonies concerning the same and in the administration of the Sacraments of the Church The Statute does inflict upon every Parson Vicar or other whatsoever Minister that ought or should say or sing the said Common Prayer mentioned in the said Book Entituled the Book of Common Prayer and Administration of the Sacraments and other rites and ceremonies of the Church after the use of the Church of England and shall refuse it or use any other form or shall Preach Declare or speak any thing in derogation of the said Book or any thing contained therein and be thereof lawfully convict by a Jury of twelve men or by confession shall forfeit to the King for the first offence the profit of all his Spiritual benefices and promotions arising in a whole year and
Queen Mary to be born in lawful Matrimony and all sentences Stat. An. Pri. Cap. 1. sess 2. Mariae of divorce to the contrary repealed particularly the sentence of Thomas Cranmer Archbishop of Canterbury touching the Kings marriage with Queen Katherine and the two Acts of Parliament of the 25 H. 8. 22. 28 H. 8. 7. confirming the same A Repeal of the Statute of 1 Ed. 6. 2. made against such as speak unreverently St. An. Pri. Ma. sess 2. Cap. 2. of the body and blood of Christ and of the Statute of 1 Ed. 6. 2. touching Election of Bishops and the 2 Ed. 6. 1. concerning the uniformity of service and administration of the Sacraments and of 2 Ed. 6. 21. made to take away all positive Laws ordained against the marriage of Priests and of the 3 Ed. 6. 10. made for the abolishing of divers books and Images and of the 3 Ed. 6. 12. made for the ordering of Ecclesiastical Ministers and of the 5 Ed. 6. 1. made for the uniformity of common Prayer and Administration of Sacraments and of the 5 Ed. 6. 3. made for the keeping of Holy days and Fasting days and of the 5 Ed. 6. 12. touching the Marriage of Priests and legitimation of their children All such divine service and administration of Sacraments as were most commonly used in England in the last year of H. 8. shall be used through the Realm after the 20 day of December Anno Dom. 1553. and no other kinde of service nor administration of Sacraments It is Enacted That if any person or persons of their own power and authority after the 20. of December shall willingly and of purpose by open or St. An. 1 Mariae Sess 2. Cap. 3. overt word fact c. maliciously or contemptuously neglect vex or disturb c. any Preacher or Preachers licensed allowed or authorized to Preach by the Queens Highness or by any Archbishop or Bishop of this Realm or by any other lawful Ordinary or by either of the Universities of Oxford or Cambridge or otherwise lawfully authorized by reason of his Cure or Benefice c. in any open Sermon Preaching or Collation in any Church Chappel or Churchyard c. Or if any person shall wilfully disturb c. any Parson Vicar Parish-Priest Curat or other lawful Priest saying or celebrating the Mass or other divine service sacraments or sacramentals as was commonly frequented and used in the last year of H. 8. or afterward should be allowed and set forth or authorized by the Queen Or if any person shall contemptuously unlawfully or maliciously deface spoil abuse or unreverently handle or order the most blessed comfortable and holy sacrament of the body and blood of our Lord and Saviour Jesus Christ commonly called the Sacrament of the Altar being in any Church Chappel or other decent place or the Piece or Canapy wherein the same Sacrament is or shall be or pull down deface spoil or otherwise break any Altar or Altars or any Crucifix or Cross in any Church Chappel or Churchyard That then every such offender his ayders and abettors shall be apprehended c. by the Constable or Churchwarden of the place wherein the said offences shall be committed Which persons so apprehended c with convenient speed shall be brought and carried to any Justice of Peace within the said Shire c. where the said offence shall be committed and the said Justice of Peace upon due accusation shall forthwith commit the said person or persons to safe custody as by the discretion of the said Justice shall be thought meet and within six days next after such accusation the said Justice with other Justices of Peace in the said Shire City c. shall diligently examine the acts and offences aforesaid And if two of the said Justices of Peace shall upon examination finde the person or persons so accused guilty of any of the said offences by two sufficient witnesses or by confession the said Justices of Peace shall commit the person or persons so accused to the Gaol of the County City Burrough c. where the said offences were committed without bail or mainprize by the space of three moneths and further to the next quarter sessions to be holden in the said shire city burrough c. next after the end of the said three months which quarter sessions the party offending upon his repentance and reconciliation shall be discharged out of prison upon sufficient security for his good behaviour for one whole year but if he or they will not repent and be reconciled then to be committed again to the said Gaol there to remain until he or they shall repent and be reconciled for their offences If any person shall receive the offendor or disturbe the arrest he shall forfeit to the Queene her Heires and Successors for every such offence the summe of five pounds If any offendor bee not taken but escape hee shall forfeit to the Queene for every such escape five pounds The Justices of Peace Justices of Assize Justices of Oyer and Terminer all Mayors Bayliffs Justices of Peace within any City Borough or Town-corporate have power and authority to enquire into heare and determine the offences and misdemeanors aforesaid and to set fines and amerciaments therefore This Act doth not take away any authority jurisdiction c. of Ecclesiasticall Lawes then in force This Statute repeales all Statutes made against the Church of Rome particularly Anno 1 2 Phil. Mar. cap. 8. the Statute of 21 H. 8. 13. made against plurality of Benefices taking of Farmes by Spirituall men and non residence The Statute of 23 H. 8. 9. That no person shall be cited out of his Diocess wherein he or she dwelleth except for certain cases Stat. 24 H. 8. 12. That Appeals in such cases as had been proved in the See of Rome should not from henceforth be had nor used but within this Realm Stat. 25 H. 8. 19. entituled The submission of the Clergy to the Kings Majesty Stat. 25 H. 8. 20. concerning restraints of Payments of Primates and First-fruits of Arch-bishopricks Bishopricks to the See of Rome Stat. 25 H. 8. 21. concerning the exoneration of the Kings Subjects from exactions and impositions before that time paid to the See of Rome and for having licences and dispensations within this Realm without suing further for the same Stat. 26 H. 8. 1. concerning the Kings being supreme head of the Church and to have Authority to reform and redresse all errors heresies and abuses in the same Stat. 26 H. 8. 14. for nomination and confirmation of Suffragans within this Realm Stat. 27 H. 8. 15. whereby the King should have power to nominate 32. persons of his Clergy and Lay Fee for making Ecclesiasticall Lawes Stat. 28 H. 8. 10. Extinguishing the Authority of the Bishop of Rome Stat. 28. H. 8. 16. For release of such as then had obtained pretenced licences and dispensations from the See of Rome Stat.
Queens Realms or Dominions should incurre the danger of a Premunire If any man shall the second time maintain the Pope to have any jurisdiction or authority in any of the Queens Dominions it shall be Treason The Oath set forth in the first Eliz. cap. 1. shall be taken of all Ecclesiasticall Orders of all degrees in the University of School-masters Utterbarristers Benchers Readers Ancients Pronotaries Atturneys Philizers Sheriffs Escheators Feodaries Officers of the Common-Law Officers of any Court but none above the degree of a Baron may be compelled The Bishop may tender the oath to any spirituall person in his Diocesse The Lord Chancellor or Keeper shall direct Commissions under the Broad-seal to any person or persons giving them authority to minister the oath to any such persons as by the aforesaid Commission the said Commissioners shall be authorised to tender the oath unto Any person aforesaid refusing to take the Oath and being thereof legally convicted within one year shall for the first offence incur the danger of a Premunire and for the second shall suffer as in case of High Treason Every Knight Citizen Burgess or Baron for any of the Cinque Ports shall take the said Oath and in case of refusall shall be deemed no Knight Citizen Burgess or Baron It was enacted That if any person in the Queens Dominions should use Anno 13 Eliz. cap. 1. or put in use any Bull of absolution or reconciliation formerly had or afterward to be obtained from the Bishop of Rome his successors or any claiming under him or if any person shall by virtue of such Bull take upon him to grant or promise to any person any such absolution or reconciliation or if any person shall willingly receive such absolution or reconciliation or shall obtain from the Bishop of Rome any manner of Bull Writing or Instrument containing any thing whatsoever or shall publish any such Writing or Instrument shall be adjudged a Traitor The aiders comforters and maintainers of the offendors after offence shall incur the pains and penalties of a Premunire Every person to whom such Absolution Reconciliation Bull Writing or Instrument shall be offered moved or perswaded to be put in use and shall conceal such motion or perswasion and not disclose the same within six weeks following to some of the Queens Councell or to the President or Vice-President of the North parts or in the Marches of Wales shall incur the danger and penalty of a Premunire The bringers into the Realm or using any Agnus Dei Crosses Pictures Beads c. from the Bishop of Rome or any claiming authority from the Bishop of Rome to consecrate the same as well the parties bringing as the parties receiving shall incur the danger of a Premunire But if any person to whom such Agnus Dei c. shall be tendred shall apprehend the person tendring the same and bring him to the next Justice of Peace within the County where the said tender shall be made if it be in his power or for lack of ability shall within three dayes disclose the names of the person so tendring or his place of resort to the Bishop of that Diocess or to any Justice of Peace of that Shire where such persons are resiant or if any person receive such Agnus Dei c. and shall within one day after receipt deliver the same to any Justice of Peace within the same Shire that then every such person shall not incur the penalties abovesaid All they who within three moneths after dissolution of the Parliament shall bring in and deliver all such Bulls Writings Instruments of Reconciliation to the Bishop of the Diocesse wherein such absolution had been made to be cancelled and confesse and acknowledge his offence and desire to be received into the Church of England shall be clearly pardoned of such offence And every person who had received any absolution from the Bishop or See of Rome or any reconciliation unto the Bishop or See of Rome since the first year of the Queen and shall within three moneths after any Session or dissolution of the Parliament come before the Bishop of the Diocess where such absolution or reconciliation was made and publickly acknowledge his offence therein and humbly desire to be restored and admitted into the Church of England shall be clearly pardoned of such offence If any Justice of Peace to whom any matter or offence before mentioned shall be uttered doe not within 14. dayes after signifie and declare the same to some one of the Queens Privie Councell that then such Justice shall incur the danger of a Premunire Noble-men shall be tryed by their Peers Saving to all persons Bodies politique and corporate their heirs and successors others then the said offendors and their heirs all rights titles possessions c. as they or any of them had at the day of committing the offence aforesaid or before Stat. 23 Eliz. cap. 1. makes it Treason for any who shall have or pretend to have power or shall by any means put in practice to absolve perswade or withdraw any of the Queens Subjects from their naturall obedience or with-draw them for that intent from the Religion now by her Highness authority established to the Romish Religion Or if any person shall by any means be willingly absolved or willingly be reconciled or shall promise any obedience to any forrein pretended Authority Prince State or Potentate and be thereof lawfully convict shall suffer as in case of High Treason The aiders maintainers and concealers who shall not within twenty daies at furthest disclose the same to some Justice of Peace or higher Officer shall suffer as in case of Misprision of Treason Every person who shall sing or say Masse shall forfeit 200 marks and suffer imprisonment during one whole year And every person who shall willingly hear Masse shall forfeit one hundred marks and suffer imprisonment for a year Every person above sixteen years of age who shall not repair to some Church Chappel or usuall place of Common-prayer and forbear the same contrary to the Stat. 1 Eliz. for uniformity of Common-prayer shall forfeit 20 pounds for every moneth and over and besides if he or she shall forbear for the space of 12. moneths after certificate thereof in writing made into the Kings Bench by the Ordinary a Justice of Assise and Goal-delivery or a Justice of peace of the County where such offendor shall dwell or be shall for his obstinacy be bound with two sufficient Sureties in the sum of 200 pounds at least to the good behaviour and so continue bound untill such time as he shall conform himself and come to Church according to the true intent of the Statute of the said 1 Eliz. Every person Body politique or corporate who shall maintain a School-master who shall not repair to the Church as aforesaid or be allowed by the Ordinary of the Diocesse where such School-master shall be kept shall forfeit for every moneth ten pound And such
forty pounds and for every yeere after the summe of sixtie pounds untill hee or shee shall receive the Sacrament as aforesaid and if he or she who hath received the Sacrament as aforesaid shall after offend in not receiving the Sacrament as aforesaid by the space of one whole yeere that then he shall forfeit for every such offence the summe of sixty pounds the one moity to the King the other to him who will sue for the same in any of the Courts of Record in Westminster or before any Justices of Assize or before Justices of Peace at their generall Quarter-Sessions by Action of Debt Bill Plaint or Information wherein no Essoyne Protection or Wager of Law shall be allowed The Churchwardens and Constables of every Towne Parish or Chappel for the time being or some one of them or if there be none then the chief Constables of the Hundred where such Town Parish or Chappell is or one of them as well in places exempt as not exempt shall once every yeere present the monthly absence from Church of all popish Recusants within such Townes and parishes and shall present the names of every of the children of the said Recusants being above the age of nine yeeres and as neere as they can the age of the said children as also the names of the Servants of the said Recusants at the next generall or quarter-Sessions of that shire limit division or liberty All such Presentments shall bee Recorded in the said Sessions by the Clerke of the Peace or Towne-clarke for the time being without any Fee and for default of every such Presentment the said Churchwardens Constables or High-constables shall forfeit twenty shillings and for default of recording such presentment without a Fee the Clerke of the Peace or Town-clerke shall forfeit 40. s. Every Presenement made by any Churchwarden constable or High-constable as aforesaid whereby any Recusant shall happen to be convicted shall be rewarded by having 40. s. to be levyed out of such Recusants goods and estate in such manner as by the more part of the Justices shall be ordered by warrant under their hands and seales The Justices of Assiize and Justices of Quarter-sessions have power to heare and determine of all Recusants as well for not receiving the Sacrament as for not coming to Church and have also power to make Proclamation that the body of every such offendor shall be rendred to the Sheriff of the county or the Baylif or keeper of the Goale of the liberty before the next Assizes Generall or Quarter-sessions and if then the offendor shall not make his appearance upon Record that every such default shall be deemed as a sufficient conviction by verdict of 12 men This Statute recites the penalties imposed by the 29 Eliz. 6. upon a Recusant convict and that every conviction shall be certified into the Exchequer as is in the statute of 23 El. 1. concerning Recusants monethly forfeitures yet by this statute the King may refuse the 20 l. a moneth and take the 2 parts of the Recusants lands yet the King shall not take into his two parts the Mansion house nor shall demise nor lease over the 2 third parts or any part thereof to any Recusant nor to the use of any Recusant and whosoever shall take any lease of the King of such lands shall give such security as the Court of Exchequer shall allow not to suffer any waste to be committed upon the Premisses For the better tryall how the Kings subjects stand affected in point of loyalty and due Obedience it is Enacted That after the end of the session of Parliament any Bishop of the Diocesse or any two Justices of peace whereof one of the Quorum within the jurisdiction of their sessions may require any person of the age of 18 yeeres or above being or which shall bee convict or indicted for any Recusancy except noblemen and noble women for not repairing to Divine service according to law or have not received the Sacrament twice within the yeere next past or any person passing through the County or Liberty and unknowne except as is before excepted that being examined by them upon oath shall confesse or not deny himself to be a Recusant or shall confesse or not deny that he hath not taken the Sacrament twice within the yeere to take this Oath hereafter upon the holy Evangelists which said Bishop or two Justices shall certifie in writing subscribed with his or their hands at the next generall or Quarter-sessions the Christian name Sirname and place of abode of every person which shall take the said Oath which Certificate shall be there Recorded and kept among Records of the said sessions If any person other then noblemen and noble women shall refuse to answere upon Oath to such Bishop or Justices of Peace or take the said Oath duely tendred then the said Bishops or Justices of Peace shall commit the same person to the common Goale without Baile or Mainprize untill the next Assizes or quarter Sessions where the said Oath shall be againe tendred unto them by the Justices of Affize or Justices of Peace or the greater part of them and if such person shall then refuse to take the Oath he shall incur the penalty of a praemunire except women Covert who upon refusall shall only be committed to the common Goale there to remain without bail or mainprize untill they take the said Oath The Tenour of the Oath I A. B Doe truly and sincerely acknowledg professe testify and declare in my Conscience before God and the World that our Soveraign Lord King James is lawfull and rightfull King of this Realm and of all other his Majesties Dominions and Countries and that the Pope neither of himselfe nor by any Authority of the Church or See of Rome or by any other meanes with any other hath any power or authority to depose the King or to dispose of any of his Majesties Kingdomes or Dominions or to authorize any forreigne Prince to invade or annoy him or his Countries or to discharge any of his subjects of their Allegiance and Obedience to his Majesty or to give licence or leave to any of them to beare Arms or raise tumults or to offer any violence or hurt to his Majesties Royall Person State or Government or to any of his Majesties Subjects within his Majesties Dominions Also I sweare from my heart that notwithstanding any Declaration or Sentence of Excommunication or Deprivation made or granted or to be made or granted by the Pope or his Successors or by any authority derived or pretended to be derived from him or his See against the said King his Heires and Suceessors or any absolution of the said Subjects from their obedience I will beare faith and true Allegiance to his Majesty his Heirs and Successors and him and them will defend to the uttermost of my power against all conspiracies and attempts whatsoever which shall be made against his or their Persons their Crowne and Dignity
of the Commons Lawes of this Land yet a great assertor of them and in disgrace with him would oftentimes affirm that there was no time whenever he could speak reason but the King would hear him With the reputation of these virtues he governed these Islands in greater peace then posbly in the ordinary nature of things could be expected In the 3. year of his Reign viz. Anno Dom. 1605. was a most hainous and The cause of the many Laws made against Popish Recusants vile attempt intended not only against the very Person of the King but even of his Posterity which had not advanced the designe of the conspirators and the Church and all the Nobility not of their faction with the Commons in Parliament assembled And the conspirators had proceeded so far that they had not only made provision to have effected their purpose and intended the fifth of November being the day for the convention of the Parliament after their Proroguement and therefore probably expecting not only a more then usuall convention both of the Lords and Gentry but even of the King himself to have blown up the Parliament House But the designe being as foolish as desperate was discovered the night before it should have been executed although it is thought that it was known even to the King himself and the Earl of Salisbury before as by accident and so had no other effect then what the conspirators might reasonably have expected had it succeeded viz. ruine to themselves for their faction being so very few in proportion to the rest of the Nation and without either money Forts or Army in reason they could not have done any thing considerable in order to their further designes and severe Lawes against all which might be suspected to be of their faction to prevent any such further attempts It is true where Tacitus observes that the conspiracies of Subjects where His defects and frailties they succeed not doe advance the Soveraignty and verefied in this attempt of the Gunpowder-Treason for how many Lawes were that Parliament and afterward enacted against all Popish Recusants we have before shewed yet so it happened and so usually happens when not carefully minded by Princes that another faction far more formidable both to King and Church openly pretending assistance to the King and Church in persecuting this faction secretly acquired strength to themselves in so doing Nor was this unseen by this wise King being naturally a greater enemy to the Faction persecuting the persecuted but either not having that magnanimity which is so requisite in a Soveraign or apprehending he had not means sufficient to goe through he neglected to apply such medicines as were necessary to the curing of this Gangrene so dilating it self both in Church Court and State but desiring Peace especially at home although almost upon any termes he rather sought to repell the breaking out of Puritanisme during his Reign then to eradicate it for the future Add hereunto that being excessively addicted to Hunting and not greatly loving the Common Lawes and finding it impossible to govern this Nation otherwise and minding controversies in Divinity more than the management of his temporall affaires and though free from Sacriledge and Corruption in his person yet carelesse of it in his Favourites and Countrymen and nothing so prudent a Manager of the Revenues of the Crown as his Predecessor whereby being forced to recede from many of his Regalities the Reins of Government both in Church and State became so loose that in the ordinary nature of things it was very difficult they should be reassumed by his Successor Ecclesiasticall Laws made by King Charles THere were some few Lawes made against Interludes c. on the Lords day and 10. groats penalty for offence to be levied by Justices and Constables which a man may read in the first Car. 1. 3 Car. 1. There had never in any time been before this Kings Reign so long Peace The state of the Church State in the beginning of K. Charles his Reign viz. for neer 80 years in this Nation as in the beginning of his Reign but neither doth peace make mens minds peaceable nor were things otherwise well disposed for the continuance of it for not only the zealous and obsequious duty which the Subjects paid to the Royall name in the person of Queen Elizabeth was quite dead and almost forgotten the great wisedome and learning of his Father not to be hoped for in the tender years of the Son the Exchequer without money and yet the King engaged in a Warre against the Spaniard for recovery of the Palatinate but the Puritan Faction which Queen Elizabeth desired so much to suppresse and so much hated by his Father was grown so farre up in Church State and Court that in all they were far more numerous both in England and Scotland and all forein Plantations then all his other Subjects Nor was the condition of Ireland better for not only the Protestant party were jarring among themselves but the Popish intent upon their destruction which after they did execute in a terrible manner To these may be added the government both in Church and State so neglected that the exercise of any Lawes to reduce them to conformity would be imputed to have been Innovations and Tyranny The Kings Councell either uncapable of giving counsell or not faithfull to their Prince Nor was there any thing left to oppose all these growing calamities but the hopefull virtues of a young Prince unacquainted in Temporall affaires and a stranger to all worldly calamities which are of no more power to protect him against seditious and rebellious Subjects then the Lawes of God and all which may be called sacred will retain men in obedience where they are not restrained by a present coercive power But these stormes which after brought this Saintlike Prince and this wofull Church State to so lamentable a condition as they lately lay under did not breake out in the very beginning of his Reign but in all three Nations did gather into such black clouds in all his reigne that almost at once breaking forth in such a terrible Tempest as upon the matter it so overwhelmed King Church and Government that there was scarce any footsteps of them left I had here designed to have inserted a short History of the chiefe occurrences of his Reigne and by what degrees this saint-like Prince became a victim to the rage and lust of his seditious subjects and have the papers now by me but in regard it must needs rub soares which may rather in their tendernesse anger then ease them and also because the History of his life hath been by others more fully written but most of all because it is his Majesties pleasure to have the memory of things rather buried in oblivion then renued I shall forbeare and doe no more then give the description of him and shew the consequence of his calamities The Description of King
JUSTICE VINDICATED From the False FUCUS put upon it BY THOMAS WHITE Gent. Mr THOMAS HOBBS AND HVGO GROTIVS AS ALSO ELEMENTS OF Power Subjection Wherein is demonstrated the Cause of all Humane Christian and Legal SOCIETY And as a previous Introduction to these is shewed The Method by which Men must necessarily attain ARTS SCIENCES By ROGER COKE LONDON Printed by Tho. Newcomb for G. Bedell and T. Collins at the Middle-Temple-Gate Fleetstreet 1660. To the Kings most Excellent Majesty CHARLES II. By the Grace of GOD KING of GREAT BRITAIN FRANCE and IRELAND Defender of the Faith IF it were not unbecoming confidence Most Eminent of Kings in Hugo Grotius who at most did owe Your Illustrious Uncle Lewis the Thirteenth but a topical and temporary obedience to dedicate his Book De Jure Belli Pacis to him founded upon such feigned and inconsistible principles because written for Justice Then will it not ill become a natural Subject of Your Majesties who by all divine and humane laws owes an indelible character of obedience to Your Majesty to implore Your patronage of Justice founded upon the true and genuine causes Nor is there any attribute of Justice which Grotius there ascribes to Your Uncle but is as properly or more due to Your Majesty For if Lewis were just because above any thing which might be spoken he did honor the memory of the great King his Father by imitating him how just then is Your Majesty when as not all the storms of adverse fortune in Your Father or Self could ever any ways shake the constant veneration You have always paid his Saintlike memory by imitating him whereas prosperity did almost ever fill the sails of Your Uncle and his great Father If he were just because he did instruct his Brother by all means but most by his own example then is not Your Majesty less just who by all means but most by Your own Example hath so well instructed Your Brethren that they in all respects answer the dignity of their high extraction and whose eminent Virtues have attained such a height of perfection that they are justly celebrated all over Christendom with admiration If he were just because he did adorn his Sisters with highest matrimonies yet certainly it was rather the felicity of his fortune then acts of his justice that he was by the marriage of his Sisters allied to all the greatest Hereditary Princes of Christendom how just then is your Majesty who hath so adorned Justice and Piety that as being by nature wedded to these though born one of the greatest Princes of the Western world You have preferred them before the enjoyment of Three Kingdoms If he were just because he did call back the almost buried Laws and opposed himself to a Generation making haste into worse Who then can express Your justice who hath recalled our buried and almost forgotten Laws and who with most manifest danger yet by Providence miraculously preserved for your Subjects deliverance did oppose your self against the Tyranny of the most perverse generation of men that ever pretended to be Christians If he were not only just but also clement whenas he took from his Subjects who by ignorance of his goodnes had transgressed the bounds of their duty nothing but the liberty of sinning nor did force their consciences differing from him in Religion Let the world then judge and admire your justice and clemency who of your own accord does refer the most perpetrated villany committed in the sight of the sun upon the person of your Royal Father not by your Subjects ignorant of his and your goodness but by those who had known his clemency and goodness and in the worst of their wickedness needed not have despaired of his favor to those of your Subjects neither convened nor elected by your authority And are so far from taking any thing from your peccant Subjects more then liberty of sinnng that you admit of a restitution to those of your Subjects who by such undue means had invaded the sacred patrimony of Gods Church and your Crown And though these things were committed upon pretence of Religion yet so tender is your Majesty that you will force no mans conscience not of these men And if it were justice and mercy in your glorious Uncle in the prosperity of his fortune to relieve oppressed people and Princes by his authority then was it no ways less justice and mercy in your Majesty that in the adversity of your fortune you did by all means endevour by your authority to relieve the oppressed and distressed Princes and people of Christendom To You therefore Great Sir being the Fountain and Centre of Justice in these your rightful Dominions in the lowest posture of humility do these Observations and Elements presume to offer themselves though not upon any confidence of themselves or Author but because wâ—â—ten for and in defence of Justice To You Sir who by an indifferent administration of just received and known Laws and moderating the severity of them Your Majesty being their Moderator as well as Arbitrator where it becomes impossible for your Subjects to fulfil them or inconvenient to Your self or Subjects in rigor to execute them if it be not your Subjects fault shall not less under God confer peace and happiness to all sorts of them then the Sun by its effluence does diffuse life and light to all the various creatures of the Universe This is it which in time will reduce your wandring Subjects to the secure and known paths of their Allegiance out of which they have gone astray This is it which will secure you from the imputation of Tyranny and convince your adversaries that it is not your fault in governing but theirs in disobeying if hereafter they bring upon themselves the miseries and calamities of another Civil war And this is that which will evidence to the world that then your adversaries became enemies to your Royal Father and Self when they first trod under foot the established and received Laws of their Country and that it is and always was the desire of Usurpers who having no just title but new Oppression to introduce more new Inventions of their own in place of the old Laws This is it which after your Majesties gracious Act of Oblivion for crimes past will so settle the minds of your Subjects that in the known ways of their ancestors they may expect favor and protection from your Majesty This is it which will so genuinely and equally support your Majesties Title that as it is so derived from the loins of innumerable Royal Ancestors as no man can shew where it began and so clear that in the world no man presumes to stand in competition with You so is it supported by received Laws of that continuance that they have lost their first original I presume not Sir to say this of mine own head to advise your Majesty much less have any diffidence of your Majesties governing your Subjects
established several Laws for manners and by them have been often altered but that there is no such thing as the Law of Nature and that all men as well as other creatures are naturally carried to their profits And so there is no such thing as Justice or if there were it were the greatest folly because men by endeavoring the good of others prejudice themselves Since the Grecians and Romans were the first who in the world did make all power to be from the People I suppose that Mr. Hobbs and Grotius took their Principles from them Let us see whether by the People they understand the same thing with the Romans and Grecians or the same thing with one another By the People of Rome or Athens the Romans and Athenians understood them and them only who were civitate donati and not men born in a promiscuous rout and parity without all order and subordination but made so by violent usurpation By the People Mr. Hobbs understands the King or Court governing By the People Grotius every where I believe for he no where that I can find defines the People understands the Subjects governed and they who in a parity or equal condition constituted the Civitas Upon these and many other considerations and observations upon them I was so far from being convinc'd that I became much more firmly established then before in my Judgment for Opinion I will not have of those things wherein I am possest of the constant practice of the world in all ages places the plain undubitable and uncontrolled places of Scripture both in the Old and New Testament and no colour of allegation against them from any other places the Authority of the highest Philosopher my Country-Laws and all those Theses and Axiomes upon which almost all Reason and Philosophy are grounded and these things opposed by such monstrous feigned equivocal and silly beggings of the question which no man not blinded with faction or stupid ignorance can grant yet had not these Observations become publique if it had not been upon an odd occasion which was Upon a time being with a Brother-in-law a Kinsman of mine at dinner came to my Brothers where in discourse he asked me if I had seen a Book of Tho. Whites called The Grounds of Obedience and Government I answered no nor did I desire to see any thing of his doing having conceived a prejudice of the Mans ability and ingenuity He confidently replied that I should be convinced if I did but read it and that he would send me the book Yet was I so far from accepting his courtesie that I importunately desired him not to do it But he notwithstanding all importunity on purpose sent his man with it that night to me being at that time much afflicted with my wonted Melancholy which became more excited when I had read some part of it And seeing a thing so sensless and void of all humanity to be imposed upon the world which questionless was intended to prefer some Faction or Interest of his and yet forsooth he tells us it is a second Edition corrected and amended by the Author wheresoever therefore I name our Author I mean Tho. White Gent. I did in detestation of the Thing not of the Man for I never saw him in all my life set my self to make these Observations upon it He harps upon the same string with Mr. Hobbs and Grotius That all Supreme Power is originally created by Mens wills subject to it Yet being a fine Gentleman in quirpo he dances a Galliard by himself and most senselesly makes men out of society to be a Rational multitude and to have Property before they had Laws or Government and to be a People after they had given up their power to another to govern them But lest it should be objected that though our Author be hood-winked yet Mr. Hobbs and Grotius might be very clear-sighted and bare-faced I thought it not amiss to make these Observations upon them also As a Preparative to a Purge I pray Reader take these few Notes 1. First I say they falsly derive Government For though they all differ in the manner of it yet is all Government so far from being so derived as any of them would have it in the first Institution that if any of them can shew any one Government so derived since the beginning of the world I will yeeld the cause 2. They feign that for a Principle which never was viz. That men by nature are in a parity or equal condition For never were men since the Creation in any age or place of the world in such a condition But suppose somewhere in the world it might have been found that men in a like condition did by their acts and wills form themselves into a Society yet is it a most unreasonable thing to conclude from thence that all power in Government is from the People For Singulars are deduced and concluded from Universals not Universals by Singulars 3. The Principle they beg is destructive to all good manners for Justice is the fountain of all humane Virtues and Morality as all Philosophers and best and wisest men hold And if Justice be the duty which men owe their Superiors and that it may be truly and ultimately resolved into the first cause without any detriment or damage to it and if all order superiority and power in Government may truly and ultimately be resolved into the People or the wills of the Subjects or Party governed then the wills of the Subjects being the fountain and first cause of all Order and Justice that is Justice in the People to do what they list then which nothing can be more destructive to all Virtue Justice and Good manners 4. It is damnably destructive to Faith for All powers are of God Rom. 13. and No power can be given but from above S. John 19. 11. Nor were these Men when they wrote their several Treatises De Cive De Jure Belli Pacis and Grounds of Obedience and Government much better in their Religion if I conceive a right Notion of Religion viz. That it is Actus Divini cultus or the Publick worship and service of God in an unity form and communion then their Writings shew them to be for Justice and Government For though our Author be a Pretender to be of the Religion of the Church of Rome yet it would trouble the greatest Critique of this Age to shew where the Religion of either of the other were to be found And who but such men as these would pin their faith upon the tales and fictions of Poets before the most venerable and sacred Authority of Holy Scripture Nor can the eldest of Poets writings be compared in antiquity with the Scriptures For if it could Cur supra bellum Thebanum funera Trojae Non alias alii quoque res cecinêre Poetae And the Theban and Trojan War hapned after the Year of the World 2750. The Trojan War about the time
Lex naturae is that which is so willed or commanded by God I deny therefore that any Creature can have Jus divinum but that all right which any Creature hath is either from some Divine or Humane law Jus naturae is superior and must precede Lex naturae By Art 3. cap. 1. Every man hath Jus naturae Therefore every man hath a right above the Law of Nature and so Mr. Hobbs may save himself the trouble of his Philosophical Elements De Civie For since he makes every man above the Law of Nature sure he can never make him subject to any Humane Law 25. It is impossible for the Civil Law to command any thing contrary to Cap. 14. ar 10. the Law of Nature Observ Is it not a wonderful thing that this man should make the Civitas to be a humane Artifice and invention and the Law of Nature to be the immutable Law of God and yet that it should be impossible that this Artifice or created Deity to command any thing contrary to this immutable Law of God Sure the greatest Papalian never ascribed so much to the Pope in Cathedra I will then tell him wherein the Civitas may command Wherein the Civitas may command contrary to the Law of Nature contrary to the Law of Nature and wherein he is mistaken The Laws of Nature are either upon supposition of Humane Laws or not upon supposition of Humane Laws as Thou shalt not steal supposes a Humane Law which gives Property but Honor thy Parents Be grateful for benefits received c. supposes no Humane Law And therefore if the Civitas commands me to dishonor my Parents or to be ingrateful for benefits received which de facto it may this being but a Humane Law I am notwithstanding obliged to honor my Parents and be grateful for benefits received But Mr. Hobbs supposing no Laws of Nature but upon supposition of Humane Laws is the reason I conceive why he says It is impossible for the Civitas to command any thing contrary to the Law of Nature Yet will he have one exception viz. That the Civitas commands nothing Ibidem Observ 2. to the contumely of God If a man should ask him whether there be no Law of Nature but the Honoring of God If there be no other Law of Nature then to what purpose are all his Laws of Nature of standing to Pacts of seeking Peace c. Well but if men by the Law of Nature are obliged to honor God and it be impossible as he says for the Civitas to command any thing contrary to the Law of Nature then is it impossible for the Civitas to command any thing to the contumely of God and so he has made a needless exception But it may be he does not think that men by the Law of Nature are bound to honor God for he has not so much as mentioned it in his Laws of Nature For then they are no Laws Mr. Hobbs Yes the Statues of Omri were Statutes although they commanded to the contumely of God and so was Nebuchadnezors command for the worshiping Observ 3. the Golden Image a Law though made to the contumely and dishonor of God Whereas he saies Quid sit Adulterium does depend upon the Civitas I would know of him whether it were Adultery in David in lying with Bathsheba Observ 4. during Uriahs life if it were then is it not true which Mr. Hobbs here saies if it were not then did God unjustly so severely to punish him therefore Tyranny is not a State of a City different from rightful Monarchy Cap. 7. art 3. Observ True upon your false and feigned Principles where the wills and pacts of men are made the cause and origination of all Power in Government where Mens wills are made their Laws then which nothing can be more destructive to all Laws divine and humane and the most Wilful man should be the most Just man for to what purpose should there be any Laws Divine or Humane if a Man 's own will be a rule and Law to himself and by this Mans principles it is only mens wills from which all Power in Government is derived and to which Men ought to be subject Yet good Man some difference he makes viz. only in the exercise Mr. Hobbs of their Power he forsooth is a King that rules well and he is a Tyrant that rules otherwise Observ As if Absoloms kissing the Israelites when they came to demand Justice and his desire to judge the people righteously had made him a good Title to the Crown of Israel or that Jeroboam or Athaliah had not been Usurpers but very Rightful Princes if they had ruled well But though he makes no difference between Swordbearers and Swordtakers between Gods Ministers and Theeves and Robbers yet the Holy Ghost does for Gods Minister is a Swordbearer and if he be not Gods Minister and a Rom. 13. 4. Swordbearer but a Swordtaker as our Saviour calls them who have not a St. Matth. 26. 52. just Authority then whosoever sheddeth mans blood by man shall his blood be shed for in the image of God made he man And if ever Man had a just Gen. 9. 6. cause to have taken the sword then had St. Peter in defence of his Lord God and Master but our Saviour reprehends him telling him that whosoever takes the Sword shall perish by the Sword And it is not wicked men whom Usurpers Tyrants and Swordtakers so much murder for it is no better as vertuous and honest The worst of private Malefactors may justly with the Whore in Terence answer to the best of Swordtakers if there be any degree of goodness in any of them quamvis ego digna sum hac contumelia maxime indignus tamen tu qui feceris And whereas he only makes Tyrannus ab exercitio it is false for the abuse of a thing does not alter the nature of a thing as a Man is a Man although a bad Man who abuses those good parts which God hath given him so is a Father and a Master a Father and Master yet bad ones where they abuse their Power and so is a King a King although he abuses his Power and the Holy Ghost many times calls them wicked and idolatrous Kings c. but never Tyrants as this Man does I would here gladly be satisfied of Mr. Hobbs how if God made Man Cap. 1. art 12. and Cap. 8. art 10. in the state of pure nature as he saies in such a cut-throatly condition and so much worse than any other creature that men might jure naturali everlastingly kill one another and commit no offence if the King or Civitas does not restrain it God could in justice have punished Cain for killing Abel Cap. 6. art 16. if Cain or Abel had not gone to Do or Dedi and not to Dabo or Faciam with Adam and made him their King or Civitas over them and Adam have given them
it be that when God shall have called thee to his Kingdom which alone is better then thine thou maist confidently say I have received this sword from thee for defence of Justice this sword I return to thee pure and undefiled rashly guilty of no bloodshed Observ So that if he saies true that Lewis the 13. had his sword of Justice from God then does he say false here and in twenty places more that all Power of Governing is from the wills of the people Well but let us suppose a King made by the People which is the party governing and which is the party governed all Government being in the predicament of Relation where there is any one to govern or command there must be another to be governed and commanded Well then here are two the People and the King made by the People the one to govern the other to be governed Say now which is the party governing the King or the People it cannot be that the King should be the governing party for he is but a Creature and a thing made by the People and the Creator cannot be ruled and governed by the Creature the People then must be the party governing and the King must be the party governed the King therefore of France whom he so much flatters and all other Kings whatsoever from this determination of Grotius are the governed party and the People their Subjects are the governing party If therefore it be impossible to serve two Masters who by equal right command I would fain know how it is possible for a King to obey above Ten hundred thousand every one of his Subjects having as much right to command him as another and it is very like indeed to be a very well ordered Government and much conducing to the benefit and safety of the People where there is many Hundred thousands commanding and one individual person obeying But good Man he is very careful that though the People give Kings all their Regal Power that they part not with too much nay though they make Kings yet if you beleeve him they part with nothing at all for otherwhere he saies Imperium quod per Reges exercetur non desinit impeperium Lib. 2. cap. 16. Para. 16. populi Is not here a pretty play of a King and no King a King without Power and a People with all Power So that at the same time that he flatters Lewis the 13. by telling him neither King nor People are Judges of his succession he had before given the People of France a power of altering the right of succession without doing any wrong to his Son Lewis the 14 who now rules for he was res non existens when he wrote this book De jure belli pacis Sometime neither as Hogan Mogan nor stipendary to Lewis the 13 Lib. 2. cap. 7. Para. 25. directly where he saies In alienable Kingdoms the King may disinherit his heir Observ Who gave him his Fee to say this We cannot think it was Lewis he denies all his Grounds to pleasure him yet latet anguis in herba it may be because Henry the First was younger Son to Robert and Robert disposessed his eldest Son who bare his name and made his younger Son King from whom Lewis derives himself But how then can this stand with the 27 Para. that neither King nor People are Judges in succession or if Power which is exercised by a King does not cease the Power of the People then cannot Lib. 2. cap. 16 Para. 16. Kings give away their Kingdoms nor disinherit their Heirs for delegata potestas non potest participari Observ Well let us see his reason for this He says Such a Kingdom is like other alienable goods Here the right of the alienation of a Kingdom is well proved viz. I may give a poor man a penny and therefore a King may disinherit his Heir or give his Kingdom to whom he pleases And so he says Jacob did disinherit Ruben Observ What Kingdom was then given by any people to Jacob to which Ruben was Heir Besides for ought he knows or can find by Cicero Tacitus Demosthenes Cleon or any tale told by any Poet the time when Jacob lived and died was then when all things were common and undivided and how then could Jacob disinherit Ruben Observ Another Instance for the right of Alienation is of Davids disinheriting Grotius Adonijah Whether this be true read 1 Chron. cap. 28. v. 5 6 7. And of all my sons for the Lord hath given me many sons he hath chosen Solomon my son to sit upon the throne of the kingdom of the Lord over Israel And he said unto me Solomon thy son he shall build my house and my courts for I have chosen him to be my son and I will be his father Moreover I will establish his kingdom for ever if he be constant to do my commandments and my judgments as at this day Nor was it for any crime Adonijah did not reign after David for David had sworne Solomon should reign before Adonijah's usurpation 1 King 1. 13. Mr. Hobbs makes no doubt but a Monarch may choose his Successor and Cap. 7. art 15. Cap. 9. art 12. by his will dispose of the Supreme power of the City And in the next Article he gives him leave to give it or sell it to whom he will Observ King James was observed to make his Honors vile because he exposed them to sale and so conferred them upon unworthy men not as they deserved them but they were able to pay for them thereby to satisfie his hungry Countrimen who were daily begging boons of him How vile would this man make Majesty how light the ligeance which is due not only by nature but by oath from all Subjects to their rightful Soveraigns And The Crown of England has been so free at all times that it hath no earthly St. 16. Ric. 2. cap. 5. subjection but immediately subject to God touching the regality of the same Crown and to no other And it is declared by the Lords and Commons in Parliament upon demand made by the King That they could not assent to any thing in Parliament that tended to the disinherison of the King and his Sir Ed. Coke Inst 4. par p. 15. Crown whereto they are sworne How this can be consistent with this mans Sale of Crowns I do not understand Our Author is so in love with his Supreme and Absolute Trustee that let him but do what he list and he may say with Tiberius Caesar 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 When I am dead let the earth be mingled with fire Bodin in the last Chapter of his Republique because neither from Plato's nor Xenophon's opinion he can find Justice to consist in Geometrical nor Arithmetical proportion will therefore have it to consist in Harmonical he not understanding harmonical proportion For he makes it consist in four terms viz. 4. 6. 8. 12. and what proportion
to the wills of men whereas Natural causes do immediately proceed from God and are above the will of man Society therefore being natural the actions of the wills of the most perverse and wicked men in the world could never make them out of society but where they would not be commanded by their rightful Superiors fell a commanding and obeying among themselves 4. They all not only invert Nature and make Wills and Pacts superior to it in the cause of Society but all of them make the natural relations of rightful Princes and Subjects to be dissolvible by the wills of men yet after a different manner Grotius when there is a necessity makes them dissolvible by the Subjects Our Author when the Subjects judge it reasonable And Mr. Hobbs when the King or Civitas will give or sell the relations Whereas Regal power being Gods ordinance is therefore superior to mens wills and cannot be aliened or dissolved by the will of man 5. They all not only invert Nature and make it alterable by the will of man but make the Law of Nature or God to take its origination from the civil pact or will of man whereas the Law of Nature is eternal and immutable by the will of man and connatural with every man and always had and ever shall have a like obligation upon all men in all ages and places 6. I say They not only blasphemously make Nature and the Law of God alienable and depending upon the will of man but also most illogically confound the relations of agencie and patiencie in the same subject and make the Cives to constitute the civil pact and to be subject to it whereas Omnis potentia activa est principium transmutandi aliud 7. They invert Grammatical construction in making the Cives who constitute the Civitas the patient or governed and the Civitas who accepts the wills of the Cives to be the agent or governor Whereas the contrary is true in both for Obligans is the governor who does will and obligatus the governed who accepts the will of the governor 8. They all most ridiculously make the Creature the Civitas superior to and the Governor of the Creator viz. the Cives whereas it is impossible any Being should be prime or superior to the cause of its being 9. They all of them make the Cives to endue the Civitas with that which none of them have either separately or conjunctly viz. a power of life and death and creating property whereas Nil dat quod non habet nemo potest transferre id in alium quod ipse non habet If all these things be true and that I have not unjustly charged them in my Observations how contrary they are not only to one another but to themselves in their superstructure then let the world judge especially you my dear and native Countrymen whether grounds so unnatural so blasphemous so illogical so contrary to common sense and grammatical construction so ridiculous and impossible should be worthy to be accounted the Principles of Humane society Or whether they ought not to be exploded by mankind as fit for nothing but to abuse ignorant men and to open a gap for Sedition and Atheism If I have here or heretofore unjustly charged them two of my Adversaries are alive and of age and may answer for themselves and no question but Grotius hath followers enough who may vindicate him if he hath wrong done him Or if I have committed any of these things in these Elements let them make it appear I will thank them for it A Premonition to the Reader BEside that part of this Treatise which shews the causes and means by which men attain Arts and Sciences in this Preface Observations and Elelements I have designed three things First in the Preface I designe to demonstrate That it is impossible that the Cause of Humane Society should be originally created by the pacts and wills of men and the occasion of writing these Observations Secondly in the Observations I designe to shew That the Causes of Humane Society do not appear from these mens Grounds and Principles Thirdly in the Elements I endevour to demonstrate the Causes of all Humane Christian and Legal Society And if any of my Adversaries or any man else shall shew me any errors in any of them I profess I will ascribe it as an act of Friendship to him I have one request more to the Reader That he would look upon all these Elements and Observations except one half-sheet added to the Observations to be passed the Press before His MAJESTIES Acknowledgment or Restitution until the last Book or one sheet or two of the Fourth Book of Justice c. And to insert in pag. 9. of this Preface line 22. after For which no reason can be given what is contained in the Margin from These things thus premised c. ELEMENTS OF Power Subjection Or the Causes of all Humane Christian Legal SOCIETY Vir bonus est quis Qui consulta Patrum qui Leges juraque servat By ROGER COKE LONDON Printed by T. N. for G. Bedel and T. Collins at the Middle-Temple Gate 1660. TO THE READER MAns thoughts of Life and Living are odd things pritty Antitheses he thinks his whole Life though he should live a Thousand years too short and yet every day nay hour of his living too long Vicious Men therefore misplace their happiness in entertaining worldly pleasures thereby to delude and spend their time which they desire so much to continue in their Life that in their living it might not seem to be Virtuous Men have the same thoughts of Life and living with vicious Men but their actions discern them For those hours which in their Life would otherwise seem tedious to them they entertain either in the Contemplations of God or his Works or by doing virtuously sweeten those sowre effects which idleness causes So that the old Philosophers would affirm That not Years but Virtue should be the measure of Mans life And this reward hath God the Author of Virtue in Men as Plato divinely affirms given Meno prope finem to virtuous Men that they not onely take pleasure in remembring time past but also hope well in time to come notwithstanding all the frowns of perverse and wrinckled Fortune whereas vicious Men are onely pleased with deceiving the present time ashamed to look back upon their actions past and affrighted upon the apprehensions of death and worldly calamities which notwithstanding all their Proteus shapes and Janus faces happens to them as well as virtuous Men in time to come There is no time wherein virtuous Men may not contemplate God either as God or in his Works or do well whereas many times vicious Men though never so rich and able to maintain their Vices are either wearied with them or have not means to attain to what they call the fruition of them and then they may be truly accounted miserable because they know not what to
of the Antiquity of things having discoursed of the Creation of the World and Man and given a conjectural opinion of the state of Man before they had language houses or art enough to clothe themselves and having in the next Chap. discoursed of the fabulous Egyptian Gods and in the 3. of the site of Egypt and wonders of Nile and in the 4. of the causes of the inundation of it in the first Chap. of the second Part he descends to his History and gives a narrative of the original Government of the Egyptians under the Gods Heroes and Elective Kings for 18000. years together and after the Gods reigned Menas and that his progeny in fifty two Kings reigned 1400. years and did nothing memorable And then Busiris and eight of his posterity reigned the last of which was called also Busiris who built the great City called of the Egyptians The City of the Sun and of the Grecians Thebes not only the most stately in Buildings and adorned with all the Rarities of Nature of all the Cities of Egypt but of the whole world After him was Osymandrus and the eighth of his progeny from him Uchoreus who built the City Memphis And the twelfth of his offspring after him was Myris and Sesostres the seventh of his linage was King c. In the first Chap. of the second Book he treats of Ninus as the first King of the Assyrians and of Aricus King of the Arabians contemporary with him and of Barzanes King of the Armenians and of Farnus King of the Medians and in Chap. 2. of Zoroaster King of the Bactrians c. In the 3. Book treating of the Ethiopians beyond Lybia he speaks of the strange manner of the death of the Ethiopian Kings until that Ergamenis King of the Ethiopians in the time of Ptolomy the Second addicted to Philosophy and the Greek learning first despised that manner of dying which was this The Priests which offered sacrifice in Meroe and these were of greatest authority when it seemed good to them would tell the King that he must die for so the Oracle of the Gods commanded and that it was not meet that the will of the Gods should be contemned for the will of a mortal man and they add other reasons by which from an old observed custom they perswade the King to a voluntary death and all the antient Kings obeyed the Priests of their own accord not compelled by arms or force but overcome by superstition In lib. 3. cap. 4. he makes four kinds of Libyans to inhabit the midland coasts about Cyrene and Cirtes whereof they who dwell to the South are called Nasamones others sited at the West Anochitae others are called Marmaridae which inhabit between Egypt and Cyrene and part of the Sea-coast the fourth kind excelling in multitude of men are called Maiae The two latter obey Kings the third are under no Kings but always intent upon robbery they know no justice yet a little after he says they every year swore the people subject to them to obey their Prince He speaks not of the Government of the fourth but of the Amazons which in old time governed Libya Let us see the most ancient Government of Nations out of other From Egialus came the Egialian Region which was after called Apia Authors Scaliger out of Africanus and Eusebius in the year of the Julian period 2625. which was in the yeare of the world 1750. makes Egialus King of the Sicyonians not an hundred years after the Flood who reigned 52 years after him Europs 45 years after him Telchin 20 years after him Apis 25 years after him Thelxion 52 years after him Aegyrus 34 years after him Thurimachus 45 years c. Aventinus makes Tuisco the son of Noah who sent by his Father 131 years after the flood came into Europe with 20 Captains and reigned as King of the Germans 176 years and that Ingaevon Germanicè Ingaab as some say others Inwohner the brother of Mannus reigned after him 45 years After him Istaevon the son of Ingaevon whose wife Freia the Venus of the Germans gave the name Frey tag or Friday reigned 50 years After him succeeded Hermion or Horman the son of Istaevon who reigned 63 years To him succeeded Marsus the son of Hermion who reigned 46 years c. Inachus in the year of the world 2094. was King of the Argives who reigned 50 years Phorone his son succeeded in his stead who reigned 60 years Apis the grandchild of Phorone succeeded and reigned 35 years Argus Apis his son succeeded his father and reigned 70 years Criasus his son succeeded him and reigned 54 years c. Nay the very Athenians beginning at Cecrops for 867 years were governed by hereditary Monarchs before there were any footsteps of the Democracy or Archon Nor can any man shew unless where God was pleased peculiarly to reign or in the Lacedemonian Duarchy who were governed by two Kings descended from Eurysthenes and his brother Proclis who ruled in Lacedemon from about the year of the world 2848. until both lines became extinct almost together about the year of the world 3730. for above 3000 years after the Creation any other Government but Monarchy Hereditary nor any of them made from any Pacts or Contracts of Men. What therefore men feign to be originally in the People was truly in Kings and Justin says truly Principio Rerum Gentium Nationumque imperium penes Reges erat It was then a Golden Age not when Men lived in a promiscuous Herd or Rout as these Men and Poets feign but when Men content with their Government of Kings enjoyed peace and plenty in security And it is Mens wrangling about they know not what and not content with Regal Government that hath made such an Iron Age in the world If a man looks into Persia India Ethiopia and other parts of the world where Subjects content with those Governors which God hath given them continue in obedience thereunto he shall find them not only live securely but abound in all plenty and riches and yet may be said to enjoy a Golden Age and contract the Iron Age to those wrangling Europeans who not content with Gods Ordinance make to themselves an Iron Age and without end miserable by being always obnoxious to Confusions and Civil wars It is neither an Article of Faith nor can there be one instance given Annot. 1 out of sacred or prophane History that ever Supreme or Regal Power was ever made from the Pacts or Contracts of Men or consent of Families I do not therefore understand what should move Men against the constant practice of the world in all ages to require this for a principle which being vaine and superstitious all that can be deduced from thence cannot be better or amount higher Ob. But God and Nature never made the same thing of different species Annot. 2 and if all power in Government be from God how then came Government to be of different species viz.
to the prejudice and dishonor of it for sure no man can imagine that because a Man is a King that therefore he should divest himself of Nature and neglect to use some means to get an Estate for his Posterity where there is none provided If it be objected that the Crown descends to the Heir not to the posterity if more then one I answer That no Crown but hath many Offices and Dignities appertaining to it which descend to the Heir he probably will not reject his own flesh and blood to advance strangers whereas in an Elective Kingdom it cannot be hoped for 10. The Government in Britain and England untill 1641. was Monarchy The Government of Britain was ever Monarchy Hereditary before 1641. hereditary If you believe Mr. Selden in the First Book cap. 1. of his Analecton Anglo-Britanicon he will tell you upon the Faith of Jeoffrey of Monmouth the stem and progeny of Brutus the Nephew of Aeneas and give you a series of the Government of his posterity to Cassivellanus King of the Trinobantes when Cesar first made his invasion here and cap. 5. from Cassivellanus Essex and Middlesex to King Lucius Now I trowe our Author for the honor and reverence of the Apostolick sea will not deny Lucius to be a King and the first Christian King of the Britaines who and whose subjects were baptised Plat. in vit S. Eleutherii p. 21. about anno 176. by Fugatius and Damianus sent to this end by Pope Eleutherius And see Tacitus Lips pag. 457. in vita Agricolae Ii Britanni scilicet his atque talibus invicem instincti Voadicâ generis regii faemina duce neque enim sexum in imperjis discernunt sumsere universi bellum c. with these and the like speeches inciting one another by common consent they resolve to armes under the conduct of Voadica a Lady of the blood royal for in matter of governing in cheif they make no distinction of sex It is not my purpose here to relate a series and Catalogue of all the Brittish Kings to the Saxon Monarchs nor of the Saxon to the Dane and Norman I deny that in any of these times there was any other Government but Monarchy Aristocracy or Democracy never nor was ever any of those Kings chosen by the people Here by the way though I affirm the Government of England and Brittaine to be Monarchy yet I do not affirm that part of this Island which is called England was governed by one Monarch only till King Athestan reduced it about the yeare 938 nor the whole Island under one King before it was united under James anno 1602. And this Monarch not a thing in abeiance an aiery title but an absolute free and independent Monarchy Stat. 24. H. 8. cap. 12. It is resolved and declared that by sundry and old antick Histories and Chronicles it is manifestly declared and expressed that this Realme of England is an Empire and so has been accepted in the world Publick Notaries made by the Emperor claimed de Jure to exercise their office here in England but were prohibited because it was against the dignity of a supream King see Sir Ed. Coke Instit 4. fo 342. Omnis sub rege ipse sub nullo sed tantum sub Deo And ipse autem Rex non debet esse sub hominibus sed sub Deo And Rex autem qui vicarius summi Regis est ad hoc constitutus ut regnum terrenum populum domini super omnia sanctum veneretur ecclesiam ejus regat ab injuriosis defendat maleficos ab ea evellat destruat penitus disperdat ibid Now would I fain know what higher power can any man upon earth claim then is here by the Law acknowledged to be in the Kings of England Nor hath any Subject any property in his estate but what he claims from the King for all Lands and Tenements in England in the hands of Subjects are holden mediately or immediately of the King Sir Ed. Co. Com. on Lit. fol. 1. Inst part 4. pag. 363 364. Nor have the Lords and Commons a concurring power with the King in making Statute-Laws for the King makes the Law the Lords and Commons consent Co. Lit. 159. b. And what concurring power of Lords and Commons is there in Magna Charta but only Henry by the grace of God King of England c. We have granted to God and by this our present Charter have confirmed for us and our heirs for ever c. And Charta de Foresta hath nothing which makes it a Law but Edward by the grace of God c. We will that all Forests c. Stat. Hiberniae made at Westminster 9 Feb. ann 14 H. 3. Henry c. commands that the Customs recited in that Statute and used in the Realm of England be proclaimed in Ireland and straightly kept and observed there And Stat. de Anno Bissextili made at Westm. ann 21 H. 3. ann 1236. is The King unto his Justices of the Bench greeting The Statute entituled Assisa panis cerviciae is made by the King The Statute de Scaccario is nothing but what the King commandeth And so let any man peruse all the antient Statutes of this Realm and he shall not find any so much as Consent of the Lords and Commons named in the making of them though it may be it was implied Nor had the Lords and Commons in the Parliament Anno 1641. any more power de jure then their Predecessors had before them And therefore the Common-Law and Statute-Law of this Realm were nothing but the declared Will of the King Nor hath any City or Borough c. any Priviledge but what they claim and hold immediately from the Kings Grant Customs I take to be those Usages which the Kings have permitted Sir Ed. Co. comment on Littleton 113 to divers of their Subjects in several places of this Realm time out of mind distinct and not the same with the Common Law And herein they differ from Prescription because this refers to the person that to the place so Prescription is what such an individual Man and his ancestors have done in such a place and Custom is what divers Men at once have used in such a City Borough Mannor or Village Add hereunto the Militia of the Kingdom the Mint the power of making War or Peace which were always in the King and for the manageing of which he hath usually taken the Results of his Ordinary Council and who will deny the Kings of England to have been Absolute Soveraigns What the Government since 1641. hath been I cannot tell nor do I care If you believe the Instrument it will tell you It is in One Person and the Freeborn People of this Nation so in Two and divided But who are the Freeborn People of this Nation Every man hath as much right to this Freedom as another here is no Vassalage no Civitate donatus in
in the regencie of the Queen mothers Blanch the mother of St. Lewis of Francis the second Charles the ninth Lewis the thirteenth and Lewis the fourteenth 20. Neither have the French better observed the other part of the It has been ill observed by the French Salique Law for the descending of the Crown to the heirs male for Pepin having put King Childerick into a Monastery had not any colour of title but as he was chosen by the Parliament of Paris so that it seems the Parliament of Paris may do what the King and general Assembly cannot and alter the most fundamental constitutions of France which forsooth at other times are immutable and Hugh Capet to make his title good against Charles of Lorrain the right Masculine heire of Pepin did derive his pedigree from one of the daughters of Charlemain son of Pepin Nor could Lewis the ninth a most religious Prince be resolved in conscience till he was satisfied that by his Grandmothers side he was descended from the right heirs of Charles of Lorrain But I wonder with what face these Frenchmen can urge the Salique Law against others and yet practise the contrary themselves For Charles the eight having married Anne the Dutchess of Brittain and by that title possessed the Dutchy by whom he had Claude married to Francis the first who had issue Henry the second who had issue Francis the second Charles the ninth Henry the third and Hercules Elizabeth married to Philip the second of Spain and Margaret married to Henry the fourth Now Francis Charles Henry and Hercules dying without issue legitimate I would know how against the Salique Law Charles and his posterity should have a title to Britain and yet King Philip and his posterity be debarred of it by vertue of this pretended Salique Law CHAP. III. Of the Municipal Laws of England before 1640. 1. TEmporal or Secular Laws are made to preserve men so long as Of Temporal Laws and incidently of the Municipal Laws of this Nation they live in this world in unity and peace one with another and these do not bind in conscience only but injoyn corporal and pecuniary mulcts for not observance or transgressing them The Municipal Laws of this Kingdom are either the Common Law which are general usages of that long continuance that they have quite lost their prime institution That they were not brought in by the Conqueror is most evident Common Law or Generall usage for the Conqueror swore to observe the good approved and antient Laws of this Kingdom and that the Subjects might the better observe Proem 8. part of Sir Ed. Cokes Reports their duty and the Conquerors Oath he caused twelve the most discreet and wise men in every shire throughout all England to be sworn before himself that without swerving either ad dextram or ad sinistram they should declare the integrity of their Laws without concealing adding or in any sort varying from the truth and Aldreb the Archbishop that crowned him and Hugh the Bishop of London by the Kings commandement wrote that which the Jurats had delivered and these by Publick Proclamation he declared to be authentick and under grievous punishment to be inviolably observed And that 441 years before the incarnation of Christ Mulumutius of Preface 3. report some called Dunvallo M. of some Dovebant did write two Books of the Laws of the Britans the one called Statuta Municipalia and the other Leges judiciariae which is as much as to say the Statute-Law and Common-Law And 356 years before our Saviour Mercia Proba Queen and wife of King Gwintclin wrote a book of the Laws of England in the British tongue calling it Marchenleg King Alfred or King Alured King of the West-Saxons 871 years after Christ wrote a book of the Laws of England calling the same Breviarum quoddam quod composuit ex diversis legibus Trojanorum Graecorum Britanorum Saxonum Danorum In the year after our Saviour 653. Sigabert or Sigisbert Orientalium Anglorum Rex wrote a book calling it Legum instituta King Edward of that name the third before the Conquest ex immensa legum congerie quas Britanni Romani Angli condiderunt optima quaeque selegit ac in unam coegit quam vocari voluit Communem legem But whether these latter were the Laws which are now used in England under correction may be question made because the Authorities cited are from such obscure and uncertain Authors that no great credit is to be given to them nor are those Books except Alfreds and Edwards which are obsolete and out of use with us and so have been these 600 years any where to be found whereby it may appear that they have any affinity with the Common-Law But it does most certainly appear out of most authentical Records that time out of mind before the Conquest there had been Sheriffs for the Writ of Assise and every other Original Writ to whom they were directed except to the Coroner in special cases who stands in place of the Sheriff and for Trials by the Oath of Twelve men and that the Writs of Assise and other Original Writs were retornable into the Kings Courts and that there had been a Court of Chancery for all Original Writs to issue out and none other and that those Mannors that were in the hands of S. Edward the Confessor are to this day called Ancient Demesne All which does more copiously and fully appear in this Proeme to the Third Part of the Reports And that the Chancery Kings Bench Common Pleas the Exchequer be all the Kings Courts and have been time out of memory of man so as no Proem Rep. 8. man knows which of them is antientest Afterward in the Proeme to the Ninth Part of his Reports out of the Mirror of Justices which treats how the Land was governed almost twelve hundred years since having spoken of the Courts of Parliament Chancery Kings Bench Common Pleas and the Exchequer he descends to the Justiciarii Itinerantes or Justices in Eire The Kings do right to all men by their Justices Commissioners itinerant assigned to have Conusance Justices Itinerant sec 6. of all Pleas. In aid of such Eires the Sheriffs Turns and View of Frankpledges are necessary c. Then he treateth of the Sheriffs Turn That the Sheriffs of antient Sheriffs Turn sec 7. Ordinance do hold general Assemblies twice a year in every Hundred whither all the Freeholders within the Hundred are bound to come by the service of their Feifs or Fees that is to say once after Michaelmas and another time after Easter c. Leets or Courts of View of Frankpledge are Assemblies ordained Leets or view of Frank-pledge sec 8. once a year not only of Freeholders but of all in the Hundred as well Denizens as others except Archbishops Bishops Abbots Priors and all Religious people and Clerks Earls Barons Knights Married women Persons dumb and deaf diseased Bastards and Lepers and
cum populi multitudine copiosa ac omnibus adhuc in eodem Parliamento personalit ' existent ' votis Regiis unanimiter consentientibus praeceptum decret ' fuit quod Monasterium Sancti Edmundi c. sit ab omni jurisdictione episcopor ' com' illius ex tunc imperpet ' funditus liberum exemptum c. Illustris rex Hardicanutus pred' regis Canuti filius haeres success ac sui patris vestigior ' devotus imitator c. cum laude favore Aegelnod ' Dorobornensis nunc Cantuariensis Alfrici Eborac ' episcopor ' aliorumque episcopor ' suffragan ' nec non cunctorum regni mei mandanorum principum descriptum constituit roboravitque praeceptum were Acts of Parliament Ibidem Rex Eldredus convocavit Magnatos Episcopos Proceres Optimates ad tractandum de publicis negotiis regni And this was a Parliament Inst 4. p. 3. But none of these you will say have the obligation of Laws upon us Well let us see those Acts of Parliament which have and what is the difference By the way no Acts of Parliament are now nor these 400 years have had the force of Statute-Laws in England but those made in Henry the Third's time and since And what was the first and great Act of Magna charta but Henry by the grace of God King of England Lord of Magna Charta an Act of Parliament Ireland c. We have granted to God and by this our present Charter have confirmed for us and our heirs for ever That the Church of England shall be free and shall have all her whole rights and liberties inviolable We have granted also and given to all the Freemen of our Realm for us and our heirs for ever those Liberties underwritten to have and to hold to them and their heirs of us and our heirs for ever Note this great Charter which made the Church and Nota bene Kingdom of England the most free in the world was a free and voluntary act of an English Monarch in Parliament And all that violation and destruction of all those happy Grants and Concessions both in Church and State have been made by a cursed conspiracie of a factious and seditious company of men falsly and most injuriously arrogating to themselves the name of Parliament without and against the Kings good mind and pleasure Charta Foresta was Henry by the grace of God King of England Lord of Ireland Duke of Normandy and of Guyen c. We will that all Forests which King Henry our Grandfather afforested shall be viewed by good and lawful men c. Statutum Hiberniae was nothing else but Henry by the grace of God King of England c. To his trusty and welbeloved Gerard son of Maurice Justicer of Ireland greeting Commanding him to cause the Customs recited in the Act and used in England to be proclaimed and streightly kept and observed in Ireland Statutum de Anno Bissextili was The King unto the Justices of the An. 21. H. 3. Bench greeting c. The Statute intituled Assisa panis cervisiae was An. 51. H. 3. The King to all to whom these presents shall come greeting We have seen certain Ordinances c. Stat. de Scaccario The King commandeth that all manner of Bailiffs Sheriffs An. 51. H. 3. and other Officers as well Justices of Chester c. Statutes made in the Parliament at Marleborough wherein the King An. 52. H. 3. made these Acts Ordinances and Statutes underwritten which he willeth to be observed for ever firmly and inviolably of all his Subjects as well high as low Statute of Westminster the first were the Acts of Edward the son of An. 3. Ed. 1. Henry c. by his Council and the assent of Archbishops Bishops Abbots Priors Earls Barons and all the Commonalty of the Realm c. the King ordained and established these Acts underwritten which he intendeth to be necessary and profitable unto the whole Realm First the King willeth and commandeth that the peace of Holy Church and of the Land be well kept and maintained in all points and that common right be done to all as well poor as rich without respect of persons c. Statutes made at Gloucester where our Soveraign Lord the King for An. 6. Ed. 1. the amendment of the Land and for the relief of his people c. hath provided and established these Laws underwritten willing and commanding that from henceforth they be firmly observed within the Realm Statute of Rutland hath no other title then The King to his Treasurer An. 10. Ed. 1. and Barons of the Exchequer and to his Chamberlains greeting c. Articuli super Chartas were Grants in Parliament made by the King An. 20. Ed. 1. at the request of the Prelates Earls and Barons assembled in Parliament Note the Commons are not so much as named in these Acts of Parliament The Statute of Quo Warranto made at Gloucester and Statute de Protectionibus An. 30. Ed. 1. An. 33. Ed. 1. made at Westminster the King only speaks Stat. de conjunctim Feoffatis The King unto all to whom these c. An. 34. Ed. 1. greeting And after the recital of the things contained in the Act it is said In witness of which thing we have caused these our Letters Patents I my self being Witness at Westminster Statute of Amortising of Land made by Ed. 1. only the King speaketh Ordinatio pro statu Hiberniae made 17 Ed. 1. the King speaketh by the assent of his Council Statute Ne Rector prosternat arbores in coemiterio only the King speaketh and neither Council nor Parliament mentioned An. 35 Ed. 1. Statute for Knights hath no other title then Our Lord the King hath An. 1. Ed. 2. granted c. And Stat. de frangentibus prisonam 1 Ed. 2. hath nothing to create it a Law but The King willeth and commandeth and neither Parliament nor Council named in either of them Articuli Cleri made at Lincoln the King and his Council are named An. 9. Ed. 2. The Statute of York was made by the King by the assent of the Prelates An. 12. Ed. 2. Earls Barons and Commonalty there assembled So that in these three Kings reign although the King did enact them in Parliament yet the manner was different almost in all In Ed. 3. his time was the form of enacting Laws truly defined and An. 1. Ed. 3. much used by him and the subsequent Kings At the Parliament holden at Westminster King Edward at the request of the Commonalty and by their Petition made before him and his Council in the Parliament and by the assent of the Prelates Earls Barons and other great men assembled at that Parliament hath granted c. In the next Parliament holden at Northampton the Laws are made by An. 2. Ed. 3. him and by the assent of the Prelates Earls Barons and other great
him who suffers It is injustice for any man unjustly to make use of any law of God or man or Temporal power which must be from some law of God or man to the hurt or prejudice of another and such hurt or prejudice is injury to whom it is done 25. Damage is nothing else but loss Injury is loss unjustly done So How Injury differs from Damage that all Injury is damage but every damage is not injury As a man hath a house c. burnt by lightening this is damage no injury A man is punished justly for some fault this is damage no injury Injury always is done by injustice that is when the doing is countenanced by some Law or Greatness Damage is when the doing is neither countenanced by Law or Power as Neighbors who live by one another do usually do one another Trespass whith is damage but no injury 26. We have declared before that no man ought to make use of Volenti non fit injuria how to be understood or abuse indeed any gifts whereby he does excell another to the damage and hurt of another who is not so well qualified And no question but that God will require of every man an account of all those talents wherewith he did entrust him for good And if he were pleased to punish him so severely who had hid his talent because he had not increased it and done S. Matth. 25 26 c. good how severely then will God take revenge upon him who abuseth those natural gifts wherein he excells another to the hurt and prejudice of his weaker brother But humane laws being made for the rule of outward actions for only God sees the hearts and inward thoughts of men Courts of Judicature cannot judge whether it were this mans folly abused by the craftiness of another but whether this man did this thing or not and no Fool or Madman shall be received against his own act although his Heir shall It is not therefore that an innocent or foolish man may not be injured although he will willing but that he shall not be judged injured by any Civil Court where it may be made appear he was willing 27. Bodin in the sixth book cap. 6. de repub says That Plato judged that pag. 747. Plato's opinion of Justice the best form a Commonwealth which was compounded of Popular command and a Tyrant Note the Grecians did usually call Kings Tyrants and did many times take Tyrant in a good sense yet dissenting from himself he made his Civitas not only in State but also in manner of Governing Popular as one who gave to the multitude of all the Citizens the power of making Laws of creating Magistrates of indicting War of making Peace and lastly of giving rewards and punishments A Civitas being established after this manner he denied it could be happy unless it were governed by a Geometrical proportion for he thought that God the most antient Moderator of this world whom every best Lawgiver ought to imitate does preserve all things in Geometrical proportion He was often wont to boast 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Which things although they be Plato's yet are no where found in his writings But a Popular Empire Rejected by Bodin as repugnant to himself constituted by Plato is plainly contrary to Geometrical proportion because the people follow an Equality of things And Equality agrees with Arithmetical proportion no ways with Geometrical 28. And because Xenophon emulous of Plato thought that Cities and Laws Xenophons opinion of Justice ought to be constituted and distributed in Arithmetical equality induces Cyrus as yet a boy beaten because created a King by his companions he had so commanded the Vestments to be exchanged that the greater were given to the greater and the lesser to the shorter Cyrus so beaten by his Master is taught that he is born a Persian and therefore should use the laws and manners of the Persians which give that to every one which is his property not the Medes who thought that that was to be given to every one that was fit and commodious for him Plato when he was advertised the stripes were to be inflicted upon him not Cyrus rejected Cyropoedia This contention therefore of Xenophon and Plato being divulged by speeches among the Grecians afforded increase to two factions of the Great men and People Some following the Popular state did greatly love the Arithmetical proportion of Justice Others because they did excell in Riches and Nobility were not less in love with the Geometrical proportion agreeing with Aristocracy But it is strange Plato bred in a Popular State should assert Justice to be in Geometrical proportion and Xenophon in a Mungrel Aristocracy made up of two Kings and the Ephori should assert Justice to be in Arithmetical 29. Justice in Arithmetical proportion he says was like Polycretus rule Pag. 751. a. compared of all the most right and as it were Iron macerated with Vinegar so as it should be inflexible The Geometrical form of governing a City did imitate a Lesbian Rule for this was made of Lead and flexible in every part that so it might be accommodated to every thing that nothing might be lost of the matter of it so far as it might be done But this he says after being so flexible loses the name of a Rule 30. But neither of these forms of Justice will down with him For in the Arithmetical form he says That women tender and young children 76◠Xenophons 〈◊〉 rejected by Bodin and why old men and those afflicted with sickness should have the same punishment for the same offence with robust and stout men which might be fatal to one and not scarce felt by the other Yet was this against the practice of all Democratical States for neither in the Roman nor Athenian States were all men alike punished for the like offence The Romans who were civitate donati were not by the Laws to be put to death nor punished as Slaves for any offence Nor were the Popular States less dissenting from their Principles in conferring rewards and greatness upon men For when were men ever so great as in Popular States as Pompey Caesar Crassus Lucullus Pericles c. 31. Nor is he less out of love with the Geometrical form of Governing Plato's rejected also and why or Justice for then he says all Patricians or Noblemen must marry only with Patricians and Plebeians with Plebeians all places of Honor must be always conferred not for virtue or desert but as men were Great or Noble So that from hence he says were almost perpetual dissentions p. 774. a. between the Senators and Plebeians until the Consulship Censure Preture and the High Priesthood were communicated to the Common people some few excepted 32. Well but because Bodin cannot find Justice to consist in Arithmetical Bodins opinion of Justice nor Geometrical proportion he will try what may be done by Harmonical and says That
like Law is according to the nature of the fact if any of these be committed upon any solemn Festival And if any one will purge let him bring a threefold purgation Of deteining the Duties of the Church by force Cap. 45. If a Dane shall resist by force any one desiring the rights or duties belonging to God let him be punished for breach of the Law An Englishman shall be assessed in a deeper mulct unless he purge himself with eleven men and be himself the twelfth man But if he wound any man let him make amends and pay a grievous mulct to the Lord and let his hands be bored through unless he shall redeem them from the Bishop But if he killed any one let him be outlawed and pursued by all Magistrates with all the harm that they lawfully may And if afterward that man so pursued be killed let it be confirmed and unpunished and no further enquired after Of a man breaking Holy Order 46. If any man violate his Order or Rule of living let him be fined according to the dignity of his Order or price of his head for punishment of the breach of the Law or forfeit all he hath Of Repairing the Church 63. All men by right ought to use their endeavor to repair the Church Of him who keeps a man Excommunicated or Outlawed 64. If any man shall unjustly keep any Fugitive from Gods law let him be restored to right and forgiven those things which did appertain to him and let him pay to the King the price of his head But if any one shall keep and hold any other excluded from the protection of Divine or Humane laws he shall endanger himself and all he hath The Conclusion of Canutus his Laws Now I beseech all men and in the name of Almighty God command every man that they be truly from their heart converted to God and with all care and diligence search out what is to be followed and what avoided And truly it does much conduce to our souls health that we love God and hold his precepts and admonitions and hear his word by his teachers For we shall bring forth these to be seen in that day wherein God shall come to give judgment upon all men according to those things they did whilst they lived And then at length shall that blessed Keeper bring the Flock committed to his charge into the Heavenly kingdom and the joys of Angels for those things which he had done in his life and also that blessed Flock follow that Pastor who hath wreathed it out of the hands of the Devil and give the gain to God And further we study that all men may so agree to please God that for the time to come we may avoid the flames of Hell-fire The Interpreters of Gods Law ought often to preach the benefit of Divine things and indeed it is their function and does much benefit all men to salvation And all men ought with a good mind diligently to hear and have Gods admonitions always fixed in their soul for their profit And lastly that every one by his words and deeds all he can holily and thankfully do well to the greater amplitude and glory of God his Lord for so at length we shall abundantly all of us obtain Gods mercy Let the name of the Lord be praised to whom be laud honor and glory for ever God Almighty be merciful to us all according to his will Amen Ecclesiastical Laws made by Good King Edovard Who began to reign Anno Salutis 1042. Of Clerks and their Possessions Cap. 2. LEt every Clerk and also Scholars and all their goods and possessions wheresoever they be enjoy the peace of God and his Church Of the Times and Dayes of the Kings Peace 3. From the coming of our Lord until eight days after Epiphany let the peace of God and his holy Church be all over our Kingdom also from Septuagesima until eight days after Easter also from the Ascension of our Lord until eight days after Whitsuntide also all the days in Ember-weeks also upon every Saturday from the ninth hour and all the day following until Munday also upon the Vigils of S. Mary S. Michael S. John the Baptist of all the Apostles and Saints whose solemnities are celebrated by Priests upon Sunday and All Saints upon the Kalends of November alwaies from the ninth houre of the Vigil and the following Solemnity Also in Parishes in which the Dedication is observed also in the Parishes of Churches where the proper Feast of the Saint is celebrated And if any one will come devoutly to the celebration of the Saint he shall enjoy peace going staying and returning Also to all Christians going to Church to pray be peace in going and returning In like manner at Dedications Synods to men coming to Chapters whether they be summoned or of themselves have any thing to do be highest peace Also if any man excommunicated flee to the Bishop for absolution let him freely in going and returning enjoy the peace of God and his Church But if any man shall do otherwise with him let the Bishop do justice therefore But if any arrogant man will not amend for the justice of the Bishop the Bishop may make the matter known to the King and the King may constrain the malefactor to make him amends whom he hath outlawed viz. first to the Bishop then to him and so they shall be two swords and the sword shall help the sword Of the Justice of the Church 4. Wheresoever the Kings Justice is or before whomsoever Pleas are holden if one sent of the Bishops coming there opens the cause of the holy Church it shall first be determined For it is just that God be every where honored before others Of all Tenents of the Church 5. Whosoever shall hold any thing of the Church or have a mansion upon the ground of the Church shall not be compelled to hold Pleas out of the Ecclesiastical Courts although he be outlawed unless which God forbid he shall have default of right in the Court Ecclesiastical Of Guilty men fleeing to the Church 6. Whosoever guilty or nocent shall flee to the Church for protection after that he hath gotten the entrance of the Church let him not be apprehended of any man pursuing him unless by the Bishop or his Minister but if in fleeing he enters into the House or Court of any Priest let him enjoy the same security and peace he should have had at the Church so as the house of the Priest and his Court stood upon the ground of the Church Here if the thief or stealer be what he hath evil gotten if it be at hand let him restore but if he hath wholly consumed it and hath wherewith to restore of his own let him make full satisfaction for the damage he brought to him who was damnified But if as is usual the Thief hath not wherewith to do it and by chance hath
often gone out of the Church and Priests houses having restored the thing taken away let him abjure the Province and not return and if by chance he shall return let no man presume to entertain him unless he have leave from the King Of breaking the Peace of the Church If any one shall violently infringe the Peace of the Church the Justice Cap. 7. belongs to the Bishops but if one guilty in avoiding their Judgement or arrogantly contemning it shall despise it let the complaint thereof be brought to the King within forty days and let the Kings Justice make him give Security and Pledges if he can get them until he first give God afterward the Church satisfaction But if within one and thirty days either by his friends or acquaintance or by the Justice of the King he cannot be found out the King shall Outlaw him by the word of his own mouth i. e. he shall be excluded out of all protection of the King But if after he shall be found and can be retained let him be restored alive to the King or his head if he shall defend himself Lupinum enim gerit caput which in English is called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 This is the common and general Law concerning all men Outlawed Of the Tithes to be restored to the Church of Sheep and Hoggs 8. The tenth sheaf of all kinde of corn is due to God and therefore to be restored to God And if any one hath a company of Mares let him restore the tenth colt to God he who hath but one or two for every single colt one single peny In like maner who hath many Cowes the tenth calf who hath but one or two for every calf one single halfpeny and who make Cheese give to God the tenth but if he make none milk the tenth day In like maner the tenth Lamb the tenth Fleece the tenth Cheese the tenth Butter and the tenth Hogg Of Bees In like maner the tenth of the profit of Bees as also of under-Wood In some these two Chapters are joyned of Meadow and Waters and Mills Parks Warrens Fishponds tender Sprouts and Gardens and Merchandize and all other things which God shall give the tenth part is to be restored to him who gave the nine parts together with the tenth who shall have detained it let him be compelled to restitution by the Justice of the Bishop and King if need be For these things St. Augustine hath Preached and are granted by the King Barons and People but afterwards by the instinct of the Devil many have detained it and Priests careless of growing rich did not care to take pains to get them because they had sufficient means of living For in many places now there are three or four Churches where then there was but onely one and so they began to be diminished Of them who are judged to be brought to Judgment or Water by the Cap. 9. Justice of the King In that day wherein Judgment ought to be done let the Minister of the Bishop and his Clerks come thither and in like manner the Justice of the King with Legal men of that Province who may see and hear that all things be rightly done and whom the Lord by his mercy will save let them be quit and freely depart and whom the iniquity of the fault the Lord shall not condemn let the Justice of the King do justice upon them But the Barons who have their jurisdiction of their men let them see that they do so concerning them as they incur not displeasure with God and offend not the King And if a Suit does arise concerning men of other Baronies in their Courts let the Justice of the King be present because without it the Suit cannot be determined If any of the Barons hath not Justice in the Hundred where the Plea shall be holden it shall be determined at the next Church where the Judgment of the King shall be saving the Right of those Barons Of Romescot 10. Every one who shall have Thirty pence of current money in his house of his own property by the Law of England shall pay a Peter penny and by the Law of the Danes half a Mark But that penny ought to be summoned upon the Feasts of the Apostles Peter and Paul and collected at the Feast which is called To the Bonds so that it be not detained beyond that day If any one shall longer detain it let complaint be brought to the justice of the King because this penny is the Alms of the King and it is justice he cause this penny to be restored and the forfeiture of the Bishop and King But if a man hath more houses let him restore the Peter-penny for that wherein he resides upon the feast of Peter and Paul the Apostles Of the Office of the King and of the Right and Appendixes of the 17. Crown of the Kingdom of Britain And the King because he is the Vicar of the highest King and to this purpose ordained that he may both govern and rule the terrene kingdom and people of the Lord and above all things the holy Church and that he defend the same from wrong-doers and destroy and root out workers of mischief Besides these Sir Ed. Coke in Cawdries Case instances in King Kenulph for that King Kenulph by his Letters Patents with the consent and councel of his Bishops and Senators of his Kingdom did give to the Monastery of Abingdon in the County of Berks and to one Ruchnius then Abbot of the said Monastery c. a certain portion of his Country c. and that the said Ruchnius c. should be ever free from Ecclesiastical right or jurisdiction and that the Inhabiters of it from thenceforth be kept under the yoke of no Bishop or their Officials but in all events of things and discussions of causes they be subject to the Decree of the Abbot of the Monastery aforesaid And that this Charter was above * * Counting to the time Sir Ed. Coke wrote 850 years since which was in the year 755. and after confirmed by Edwin of Britain King and Monarch of Englishmen and this Grant did continue until the dissolution of the Abby by Henry the 8. So that the Kings of this Nation have not only of antient time been Nursing fathers to Gods Church and have exercised their Regal power over the persons of all their Subjects in all cases but have even dispensed with and conferred Episcopal jurisdiction But this was only matter of fact and done but only in one place nor was it ever established by a Law before the Statute of Lollard and by Henry the Eight and the First of Eliz. Yet it was afterward as shall appear in the next Chap. used by divers Kings and often adjudged by the Judges before Henry the Eighth CHAP. III. Ecclesiastical Laws made by William the First who began to reign in the year of Christ 1067. THat Nations and Kingdoms
Spiritual Judge for remedy as right shall require The Answer Of the ability of a Parson presented unto a Benefice of the Church the examination belongs to a Spiritual Judge and so it hath been used heretofore and shall be hereafter There shall be a free election of the Dignities of the Church Also if any Dignity be vacant where election is to be made it is moved that the Electors may freely make their election without fear of any Power temporal and that all prayers and oppressions shall in this behalf cease Ans They shal be made free according to the form of Statutes Ordinances A Clerk fleeing into the Church for Felony shall not be compelled to objure Moreover though a Clerk ought not to be judged before a Temporal Judge nor any thing may be done against him that concerneth life or member nevertheless Temporal Judges cause that Clerks fleeing unto the Church and peradventure confessing their offences do abjure the Realm and for the same cause admit their abjurations although hereupon they cannot be their Judges and so power is wrongfully given to Lay-persons to put to death such Clerks if such persons chance to be found within the Realm after their abjuration The Prelates and Clergy desire such remedy to be provided herein that the immunity or priviledge of the Church and Spiritual persons may be saved and unbroken The Answer A Clerk fleeing to the Church for felony to obtain the priviledge of the Church if he affirm himself to be a Clerk he shall not be compelled to abjure the Realm but yielding himself to the Law of the Realm shall enjoy the priviledge of the Church according to the laudable custom of the Realm heretofore used The priviledge of the Church being demanded by the Ordinary shall not be denied to a Clerk that hath confessed Felony Also notwithstanding that a confession made before him that is not lawful Judge thereof is not sufficient whereon Process may be awarded or sentence given yet some temporal Iudges though they have been stantly desired thereunto do not deliver to their Ordinaries according to the premises such Clerks as confess before them their hainous offences as Theft Robbery and Murder but admit their Accusation which commonly they call an Appeal albeit to this respect they be not of their Court nor can be judged or condemned before them upon their own confession without breaking of the Churches priviledges The answer the priviledge of the Church being demanded in due form by the Ordinary shall not be denied unto the Appealer as to a Clerk We desiring to provide for the state of the Church of England and for the tranquillity and quiet of the Prelates and Clergy aforesaid as far forth as we lawfully may do to the honor of God and the emendation of the Church Prelates and Clergy of the same ratifying confirming and approving all and every of the Articles aforesaid with all and every of the Answers made and contained in the same do grant and command them to be kept firmly and observed for ever willing and granting for us and our heirs that the aforesaid Prelates and Clergy and their successors shall use execute and practice for ever the jurisdiction of the Church in the premises after the tenor of the answers aforesaid without quarrel inquieting or vexation of our heirs or any of our Officers whatsoever they be In the Reign of King Edward the second Albeit the Ordinance of Circumspectè agatis made in the 13. of Ed. 1. Candries Case and by the general allowance and usage the Ecclesiastical Court held Plea of Tithes Obventions Oblations Mortuaries Redemptions of Penance laying of violent hands upon a Clerk Defamations c. Yet did not the Clergy think themselves assured nor quiet from Prohibitions Purchased by Subjects until Ed. 2. by his Letters Partents under the Broad Seal in and by consent of Parliament upon Petition of the Clergy had granted unto them to have Jurisdiction in those cases The King in Parliament holden in the ninth year of his Reign after particular answers made to those Petitions concerning the matters abovesaid does grant and give his Royal assent in these words We desiring as much as of right we may to provide for the state of the Cap. 2. Church of England and the tranquility of the Prelates of the said Clergy to the honour of God and the amendment of the state of the said Church and of the Prelates and Clergy ratifying and approving all and singular the said answers which appears in the said Act and all and singular things in the said answers contained we do for us and our heirs grant and command that the same be inviolably kept for ever Willing and granting for us and our heirs that the said Prelates and Clergy and successors for ever do exercise Ecclesiastical Jurisdiction in the premises according to the tenor of the said answer A Satute of the Clergy made Anno 18. Ed. 3. Anno Dom. 1344. Bigamy shall be tryed by the Ordinary and not by Inquest Item If any Clerk be arraigned before our Justices at our Suit or the Suit of the party and the Clerk holdeth him to his Clergy alleadging that he ought not before them thereupon to answer and if any man for us or for the same party will suggest that he hath married two Wives or one Widow that upon the same the Justices shall not have cognizance or power to try the Bigamy by Inquest or in other manner but it shall be sent to the Spiritual Court as hath been done in times past in case of Bastardy and till the Certificate be made by the Ordinary the party in whom the Bigamy is alleadged by the words aforesaid or in other manner shall abide in prison unless he be mainpernable Item If Prelates Clerks beneficed or Religious people which have Cap. 3. purchased Lands and the same have put to Mortmain be impeached upon the same before our Justices and they shew our Charter of Licence and Proces thereupon made by an Inquest of ad quod Damnum or of our Grace or by Fine they shall be freely let in peace without being further Impeached for the same Purchase and in case they cannot sufficiently shew that they have entred by due Proces after Licence to them granted in general or in special that they shall be well received to make a convenient Fine for the same and that the inquiry of this Article shall wholly cease according to the accord comprized in this Parliament Item That the Statues touching the Purveiances of us and our son made in times past by us and our Progenitors for the people of holy 4. Church be holden in all parts And that in the Commissions to be made upon such Purveiances the Fees of holy Church shall be excepted in every place where they be found Item That no Prohibition shall be awarded out of the Chancery but 5. in case where we have the cognizance and of right ought to have
person sueth another Spiritual person in the Court of Rome for a matter Spiritual where he may have remedy before his Ordinary that is of the Bishop of the Diocess within the Realm Quia trahit ipsum in placitum extra regnum incurreth the danger of a Premunire a hainous offence being contra Legiantiae suae debitum in contemptum Domini Regis contra coronam dignitatem suam In the Kings Court of Record where Felonies are determined the Bishop or his Deputy ought to give his attendance to the end that if any man 9 Ed. 4. 28. that is Indicted or Arraigned for Felony do demand the benefit of his Clergy that the Ordinary may inform the Court of his sufficiency or insufficiency that is whether he can read as a Clerk or not whereof notwithstanding the Ordinary is not to judge but a Minister to the Kings Court and the Judges of that Court are to judge of the sufficiency or insufficiency of the party whatsoever the Ordinary do inform them and upon due examination of the party may give judgement above the Ordinaries information For the Kings Judges are Judges of the Cause whether the Ordinary be a Judge of Legit or non Legit matters not much for if he be Judge or Minister no doubt but he is the Kings Judge or Minister And I my self have seen Chief Justice Littleton overrule the Ordinary in the Case of one Brudbank after the Ordinaries Deputy had pronounced legit ut Clericus and give sentence of death upon him for his non legit and he was hanged The Popes Excommunication is of no force within the Kingdom of England 12 Ed. 4. f. 46. In the Reign of King Ed. 4. a Legat came from the Pope to Callis to have come into England but the King and his Councel would not let him come into England until he had taken an Oath that he should attempt nothing against the King or his Crown And so the like was done to another of the Popes Legates And this is so reported 1 H. 7. fol. 10. In the Reign of Richard the third It is resolved by the Judges that a Judgement of Excommunication in the Church of Rome shall not prejudice any man within England at the Common Law In the Reign of Henry the seventh 1 H. 7. fol. 10. The Pope had Excommunicated all persons whatsoever who had bought Alume of the Florentines and it was resolved by all the Judges that the Popes Excommunication ought not to be obeyed or to be put in execution within the Realm of England It was enacted ordained and established by the advice and assent of the Lords Spiritual and Temporal and the Commons in the said Parliament assembled That it be lawful to all Archbishops and Bishops and other Ordinaries having Episcopal jurisdiction to punish chastise such Priests Clerks and Religious men being within the bounds of their jurisdiction as shall be committed afore them by examination and lawful proof requisite by the Law of the Church of Advoutry Fornication Incest or any other fleshly incontinency by committing them to ward or prison there to abide in ward until such time as shall be thought to their discretions convenient for the quality and quantity of their trespass And that none of the Archbishops Bishops or Ordinaries aforesaid be thereof chargeable of to or upon any action of false or wrongful Imprisonment but that they be utterly discharged thereof in any of the cases aforesaid by vertue of this Act. The King is a mixt person because he hath Ecclesiastical and Temporal 10 H. 7. 18. jurisdiction By the Ecclesiastical Laws allowed within this Realm a Priest cannot 11 H. 7. 12. have two Benefices nor a Bastard can have a Priest But the King may by his Ecclesiastical power and jurisdiction dispence with both these because they be mala prohibita but not mala per se How far Henry the Eighth exercised his Ecclesiastical Jurisdiction IT was enacted That if any person or persons at any time after the St. 21. H. 8. 13. first of April 1530. contrary to the Act should procure and obtain at the Court of Rome or elswhere any Licence or Licences Union Toleration or Dispensation to receive or take any more Benefices with cure then was limited by the said Act or else at any time after the said day should put in execution any such Licence Toleration or Dispensation before that time obtained contrary to the said Act That then every such person or persons so after the said day suing for himself or receiving or taking such Benefice by force of such Licence or Licences Union Toleration or Dispensation that is to say the same person or persons only and no other should for every such default incur the danger pain and penalty of Twenty pounds sterling and should also lose the whole profits of every such Benefice or Benefices as he receives or takes by force of any such Licence or Licences Union Toleration or Dispensation And that if any person or persons did procure or obtain at the Court of Rome or elswhere any manner of Licence or Dispensation to be nonresident at their Dignities Prebends or Benefices contrary to the said Act that then every such person putting in execution any such Dispensation or Licence for himself from the said first of April 1530. should run and incur the penalty damage and pain of Twenty pounds sterling for every time so doing to be forfeited and recovered and yet such Licence or Dispensation so procured or to be put in execution to be void and of none effect It was enacted That no person from thenceforth cited or summoned 23 H. 8. cap. 9. or otherwise called to appear by himself or herself or by any Procurator before any Ordinary Archdeacon Commissary Official or any other Judge Spiritual out of the Diocese or peculiar Jurisdiction where the person which shall be cited summoned or otherwise as is abovesaid called shall be inhabiting and dwelling at the time of awarding or going forth of the same citation or summons Except it be for in or upon any of the cases or causes hereafter written viz. for any Spiritual offence or cause committed or done or omitted forstowed or neglected to be done contrary to right and duty by the Bishop Archdeacon Commissary Official or other person having Spiritual jurisdiction or being a Spiritual Judge or by any other person or persons within the Diocese or other Jurisdiction whereunto he or she shall be cited or otherwise lawfully called to appear and answer And that every Spiritual Judge offending contrary to the purport of this Act shall forfeit Ten shillings sterling the one half to the King the other half to any person that will sue for the same in any of the Kings Courts in which action no protection shall be allowed nor Wager of Law or Essoine be admitted In which Sir E. Coke Cawdries case says there were twenty four Bishops Stat. 24. H. 8. cap.
12. twenty nine Abbots and Priors for so many then were Lords of Parliament It is declared That where by divers sundry old authentique Histories and Chronicles it was manifestly declared and expressed that this Realm of England is an Empire and has been so accounted in the world governed by one Supreme Head and King having the dignity and Royal estate of the Imperial crown of the same unto whom a Body Politique compact of all sorts and degrees of people divided in terms and by names of Spirituality and Temporality been bound and ought to bear next to God a natural and humble obedience He being also institute and furnished by the goodness of God with plenary whole and entire power preheminence authority prerogative and jurisdiction to render and yield justice and final determination to all manner of folk resiants or subjects within this his Realm in all causes matters debates and contentions happening to occur insurge or begin within the limits thereof without restraint or provocation to any Forein Princes or Potentates in the world The body Spiritual whereof having power when any cause of Law Divine happened to come in question or of Spiritual Learning that it was declared interpreted and shewed by that part of the said body Politique called the Spiritual body then being usually called the English Church which always hath been reputed and also found of that sort that both for knowledge integrity and sufficiency of number it has been always thought and was also at that houre sufficient and meet of it self without the intermedling of any exterior person or persons to declare and determine all such doubts and to administer all such offices and duties as to the the rooms Spiritual did appertain For the due administration whereof and to keep them from corruption and sinister affection the Kings noble Progenitors and Antecessors of the Nobles of this Realm have sufficiently endowed the said Church both with honor and possessions And the Laws Temporal for trial of Property of Lands and Goods and for the conservation of the people of this Realm in unity and peace without rapine and spoil was and yet is administred adjudged and executed by sundry Judges and Ministers of the other part of the said Body Politique called the Temporalty And both their Authorities and Jurisdictions do conjoin together in the due administration of Justice the one to help the other This Statute does moreover affirm that Ed. 1. Ed. 3. Rich. 2. H. 4. and other Kings did make divers Laws Ordinances Statutes c. for the entire and sure conservation of the prerogatives liberties and preheminences of the said Imperial Crown and of the Jurisdictions Spiritual and Temporal of the same to keep it from the annoyance as well from the See of Rome as from other Forein Potentates and does make all Causes determinable by any Spiritual jurisdiction to be adjudged within the Kings authority All First-fruits and all contributions to the See of Rome by any Bishop St. 25. H. 8 cap. 20. were forbidden upon pain of forfeiture of all the goods and cattals for ever and all the Temporal lands and possessions of every Archbishoprick or Bishoprick during the time that he or they who offend contrary to the said Act shall possess and enjoy the said Archbishoprick or Bishoprick And that if any presented to the See of Rome by the King to a Bishoprick and he be there delayed he may be consecrated by an Archbishop in England and that an Archbishop presented to the See of Rome to be there consecrated and there letted may be consecrated by two Bishops of England And because the Pope hereof informed did not redress and reform the said exactions nor give answer to the Kings mind therefore the said Statute did prohibit any man to be presented to the See of Rome for the dignity of an Archbishop or Bishop or that any Annates or First-fruits be paid to the Bishop of Rome and that upon the avoidance of any Archbishoprick or Bishoprick the King his heirs and successors may grant to the Prior and Covent or Dean and Chapiter of the Cathedral Churches or Monasteries where the See of such Archbishoprick or Bishoprick shall happen to be void a Licence under the Great seal as of old time hath been accustomed to proceed to Election of an Archbishop or Bishop of the See so being void with a Letter missive containing the name of the person which they shall elect and choose and for default of such Election the King by his Letters Patents may nominate an Archbishop or Bishop and that every Archbishop Bishop to whose hands any such presentment or nomination shall be directed shall with speed invest and consecrate the person nominated and presented by the King his heirs and successors And if any Archbishop or Bishop Prior and Covent Dean and Chapiter shall for the space of twenty days next after such Licence or Nomination come to their hands neglect or shall execute any Censures Excommunications Interdictions c. contrary to the execution of any thing contained in this Act that then they incur the penalty of a Praemunire An act concerning the exoneration of the Kings subjects from exactions St. 25. H. 8. cap. 21. and impositions before that time paid to the See of Rome and for having Licences and Dispensations within this Realm without suing further for the same The King shall be reputed Supreme Head of the Church of England St. 26. H. 8. cap. 1. and have authority to reform and redress all Errors Heresies and abuses in the same Every Archbishop and Bishop disposed to have a Suffragan may elect 26 H. 8. c. 14. discreet Spiritual persons being learned and of good conversation and present them under their seals to the King making humble request to his Majesty to give to one of the two such title name stile and dignity of Bishop of such of the Sees as the King shall think fit and that every such person to whom the King shall give any such stile and title of the Sees abovenamed viz. the Towns of Thetford Ipswich Colchester Dover Gilford Southampton Taunton Shaftsbury Molton Marlborough Bedford Leicester Glocester Shrewsbury Bristow Penrith Bridgwater Nottingham Grantham Hull Huntington Cambridge and the Towns of Perth and Barwick S. Germans in Cornwal and the Isle of Wight shall be called Bishop Suffragan of the same See whereunto he shall be named and that every Archbishop and Bishop for their own peculiar Diocese may and shall give to every such Bishop Suffragan such Commissions as have been accustomed for Suffragans heretofore to have or else such Commissions as by them shall be thought requisite reasonable and convenient And that no Suffragan shall use any ordinary jurisdiction or Episcopal power otherwise nor longer time then shall be limited by such Commission upon pain of the penalties mentioned in the Statute of Provisions made the 16. of Rich. 2. The King shall have authority to name Thirty two persons sixteen
suffet imprisonment for six moneths without bail or mainprize And for the second offence shall suffer a years imprisonment and be deprived of all his spiritual promotions and for the third offence shall suffer imprisonment during life It was Enacted that the Justices of Oyer and Terminer and Justices of Assize should have power and authority in the open and general Sessions to hear and determin the offences committed against this Act yet so that every Archbishop and Bishop had liberty to joyn and associate himself to the said Justices of Oyer and Terminer or to the Justices of Assize All books called Antiphoners Missals Grails Portuasses Primers in Latine An. 3. 4. Ed. 6. Cap. 10. or in English and other books used for service in the Church saving such as are set forth by the Kings Authority shall be clearly abolished All Images graven painted or carved taken out of any Church or Chappel and the aforesaid books shall be defaced or openly burnt Such form and manner of making and consecrating of Archbishops and Anno 3 4. Ed. 6. Cap. 12. Bishops Priests and Deacons and other Ministers of the Church as by six Prelates and six other men of this Realm learned in the Law of God by the King to be appointed and assigned or by most of the number of them shall be devised for that purpose and set forth under the Great Seal before the first of April next coming shall be lawfully exercised and used and none other An Act for uniformity of Prayer and administration of the Sacraments An. 5. 6. Ed. 6. Cap. 1. in the English Tongue and that every person upon every Sunday and Holiday having no lawful cause to be absent do resort to his Parish-Church and they which refuse are to be punished by the censure of the Church and that all persons who shall be at any other common prayer or Sacraments shall for the first offence suffer Imprisonment for six moneths without bail or mainprise for the second Imprisonment during a whole year and for the third Imprisonment during life All the Sundays of the year the Feast of our Lord Jesus his Circumcision of the Epiphany of the Purification of the blessed Virgin of St. Matthew An. 5. 6. Ed. 6. Cap. 2. the Apostle of the Annunciation of the blessed Virgin of St. Mark the Evangelist of St. Philip and Jacob the Apostles of the Ascension of our Lord Jesus Christ of the Nativity of St. John the Baptist of St. Peter the Apostle of St. James the Apostle of St. Barthelomew the Apostle of St. Matthew the Apostle of St. Michael the Archangel of St. Luke the Evangelist of St. Simon and Jude the Apostles of All Saints of St. Andrew the Apostle of St. Thomas the Apostle of the Nativity of our Lord of St. Stephen the Martyr of St. John the Evangelist of the holy Innocents Munday and Tuesday in Easter-week Munday and Tuesday in Whitson-week are to be observed and kept for Holy days and none other And that every even or day next going before any of the aforesaid days of the Feasts of the Nativity of our Lord of Easter of the Ascension of our Lord Pentecost of the Purification of the Annunciation of the blessed Virgin of all Saints and of all the Feasts of the Apostles other then the Feasts of St. John the Evangelist and Philip and Jacob shall be kept for fasting days and none other Archbishops Bishops in their Dioces and all other having Ecclesiastical or Spiritual Jurisdiction may enquire of every person offending in the premises and punish every offender by censures of the Church and enjoyn him such penance as by the spiritual Judge shall be thought meet This Statute does not abrogate abstinence from flesh in Lent and Fridays and Saturdays or any day appointed to be kept by vertue of an Act made the second and third Ed. 6. Cap. 19. When any Holy day happens on the Munday the fast of that day shall be kept upon the Saturday immediately before and not upon the Sunday A view of the Reformation of Ed. 6. and of the lawfulness of it That the Book of commom Prayer Administration of the Sacraments The Reformation made by Ed. 6. was not meerly a civil sanction and other rites and ceremonies of the Church after the use of the Church of England was framed and composed by the Archbishop of Canterbury and certain of the most learned and discreet Bishops of the Land assembled to that purpose by the King is clearly expressed in the Preface to the Act of the 2. 3. Ed. 6. Cap. 1. The right that Christian Kings have to call and assemble Synods It is no new thing for Kings to assemble the Bishops and Church to redress and reform errors Councels and Convocations for the redress and reformation of errors and corruptions in the Church is properly the subject of another Treatise but that the Kings and supream Powers before Christianity under the old Law from Moses to Maccabees did always use it and that the first great Nicene Councel the second general Councel at Constantinople the third at Ephesus the fourth at Calcedon the fifth at Constantinople the sixth at Constantinople the seventh at Ephesus were all called by Christian Emperors is manifested by the Bishop of Winchester Andrews in the Sermon of the Right and Power of calling Assemblies nor were the general Councels convoked by Emperors but the Emperors and Kings did convoke and assemble Provincial and National Assemblies and Synods He shews that the Bishop of Syracuse in Sicily and Restitutus Bishop of London in Britain were summoned to a Synod in France by the Emperor Constantine ' Writ onely this was in the beginning of his Reign in the latter end of it in the thirtieth year of his Reign and the year before his death he called the Councel at Tyre and from thence removed it to Jerusalem and from thence called them to appear before himself at Constantinople After him Constans called one at Sardis Valentinian at Lampsacus Theodosius at Aquileia Gratian at Thessalonica Nay when the Emperors were professed Arrians even then did the Bishops acknowledge their power to call Councels came to them being called sued to them that they might be called came to them as Hosius to that of Arimine Liberius to that of Sirmium and that of Seleucia sued for them as Liberius to Constantius as Leo to Theodosius for the second Ephesine Councel Innocentius to Arcadius and sometime they sped as Leo and sometime not as Liberius and Innocentius and yet when they sped not they held themselves quiet and never presumed to draw themselves together of their own heads After the Empire fell in pieces and the Western Empire fell into the hands of Kings in Italy Theodoric called one at Rome Alaric at Agatha In France Clowis the first Christian King there called one at Orleans Childebert at Auvern Theodebert called another at Orleans and Cherebert at Toures And
of them or by any Generall Councell wherein the same was declared heresie by expresse and plaine words of Scripture or such as should be determined Heresie by the high Court of Parl. with the assent of the Clergy in their Convocation This Statute revives the 23 H. 8. 9. 24 H. 8. 12. 25 H. 8. 20. 25 H. 8. 21. 26 H. 8. 14. 28 H. 8. 16. So much of the Act of the 32 H. 8. 38. concerning precontracts of Marriages and touching degrees of Consanguinity as by the 2 Ed. 6. 23. was not repealed the 37 H. 8. 17. the 1 Ed. 6. 1. This Act repeales the Statute of the 1 2. Ph. M. 6. the 1 2 Ph. M. 8 except those things touching the Premunire in the said Statute It repeales the 5 R. 2. 5. the 2 H. 4. 15. the 2 H. 5. 7. made for the punishment of Heresies by fire and faggot This statute repeales the statute of the first of Mary and the 2 and revives Stat. 1 Eliz. cap. 2. the statute of the 5 6 of Ed. 6. for the uniformity of Prayer and administration of the Sacraments with the alteration or addition of certain Lessons to be used every Sunday of the yeere and the forme of the Letany altered and corrected and two sentences only added in the delivery of the Sacrament to the Communicants If any Parson Vicar or other whatsoever Minister that ought or should say or sing Common-Prayer mentioned in the said Booke in such Cathedrall or Parish-Church or other places where he should Minister the same in such manner and forme as is mentioned in the said Booke refuse to doe the same or use any other forme or shall preach declare or speake any thing in derogation of the said booke or any thing therein contained or any part thereof and shall thereof be lawfully convicted according to the Lawes of the Land by the Verdict of 12 men or confession or notorious evidence of the fact shall forfeit to the Queene c. for the first offence the profits of one whole yeere next after such conviction of all his spirituall Benefices and suffer imprisonment for the space of six moneths without Bayle or Mainprize If any such person once convicted concerning the Premisses shall after such conviction offend and be thereof lawfully convict shall suffer imprisonment for the space of one whole year and be deprived ipso facto of all his spirituall promotions and that it shall be lawfull for all Patrons and Donors of such Spirituall promotions to present or collate to the same as if the person or persons so offending were dead If any person be convicted the third time of the premisses he shall ipso facto be deprived of all his spirituall promotions and shall suffer imprisonment during life Any person that shall offend and be convicted inform aforesaid concerning any of the premisses not being beneficiall or having any spirituall promotion shall for the first offence after such conviction suffer imprisonment for the space of one whole year without Bail or Mainprise and for the second offence after lawfull conviction shall suffer imprisonment during life If any person shall doe or speak any thing in derogation of the book of Common-prayer or disturb or interrupt any Parson Vicar or other Minister in any Cathedrall or Parshi Church or Chappel in the celebration of the Common-prayer or ministration of the Sacraments or shall compell or cause any other Service to be celebrated being thereof lawfully convict shall for the first offence forfeit to the Queen c. the summe of one hundred Marks and for the second offence the summe of four hundred Marks and for the third offence he shall forfeit all his Goods and Chattels and suffer imprisonment during life If any person shall for the first offence be convict of the premisses in form aforesaid and shall not pay the sum to be paid by virtue of his conviction that instead thereof he shall suffer imprisonment for the space of 6. moneths without Bail or Mainprise and he that shall not pay for the second conviction shal suffer imprisonment for the space of 12. moneths without Bail or Mainprise Every person shall having no lawfull or reasonable excuse to be absent diligently and faithfully endeavour to resort to the usuall places where Common-prayer and such Service of God shall be used upon Sundayes and other dayes appointed to be kept holy and there abide orderly and soberly during the time of Common-prayer Preaching and other Service of God upon pain of punishment by censures of the Church and twelve pence to be levied by the Church-wardens to those of the poor of the Parish by way of distress The Ordinaries and all other Officers Ecclesiasticall as well in places exempt as not exempt within their Diocess have power and authority by this Act to correct and reform and punish by Church censures all who shall offend within their Jurisdictions The Justices of Oyer and Determiner or Justices of Assise in open and generall Sessions have power to hear determine and punish these offences yet so that every Arch-bishop and Bishop in their severall Diocesses by virtue of this Act may associate or joyn themselves with the said Justices No person shall be molested for any offences abovesaid unlesse he be indicted at the next generall Sessions next after such offences are committed All Lords of Parliament for their third offence shall be tried by their Peers Chiefe Officers of Cities and Boroughs have the like authority to hear and determine the offences aforesaid as the Justices of Assize and Oyer and Determiner have Arch-Bishops Bishops their Chancellors Commissaries Arch-Deacons and other Ordinaries having any peculiar Ecclesiasticall Jurisdiction have by virtue of this Act power in their Visitations Synods and elsewhere within their Jurisdictions to enquire and take the accusations and informations of all the offences aforesaid and to punish the same by Admonition Excommunication Sequestration or Deprivation and other censures in like form as heretofore has been used by the Queens Ecclesiasticall Laws Any person offending in the premisses and punished therefore by the Ordinary having a testimoniall thereof under the Ordinaries Seal shall not for the same offence be convicted before the Justices and likewise punished for the first offence by the Justices he shall not again receive punishment of the Ordinary Such Ornaments of the Church and of the Ministers shall be reteined Anno 5 Eliz. cap. 1. and be in use as was in this Church of England by authority of Parliament in the 2 year of the Reign of Ed. 6. untill other Order shall be taken by authority of the Queen with the advice of the Commissioners appointed and authorised under the Great Seal of England for causes Ecclesiasticall or of the Metropolitan of the Realm It was enacted That whatsoever person inhabiting in the Queens Dominions who by word or deed should maintain that the Bishop of Rome had any authority or jurisdiction in any of the
School-master presuming to teach any thing contrary to this Act and being thereof lawfully convict shall be disabled to be a Teacher of Youth and shall suffer imprisonment without Bayl ot Mainprise for the space of a year No Ordinary or their Ministers shall take any thing for the allowance of any Schoole-master All offences aforesaid and all offences against the first Eliz. 1. 5 Eliz. 1. 13 Eliz. 2. c. are inquirable into by the Justices of peace and other Justices named in the said Act within a year and day after such offences committed Justices of Oyer and Terminer of Assiize of Goale-delivery in their limits Justices of Peace in their Quarter-sessions have power to hear and determine the offences aforesaid except Treason and Misprision of Treason Every person guilty of any offence against this Statute other then Treason Misprision of Treason which shall before he be indicted or at his Arraignment before Judgement submit and conform himself before the Bishop of the Diocess where he shall be resident and before the Justice of Peace where he shall be arraigned or tried having not before made like submission shall upon his recognition of such submission in open Assises or Sessions in the County where such person shall be resident be discharged of all the said offences The forfeitures of the moneys limited by this Act shall be divided into three equall parts whereof one third part to the Queen to her use another for the relief of the poor in the Parish where such offence is committed to be delivered by warrant of the principle Officers in the receipt of the Exchequer without further warrant from her Majesty the other third part to such person as will sue for the same in any court of Record in which no Essoin or Protection or Wager of Law shall be allowed He that shall forfeit such summes as are specified in this Act and be not able or shall not pay the same within 3. moneths after Judgement shall be committed to prison and there remain untill he have paid the said summes or conform himself to goe to Church He that usually on Sunday shall have in his house the Divine Service as it is established and be thereat usually present and not obstinately refuse to come to Church and shall at least four times in the year be present at the Divine Service in his Parish Church or in some open Church or Chappell of ease shall incur no damage nor danger by this Act. Every Grant Conveyance Bond Judgement and Execution of covetous purpose to defraud the Queen or any other person shall be holden utterly void Tryall of a Peer for any Treason or misprision of Treason by this Act shall be by his Peers This Act nor any thing contained therein is said not to extend to take away any or abridge the authority or jurisdiction of the Ecclesiasticall Censures for any cause or matter but that Arch-Bishops and Bishops and other Ecclesiasticall Judges may do and proceed as before the making of it All Jesuits made within or without the Realm since the Nativity of St. Stat. 27 Eliz. cap. 2. John the Baptist in the first year of the Queen shall within 40. dayes next after the Session of Parliament if they be not wind-bound depart out of England and other the Queens Dominions If any Jesuit Seminary Priest or other such Priest Deacon or Religious or Ecclesiasticall person whatsoever born within the Dominions of the Queen and made since the feast of the Nativity of St. John in the first year of the Queen or hereafter to be made by any Authority from the Church of Rome shall after the said forty dayes after the Session of Parliament other then in such speciall cases as in this Act is expressed be found in any of the Queens Dominions every such person shall be adjudged a Traitor All they which shall receive any such Jesuit or Priest after such time shall be adjudged a felon without benefit of Clergy If Any Subject of England then being or after shall be of or brought up in any Colledge of Jesuits or seminaries already erected or to be erected out of the Realm shall not within six moneths next after Proclamation in that behalf made in London under the broad Seal return into this Realm and within two dayes after before the Bishop of the Diocesse or two Justices of the peace of the County where he shall arrive submit himself to her Majesty and her Lawes and take the Oath set forth in the first year of her Reign That then every such person which shall otherwise return shall be taken and deemed as a Traitor Whosoever shall any wayes send relief to any Jesuit or seminary beyond the seas or give any maintenance to any Colledge of Jesuits or Seminaries shall incur the danger of a Premunire None during the Queens life shall send his or her Child or other person except Merchants or such only who serve in their Trade as Merchants or Mariners beyond the Seas without the Queens speciall licence or under four of the Councells hands upon the penalty of one hundred pounds Every offence committed against this Act may be heard and determined as well in the Kings Bench as also in any County within this Realm or any of the Queens Dominions where the offence shall be committed or where the offendor shall be apprehended This Act shall not extend to any Jesuit c. before mentioned as shall within the said 40. dayes or within 40. daies after he come into the Realm submit himself to some Arch-bishop or Bishop of this Realm or to some Justice of Peace within the County where he shall arrive and doe thereupon truly and sincerely before the Arch-bishop Bishop or Justice of Peace take the said Oath set forth the first of Eliz. and under his hand confesse afterward to continue in due obedience to the Queens Lawes made or to be made in causes of Religion Peers shall be tried by their Peers for any offence made Treason Felony or Premunire by this Act. Any person being a Subject of this Realm which shall after the said 40. daies know any such Jesuit or Priest c. and shall not discover the same to some Justice of Peace or Higher Officer within 12. dayes every such person shall be fined and imprisoned according to the Queens pleasure and every such Justice of Peace or higher Officer which shall not discover the same within 28. dayes to some of the Queens Councell or to the President or Vice-president of the Queens Councell established in the North or Marches of Wales then he or they so offending shall forfeit 200 Markes Such of the Privy Councell President or Vice-president abovesaid to whom such information shall be made shall thereupon deliver a note in writing subscribed by his own hand to the party by whom he shall receive such information testifying that such information was made to him All such Oaths Bonds and Submissions as shall be made by force of
this Act shall be certified into the Chancery by such Parties before whom the same shall be made within three moneths after such submission upon pain of forfeiture of 100 l. for every such offence to the Queen If any person so submitting himself shall within 10. years after come within 10. miles of the place where her Majesty shall be without speciall licence had from her Majesty under her hand that then such person to have no benefit of such submission Enacts That every Feofment Gift Grant Conveyance Alienation Estate Stat. 29 Eliz. cap. 6. Lease Encumbrance Limitation of use of or out of any Lands Tenements Hereditaments whatsoever had or made since the beginning of the Queens Reign or after by any person who had not repaired or shall not repair to some Church Chappel or usuall place of Common-prayer or which is or shall be revokable at the pleasure of such offendor or in any wise directly or indirectly intended or meant to or for the behoofe or disposition of such offendor or in consideration whereby his Family may be maintained shall be deemed and taken for utterly void c. Every conviction heretofore recorded for any offence before mentioned not already estreated or certified into the Queens Court of Exchequer shall from the Justices before whom the record of such conviction shall be remaining be estreated and certified into the Exchequer before the end of the next Easter Term in such convenient certainty for the time and other circumstances as the Court may thereupon award out processe for seisure of the Lands and Goods of every such offendor as hath not paid their forfeitures according to Statutes in such case provided And every conviction hereafter for any offence before mentioned shall be in the Court called the Kings Bench or at the Assises or generall Goal-delivery and not elsewhere and shall from the Justices before whom the Record of such conviction shall remain be estreated and certified into the Exchequer before the end of the Term next ensuing after every such conviction in such convenient certainty as is aforesaid Every offendor in not repairing to Divine Service and hath been heretofore convict and not made his submission and been conformable according to the true intent of this Statute shall without other indictment or conviction pay into the receipt of the Exchequer all such summes of money as according to the rate of twenty pounds for every moneth since the same conviction in manner following viz. one Moity before the end of Trinity Term the other Moity before the end of Hilary Term or at such other times as the Lord Treasurer Chancellor and Chief Baron or any two of them shall by composition upon good security be limitted before the end of the said Trinity Term if any such composition shall happen to be And shall also in every Easter and Michaelmas Term untill such time as the same person do make such submission pay into the Exchequer 20 l. for every moneth which shall incur in all that mean time For default of Payment of the said 20 l. a moneth in every Easter and Michaelmas Term after such conviction the Queen by processe out of the said Exchequer may take seize and enjoy all the Goods and two parts as well of all the Lands and Tenements c. of such offendor as of all other Lands and Tenements liable to such seisure by the true intent of this Act leaving only a third part for the reliefe of the offender his Wife Children and Family For the more speedy conviction of such offendor the Indictment shall be sufficient although it be not mentioned that the offendor was or is inhabiting within the Realm of England or any other of the Queens Dominions But if it shall happen that any such offendor were not within any of the Queens Dominions that in such case the party shall be relieved by plea to be put in in that behalf and not otherwise And upon Indictment a Proclamation shall be made the same Assises or Goal-delivery that the party indicted shall yeeld his body to the Sheriff and if at next Assises or Goal-delivery the said party shall not make appearance of Record that then such default shall be deemed a sufficient conviction in Law If any such offendor shall make submission and become conformable according to the form of the Statute made in the 23 of Eliz. or shall fortune to die that then no forfeiture of 20 l. a moneth nor seisure of Lands from and after such submission and conformity or death and full satisfaction of all arrearages of 20 l. monethly before such seisure due or payable shall ensue or be continued against such offendor so long as he shall continue in coming to divine Service according to the intent of the Statute The Lord Treasurer of England Chancellor and chief Baron or any two of them may assigne and dispose of the full third part of the twenty pounds for every moneth paid into the receipt of the Exchequer towards the relief of the Poor of Houses of correction and of impotent and maimed Souldiers This Act or any thing contained in it doth not in any wise extend to make void or impeach any Grant or Lease made bonâ fide without fraud or covin and not revocable at the will and pleasure of the offendor This Act or any thing contained therein shall not in any wise be construed to continue any seisure of any Lands or Tenements of such offendor in her Majesties hands after the said offendors death which Lands or Tenements he shall have or be seised of only for term of life or in right of his wife For the preventing of such great inconveniences and perils as may happen Stat. Anno 35 Eliz. cap. D. and grow by the wicked practices of seditious Sectaries and disloyall persons it was enacted That every person above sixteen years of age that shall obstinately refuse to come to Divine Service established by Law and shall forbear the same by the space of a moneth without lawfull excuse or shall at any time after fourty dayes after the Session of that Parliament by word or writing advisedly goe about to move or perswade any of the Queens Subjects or any other within her Realms or Dominions to deny or withstand her Majesties power or authority in causes Ecclesiasticall united and annexed to the Imperiall Crown of this Realm or shall advisedly perswade any person to forbear coming to Church to hear Divine Service established or to come to or be present at any unlawfull Assemblies Conventicles c. upon pretence of Religion contrary to the established Lawes Or if any person shall obstinately refuse to repair to some usuall place of Common-prayer and shall forbear to hear Divine Service by the space of a moneth or shall after fourty daies willingly joyn in any such Assemblies Conventicles c. under colour of exercising Religion contrary to the Laws of this Realm That every person so offending and being thereof lawfully
shall retain in service see or livery any person which shall forbear to goe to some usuall place of Divine service by the space of a moneth shall forfeit for every such moneth he knowing the same the summe of ten pounds This Act shall not extend to punish any person for maintaining relieving or harbouring his Father or Mother wanting without fraud any other habitation or sufficient maintenance or the ward of any person committed by authority to the custody of any by whom they shall be so relieved maintained or kept The Sheriff or other Officer upon lawfull Writ Warrant or Processe to him awarded to take or apprehend any Popish Recusant standing excommunicated for recusancy may break open the house where any such person excommunicated shal be or raise the power of the County for apprehending such person Every offence committed against this Act may be heard and determined before the Justices of the Kings Bench and Justices of Assize And all offences other than Treason shall be enquired heard and determined before the Justices of Peace in their next Generall and Quarter-sessions No attainder of Felony by this Act shall extend to forfeiture of Dower or corruption of blood The Defendant in any action commenced or brought against him by virtue of any thing in this Act may plead to the generall Issue by an Evidence that shall prove his doings or proceedings warrantable by this Law This Act nor any thing contained therein is said not to extend to take away or abridge any authority or jurisdiction of Ecclesiasticall censures No person shall be charged in any penalty by force of this Act which shall happen for the wifes offence in not receiving the Sacrament during her Marriage nor any woman shall be charged with any penalty for not receiving during Marriage In all cases where the Bishop or Justices of Peace by virtue of this Act may take of any Subject not a Nobleman this oath above mentioned The Lords of the Privie Councell or any 6 of them where of the Lord Chancellor Lord Treasurer or principle Secretary to be one have authority to require the same at any time of any Noble-man or Noble-woman being above the age of 18. years and if such Noble-man or Noble-woman other then the woman married refuse the same they shall incurre the penalty of a Premunire Where any person shall pass out of the Cinque-Ports or any member thereof to any parts beyond the seas to serve any foreign Prince State or Potentate the Lord Warden of the Cinque-Ports for the time being or any person by him appointed have power to take bond and minister this oath to such passengers If any man discover any Recusant or other person which shall entertain or Stat. Annn. 3 Jac. cap. 5. relieve any Jesuit Seminary or Popish Priest or shall discover any Mass to have been said and the persons which were present and the Priest or any that were present within three daies shall not only be freed from any penalty but shall have the third part of the forfeiture of all such summes of money goods and chattels which shall be forfeited for such offence if the forfeiture exceed not 150 l. if it doth exceed 150 l. then the discoverer to have 50 l. and the discoverer after conviction of the offendor shall have a certificate from the Judges or Justices of Peace before whom such conviction shall happen to be directed to the Sheriffe or other Officer that shall seize the goods commanding him to pay the same accordingly No Popish Recusant shall come into the house where the King or the Heir apparent shall be unlesse commanded by the King or by Warrant from the Lords of the privy Councell upon penalty of one hundred pound the one moity to the King the other to the discoverer who will sue for the same in any Court of Record where no Essoine Protection or Law Gager shall be allowed All convicted Popish Recusants dwelling in London or within five miles within three moneths after the Session of Parliament shall depart out of it and not dwell within ten miles and deliver up their names to the Lord Major if they dwell in London and if such Recusant shall dwell within ten miles of London to deliver up his name to the next Justice of Peace within fourty dayes after the Session of Parliament upon the penalty of one hundred pounds the one halfe to the King the other to him who will sue as aforesaid All Recusants which shall dwell or remain in London or within ten miles thereof shall within ten dayes after indictment or conviction depart out of the said compass and deliver up their names to the Lord Mayor In case the said Recusant shall dwell in any County within ten miles of London then within ten daies after conviction or indictment shall give up his name to the next Justice of peace the person offending shall forfeit one hundred pounds the one halfe to the King the other to the Informer as aforesaid Tradesmen Recusants who have no other habitation may continue within London and the compass of ten miles This Act repeals that branch of the 35 Eliz. cap. 2. touching licence of Recusants to remove or pass above five miles from their place of abode The King or three or more of the Privy Councell under their hands may licence a Recusant to travell out of the compass of five miles So may four Justices of Peace of the County with the privity of the Bishop of the Diocesse in writing or of the Lieutenant or any of the Deputy Lieutenants the party taking his corporall oath that he truly informes them of the cause of his journey and making no causless stayes No convict Recusant shall practise the Common Law as a Councellor Clerk Atturney or Solicitor nor shall practice the Civill Law as Advocate or Proctor nor practise Physick nor be an Apothecary nor shall be Judge Minister Clerk or Steward of any Court nor keep any Court nor shall be Register or Town-clerk or other Minister or Officer in any Court nor shall bear Office as Captain Lieutenant Corporall Sergeant Auncient-bearer or other Office in Camp Troop Band or Company of Souldiers nor bear any office in any Ship Castle or Fortresse of the Kings upon penalty of one hundred pounds to be forfeited as aforesaid No popish Recusant convict or having a Wife convict shall bear any publick office in the Common-wealth Every married woman being a Recusant convict her husband not being convict shall forfeit 2. third parts of her Joynture and Dower during her life and be made uncapable of being Executrix or Administratrix to her husband Every Popish Recusant convict shall be deemed as a person excommunicated so long as he continues not conformable and not come to Divine service and receive the Sacrament and take the oath appointed by this Parliament in the first chap. Yet such Recusant may sue for such of his Lands Tenements c. and for the profits thereof which are not
seized into the Kings hands for his Recusancy or any part thereof Every covicted Popish Recusant not married in some open Church or Chappel or otherwise then according to the Church of England by a Minister lawfully authorized shall be disabled to have any estate of Freehold by Curtesie of England And every woman being a popish Recusant convict which shall be married in other form then as aforesaid shall be disabled not only to claim any Dower or Joynture but also the Widowes Estate and Frankbanck in any customary Lands whereof her Husband died seized and likewise from having part of her husbands goods by virtue of any custome of any County City or Place And if a man be married contrary to the true intent of this Statute to a woman who hath no Lands or Tenements whereby he may become Tenant by Curtesie he shall forfeit 100 l. to be paid as aforesaid Every Popish Recusant which shall have a child born and shall not within a moneth after cause it to be baptized by a lawfull Minister according to the Lawes of the Realm in some usuall place of Baptisme or if by infirmity the child cannot be brought to such place then to be baptized by some Minister within the moneth if he beliving by the space of a moneth or if he be dead then Mother of such Child shall for every such offence forfeit one hundred pound one third part to the King the other to the Informer who will sue for it the other third part to the poor of the said Parish to be recovered in any of the Kings Courts wherein no Essoine c. shall be allowed If any Popish Recusant not being excommunicated shall be buried in any place other then the Church or Church-yard or not according to the Ecclesiasticall Lawes of the Realm That the Executors or Administrators of every such person so buried knowing the same or the party that so burieth him shall forfeit twenty pounds to be paid as aforesaid If the children of any of the Subjects within this Realm the said children not being Souldiers Mariners Merchants or their Apprentices or Factors shall be sent or goe beyond seas without licence of the King or six of the Privy Councell whereof the principall Secretary to be one under their hands and seals that very such child shall take no benefit by any gift conveyance descent devise or otherwise untill he being above the age of eighteen years take the oath mentioned in an Act made that Session intituled An Act for the better discovery and repressing Popish Recusants c. before some Justice of Peace of the County where such Parents of such Children as shall be sent did or shall inhabit In the mean time the next of kin who is no popish Recusant shall enjoy all the said Lands c. untill the person so sent shal conforme himself and take the said oath receive the Sacrament of the Lords Supper and then he who hath received any profit as aforesaid shall restore the goods or value to him who shall so conform himself He that shall so send his child beyond seas shall forfeit one hundred pounds to be recovered as aforesaid No convict popish Recusant shall present to a Benefice with Cure Prebend or grant an Advowson or collate or nominate to any Free-school or Donative whatsoever The Chancellor and Scholars of the University of Oxford when any such become void shall have the nomination presentation collation and Donation of any such Benefice Prebend or Ecclesiasticall Living School Hospitall and Donative in the Counties of Oxford Kent Middlesex Sussex Surrey Hampshire Barkshire Buckinghamshire Gloucestershire Worcestershire Staffordshire Warwickshire Wiltshire Somersetshire Devonshire Cornwall Dorcetshire Herefordshire Northamptonshire Pembrokeshire Carmarthenshire Brecknock-shire Monmothshire Cardiganshire Montgomeryshire and the City of London so long as the Patron shall remain a Recusant convict The Chancellor Scholars of the University of Cambridge shall have presentation c. to all such Benefices aforesaid being in the Counties of Essex Hertfordshire Bedfordshire Cambridgshire Huntingtonshire Suffolk Northfolk Lincolnshire Rutlandshire Leicestershire Derbishire Notinghamshire Shropshire Cheshire Lancashire Yorkshire the County of Durham Northumberland Cumberland Westmorland Radnorshire Denbyshire Flintshire Carnarvonshire Angleseyshire Merionethshire Glamorganshire so long as the Patron shall continue a Recusant convict If the Chancellor and Shollars of either University shall nominate or present Quaere who shal have the next presentation nomination to any such Benefice c. any person who hath any other Benefice with cure of souls every such nomination and presentation shall be void A convicted Recusant shall neither be Executor or Administrator nor Gaurdian in Chivalry or Socage The next of kin of the children of Recusants convict to whom the Estate cannot descend who shall usually resort to Divine Service according to the Lawes and receive the Sacrament shall have the Guard and education of the children and of the Lands and Tenements holden in Knights-service untill the full age of 21 years and of the Lands in Socage as Guardian in Socage and of Customary Lands by copy of Court Roll so long as the custome shall permit the same and in every of the said places shall yeeld an account of the profits to the Ward All Grants of Wards either of the King or any other to any Popish Recusant shall be void No person shall bring from beyond Sea print sell or buy any Popish Primers Ladies Psalters Manuels Rosaries popish Catechisms Missals Breviaries Portals Legends and lives of Saints containing superstitious matter upon penalty of fourty shillings to be forfeited as aforesaid viz. one third part to the King an other to the Informer who will sue the other to the poor of the Parish where such book shall be found Justices of peace in their Limits Mayors Bayliffs chief Officers in Corporations may search the hous of every popish Recusant convict the hous and lodging of every person whose wife is a popish Recusant convict for popish books and Relicks of Popery And if any Altar Pix Beads Pictures or such like popish Reliques or any popish books shall be found as in the opinion of such Officers shall be thought unmeet for such Recusants they shall presently be defaced and burnt if meet to be burnt All Armour Gunpowder and Munition whatsoever any popish Recusant convict hath or shall have in his own house or in the hands of others shall be taken from them by warrant of four Justices of peace at their Generall or Quarter-sessions other then such necessary weapons as the four Justices shall think meet for defence of the said Recusants in defence of their houses and the said Armour and Munition so taken shall be kept at the costs of the said Recusants in such places as the four Justices shall appoint If any such Recusant which hath such armour c. or any person who hath any such armour c. for the use of such Recusant shall refuse to declare unto the