committed within your libertie you shall also present all offenders and offerces against the Statute made in the fourth year of our late Soveraigne Lord King Iames intituled an Act to represse the odious and lothsome sin of drunkennesse and also against the Statute in the first Session of Parliament in the first yeare of his late Majesties raigne intituled an Act to restraine the inordinate haunting and tipling in Innes and Alehouses and other victualling houses with the alterations and additions contained in the said Act of the fourth yeare according to the alterations and additions of the Statute made in the 21. yeare of his said late Majesties raigne intituled an Act for the better repressing of drunkennesse and restraining the inordinate haunting of Inns and Alehouses and other victualling houses And lastly you shall well and truly doe and execute all those and such other things as are incident and doe belong unto your office of Constable for this yeare now to come So help you God FINIS AN EXPLANATION OF The old Oath OF LEGEANCE CONSISTING Of these foure generall Heads 1 What Legeance Ligeantia or Fides is 2 The extent of it by this ancient Oath and the severall parts and branches of the Oath 3 The Modus Reddendi of aids and supplyes to the KING 4 The Royall Office of the KING in the protection of his people confirmed at his Coronation Together with their severall Subdivisions at large LONDON Printed by Richard Badger 1641. AN EXPLANATION OF THE ANCIENT OATH OF LEGEANCE AN Oath is an attestation or calling God to witnesse of the truth touching those things which we say affirme and promise to do upon the holy Evangelists and before a lawfull Magistrate authorized to take such an Oath and that is a legall Oath There are two sorts of Legall Oaths used and practised within this Realme viz. Iuramentum consuctudinarium warranted by the custome of the Realm which is no more than the Common Law 2 Iuramentum Parliamentarium an Oath created and enacted by all the three States as the Oath of Supremacie prescribed 1 Eliz. cap. 1. and the Oath of Allegeance 3 Iacob 4. And no Oath can be imposed upon the Subject but what is enabled by the usage of the Common Law or by an Act of Parliament This ancient Oath was in time very long before the great Charter as in the former tract is remonstrated And bath beene confirmed from time to time in and by Magna Charta So that it hath 〈◊〉 power and vigor both from the common and commitâ—â—â— lawes of this Kingdome The Oath though once before mentioned doth follow viz. Heare yee that I. N. do sweare that from this day forward I will be true and faithfull to our Soveraign Lord the King and his heires and truth and faith beare of life and member and terrene honour And I will neither know nor heare of any ill or dammage intended unto him that I will not defend So help me God This Oath containes a reall protestation of every Subjects dutie to his Soveraigne and expresly declares what Subjection and Obedience ought to be expected from them and implicitely the office of the King towards his people which is protection for it is truly said That protectio trahit subjectionem subjectio protectionem It is cleare that the generall obligation of subjection and duties from the people and the power and prerogatives royall in the Prince are included in the law of God and are part of the Law of Nature whereto all Nations have consented which if I should Illustrate as well I might by innumerable testimonies presidents and examples aswell out of sacred Scriptures and Fathers as out of Heathen Writers Historians and others it would fill up a larger volumne than this Subject would require I am onely to deale with that subjective faith and Legeance which by the provinciall Lawes of this land which are Generalis consuetudo Regni Anglicae is naturally and legally jure haereditario due to the person and royaltie of his sacred Majestie This Legeance is derived to him from Lex aeterna the Morall Law called also the Law of nature part whereof the Law of England is being first written in Tabulis rectae rationis in the heart of man and the people by that Law governed two thousand yeares before it was published and written by Moses and before any judiciall or municipall lawes For the better informing of the vulgar sort of people herein for whom it is most convenient I shall assay to present to the well affected reader some collections to that end whereof I shall as the matter will beare endeavour an orderly prosecution 1 First a generall proposition what Legeance ligeantia or fides is 2 Secondly the extent of it by this ancient Oath and the severall parts and branches of this Oath 3 The Modus reddendi of aides and supplyes 4 The Royall office of the King ad protectionem for the protection of his people sacramentally confirmed at his Coronation 1 Legeance is a true and faithfull obedience of the Subject due to the Soveraigne this Legeance and obedience is a due inseparable from the Subject and is called ligeantia naturalis for as soone as he is borne he oweth by birthright Legeance and obedience to his Soveraigne Ligeantia est vinculum fidei the bond or obligation of faith and loyaltie Master Skency De verborum significatione verbo ligeantia saith That it is derived from the Italian word liga viz. a bond league or obligation As a great Lord Chancellor in the case of postnati said That ligeantia understood sensu currenti in the language of the time is vincusum fidei obedientiae the tye or bond of faith and obedience And he that is borne in any of the Kings dominions and under the Kings obedience is the Kings leige Subject and borne ad fidem Regis That is being the proper word used in the Law of England to be faithfull to the King It extendeth further in all cases of denization which is called ligeantia acquisita where any alien or stranger borne out of the Kings Dominions doth afterwards by any common grant of the King any Act of Parliament or other waies or meanes obtaine the freedome of a Subject within this Land Sometimes the extention of this word is yet larger for he that is an alien born out of the Kings Dominions ad fidem or under the obedience of another King if he dwell within the Kingdome and be protected by the King and his lawes hee is under the Kings Legeance ligatus Regiâ— and the reason is plaine For if to such a person any injury is done either in life member or estate the Law taketh as severe an accompt and inflicteth as severe a punishment upon the offenders in such cases as if the partie injured had beene subditus natus borne within his Majesties dominions Then great reason that such persons having the benefit of naturall borne subjects which is protection from suffering
De â—odoâ—reddendi according to the true meaning of this ancient oath of Legeance is the difficult question S. Pet. 1.6 2. v. 13. giveth this monition Submit your selves to every ordinance of man for the Lords sake whether is be to the King as supreme vers 14. or unto governours as unto them that are sent by him c. Though by the rule of S. Paul the substance of every princes power is the ordinance of God yet the specification of the circumstances thereto belonging as in regard of places persons Jurisdiction subordination and the rest is an humane ordinance introduced by custome or positive law Hence I will deduce this generall position That all subjects are bound by dutie and legeance to their princes to render to them civill obedience and their dues and duties according to the laws and customes of that kingdome wherein they live then by consequence the subjects of great Britain to their gracious Soveraign according to the Lawes and customes of our Nation To capitulate here all the casuall dues and duties annexed to his prerogative as forfeitures escheates confiscations or such like or wardships mariages primer seisin and many more at large recited and declared by the statute intituled Prarogativa Regis published in the 17 yeare of Ed. 2. Or to make particular rehersall of other ordinary dues as customes aide and such like were cleerly out of the scope of my intention But faithfully to deliver by what ways and means the king may require any extraordinarie aid and supply out of each subjects particular estate or terrene honour hic labor hoc opus est Some not well affected to the constant government of this kingdome The payments of dues and duties most proper by Parliamentary gift would have the kings necessities supplyed by impositions and taxes to bee raised and levied by the kings meer and absolute power without any commitiall consent of peeres and commons others more orthodox if I may so terme it to the happinesse of his Majestie and tranquillitie of the State doe hold and so it hath been declared by ancient modern parliaments that a parliamentarie gift subsidie or supply bee it of what name soever from the subject to the King is most proper and competible with the ancient rule and government of our kingdome The very name of parliament is sacrum quoddam and the nature of it most sublime and so long as the members are in unitie with the head most absolute and illimited The kingdome of England is a most ancient Monarchie under the rule and government of a Supreme Leige Soveraign conform and according to the peculiar lawes and customes of the nation confirmed by severall Parliaments and whereas all other nations as Bracton faith Lib. 1. Cap. 1. were governed by written lawes Sola Anglia usa est in suis finibus jure non scripto consuetudine in en quidem ex non seripto jus venit quod usus comprobavit Sed absurdum non erit leges Anglicanas licet non scriptas leges appellare cum legis vigorem habeat quicquid de consilio consensu magnatum reipublicae communi sponsione authoritate Regis sive principis praecadente juctè fuerit definitum approbatum England only is ruled by a law not written and by custom which by usage hath beene approved and it were absurd because not written not to call them lawes inasmuch as whatsoever by the counsell and consent of the Peers and commons and by the kings royall authoritie shall bee determined and allowed hath the power and vertue of a law Herein we may observe an authentike description of a parliament I cannot passe by the word Quicquid there is some remarkable energie in the generalitie of it that must not goe without a Quisquid Some would have religion and Ecclesiastike persons and do not stick to murmur loudly of it exempt from all parliament power All persons causes subject to Parliament but our Author who wrote in the later time of Hen. 2. well nigh 380 years agone not long after King Iohn had coactedly delivered over his royall Crowne into the hands of the Popes Legat and thereby admitted papall incroachments of jurisdiction in this kingdome although with the common errors of those times he seemed to advance pontisiciall power in Ecclesiasticall causes here cui scil Papae alioqui invictissimi etiam Imperatores Reges cesserunt as it is said in the prologue to Bracton yet he brings all jurisdictions and matters whatsoever with his Quicquid within the cognizance and power of parliament A parliament is the supremest Court of Justice in this kingdome Parliament the supremest court of justice an assembly of the King the Lords and peeres and the Commons of the Realme The word Parliament is a French word and signifies originally as much as colloquium a conference or treatie betweene the King and his Subjects Iâ—â—is great Court the kings of England have ever had authoritatem praecedentem as Bracton notes before aswell in regard of their naturall persons having supremacy and preeminent precedencie over and above all persons as of their politike capacitie and have the sole and only power to call and convene parliaments and to do all other kingly offices And they had and ever have potectatem subsequentem a power to ratifie and confirme such acts and lawes and Statutes whatsoever as are treated and agreed upon by the peeres and commons The king as learned Cambden observes and hath it from Bracton supremam potestatem merum imperium apud nos habet nec in imperii clientela est nec in vestituram ab alio quovis accipit nee prater Deum superiorem agnoscit In short the king is supreme over and above all persons and owneth no superiour but God The parliament is called by writs of summons directed to each peere of the land The calling of the parliament and by writs of summons directed to the Sheriffes of each severall countie And it is called by the advice and consent of the kings councell but note the king of England is armed with divers Councels One which is necessarieto be explained called Commune Concilium in all writs and proceedings and that is the high Court of parliament A second which is grande or magnum concilium which is sometime applyed to the upper house of parliament sometimes out of parliament to the peeres of the realme Lords of parliament Thirdly he hath his legale concilium his judges of the law for law matters The Fourth and last and not the least is the kings privatum concilium his privie Councellors of State The king hath as all the kings of England ever had his sacros and secretos consiliarios his sacred guard of privie Councellors Majorum et sapientissimorum è regno Amongst whom he fitteth in person and moderates their consultations in imitation of the precepts and presidents recorded in holy Scripture Where no counsell is the people fall but
question Have you not read that David being hungry entred into the House of God and did eate the shew-bread which was not lawfull for him nor any with him but only the Priests Or have you not read in the Law how on the Sabbath day the Priests in the Temple breake the Sabbath Sabbatum violant sine crimine sunt and are blamelesso And then he doth absolutely convict them of ignorance If yee knew what this is I will have mercy and not sacrifice yee would not have condemned the innocents Matth. 12. ver 1. Vsque 8. If the Law of God by the mouth and judgment of his blessed Sonne was dispensable No man can deny but humane lawes which are transitory may admit a qualification Or else our Gratious Salomon cannot according to the third branch of his oath doe equity and right Iustice with discretion and mercy Observe the rule of the Common Law in this point Dispensatio mali prohibiti est de jure Domine Regi concessa propter impossibilitatem praevidendi de omnibus particularibus Et dispensatio est mali prohibiti provida relaxatio utilitate seu necessitate pensata Co. 11.88 No greater argument of supreme and uncontrollable Majesty than a dispensatory power for when the Common Councell of the Kingdome have enacted penall Lawes for prohibiting somethings to bee done which are evill per accidens The KING by his owne Princely power alone may either in regard of persons or times or other necessarie conting encies dispence therewith PROTECTION as it is grande opus so it hath grave onus a great Balke a lâ—rgel arthen The oâ—-stretched and puissant Aimes of this Protâ—ction 1. By Lawes 2. By Armes Are not supported and maintained without inexpressibie charge In the first S. Lawes observe in the maintenance and execution thereof the â—â—â—ries and wages of the great and reverend Iudges the fees stipends and allowances of other Ministers and Officers of Iustice his Majesties extraordinary great experce in sending abroad and dispersing his Edicts and Proclamations in all the quarters and corners of the kingdome In the second S. Armes observe no lesse if not sarre more in the reparations and constant maintenance and supply of His Royall Navie of His Ordinance Artilerie and all other munition And his assiduous preparation in the time of Perce against the occasion or expectation of Warres And all must be according to the Prayers of our own Church to maintaine the People in wealth peace and godlinesse But that wee may returne with the greater thankfulnesse to GOD Let us look back and there are not many quarters of yeares since this great worke of Protection was invaded the union of two Ancient Kingdomes disturbed The Subject with jealousies distracted the former Valour of our English hearts blounted and amated our Liberties in a desperate jeopardy of bondage And which is worst Quis talia fando Myrmidonum Dolopumve aut duri miles Vlyssis Virg 〈◊〉 l. 3. Temperet a lachrimis What flinty heart can forbeare from teares A sweet mild mercifull KING in his studious vigilancy for quenching of these flames most sensibly perplexed and indeed brought into a great strait that hee had just cause to invocate the Mercy Seate of Heaven in the language of the Kingly Prophet Angustia est mihi valde I am in a great strait 2 Sam. 24. v. 14. He was so indeed and like Ionathan and his Armour-bearer between two sharp rocks Bozez and Sench the fore-front of the one was situate North-ward the other South-ward 1 Sam. 14. v. 45. What was the cause of all these miserable tumults and turmoyles Truly our blessed Soveraigne unhappily fell upon those times wherein David complains of the Iudges Magistrates and Ministers under his subjection Psal 82. v. 1. c. God standeth in the congregation of Princes He is a Iudge amongst Gods ver 2. How long will yee give wrong judgment and accept the persons of the ungedly David by mentioning Gods pretence in the aomen ill ration of judgments endeavouring to 〈◊〉 be a tenor in their hearts adds that sharp increpaâ—â—â—n v. 2. â—sque quo judic at is iniquitâ—em c. â—o give 〈◊〉 judgment is in pronouncing of Law not to observe an equality or rule prescribed by the lawes but to give sentence pro arbitrio suo after their own will fancy and passion for no other cause but so they would have it whence that vox tyrannica that proverb sprung up Sic volo sic jubeo stat pro ratione voluntas Our will is our reason and our will â—hall command After this severe objurgation the Prophet declareth the true use and end of upright judgement Defend the poore and fatherlesse See that such as be in need and necessity have right v. 3. Deliver the outcast and pcore save them from the hand of the ungodly v. 4. And then despairing of their reformation he doth amplifie his reprehen sions against them They will not bee learned nor understand but walk on still in darknesse All the foundations of the earth are out of course ver 5. It was so in Davids kingdome and no lesse in King Charles His Great Britaine David invocated God for redresse Exurge Deus judica terram Arise O Lord and judge thou the earth v. 8. And so did King Charles God heard the prayers and humble supplications both of King and People For in ictu oculi when all conditions of this State in the out ward survey of humane judgment were most desperate and deplorable Moventur omnia fundamenta terrae Psalme 74.22 God did arise and plead or maintaine his owne cause Our gratious Iosuah by the dictates of the holy Spirit did summon his Elders called his Common-Councill or Great Congregation together â—ove 1640. to treat of the difficult and urgent affaires concerning his Majesty the State and defence of his Kingdome and the Church of England The like in his Realmes of Scotland and Ireland They have all happily and religiously met in their severall orbes the Civill and unnaturall breaches of the two disjoynted kingdomes are unanimously pacified and both more firmely reunited than ever before The issues and fruits of the Counsels and consultations of our Parliament have far sarpassed the presidents of all former ages Let the Acts Ordinances and proceedings themselves be Iudges And pray we incessantly to the throne of Heaven that God will be still present and president in the maturating of all their debates and deliberations concerning Church and State And in al such times when King Church and people are in a strait That God would arise exurgat Deus dissipentur inimici Amen Amen Amen FINIS
when men ought to intend devotion and other workes of charitie for remedie of their soules and sometimes after the gule of Harvest when every man almost was busied about the cutting and carrying of his Corre Plowd fo 316. b. The Calends of Aug. or the feast of S. Peter ad vincula 31. Edward 3. ca. 15. whereby the people were much grieved and disquieted King Edward the third upon the grievious complaint of his Commons desiring the quietnesse of his people did ordain and stablish that every Sheriffe from thenceforth should make his Tourne yearely one time within the moneth after Easter and another time within the moneth after Saint Michael and if they held them in other manner that then they should lose their Tourne for the time As it was restrained in time 2 Place So it was to place and persons it must bee kept within the precinct and libertie in loco debito et consueto If it be holden otherwise it is coram nonjudice And the matter of cognizance must bee within the view For 41. Edward 3. fo 31. Kyrton cites a Case wherein the Lord avowed the taking of an amerciament for the stopping of an High-way which in rei veritate was out of the Iurisdiction of the view and therefore the Plaintiffe recovered dammages If the Sheriffe shall keepe his Tourne in loco in consueto he may be indicted and punished for it 3 Persons Dyer 151. As for the persons Although in the time of King Arthur Omnes Proceres Comites Barones c. were to sweare and doe their suit reall in pleno Folkmote yet by the Statute of Marlebridge Marl ca. 11. it is thus provided by way of restraint De turnie vicec provisum est quod necesse non habeant ibi venire Archiep scopi Episcopi Abbates Priores Comites Barones nec aliqui viri religiosi seu mulieres nisi corum praesentia ob aliam causam specialiter exigatur c. So by this Statute All clergie and religious men All Earles Barons and all women are excepted and exempted and by the law al other people under the age of 12. years their presence being not necessary there in regard they are never sworne upon any inquests But all freeholders terrtennants and other persons inhabiting within the precincts of the Leet ought to appeare and do their suit and tennants in ancient demesne are not bound to come to the Sheriffs Tourne and consequently not to any Leet If any of the said persons mentioned to be exempted Fitzâ— na Bre. f. 158.161 or if any in wardship to the King should be distreyned to do their fuite the law hath provided severall forms of writs De exoneratione sectae for discharge of every of them Whatsoever the law prescribes or restreines in the Sheriffes Tourne Broo. Leet 26 22 Edw. 4 22. the same is binding in a Court Leet and it was agreed for law that the power of a Sheriffein the Towne and a Steward in the Leet were all one onely the Leet have power to enquire and take presentments of nusances and offences aswell in the Courts after the feast of Easter as after the feast of S. Michael Fitzâ— Leet 11 whereas the Sheriffe in his Tourne after Easter ought not to enquire of any action popular c. but only to take suite of the resiants and other suitors and to take the view quod trithinga teneantur scilicet That all above the age of 12. years come and appeare there to doe their suite and to take the oath of Legiance if they were not sworn before For after a person is once juratus in decennaria or ad fidem legeanciam Domini Regis hee is not compellable to be sworne againe As a Leet is derived by grant from the crown Forseiture of a Leet so by divers causes that may be seized into the Kings hands and returne to the Crowne againe and if for any just cause it bee forfeited and seised then must the resiants and suitors againe attend and doe their suite at the Sheriffes Tourne and what is omitted in the Tourne might be presented in the Kings bench for in the case of Iohn Charneles Edward the third Belknappe sets forth the law to be that if a thing were not presented within the Lords view then it should bee presented in the Sheriffes Tourne and for default there it should bee presented in the Kings Bench when the King came into the countrie by which it plainely appeares as before is expressed that the Iustice of the Kingdome was at first wholly in the hands of the King and immediately derived from his person to Subalterne Officers To answer one Objection for the time that all Leets are not kept strictly infra mensem after Easter and Michaelmas VVHere there are ancient Customary Courts of Tenants in ancient demesne or such like that were ever exempted from the Sheriffes Tourne and the Lords of such lands had their owne Tournes that of Easter being called Turnus de Hockday and that of Michaelmas Turnus Sancti Martini as in the Bishoprick of Winton and other places those Courts are left to their Arbitrary keeping either before or after the moneth or at other set times according to their ancient respective Customes and not restrained by any Statute Britton the tenour of whose learned worke runneth in the Kings name Edward 1. as if it had beene penned by himselfe answerable to Iustinians Institutes doth there in the first salutation of the Kings subjects with Edwardus Dei gratia c. set forth That because his peace could not well have its being without Law he caused the Lawes then used in this Realme to be put in writing and did thereby command a strict observation thereof in all things Saving a power to repeale alter and amend all such things as should seeme meet unto him with the advice of his Earls Barons and others of his Councel and saving all customes unto those as by prescription used the same time out of minde so as those usages were not discordant unto right At that time being 5. Edward 1. those ancient customarie Tournes within many particular Lordships were in use not subject to the Sheriffes Tournes and so not within the meaning of the Statute of 31. Edward 3. cap. 15. which being made long after extendeth not to any Leets but such as were and are derived out of the Sheriffes Tourne and so it was admitted by the Iudges that the Leet of another Lord was not within the Statute but the Leet of the Tourne Brooke Leet 21.6 Hen. 7.2 And so by necessarie consequence All Leetes derived out of the Sheriffes Tourne and no other In what Cases and by what meanes a Leete or Franchise may be seised or forfeited or the Lord damnified IN all grants of any Liberties or Franchises there are commonly two conditions one in facto which is alwaies explicite as to pay mony or to do or not to do any other act c. 2.
and hanged and so was the opinion of Thorpe 12 Edward 3 17. where a man killed his mother took Sanctuary and was drawne from thence and convicted Cromp. Iust fo 15. Note that in all Petty Treason Felony is included but not è contra and it was affirmed 22 li. Ass that a pardon of all felonies would servefâ—r Pettâ—e Treason which is the reason that all Petty Treasons are inquireable as felâ—nies in the Tourne and Leet The escheats hereof pertaine to every Lord of his owne fee and the reason is because such Treason doth not touch the King himselfe Felonies ALL Felonies at the Common law are here inquirable as felonies saving the death of a man and Rape which are here to bee inquired as trespasse 7 Henry 6 fo 13. 6 Hen. 7 fo 4 41 Ass plit 30. Of Felonies here inquirable there are these foure severall sorts insuing viz. 1 Such as doe concerne the ademption of Life 2 Or hurt of bodie without privation of Life 3 Or the spoliation and taking away of goods 4 Or the taking away wasteing and consuming of life bodie and goods All privation of Life is comprehended under the generall name of Homicide But as one writes Ex diversa interficientis intentione hoc diversas appellationes causas habet The intention of the Actor doth alter the appellation of the Act. Skeny l. Regiae Majest A learned Writer of the lawes of Scotland doth set forth duo genera homicidâ—i one which is called Murdrum and the second sort which is called simplex homicidium and both are inquiable at the Leete as Bloodshed Murder MVrther is where any of prepensed malice doth kill another feloniously felleo animo whether it be openly or secretly and whether the partie be an English man or any other whatsoever so as he liveth in the Realme under the Kings protection And all homicide which is done in this manner is called murder to this day for the name of murder was never changed but the law doth retaine it continually for the hainousnesse of the crime to put a difference between that and other homicide and as a Civilian writes Quicquid a praecedenti malitia vel ferro vel veneno Cowel instit vel modo quocunque perpetratur illud murdrum dicitur It was the crying scarlet sinne of Caine in the first infancy of the world and hath beene and is so horrid and detestable as that by the Statutes of 2 Edward 3 2 and 14 Edward 3 15 a Charter of pardon was not to be allowed in such a case By the Statute of 13 Richard 2 Stat. 2 c. 1 It was provided that if the charter of the death of a man were alleadged before any Justices and if upon a good inquest of the Visne where the dead was slaine they did finde that it was done by awaite assault or malice prepensed the Charter should be disallowed and further it should bee done as the law commanded Hence it was that a charter of pardon of all felonies will not discharge a Murther without expresse words And here in the dutie and legiance of a Subject I cannot pretermit the remembrance of his now gratious Majesties tender and incomparable care in pursuance of the true intention of those ancient lawes by rejecting and denying all suggestions and suites for pardons in cases of murder rape and such like heinous crimes which to the comfort of all his true and loyall subjects hee hath sufficiently demonstrated by the equall and exemplary distribution of his justice aswell to the tallest Cedars as to the lowest shrubs of his Kingdome Man-slaughter ALL simplex homicidium or Manslaughter are distinguished from Murders by reason they are done suddenly and upon hot blood without malice forethought In ancient times if a man did lye in waite to kill another it was felonie quia voluntas profacto but now exitus in malificiis spectatur non voluntas duntaxat These two are called homicidium voluntarium the first aggravated by the name of Murder ex praemeditato which as Bracton noteth is committed Ex odâ—o vel causa lucri nequiter in Felonia The second in regard of the sudden act not premeditate nor forethought is qualified by the name of Manslaughter and hath the benefit of Clergie in resemblance to the law of Moses who so killed his neighbour ignorantly whom he hated not in times past had the favour to flye unto one of the Cities of refuge Deut 19.4 There are two other sorts of Homicide one ex necessitate in defence of a mans selfe the other ex casu or by misfortune both here inquirable by the common law In the first the necessitie must be so great as that it may be deemed inevitable or else that homicide is not excusable the definition of it is rendred by M. Stamford li. 1 cap. 7. If a man make an affray upon another and the party assaulted doth flie so farre as he can for safeguard of his life so that hee bee driven to a streit beyond which he cannot escape and the other still continue the assaulting of him In this case if he strike and kill the assaultant It is homicide se defendendo But the matter must be specially found upon the Inquisition or Indictment And 2. presidents of such inquisitions are set forth by Master Weste tiâ— Indictments Yet he forfeiteth his goods and must purchase his Charter of pardon for the same by the Statute of Glonc. cap. 9. Homicide casuall or by misfortune or misadventure is defined by Moses the patterne for all Law-makers Dent. 19.5 When a mangoeth into a wood with his neighbour to hew wood and his hand fetcheth a stroke with the Axe to cut downe the tree and the head slippeth from the helve and lighteth upon his neighbour that hedâ—e he shall flee to one of those cities and live So that in this case or the like as throwing a barre or stone or shooting an arrow at a marke or in doing any other lawfull act without an evill intent it is homicide by misadventure and the Actor shall instead of Moses Citie have his refuge to the mercie of his Majesties crowne for a pardon of grace by the Statute of Glone c. 9. as in the case of se defendendo But note as a rule in all unlawfull actions or attempts the event is not excusable as if two or more commit an affray and a third person comes betweene them to keepe the peace and is slaine albeit this accident was without an evill intent yet in regard of the unlawfulnesse of the occasion as the affray contrapacem It is selonie in the manslayer and not misadventure Fitz. tit Coro 180.22 lib. Ass Felonies which doe concerne the hurt dishonour and detriment of the bodie without privation of life Rape IF any man ravish any woman be she widow or maid she not assenting before nor after or if it be done with force she assenting after every such person and the aiders and abetters are in the case
any detriment or harme should bee as free from acting and doing any wrong for as they have idem beneficium they must have idem supplicium as the same protection in good actions so the same correction in bad It was Sherley the Frenchmans case who being in amitie and under the protection of King Philip and Queene Mary joyned and conspired with dâ—â—ers subjects of this Realme in treason against the King and Queene and the Indictment concluded contra ligeantiae suae debitum The case of Perkin Warbeck 15. H. 7. and of the Portugall adherents to Doctor Lopes in the 36. yeare of Queen Elizabeth might here bee remembered to this purpose We have seene what Legeance is 2. Branch let us consider the extent of it in its explication by this ancient Oath which I may well terme vinculum vinculi or ligamentum ligaminis That Legeanee Faith or Fealtie which is annexed by birthright is by this Oath solemnly explained attested and confirmed and is called legalis ligeantia established by the wisedome of ancient times and had its begining with the nationall laws of this Island in the time of the Brittons It is true that this oath doth not create the Legeance of a subject but doth demonstrate the fruits of faith and obedience which must ever bee concomitant with subjection For as it was gravely observed in the booke of Post-nati fo 64. Subjectio fides et obedientia must be in a true and lawfull subject of what Nation soever and cannot be severed no more than true faith and charitie in a true Christian And hee that hath these three from his nativitie is ligeus Regis the Kings Leige man Hence I inferre that ligeantia is visibilis and invisibilis visible as to subjection and obedience and invisible as to fidelitie and loyaltie this must bee rooted in the heart the other expressed in the action A man may bee a sâ—â—â—ect borne and actuate an externall obedience yet Cordi nulla sides hee may be disloyall in the heart Therefore the sacred Scripture inhibits the very thoughs of a man against Kings and Princes the Anointed of God Nolite tangere unctos meos he doth not say ne tangite but nolite have not so much as a will to touch mine anointed In cogitatione tua Regiâ—e detrahas deprave not the King even in thy thoughts Many more precepts might I here instance To prevent the misâ—â—ivous events of disloyall imaginations and to confirme the Legeance of the heart and to discover agnes haedis the good from the bad subject the prudent policie of pristine ages invented formes of oathes in most Kingdomes as may be problably conceived In this Island of great Britaine this oath of Legeance was first invented by King Arthur At which time the Leet was called Folkemote viz. a meeting of the people and this appellation is retained in London to this day Amongst the Lawes of King Edward the second before the Conquest it is thus exprest Omnes Principes Comites Proceres Milites liberi homines debent jurare c. in Folkemote fimiliter ownes Proceres Regni Milites liberi homines universi totius Regni Britanniae facere debent in pleno Folkemote fidelitatem Domino Regi c. Hanc legem invenit Arthurus qui quondam fuit inclitissimus Rex Britonum c. Hujus legis authoritate expulit Arthurus Rex Sacacenos inimicos à Regno c. And by that meanes hee did settle and co-unite his whole Kingdome together Ita consolidavit confideravit Regnum Britaniae universum super in unum It is therefore said that Lex ista diu sopita fuit sepulta donec Edgarus Rex Anglorum illam excitavit erexit in lucem illam per totum Regnum firmiter observari pracepit This law was laid in a slumber and forgotten untill King Edgar who is stiled Rex pacificus did revive and bring it to light and commanded a strict observation thereof throughout his Kingdome For during the Heptarchie and untill King Alfred had made the way for setling of a Monarchicall government it could not well take place this oath afterwards greâ— so usefull and advantagious for the absolute goveâ—ment of this Island as that all the Danes who were dispersed in their abode amongst the English and refused to submit to this oath were all upon the Feast of S. Brice put to the sword by the politike directions of King Ethelred and his Councell Hujus legit authoritate Eâ—helreduâ— Rox subâ—to uno codemâ— diâ— per universum Regnum Danos occidit For the same end and purpose as is herein before remembred was that oath of Allegeance justly conceived in the high court of Parliament holden An. tertio Iacobi upon the occasion of that horrid and dreadfull Gunpowder treason as our late learned Soveraign in his monitorie preface to all Christian Princes prefixed to his Apologie for this oath doth averte Horrenda illa prodigiosa conjuratio quae per tormentarii pulveris impetum destinabatur de cujus immanitate nulla unquam aetas conticescat That most horrid and prodigious Gunpowder conspiracie whereof no age will ever be silent And further saith his Majestie in that Apologie Nec in alium finem constitutum est juramentum quam ut inter fideles subditos perfidos proditores discrimen aliquod extaret That this oath of Allegeance was constituted to no other end but to put a difference betweene faithfull subjects and perfidious traitors This later is inlarged in the occasionall particulars but the generall scope thereof is tacitly and implicitly comprised in that other ancient and well digested oath this maine difference stands between them the former oath is confined as topersons time and place the later hath its extention to all persons without any exception There is the like oath used in the civill or Imperiall law called juramentum ligei one of the old another of a new invention cited Lib 3. Summae Hostiensis fo 773. and thus begins Ego T. juro super sancta Dei Evangelia quod ab hac hora ero fidelis contra omnem hominem c. The Civilians distinguish two sorts of oaths Iudiciall and Extrajudiciall And their oath of juramentum ligei vel fidelitatis they ranke in the number of extrajudiciall oathes But our ancient oath of Legeance is and well may bee accounted in the judiciall number and my reason is whatsoever oath is administred in a Court of Record as the Leet and before a judge of Record as the Steward is and according to the prescript forme of our common Law is judiciall whatsoever oath is administred praeter legem and not according to the precise rule of Law is extrajudiciall This oath is not so administred but juxta legem normam legis and therefore is not extrajudiciall But why doe I endeavour to light a candle at noone or to explaine that which is plaine enough in it selfe 1 First for the time it is indefinite
and without limit from this day forward 2 The terminus a quo you every subject whom the Law injoynes to take this oath 3 The qualities or properties required that is to be true and faithfull 4 Terminus ad quem to whom To our Soveraigne Lord the King and his heires 5 In what manner And faith and truth shall beare of life and member That is as in Calvins case untill the letting out of the last drop of our dearest heart blood And I must adde what is there omitted And terrene honour That is the uttermost of our estate and livelihood 6 The circumstance of place where these duties of Legeance concerning our lives and estate ought to be performed it must bee in all plaees whatsoever without any circumscription for you shall neither know nor heare of any ill or dammage c. that you shall not defend The parts of this oath for the better instruction of the common people I shall summe up in this one proposition which I will presume briefly and succinctly to handle Every subject must be true and faithfull to the King and his heires to the uttermost of his life and fortune or estate 1 The King hath a double capacitie in him one a naturall bodie being descended of the blood Royall of the Realme which is subject to death infirmitie and such like 2 The other is a politike bodie or capacitie so called because it is established by the policie of man and in this capacitie the King is esteemed to be immortall invisible not subject to death infirmitie infancie non-age c. This Legeance is due to the naturall person of the King which is ever accompanied with the politike capacitie that is the Crowne and Kingdome And is not due to the politike capacitie only distinct from his naturall as by divers reasons in Calvins case is at large recited and resolved For if that distinction might take place then would the faith legeance and obedience of every subject due to his Soveraigne be appropriated regimini non regenti to the government of a Kingdome not to him that ruleth or governeth In the time of Edward the second at a Parliament holden at Yorke Hugh la Spencer the sonne being nominated and appointed to serve the King in the office of Chamberlein did draw unto his adherence Hugh Spencer his father and they both usurping upon the Kings Royall power and compassing about to have the sole government of the land to themselves did traiterously contrive a declaratorie writing which they would have compelled the King to signe purporting amongst other mischievous positions That homage and oath of Legeance was more by reason of the Kings crown that is his politike capacitie than by reason of the person of the King whence they inferred these damnable and detestable consequents 1 If the King did not demsne himselfe by reason in the right of his Crowne his leiges were bound by oath to remove him 2 That sithence the King could not be reformed by suite of Law that ought to be done per aspertee by asperitie of Compulsion 3 That his leiges be bound to governe in aide of him and in default of him All which execrable opinions were condemned by two Acts of Parliament one in the 14. yeare of the raigne of the same king Edward the second called Exilinm Hugonis le Despensor patris filiâ— the other An. 1. Ed. 3. cap. 1. which confirmed the banishment of these Spensers Legeance then by law of nature before any judiciall or municipall lawes were recorded or reported is due to the sacred person of the king alone immediately and without any intervallum or moment of time and before the solemnitie of his Coronation and so must remain to him and his heires and entirely without any partnership with him or any intermission in default of him emnimode by all wayes and meanes It is due to his naturall person accompanied with his politike capacitis indistinctly without any partition or separation and this oath is a politicall confirmation of that Legeance It is due to him as he is mixta persona anointed by the hand of the priest as he is supreme head under Christ in all causes and oveâ— all persons aswell Ecclesiasticall as Civill The qualities prescribed by this oath are naturally incident to Legeance veritie and fidelitie to be true and faithfull and they compâ—ehend what before is spoken of faith obedience and subjection faith unto his person obedience to his lawes Subjection to his government or all to all faith subjection and obedience to his person laws and government By the ancient lawes of this Realm this kingdome of England is an absolute Empire and Monarchie consisting of one head which is the king and of a bodie politike which is the common wealth compact and compounded of many and almost infinite severall members all which the law divideth into severall parts the Clergie and the Laietie this Legeance requires a due observancie of all the Morall lawes contained in both Tables of the Decalogue To obey our king in the true and sincere worship of God according to the canonicall discipline of the Church ratified by his regall authoritie To obey him in abandoning all apostasie from Christianitie heresies schisms factions fond and fantastike opinions repugnant to the Orthodox doctrin of the Church To obey him in acknowledging a supremacie in him and a subordinate superiority in his Ministers and Magistrates over his people To obey him in all the rights of distributive and commutative justice in doing good as works of mercy charitie and pietie and eschewing evill that is all sorts of felonies fraud force deceit and all offences whatsoever which derogate from or deprave the peace and government of the Realm The performance of these duties makes a true and faithfull subject The latitude and extent of this veritie and fidelitie from the subject to the Soveraign is twofold The extent this oath first of life and member secondly of terrene honour wherein the prerogative of the king is considerable generally according to the speciall law of nature called by some jus Gentium and stiled by our common law lex rationis the law of reason and more specially according to the municipall lawes and customes of this kingdome The King is pater patria and every subject is bound by the law of nature to hazzard and adventure both life and member for the safetie of the King and Countrey either against privie and traiterous conspiracies civill mutinies and dissentions or hostile Invasions or injust warres or in the execution of legall acts of justice The Poet could say Dulci est pro patria mori a sweet thing it is to die for our Countrey and as sweet a thing it is to die pro patre patria for the father of our Countrey for indeed both come to one There may bee many causes of warre which when they are discussed and resolved by the King and State the justnesse of them is not to be disputed by
in the multitude of counsellors there is safetic Prov. 11.14 Every purpose is established by counsell and with good advice make warre Prov. 30.18 Moses had Iethro and Aaron Ioshua the sonne of Nun his successor Caleb and Eleazar the high priest for his privie counsellors David had his succession of counsellors Samuell the prophet Ionathan whose love to him was wonderfull Abiathar the priest and Nathan also a prophet with many others To return to our owne nation king Ine had his Cinredus whom hee calls his father Hedda and Erkenwald his bishops with many others Alfred had his Plegmund Archbishop of Canterbury Werefridus Bishop of Worcester and others Athelstane edicted his lawes Ex prudenti Vlfhelmae Archiepiscopi aliorumque Episcoporum consilio by the counsell of his Archb. and other Bishops and so successively the kings of England ever had as before their privie counsell such and so many as the prince shall think good who doe consult daily or when neede is of the weighty matters of the Realme to give therein to their prince the best advice they can The prince doth participate to them all or so many of them as he shall thinke fit such legations and messages as come from forraigne princes such letters or occurrents as be sent to himselfe or his secretaries every Counsellor hath a particular oath of faith and secrecy administred to him before hee bee admitted a privie counsellor To shew the extraordinary regard and royall use of the kings counsell The regard â— the Privie counsell Let us looke backe upon the case of 5. Hen. 4. upon an agreement for an exchange had for the Castle of Barwick between the king and the Earl of Northumberland wherein the king promised to deliver the Earle lands and tenements to the value of that Castle by these words per avise assent des estates de son Realme son Parliament c. By the advice and assent of the estates of his Realm So as the Parliament be before the feast of S. Luke or otherwise by the assent of his great Counsell and other estates of his Realme whom the king shall assemble before the said Feast in case there be no parliament before c. as by the instrument thereof dated at Lichfield 27. Aug. 5. Hen. 4. remaining in the Tower may appeare To this counsell the Oracles of the Common law the grave and reverend Judges Leges loquentes Reipublicae God grant in all Successions they may be so have had their resort from time to time in all ages for advice and directions in their proceedings aswell in criminall causes as in matters of right and propertie as it was observed by the learned Lord Chancellor I will touch but two which are cited by that honourable Judge in cases of propertie Thomas Vghtred Knight brought a Forme-don against a poore man and his wife They came and yeelded to the demandant which seemed suspicious to the Court the matter being examined judgement was stayed because it was suspicious And Thorp said that in like case of Giles Blacket it was spoken of in Parliament And faith he wee were commanded that when any like case should come we should not goe to judgement without good advice wherefore sue to the councell and as they will have â—s to doe we will and otherwise not in this case 2. Greene and Thorpe were sent by the Judges to the Kings Councell where there were twentie foure Bishops and Earls to demand their advice touching the amendment of a writ upon the Statute of 14. Ed. 3. cap. 6. which was an Act made for amending of Records defective by misprision of Clerks By the advice and assent of this Councell is that great and common Councel solemnly called The forme of the writ of Summons to the Sheriffe followeth in these words Rex viz. S. c. Quia sie avisamento assensu Concilii nostri pro quibusdam arduis urgentibus negotiis nos Statum defensionem Regni nostri Angliae Ecclesiae Anglicanae concernentibus quoddam Parliamentum nostrum apud Civitatem nostram W. c. teneri ordinavimus Et ibidem cum praelatis Magnatibus et Proceribus dicti Regni nostri colloquium habere et tractare Tibi c. wherein these things are worthy observation 1 That this great Court is assembled by the power of the King expressed in his writ under his great Seale with Teste meipso 2 This power is extended with the advice and assent of his Right Honourable privie councell His grace favour and providence by calling a Parliament to parlee and treat with his Lords spirituall and temporall as also with his commons who by their Knights Citizens and Burgesses as their respective proxies elected by and with the popular suffrage of the Freemen of every Countie Citie Towne or Borough do make up the body of that great court and doe there meet to yeeld and consent unto such matters as shall be there treated and established 4 The subject of a treatie or parliament That is certaine difficult and urgent occasions concerning his Majestie his royall state and the defence of his kingdome and Church This high court consisteth of two honses The higher or upper where the King and his Barony or Nobilitie spirituall and temporal do take their place And the lower house where the Knights Citizens and Burgesses are assembled for the Commons consisting when M. Crompton wrote his jurisdiction of Courts of 439. persons The King had the only power to appoint it his gracious favour is to give life and beginning to it by his owne personall accesse in most Royall state And as sinis coronal opus hee crowneth and perfecteth all the Acts of this great assembly with his Royall assent without which no bill can passe nor law be made Though there bee no written Acts of parliament extant before the raigne of Henry the third yet some have sollicitously laboured to draw the Antiquitie of this thrice excellent court of Parliament from King Arthurs time to king Ine Offa Ethelred Alfred and others before the Conquer our with a successorie continuance untill this Present age and collected and inferred that the words used by K. Inas in the proem of his laws exhortatione c. Omnium Aldermannorum mcor'um seniorum sapientum Regni mei And the like words of Offa and other kings in the time of the heptarchie and that the words of Conventus sapientum used by King Edward the sonne of Alfred the words of Conventus omnium Nobilinm sapientum used by King Athelftane cum consilio sapientum used by king Edgar Haec instituerunt Rex sapientes mentioned of King Ethelred and the like of other Kings should include the Lords and Commons of the parliament whether this most eminent Court were in those ancient dayes assembled and exercized in that manner as now it is dubium est dubitare liceat doubtfullnesse is a fluctuation of the minde which in historicall matters of indifferencie that concerne
not our Christian faith and legeance to our Saviour nor our naturall or civill Legeance to our Soveraign cannot bee interdicted to the poorest thoughts Sure I am this Court is so ancient and of such transcendent honour and justice as Plow com.fo 399. observeth that none ought to imagine any dishonourable thought of it and why It must be so esteemed ratione persone regis by reason of the kings sacred person who is there present and president of that great Assembly as also the laws there made are established by the generall consent and are obligatorie both to king and people The parliament being called with the advice and consent of the privie Councell what is the end of their meeting Sir Thomas Smith in his Common wealth of England l. 2. c. 2. shall speake for me The Parliament the Kings Royall assent being had Power of a parliament abrogateth old lawes and maketh new giveth order for things past and things after to be followed changeth the right and possessions of private men legitimateth bastards establisheth formes of religion giveth forme of succession to the Crowne defineth of doubtfull rights whereof no law is already made appointeth subsidies tayles taxes and impositions giveth most free pardons and absolutions restoreth in blood and name with many such preheminences In this great assembly no reviling nor nipping words must be used And if any speake unreverently or sediciously against the Prince or the privie Councell they have not noly beene interrupted but justly sent unto the Tower by the authoâ—â—tie of the house those that be members of that bodie must come with a prepared heart to consult together to give counsell and advertisement what is good and necessarie for the common weale they must come with cheerefull resolutions to supply the prince his wants they must cast off all rancor spleene and private malignancie for locus facer est I will second it with the words of a great Judge Co. Inftit fo 110. a. The jurisdiction of this Court maketh inlargeth diminisheth abrogateth repealeth and reviveth laws Statutes Acts and Ordinances concerning matters Ecclesiasticall Capitall Criminall Common Civill Martiall Maritine and the rest What cannot a parliament doe as a great peere once told Queene Elizabeth Royall assent being had was it not then a hainous and inexcusable crime for any man intrusted with the lawes publikely to declare that the late imposition of Ship-money was a prerogative so inherent in the Crowne as that it could not be taken away by Act of parliament It is most repugnant not only to the workes and writings of the ancient heroes of the law Bracton Fritton Fortescue and others but also to the opinions of grave and learned moderne Writers and dead and living Judges But that opinion and all the proccedings upon the Shipwrits are in this present parliament condemned and disanulled 17. Car. cap. 14. and the petition of right in every particular confirmed To adde something more Bellarmine after many sharpe writings and vehement disceptations in defence of merits and workes of supererogation his age hastening his end now bethinks himselfe falls wholly from disputes of merits to pious meditations and therein presents unto the world Tutissimum est iter ad calum per merita Christi The safest way to heaven is by the merits of Christ An honourable peere as great in the policie of our English state as ever the other was in the Romish Church was formerly a great Zelote for the liberties and wellfare of the common people and an earnest prosecutor of the petition of right Afterwards in the highest of his eminent advancements relapsing and disaffecting the course of parliaments whose examination and try all his actions could not well endure mole tandem ruit sua is at length hurried downe with the weight of his owne greatnesse And not long before his death ingenuously confessed That the Parliaments of England were the happiest constitution that any kingdome did ever live under and under God the best meanes to make King and people happie And sowith his dying words omitting the numerous priviledges of that high Court I conclude this part THE KINGS Royall office OF PROTECTION I Shall proceed to the last of my Generalls that is The Royall office of the King for the protection of his people I have touched before his personall and politike capacity and the naturall Legeance and Subjection of the people to him and principally in the right of payment their dues and duties and the great question de modo reddendi As Legeance is due from the Subject to the King before the Oath be taken and the Oath is but a visible demonstration of it So there is a Protection due from the king to the people before the oath administred to him at his Coronation and that oath is but a politicall expression of what by the law of God and nature and the lawes of our nation appertaines to his Kingly office It is observed upon the sift Commandement Vbi sanciuntnr officia inferiorum erga superiores And. Rivet in 5. Praec Decal ibidem etiam superiorum ergainferiores sanciri where subjection is jojoyned there protection is implyed As the Subjects must bee true and faithfull to the King of life member and terrene honour So the King must be as true to them in the protecting of all these and their libertie and proprietiein all these viz. the libertie of their lives of their religion of their persons and the propertie and right of their lively hood and estates in their lands and goods all which may be comprehended under this one word libertie dulce nomen and res dulcis Bâ—t what is libertie What liberty is It is a freedome or free and quiet enjoying of a man his spiritual and temporall estate his bona animi or animae and his bona fortunae from rapine expilation and all unjust incroachments restrains confinements imprisonments and oppressions whatsoever and that part of our Law which concernes the Subjects libertie is commonly called in the Law bookes Lex terrae Liberty is the only preserveresse of a Christian Common wealth in incolumitie and stabilitie And as one saith Rebus omnibus humanis Anteponenda pro illiusque incolumitate integritate totis viribus opibus dimicandum It is to bee preferred before all humane affaires and the safery and entirement of it to be propâ—gned and defended with all manner of strength and power But liberty must have its modum mensuram It must be with an It a tamen cum justitia dignitate praesidio reliquis reipulblâ—cae ornamentis sit conjuncta It is and must be joyned with lustice Honour ayd and the rest of the Ornaments of a Common-wealth That is true liberty which is joyned or affianced with uptight reason And he is a true Free-man which hath such reason for his guide in all his actions Reason is radius divini luminis the lustre of a divine illumination It is the stampe of Gods Image
Anno 1556. appeares have set forth the forme of the KINGSO ath at His Goronation Out of which I have selected these branches concerning the regall Office of Protection 1. That hee shall keepe and maintaine the right and the liberties of the holy Church of old time granted by the righteous Christian Kings of England 2. That he shall keepe the peace of the holy Church and of the Clergie and of the People with good accord 3. That hee shall doe in all his judgements equity and right Iustice with discretion and mercy 4. That he shall grant to hold the Lawes and Customes of the Realme and to his power keep them and affirme them which the folke and people have made and chosen and the evill Law â—s and Customes wholly to put out 5. And stedfast and stable peace to the people of this Realme keepe and cause to bee kept to his power 6. And that hee shall grant no Charter but where hee may doe it with his Oath All these severall branches are but the specifications of that one word Protection What Protection is But it will bee demanded what is protection It is not onely a safe-gard and defence of life and member liberty lands and estate of the Subject but a conservation and maintenance as well of the Religion as of the Lawes established within his Majesties Realmes And that this blessing of protection may the better flourish over us The incessant prayers of our Church do daily intercede for Our Gracious Soveraigne unto Almighty God so to dispose and governe his heart that in all his thoughts words and workes he may ever seeke the honour and glory of God and study to preserve his people committed to his charge in wealth peace and godlinesse This protection is generall from the King to all and over all his people and somtimes more specially to some particular persons in some speciall cases of transmarine businesses or other services by way of writ There are a twofold meanes by which this benefit of safety is diffused and distributed from the Prince to the people 1. By Lawes 2. By Armes Whereupon learned Glanvill Chiefe Iustice in the dayes of Henry 2. in his prologue to his Treatise of the Common Lawes of England thus begines Regiam potestatem non solum armis contra rebelles gentes sibi regnoque insurgentes esse decoratam sed legibus ad subditos populos pacificè regendos decet esse ornatam It doth well become Majesty not only to be well appointed with Armes against Rebels and Invaders of Him and his Kingdome But to bee furnished with Lawes peaceably to order his Subjects and people And Bracton Chiefe Iustice in the time of Henry the third affirmes thus In Rege qui recte regit necessaria sunt duo haec Arma viz. Leges qu bus utrumque tempus bellorum pacis recte possit gubernari He addes further Si arma defecerint contra hostes rebelles indomitos regnum erit indefensum Si autem Leges exterminabitur Iustitia necerit qui justum faciat judic um If Armes or Military supply against enemies be sâ—aâ—ted the kingdome will bee naked and indefensive and if Lawes be wanting Iustice will bee exiled and there will bee none to give just judgment Lawes and Armes are the proppes or pillers of Protection Lawes are of a most excellent preeminence above Armes If the Law had not bin broken there had bin no use of Armes I will therefore first begin with Lawes There was a Law insita naturae Laweâ—â— written in the heart of man in and with mans Creation after Gods owne Image By some it is called the Law of Nations and ought to be observed as well amongst Iewes and Gentiles as amongst Christians And in our Common Law it is called Lexrationis Dr. stud â— â— cap. 2. which by a naturall prompting doth informe us that all good things are to be pursued and all evill to be eschewed This Law of Nature through tract of time and Customes in sin was slurred defaced and in a great part worne out Necessarium igitur fuit quod daretur Liber extrinsecus continens leges praecepta per traditionem Dei c. And thereupon the Law was given by God upon Mount Sinay to Moses as is herein formerly handled which is the positive Law in the Scriptures The Prophets afterwards by often denouncing of woes and judgements against the breakers of the Law did quicken and give life unto it in the people The summe of all this Law and the duty of it our blessed Saviour did in one Evangelicall precept render unto all posterity In all things whatsoever yee would that men should doe to you Matth. 7 8.1â— doe yee even so to them for this is the Law and the Prophets From the Law of Nature or Reason and from the divine Law imposed in the Scriptures all the principall and fundamentall Lawes of our Kingdome are subderived and thence by secundary and mediate grounds have their essence and consistence As the Law of Nature was at first not written in any judiciall book So you have heard before that the Lawes of England were at first leges non scriptae and the subjects liberties only known and distinguished by Custome and usage These not written Lawes for the most part of the first two centuries after the Conquest were much obscured and even subverted partly by the then over-ruling arbitrary sway of Soveraignty sometimes by Papall usurpations oftimes by the over-weening power and tyrannicall pressures of the Peeres and Great Counsellors of state over the poore disheartned Commons who for recovery of their wounded and defaced Lawes and liberties were ofâ— inforced into many outragious rebellions and bloudy insurrections in so much as the Government of the Kingdome for a long time greevously languished of an Antonotnical feaver Begin we with the beginning of the Subjects seeming recovery of their old Lawes and liberties King Iohn before mentioned having bin long imbroyled by the Civill Warres of the Barons inflamed by the Pope who to advance his supremacy here soothed up the King in thundring out excommunications against the Barons about the seventeenth yeare of his Raigne being affrighted with the noy sed strength of his Nobles Army King Iohn descended to a meeting and parlee with them at a place called Roundesmead betweene Stanes and Windsor And upon a pacification of his Nobles and for quieting of his kingdome He there by his Charter 16. Iunij Anno regni 17. called Magna Charta did grant unto his Peeres and Commons their long claymed liberties and not many moneths after dyed Henry third a Child of nine yeares age Anno 1216. Henry 3. ascendeth the Throne as heire to the incumbrances of the kingdome as well as to the Crowne The Commons greedy of liberty and the Nobility of rule and the humorous spirits of young insinuating favourites opposing and discountenancing the wisdome of the gravest Counsellors kept the
was presented by the Peeres and Commons unto his Majestie in their petition of right concerning diverse rights and liberties of the Subjects before mentioned which had bin intrenched upon touching their lives persons and estates Whereupon his Majesty did fully freely and graciously confirme in all points their said petition of â—gnt with Soit Droit fait come est desire And I daâ—e boldly say His Royall goodnesse hath beene of himselfe most vigilantly carefull and tender to observe it It is said before that the Law is the Guardian of liberty The Law must bee under wardship too Who be the Law Wardens who then be the Law-Wardens The King originally is intrusted under God with the custody of the Lawes under him the learned and Reverend Iudges are interessed in the Curator-ship of the Lawes and in them of the lives liberties and estates of the whole kingdome And at their first investiture into their places they take a solemne oath incident to their great offices By that oath they ingage themselves as fe-offees in trust to Minister true right betweene King and people and to execute Iustice to the people according to the Lawes of the Land and thereby and by receiving the weighty trust from and under him for the custody of that inestimable Iewell the Lawes they are to acquit the King of so much of his oath I cannot here forget some old verses Realmes have rules and Rulers have a syse Which if they keep not doubtlesse say I dare That eithers greefes the other shall agrise Till the one be lost the other brought to care I will not Comment upon them they were written upon a Subject of 240. yeares a gone and a bad sample thereof hath hâ—pned in our times Lawes are the syse of rule and government By which the opinions and judgements of our twelve Iustitiars must bee weighed and guided they are the Subjects birth-right and inheritance They are the golden ring by which the King at his Coronation is politically espowsed to the Common-Weale and have bin enameld with the bloud of many Millions and Myriads of soules Woe be therefore unto them that have been are or shall be the violaters and betrayers of that sacred trust What must they be that will render themselves guilty of so haynous a crime Surely none of Iethro his Counsellors Not men of courage nor fearing God nor loving Truth nor hating Covetousnesse They must be in their conditions Tyrants haters of Law for having once broken the lore of Law they feare to be tryed by the plumb-line of the Law And then followes Quod timent oderunt quod oderunt destrui irritum omniò esse volunt what they feare they hate and what they hate they would utterly destroy Oderunt impij omnia Disciplina vincula legem â—yrannum esse judicant Moller in Psa 139. The wicked hate all bonds of Discipline and condemne the Law to be a Tyrant But their guerdon is Qui peccant contra legem lege plectentur Offenders or Subverters of the Law shall have their demerited punishment by the Law It is said of sacrilegious Church-robbers Frustra petunt auxi lium Ecclesiae c. They are excluded all benefit of Clergie that sinne against the Church The Law is the Temple or Sanctuary whether the Subject is to runne for shelter and refuge M. Saint Iohâ—s speech fol. 4â— If the Wardens of this Temple desert their Office and abjure the Sanctuary Let them expect nor fuge thither nor other but the Law to bee testem jud cem Satellitem their witnesse their Iudge their executioner And their I leave them So much for Law THe other prop or Piller of Protection is Armes Armes whereof I have sufficiently spoken before for so much as concerne the Subjects duty and legeance And for that which concernes his Majesty It is so generally knowne That I shall need to give but a touch By the Common-Law of the Kingdome No man was chargeable to arme himselfe otherwise than hee was wont in the time of the Kings progenitors S. Edw. 1. And no man was compellable to go out of the Shire but where necessity required and sudden comming of strange enemies into the Realme And then it should be done as had been used in times past for defence of the Realme Likewise the preparing men of Armes and conveying them unto the King into forreigne parts was meerely to bee at the Kings charge And howsoever in the time of Edw. 1. certaine Commissioners did incroach upon the Commons and compelled the shires to pay wages to the Preparers Conveyers and Souldiers whereby the Commons had bin at great charge and much impoverished The King did will that it should be so done no more Stat. 1. Edw. 3. cap. 5.7.1327 And 18. Edw. 3. Cap 7. It is provided That men of Armes Halberts and Archers chosen to goe in the Kings Service out of England shall be at the Kings wages from the day that they depart out of the County where they were chosen till they returne Those Statutes are but affirmations or the Common Law and are utterly destructive to the late impositions of Coate and Conduct money and such like levies in that kinde as are not warranted by common assent in Parliament By both these S. Lawes and Armes the peace and unitie of those two deare sisters the Church and Common weale are strengthened and upheld And in both these the Prince hath power of direction to make and establish lawes to raise and levie Wars and power to command the execution and expedition of them Neither of these are acted without Counsell frustra leges frustra sunt arma nisi sit consilium And it is a true rule Sanissimum consilium non fine concilio the best Counsell is from a Councel or Assembly of Counsellors And therefore the King as you heard before is attended with his Privie Councell which is a body politike unum è pluribus const tutum and no body without a head for as Forrescue fol. 30. saith Quandocunque ex pluribus coâ—st tuitur unum inter illa unum erit regens alia erunt recta This body politike whereof the King is head the autiquity and use wheâ—of I have sufficiently before remonstrated is at ended with two great Nuncioes Angelis è Caelo Iustice and Mercy They are ornamenta coronae The prâ—tious Diadems of the Kings Crowne they are columnae Majestatis the two maine supperâ—ers of regall dâ—gnity By the one S. His Iustice he hath potestatem praeveniendi and subveniendi a power by making of Lawes sending forth his Edicts and Proclamations of preventing all capitall and criminall offences all homicides rapines oppressions injuries rebellions mutinies and all greevances whatsoever either of force or frand and either against the person or estare of His Majesties Subjects And if prevention be not availeable â—â—in naturall so in Civill diseases it sometimes failes Then must his power of subveniendi be administred and that by 〈…〉 execution