his tail for his Second Ground is That the nature of Man reacheth not to the perfection of Government But what does our Author here mean by Freemen if by Freemen he understands men free to do what they list then our Author leaves them as he found them and has done nothing at all but if these Freemen be subject to their Trustee so far as he apprehends it fit and necessary for the good of the Commonwealth then I believe we shall finde them as very slaves as any our Author Ground 9. makes So that after all this ado our Author has made a multitude of slaves or he has made nothing at all And thus hath our Author endeavored to shew why men desire to live in Community viz. By having nothing common at all The Eighth GROUND Of the Authority given to an Absolute Governor and of Vnder-sorts of Government Author NOw comes our Author with a dog in a line his Absolute Governor tyed up to certain Laws and Limits which he has no right to transgress Observ What is this our Authors Absolute Governor Why the Roman Dictator was worth ten of this for he had power of life and death of disposing of all Offices at his own will and pleasure without the controlment of any either Senate or People Consul or Tribune and this power to continue during the exigence and danger of the Commonwealth Yet so far was the Dictator from being an absolute Governor that he was the while but a Minister of the Peoples which was plain in Fabius Maximus for Plutar. in vita Fabii Liv. lib. 22. though he were chosen Dictator yet during the danger of the Common-wealth the People made Minutius equal to him And so was the Athenian Archon who though chosen for Ten years and called a Judge and chiefest of power in the Commonwealth yet as Bodin observes cap. 8. fol. 80. de repub was not the Majesty of the Commonwealth in him but he a Provider and Procurator of the People and was bound to give an account of his Government And the reason why the Dictator and Archon were not absolute Governors is plain because this power was not immediately in them from God but delegate and constituted from another And any power that makes any thing may alter it for Unumquodque dissolvi potest eo ligamine quo ligatum est Well but let us see what manner of beast our Authors Absolute Governor is Why our Author tells you he is an Absolute Governor but restrained and tied up to certain Laws and Limits Which is a contradiction and impossible for in being absolute he is freed from all Laws and Limitations And now I will tell our Author that if his absolute Governor be tied up to any humane Limits or Laws he has so little power that it is impossible for him to protect and defend his rational people For suppose the Laws he is restrained to be as many as are contained in the body of the Civil Law our Statutes and all the Acts and Ordinances made since 1641. and twenty times more yet would not this be sufficient for an absolute Governor For all these are finite and mens actions are infinite and therefore Enemies may find out such ways to invade this free people as this absolute Governor cannot find in his Laws where he has power to oppose them and so this rational freeborn people must be left destitute if any Enemy may be found who can outwit them and find a way to oppress them out of the Laws and Limits which they have given their absolute Governor And who will desire any greater advantage against another then to have him look always one way or what Enemy desires more against another then against such a one whose absolute Governor is tied up to certain Instructions and those known to themselves And Laws are things which must be in esse And how can any man tell to day what may happen to morrow but Princes must to morrow and next day and every day steer their course according as the wind and storms shoals and deeps c. represent themselves which no man can possibly foresee Well let us see what the restriction of any one thing in the Supream Prince may bring upon himself and Subjects Let us look upon a King of England after the Act of Parliament De tallagio non concedendo an Act of Parliament is the Act of the King in Parliament As when the Lords and Commons present any Bill to the King and he passes it this is an Act of Parliament which is no more a Law of the Lords and Commons then the Laws passed at the Petition or Rogation of Coelius Cassius Sempronius c. were the Laws of Coelius Cassius and Sempronius And let every King expect that whatsoever the Subject can get of the King by hook or crook he will hold that as fast as the King shall any flower he leaves in his Crown Well then if Edward the First will not pass this Law he gets not a groat of his Subjects in England towards the relief of his oppressed Subjects of Aquitain in France which Sir Edward Coke in his Comment upon this Statute observes Well then the Scots in the year One thousand six hundred and forty having-transgressed all Laws of God and Humanity as well as the Borders and Bounds of their own Countrey raise Arms the second time and make an invasion upon us and seise upon Berwick and Newcastle but though the Kings hands were tyed up yet the Divine Vengeance of Heaven shall overtake them and their Countrey by a hand they could so little fear as I believe few of them knew whether there were any such or no. And now oh you who have not forced all mankinde from Humane brests come and stand amazed with horror for the most deplorable condition of the most Pious the most Religious the most Just the most Chaste Vertuous and Serenest Prince that ever swayed the English Scepter and not to be parallel'd by any Countrey whatsoever The Scots having invaded this Nation to treat with them a second time was too too much an indignity for their Natural Soveraign besides it was an affront not to be endured by the Englishmen That their Countrey must be made a prey to such Locusts and Caterpillers whensoever they will pretend grievance in Kirk and Discipline To restrain them by force it could not be without raising money By this Statute the King they say can raise none but by Parliament and to call a Parliament in this mad conjuncture of times was judged by himself and Council to be a means to increase the power of the Scots by the Parliaments joyning with them to the endangering himself and his Posterity Well then what is to be done what stand still and look on while these hungry Vermine devour and make a prey of his afflicted Subjects No the King to make his goodness appear above his own danger calls a Parliament where not deceived in his
as Judicial The end of the Fourth Book The Contents of the Fifth Book HAving before treated of the Causes of all Regal and Ecclesiastical power and having in the last Chapter of the Third Book treated of the Laws and Civil Government of this Nation being the exercise of Regal power in reference to the publick preservation of Peace and Society in it In this First Chap. we shall treat how far Ecclesiastical power has been exercised in this Nation and by whom Whether originally the Britanick and English-Saxon Churches were free or subject to the Papal power quoad exercitium And whether as well before the Conquest as after the Kings of this Nation were not Nursing Fathers to the Church of Christ And whether always before the Conquest the Royal Government did not extend as well to the Persons as Possessions of Ecclesiastical persons And whether all Bishopricks were not originally of the Kings foundation In the reciting the Ecclesiastical Laws made by the Kings and Queens of this Realm we shall observe three periods viz. The Ecclesiastical Laws made by the Kings of England before the Conquest The Laws made by the Conqueror and subsequent Kings until Henry the Eighth And lastly the Laws made by him and the Kings and Queens after him until the end of King Charls his Reign Note good Reader that in the reciting of these Laws I do not affirm that these Laws made by the Kings of this Realm did never incroach upon that Ghostly power which our Saviour by Divine positive institution left only to his Church and therefore make no construction upon them but only when they are recited and objected as Authorities against that Power My designe is to shew having already demonstrated that by the Law of Nature the persons of all Subjects born in the dominion of rightful Kings are their natural Subjects which is an indelible character and can never be washed out and therefore Subjects being Ecclesiastical persons cannot free them from it And that all priviledges and endowments which Ecclesiastical persons enjoy besides their ghostly power is created by the King That the exercise of the Kings power over the persons and possessions of Ecclesiasticks as also Laws made by them for the order and preservation of the extern peace of the Church is no new thing as hath been by some objected THE FIFTH BOOK CHAP. I. How far the Kings Popes and Bishops of England have exercised their Spiritual Jurisdiction in England before Henry the Eighth IT cannot sure be reasonably denied Apology by any man but that Ignorance is the mother of all Error nor is any man better in any kind whatsoever for being innurtured or ignorant We daily see no where more feuds If learning or knowledge were the cause of dissentions or distractions how then comes it to pass that all dissentions are determined by learned and knowing men or else they would be endless and dissentions then among ignorant and mean men which were there not Laws to decide their difference would be endless and Mankind left in a worse condition then any other creatures Nor is Education and Learning any cause of the dissentions and debates which arise among learned and better educated men but some internal cause proceeding from pride or some other appetitions or affection in them And though Education and Learning does not totally alter mens natures from bad to good yet does it soften mens manners and makes them not to be so bruitish as those who are destitute of Learning and Civil breeding For Didicisse fideliter Artes Emollit mores nec sinit esse feros It is true indeed that in that state in which God hath placed all men here they do not see all things truly but men are and always were and will be subject to humane error and frailty and in many things notwithstanding all the arts and helps which can be devised men will never be reconciled But that men should therefore condemn all Science and Learning is like to a man that if he sees and hears not all things distinctly and clearly although it may be he sees and hears well enough to do things which are necessary for his conservation that therefore he will put out his eyes and have his ears always stopped Nor shall ever ignorance of any mans duty totally excuse him for his not observance of Laws be they Divine or Humane Nor shall the blind belief of Subjects in their Superiors whether Ecclesiastical or Temporal ever totally excuse them from those things which are due and they believe that they owe to God I am not so very a Hobbian as to believe that it is impossible for Supreme powers to command any thing contrary to the Law of Nature nor yet so very a Papalian as to think that the Pope is infallible Especially since it is evident that Aarons joining with the people in their idolatry did not excuse Exod. 32. the Israelites of old nor did the command of both King and Priests ever under the Old Law excuse the subject Israelites from Gods judgments upon them for their idolatry Nor is this very opinion of them in the Church of Rome of the Popes infallibility believed by themselves however urged against others who are not of her communion For then were not only General Councils supervacaneous and useless things but also there could be no difference among them which is superior a Pope or General Council Nor do they less deny it in their practice then their opinion For when Sixtus Quintus had excommunicated 9 Sept. 1585. the King of Navar and Prince of Conde and as he affirmed made them uncapable of succession to the French Monarchy yet were most part of the French troubled at it doubting the Priviledges of the Gallic Church would be trodden under foot which they needed not have doubted or feared if they had believed the Pope to have been infallible and all the Parliament of Paris who were all of the Church of Rome desired the King Henry the Third to have the Bull torne in pieces as you may read Davila 575. And the Parliaments of Chalons and Tours did not only decree the Bull of Gregory 14. to the Prelates and Catholiques of the Kings party under pain of Excommunication of being deprived of their Dignities and Benefices and of being used as Hereticks and Sectaries that within a certain time they should withdraw themselves from those places that yielded obedience to Henry of Bourbon and from the union and fellowship of his Faction to be publikely burnt but it was so far rejected and scorned by the very Prelates and all other Catholiques of the Kings party that it did extreamly confirm them all in the Kings obedience being before unsetled and inclining to the Cardinal of Bourbons faction as you may read more at large in the Twelfth book of Davila's History But it may be they will say That this was not in matter of Faith and that the Popes infallibility is affixed to Faith
in himself from the seed of the Devil And if he hath misled any one out of the way that he might make any gain thereof let him carefully reduce him to the right way This is that which I will If he shall have provoked any one to sin let him do to him what is necessary viz. Let him reclaim him from his sins and again lead him in the right way He who diligently dehorts another from his sins renders his own the lighter 17. This judgment every one by the councel of his Confessor may give himself who with a constant mind will break off his sins and correct them viz. Let him distribute for Gods love all he hath let him leave with them lands country and all the desirable things of this world and serve the Lord day and night and endeavor by all the power he can against his worldly desires all the daies of his life What then is left that by exhorting others he gathers to him for the study of godliness by all possible means he can Here in these following shall be said how any Sick man may redeem his declared Fast 18. Every man may redeem the fast of one day with one penny and any one may redeem the fast of one day with two hundred and twenty Psalms and any one may redeem the fast of twelve moneths with 30s. or by setting free any one of that price And for one daies fast let him sing six times Beati and also six times Pater noster and for the fast of one day let that man bend his knee and bow himself to the ground sixty times saying Pater noster And also a man may absolve the fast of one day if in his prayers to God he through all his members lift up himself to God by true confession and right faith and fifteen times sing Miserere mei Deus and also Pater noster fifteen times Then is a lightening of the sins of the whole day granted to him 19. Any man may absolve a seven Winters fast in one year if he daily shall sing the Psalms of the Psalter and do the same at night and fifty on the evening one Mass may absolve the fast of twelve daies and with ten Masses the fast of four moneths may be bought off and with thirty Masses the fast of a whole year may be bought off if any man will out of true love to God intercede for himself and confess his sins to his Confessor and amend those things as he is bidden and alwaies afterward avoid them Of the Penance of Mighty men 1. Thus a mighty man and having many friends may by the help of his friends mitigate his penance First in the name of God and by the testimony of his Confessor let him manifest a right faith and forgive all who may have sinned against him and make his confession without any omission of his sins and endeavour to repent and take his penance with much grief 2. Then let him lay down his Arms and unprofitable things and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and taking his staff in his hand let him go diligently barefoot and let him use hair-shirts nor come on a bed but lie in a cottage and do this the number of seven years and prepare himself three years on this manner and take to his aid twelve of his companions let them fast three daies with bread crude pottage and water and let him get as well as he can to finish the work seven times an hundred and twenty men who may every one of them fast for his sake three daies so the number of these Fasts will amount to so many Fasts as there are daies in the seven years 3. When any one fasts let him distribute the dishes wherein his meat was to all the poor men of God and in the three daies of his Fast let him lay aside all worldly business and day and night as often as he can go to Church and diligently watch there in Alms light and cry to God and beg remission of sins with a sorrowful spirit and bended knees Also let him often stretch himself upon the sign of the Cross now standing upright now prostrate upon the ground and let every mighty man learn sincerely to weep and deplore his sins and also on those three daies feed as many poor men as he can upon the fourth let him stoop down to wash their feet and let there upon the same day be celebrated for the Penitent so many Masses as any one can by any means perform and on the time of the Masses let him be absolved and then let him take the Eucharist unless that through too much guilt he be so hindred that he dares not take it Yet let him promise for the future as much as in him lies alwaies to do well and whilst he lives by Gods help to avoid injustice so as he may alwaies and rightly hold his Christendom and renounce Heathenism Minde O ye Ministers of God his words and diligently correct his works that so he may set up all Justice and by the help of God as much as in him lies destroy Injustice It is very necessary he should perform that to God even in the least thing which he hath promised 4. This is the lightening of the penance of Great men who abound in many friends But it is not granted to an Indigent man to proceed so It is therefore expedient more strongly to exact this of him and that as is meet that every one should wash away his sins and undergo himself his correction Scriptum est enim Quia unusquisque onus suum portabit These Canons are set out in the Original by Abraham VVheelock and by him translated into Latine in his Addition to the History of Bede between the Laws of King Edgar and Ethelred pag. 65. until 88. Ecclesiastical Laws made by Canutus who began to reign in the year of our Lord 1016. THis is the Decree which Canutus King of England of Denmark and Norway by the counsel of the wise men to the glory of the Immortal God the ornament of the Royal Majesty and the utility of the people hath ordained at Winchester upon * * Christmas day Midwintertide 1. First of all let all men devoutly and holily worship only one God and strictly hold themselves to one rule of Christian religion and obey with all faith and observance King Canutus 2. And protect Gods Church and defend it and frequent it as well for the health of our soul as the commodity of others It is meet that one peace be comprehended in all Christian Churches and also that all Christian men have it in great veneration For Gods peace is to be wished for before other things next after that the Kings peace is to be kept It is therefore very meet that the peace of the Church of God and the tranquillity delivered into the Kings hand be alwaies kept inviolable If any man shall violate either let him be fined and suffer death
It was afterwards in open Parliament by grievous complaint of all the St. 25. Ed. 3. Commons of this Realm shewed that the grievances and mischiefs aforesaid did daily abound to the great damage and destruction of this Realm more then ever before viz. that of late the Bishop of Rome by procurement of Clerks and otherwise had reserved and did reserve daily to his collation generally and especially as well Archbishopricks Abbeys and Priories as all other dignities and other benefices of England which were of the Advowry of people of the holy Church and gave the same to Aliens as well as to Citizens and taketh of all such benefices the first fruits and many other profits and a great part of the treasure of this Realm was carried away and dispended out of the Realm by the Purchasers of such graces and also by such privy reservations many Clerks advanced by the true Patrons which peaceably holden their advancements by long time were suddenly put out Wherefore the said Commons did pray the said Soveraign the King that since the right of the Crown of England and the Law of the said Realm was such that upon mischiefs and damages which hapned to this Realm he ought and was bound of the accord of his people therefore to provide remedy and Law c. The said King Ed. 3. seeing the mischiefs and damage aforesaid c. and forasmuch as he was bound by his Oath to see the same to be kept as a Law of this Realm though that by sufferance and negligence it had been sithence attempted to the contrary also having regard to the grievous complaints made to him by his people in divers his Parliaments holden heretofore willing to ordain remedy for the great damage and mischiefs which had hapned and daily did happen to the Church of England by the said cause by the assent of all the great men and the commonalty of the said Realm to the honor of God and profit of the said Church of England and of his Realm did order and establish that the free election of all Archbishops Bishops and all other dignities and benefices electory in England should hold from henceforth in the manner as they were granted by the Kings progenitors and founded by the ancestors of other Lords and that all Prelates and other people of the holy Church which had Advowsons of any benefices of the Kings gift or of any of his progenitors or of other Lords and Donors to do divine service and other charges thereof ordained should have their collations and presentments freely as they were enfeoffed by their donors and in case that reservation collation or provision be made by the Court of Rome of any Archbishoprick Bishoprick Dignity or other Benefice in disturbance of the election collation or presentments aforesaid That at the time of the avoidance that such reservations collations and provisions ought to take effect the said Ed. 3. and his heirs should have and enjoy for the same time collations to the Archbishopricks and other dignities elective which is of his Avowry such as his Progenitors had before that free election was granted since that the elections were first granted by the Kings progenitors upon a certain form and condition as to demand license of the King to chuse and after the election to have his Royal assent and not in other manner which condition not kept the King ought by reason to resort to his first nature Upon complaint made by the great men and commons it was assented St. 27 Ed. 3. and accorded by the King great men and commons aforesaid that all the people of the Kings Allegiance of what condition that they be which shall draw any out of the Realm in plea whereof the conusance pertaineth to the Kings Court or of things whereof Judgement were given in the Kings Court or which did sue in any other Court to defeat or impeach the Judgments given in the Kings Court should incur the danger of a Premunire Made to confirm the Acts made the 25. and 27. years of the said Kings Reign but those that made those good Laws against such capital offenders St. 28 Ed. 3. Cap. 1. 2. 3. 4. were cursed defamed and reproved by such as maintained the usurped jurisdiction of the Church of Rome against which an especial Act of Parliament was made by the King and his whole Realm prohibiting thereby such defamations and reproofs In the Reign of Richard the second Against an Incumbent of the Church of England another sueth a provision 12 Rich. 2. tit Jurisdict 18. in the Court of Rome and there pursueth until he recovereth the Church against the Incumbent and afterward brought an action of account against him as receiver of divers sums of money which in troath were the oblations and offerings which the Incumbent had received and the whole Court was of opinion against the Plaintiff and thereupon he became nonsuit It is declared by that Parliament that the Crown of England hath been St. 16 R. 2. Cap. 5. so free at all times that it hath been in subjection to no Realm but immediately subject to God and none other and that the same ought not in any thing touching the Regality of the same Crown be to the Bishop of Rome nor the Laws and Statutes of this Realm by him frustrated or defeated at his will to the perpetual destruction of the King his Soveraignty Crown and Regality and of all his Realm And the Commons in that Parliament affirmed that the things attempted by the Bishop of Rome be declared against the Kings Crown and his Regality used and approved in the time of all his Progenitors In the Reign of H. 4. H. 4. fol. 9 It is resolved that the Popes Collector though he hath the Popes Bull to that purpose hath no jurisdiction within this Realm and there the Archbishops and Bishops c. of this Realm are called the Kings spiritual Judges By the ancient Laws Ecclesiastical of this Realm no man could be convicted of Heresie being high-Treason against the Almighty but by the Archbishop Fitz. nat B. 269. Candries Case and all the Clergy of that Province and after abjured thereupon and after that newly convicted and condemned by the Clergy of that Province in the general councel of the convocation but the St. of 2 H. 4. Ca. 15. doth give the Bishop of the Dioces power to condemn a Heretick and that before that Statute he could not be committed to the secular power to be burnt until he had once abjured and was again relapsed to thar or some other Heresie whereby it appeareth that the King by the consent of Parliament directed the proceedings in the Court Ecclesiastical in case of Heresie and other matters more Spiritual Well but suppose the King did so it proves nothing for it is but matter of Fact But it does not appear neither that this direction of the King by consent of Parliament did direct the proceedings in the
Democracy of Sedition and the causes of it Of the Fathers Husbands Masters and Ecclesiastical Power The Third Book treats of Subjection Succession and the Municipal Laws of this Nation The Fourth Book treats of Justice Obedience Judgment and Equity The Fifth Book treats of the first Planting of Christianity under the British and Saxon Kings and of the Freedom of the British and English Churches before the Conquest and how far the Kings of England had exercised their Ecclesiastical Jurisdiction and how both British and Saxon Kings had been Nursing-Fathers to the Church of Christ and how far since the Conquest the Kings of England had exercised their Jurisdiction in the Assertion of their Regal Power in defence of the Church until Henry the 8th and of the Reformation made by Hen. 8. Edw. 6. Queen Elizabeth and of the Ecclesiastical Laws made by them Queen Mary King James and King Charls A more particular Survey of the Contents of the First Book Chap. I. THe First Chapter not onely treats of those Rights which must necessarily precede all Humane and Ecclesiastical Laws but also of those Rights which are created by Humane Laws Chap. II. Treats of Divine Humane Ecclesiastical and Despotical Laws and from whence they are derived Chap. III. Shews what Virtue is and the causes of all Theological Moral Humane Prudential and Personal Virtues Chap. IV. Treats of Particular Moral Virtues and Chap. V. Proves them to be commanded by God in the old and New Testament Chap. VI. Demonstrates the Obligation of Divine and Humane Laws upon the Persons and Consciences of Men. Chap. VII Is of Promises Vows Leagues Pacts or Contracts and Gifts and from whence Men become obliged to them and does demonstrate that it is impossible that any Law or Legislative Right can arise from the Pacts or Contracts of Men which concludes the First Book DEFINITIONS JUs is a Right Due or Property in God principally and absolutely or in some Jus quid Man or Men by some Divine or Humane Law excluding all others but him or them from whom it is derived First All Right is either Jus Divinum or Naturale and this Right is The Specifications of it onely primely and absolutely in God and incommunicable to any Creature Or Secondly Jus Humanum is a Right which Men have from the Law of Nature Or Thirdly Jus Ecclesiasticum a Right by which the Tribe of Levi did under the Old Law exercise their Priestly Office and Function and a Right by which Bishops Priests and Deacons among Christians do execute their Office and Functions Or Fourthly Jus Legale a Right which all Subjects have in their Estates and Goods And this Right is either Jus Proprietatis or Jus Usufructuarium 2. Nature is either that eternal Being which ever was in God which Men What is Nature call Natura Naturans Or that first Being which is in any Creature superior to the Will of any Creature and created onely by God and this Nature Men call Natura Naturaliter the depraved sinful Nature of Man was not originally created by God but afterward made by Man 3. Jus Naturae Naturantis is that Right which must necessarily precede What is Jus Naturae Naturantis What is Jus Naturae Naturaliter and create Lex Naturae 4. Jus Naturae Naturaliter is that Right which is created by the Law of Nature but because this Right is proper to Man onely we will call this Right a Humane Right As also that Power which is created by the Law of Nature although it be Natural Naturaliter yet being proper to Man we call it Humane Power 5. A Law is the declared Will of him who by right commands forbids or What is a Law permits athing together with a penalty annext for not observance Lex dicitur à ligando quia obligat says Isidore rightly Etymologie of Lex Common Notions or Axioms 1. ALL Right which any Man or company of Men have is derived either from the Law of Nature or some Divine Positive Law declared in the Scriptures or from some Humane Law or particular Custom which is always presumed to be created or permitted by Humane Laws 2. Humane Laws and Customs refer to some particular place or Countrey as they are permitted or imposed by the supream Power of that place or Countrey viz. By them who have right to impose or permit them 3. The Laws of Nature oblige all Men of all conditions alike without exception and are eternal and immutable by Man and are and always were connatural with all Men. 4. No Being can precede or be superior to the cause of its Being 5. All Causes are superior and precede their Effects THE FIRST BOOK CHAP. I. De Juribus 1. LEx Humana lata has by the second Notion no being Jus Humanum Legislativum is not from any Humane Law but as it is caused or created by him who has the Jus Legislativum Lex Humana lata therefore cannot by the Fifth Notion create Jus Legislativum 2. If Jus Humanum Legislativum were from Jus Humanum Legislativum is not created by Divine positive institution Divine positive institution then by the Fifth Notion must the Scriptures precede all Legislative Right but this is evidently repugnant not only to the Scriptures themselves who testifie not only the Right which Fathers and Husband have over their Children and Kings over their Subjects long before God revealed them by Moses but also this Lawgiving Right is in every place of the world whether the Scriptures be received or beleeved or not It is evident therefore that this Law-giving Right is not created from Gods positive Laws in the Scriptures 3. Jus Humanum Legislativum is not by the first Proposition from Jus Humanum Legislativum is from the Law of nature immediately any Humane Law by the second Proposition Jus Humanum Legislativum is not from Divine positive Laws Therefore by the first Notion Jus Humanum Legislativum is from the Law of Nature 4. By the third Notion the Laws of Nature are and alwaies were connatural Jus Ecclesiasticum is not from the Law of nature with Men but the Right which God gave the Priests under the old Law and to Bishops Priests and Deacons under the new Law hapned long since Men were borne in the world and therefore the Ecclesiastical Right of Bishops and Priests is not from the Law of Nature 5. If Humane Laws could create the Right of Ecclesiasticks then by Nor from any humane law the 2. Notion he who may by right create Humane laws might also create this Ecclesiastical right But this is evidently false for all Kings Fathers and Husbands have a right of creating Humane laws but none have the right of creating the Ghostly right by which Ecclesiasticks exercise their function or office This right therefore is not created by any Humane law 6. By the 4. Propos Ecclesiastical right is not from the
least Liberty and that which in other men is termed Anger in them is called Pride and Tyranny Besides in private men it is enough that they themselves do well but Princes must have a care that neither they nor their Ministers do ill 6. Tibi soli peccavi says the Psalmist Psal 50. Humane Laws are the The Supreme power is not obliged by his own Laws organs or instruments of the Power that governeth they cannot therefore extend themselves to bind him from whom they are derived for Omnis potentia activa est principium transmutandi aliud Besides the Prince may free other men from the obligation of the Laws and therefore much more himself And if Supreme Princes were obliged by their own Laws then were Humane Laws as well as the Laws of Nature eternal and immutable which is absurd nor could Humane Laws protect Subjects when any thing happens which comes to pass every day that was not foreseen at the making of the Laws Humane Laws are made to oblige and preserve the governed necessitate coactionis but they cannot have any obligation upon Lawgiver who is the Supreme power unless a man will grant that an Effect may be prime and superior to the Cause Nor were ever other Governments subject to their own Laws No man hath any thing proper against the Supreme power 7. No Subject hath any Property except Ecclesiasticks but by the Laws of his Country But by the precedent Proposition no Supreme Prince can be obliged by his own Laws and therefore no Subject can have property against him If any Subject had property against the Supreme power then could not the Supreme power impose a Forfeiture of Goods in case of Praemunire Attaint Conviction of Treason or Felony But the Consequence is false and therefore the Antecedent is false That any man hath any property against the Supreme power Besides there could no Fine nor Fine and Recovery be levied or suffered if he in Reversion or Remainder had property against the Supreme power Nor could an Act of Parliament enable Tenant for life to make sale of his Estate It is remarkable that the Children of Israel should not be content to Annot. have God to reign over them immediately who did himself give them Laws being enquired of by the High-Priest Samuel might well say therefore unto them Ye shall cry in that day because of your King which not ye shall choose but which ye shall have chosen you and the Lord shall not hear you in that day 1 Sam. 8. 18. For Gods ways and actions are always perfect whereas by the reason of humane frailty the best mans actions are subject to imperfections But if it seems grievous to any man that he holds his goods at the will of another let him consider that God since Adam did never give any Nation but only the Children of Israel Property but always used the mediation of his Vicegerents And since Property must be derived from some Humane act for the Law of Nature gives none but to Supreme Princes and therefore the possessions of Kings are called Sacra patrimonia because Kings have no Superior but God Almighty Proedium Domini Regis est directum dominium cujus nullus Author est nisi Deus How Sir Ed. Co. Com. on Lit. p. 1. 6. much better is it for Subjects to hold of one Man then of many For nothing can be objected against one but will have more force against many And let any man shew me in these last five hundred years any Subjects estate taken from him without due and legal proceeding by the act of any of the Kings of England and I will shew him five hundred who not being liable to any punishment by Law have been ruined themselves and their families in seven years and that for observing the Laws and against the will of the King Obj. But many Actions have been brought against the King which if no Annot. 2. man hath Property against him may seem inconsistent Answ But the question here is not what the King may do but what he hath done Not what the King may declare Law but what he hath already declared Law 8. Majesty is from the Law of Nature immediately but the power Power of Magistrates from him of Magistrates is not so but mediately that is from him who hath the Supreme power Magistracie is the instrument or organ by which Majesty is conveyed to every place whither its own power is extended And as Majesty is restrained to the Laws of Nature and is accountable to God for all the omissions and transgressions of them so Magistrates are restrained to Humane Laws and ought to give an account of their actions to him that hath the Supreme power And as no man can offer violence or contempt to Humane Majesty but it is a contempt and violence to the Majesty of Heaven so no man can offer violence to or contemn Magistrates but it is done to Humane Majesty from whence their authority is derived Wherefore Subjects must submit to Governors who are sent by Kings 1 Pet. 2. 14. By this Proposition it is evident that although Supreme power cannot Annot. be divided yet the exercise of it may For where a King is an Enfant he cannot exercise his power who can neither act any thing nor expres what he would have done nay it is impossible for the best and wisest King that ever was to exercise his power every where for one body can be but in one place at once though the power thereof may be diffused every where as the light and influence of the Sun is diffused every where although the body of it can be but in one place And the exercise of power by Magistrates is like Gods governing the world by natural causes who being the first Mover of all things produceth natural effects by the order of second causes Jethro his counsel to Moses therefore is to be taken Thou wilt surely weare away both thou and this people that is with thee for this thing is too heavy for thee thou art not able to perform it thy self alone Exod. 18. 18. 9. Quando lex aliquid alicui concedit concedere videtur id sine quo res The Right of calling Assemblies belongs to Christian Kings ipsa esse non potest where any Law Divine or Humane does give any thing it gives all the means by which this otherwise could not be had And that God by the Law of Nature has given Kings a power to protect their Subjects we have sufficiently demonstrated but it is impossible Princes should protect and govern their Subjects if they might not rule their actions Now all actions and motions are either regular or irregular All regular motions and actions may be reduced to one certain beginning where the beginning is not one and certain there they may be called commotions or confusions rather then motions or regular actions But all Assemblies are motions and therefore they
came under one Monarch or King again for the Royal dignity of a Monarch or King from whence all subordinate dignities tanquam lumen de lumine are derived without any diminution will suffer no division Regia dignitas est indivisibilis quaelibet alia derivativa dignitas est similiter indivisibilis The most woful event that fell out in this Kingdome when Gordobug divided this Kingdom between his two Suns Ferrex and Porrex and what heavy event came to pass untill it was reduced again under one Monarch let our Histories tell you and letting pass others I cannot overpass the miserable estate within this Kingdom under the Heptarchy untill all was reunited under one Soveraign and this is the reason that in England Scotland and Ireland the Royal dignity is descendible to the eldest daughter or sister Sir E. Coke Inst 4. 243. c. Regia dignitas est indivisibilis 2. Of these Governments Monarchy is the best as appears by reason by How many ways Monarchy is the best Government the consent of the world by the institution of God and his commanding obedience only to this Government and by woful experience 3. Monarchy in reason is the best Government for the dignity and Monarchy is the best Government in reason majesty of one man is more easie to be maintained then of many The ills that follow from bad Monarchs are no worse than what do and alwaies did happen from the best of humane Laws viz. mischiefs to particular men Nor can the mischiefs which happened to Silus Sabinus Sillanus c. who not well brooking the powers of Tiberius and Caligula Emperors as bad as who were worst had been over lavish of their tongues in vilifying the power of the Caesars and magnifying that of the Senate and probably had they been able would have advanced the power of the Senate to the abdication of Caesars be compared with the inconveniences which came upon the Senate and people of Rome in those times of Silla and Marius of Caesar and Pompey Besides factious and discontented persons cannot hope for that encouragement in their designs where the supreme power is in one individual person as where it is compounded of many The freedome and liberty of the Subject is more under one then more for it is easier to obey one then many The common people of Rome never enjoyed so much liberty as under the Emperors and therefore when after the death of Caligula the Senate endeavored to restore Rome to her antient liberty as they Sueton. in vita Claud. cap. 10. called it and extinguish the name and power of the Caesars and to that end had seised upon the Capitol they aided by the Preterian coherts continued the power of their Emperors in Claudius and the day and night wherein the Senate would not receive him was the cause of much trouble which Josephus notes l. 19. c. 30. 4. By the consent of the world for every where in the known world By the consent of the world before 1641. either in Europe Asia Africa or America over Christians Mahumetans and Infidels except the State of Venice the usurped power of the Cantons in Switzerland the State of the Neatherlands the Hans-towns Genoa and Geneva who seek protection of the Emperor and Kings of France this Government is established 5. By God himself for he never instituted any Government either in By Gods owning it only Priesthood Judges or Kings but only this nor commands obedience to any other Can a man touch the Lords anointed and be guiltless 1 Sam. 26 9. And submit your yelves to every ordinance of man for the Lords sake whether it be to the King as supreame c. St. Pet. 2. 13. Feare God honor the King And I counsel thee to keep the Kings commandments and that in regard of the oath of God And therefore what thing an Unite is in numbers the Minde in the faculties of the soule a Centre in a circle the same is God the most omnipotent King in the world simple in unity indivisible in nature most holy in purity placed by an infinite interval far remote above the fabrick of the highest Heaven joyning this perspirable region with the celestial and intelligible keepes and preserves from ruine as by a secure care the whole universe framed and compounded in such admirable order and harmony to whose great example ought every good King who is the Unite the minde and centre of his kingdome that hopes to govern and preserve his subjects not only safe but honest and happy wholly to betake himself 6. By woful experience I do not find any mans life except the destitute and deposed Princes Arthur Ed. 2. Rich. 2. Hen. 6. and his sonne By wofull experience Ed. 5. and his brother herein and in many other things doubtless more unhappy then private men and the Duke of Clarence after conviction and attainder thought by the consent of Ed. 4. to be drowned in a Butt of Malmsey and Cromwell Earle of Essex condemned and executed unheard in Parliament see a remarkable passage herein by Sir Ed. Co. Insti 4. fo 37. 38. Queen Katherine fifth wife to H. 8. Mary Queen of Scots and the Earl of Strafford or estate taken away by any of the Kings of England for these last 500 years in an extraordinary and extrajudicial manner If the dissolution of the Abbies by Hen 8. be objected I answer it was usual in Parliament to alter many things in the Common law as the statute de donis conditionalibus made a great alteration in the Common law for before all estates which were not for life and under were either in fee absolute or conditional and so the Statutes which gave power of entry where before no remedy was to be had by Common law but by a Cui in vita And to Jointenants to compell others to sue a Writ of partition c. In case of life the ordinary way of trial was by Peers the Nobility by the Nobility and the Commons by the Commons but a Parliament being a body compounded of heterogenial and dissimilary parts viz. King Lords and Commons could not be Peers to any man which was the usual way of Trial with us neither were the Estates so taken from Abbots c. but that they enjoyed them or a full value in lieu of them during their lives so that by this act no wrong was done to any man living Yet it is true which Sir Ed. Co. saies in his Comment upon Magna charta chap. 1. Quod datum est Ecclesiae datum est Deo what was given to the Church was given to God which by the Law of God Numb 16 37 38. is unalterable nor can be be employed to any profane or common use So that I am confident I may safely affirm that the Subject in seaven years under the Long Parliament suffered extraordinarily and extrajudicially five hundred times more then all their Ancestors in 500 years before did
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-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
absurd But if Solomon his offering a peace-offering for the people and his blessing the people be objected I answer it does signifie no more then a fathers blessing his children and praying to God that they may live peaceably But none of the Kings did ever offer a sin-offering or burn incense to the Lord without reprehension by God Out of this it is evident that God never forsook men before they Annot. 2 first did forsake him Adam did first eat the forbidden fruit before God drove him out of Paradise and cursed Mankind and the ground for his sake Then mankind sinned malitiously before God brought the general Cataclysme upon them and they made a wicked conspiracy before God confounded them at Babel but none were more malitiously stubborn than the Jewes who when they were enjoyned to observe the Ceremonial Law scarce ever observed it but went a whoring after the Gods of the Nations Moab Ammon Ashteroh c. yet since our Saviour hath fulfilled it never did men so superstituously observe any thing as they have done it And now Oh that I could more then powre forth all Jeremies lamentations in commiseration of thee O my Mother Church and Native Country much more deserving it then the Jewes in the Babilonish Captivity for Jeremiah foresaw their return and restitution whereas I cannot hope but that Christianity it self is in the very wayne here among us For not only Bishops and Priests are therefore hated because they are Christs Ministers and Puppets Mountebankes and Tryers set up in the place of them and not only all the carved works in the houses of God in despite of God are beaten down with Axes and Hammers and the houses themselves destroyed and made stables for horses but all the solemn days kept in commemoration and gratitude for our Saviours Nativity Passion Resurrection Ascention c. in despite of Christianity decryed as superstitious c. Sure as glorious Christian Churches as ever were in England have been in Africa c where were it not for some poore Christian slaves there is not so much as any footsteps of Christianity left The Contents of the Third Book THe First Chap. contains the causes of Subjection of Subjects to Supream Powers of Subjection of Children to Parents of Servants to Masters as also to them who have oversight over us in the Lord. The Second Chap. treats of succession of Princes in Hereditary Monarchies and discovers the fiction of the Salique Law in France and that it was a meer invention to exclude the just title of the Kings of England and has been ill observed by the French themselves when it did not conduce to their advantage The Third Chap. treats of the Municipal Laws of my dear and native Country before they became invaded and subverted by those men who in so many several shapes since 1640. have arrogated to themselves the name of Parliament THE THIRD BOOK CHAP. I. Of Subjection 1. IT is observed by a Writer that our Saviour Introduction in communicating the Cup to his Disciples as if he had foreseen that it would be detained from the Laity gave it in these words Drink ye all of it whereas in partaking of the Bread he said only take eat c. I am sure it is well worth the observation that the Holy Ghost as foreseeing the great abuses which should happen in the world by the specious pretences of Religion Conscience the Power of the People or Parliaments c. commands Subjection to Higher Powers not in certain cases but absolutely and not certain persons but every Soul is to be Subject to the Higher Rom. 13. 1. Powers 2. I say Supream or Regal Power being from God immediately by Subjection due by the Law of Nature to Soveraigns the Law of Nature it does necessarily follow that subjection of Subjects to their Soveraign is due by the Law of Nature nor can the relations be dissolved but by God himself I may I think without any affectation affirm that the Judges in Calvins case were as learned and upright as ever any before or since let us therefore see their resolutions 3. Those learned and upright Judges resolve tit Ligeance Ligeance What is Ligeance is a true and faithfull Obedience of the Subject due to his Soveraign This Ligeance and Obedience is an incident inseparable to every Subject for as soon as he is born he owes by birthright Ligeance and Obedience to his Soveraign Ligeantia est vinculum fidei quasi essentia Legis and a little after page 5. Ligeance does not begin by the Oath of the Leete For many men owe true Ligeance who were never sworn in the Leete Where note it is false if not Treasonable in Mr. Hobbs who affirms that the Knowledg Note of the Legislator does depend upon the Citizen For every man is as much a subject before he hath taken the Oath of Aligeance as after And see whatsoever is due by the constitution of man may be Pag. 25. tit 5. altered but natural Ligeance of the Subject to his Soveraign cannot be altered ergo natural Ligeance or Obedience to the Soveraign is not due by the Law or constitution of man And again whatsoever is due by the Law of Nature cannot be altered but Ligeance and Obedience of the Subject to the Soveraign is due by the Law of Nature ergo it cannot be altered Et qui abjurat regnum amittit regnum sed non regem amittit patriam sed non patrem Pag. 9. patriae 4. Ligeantia ac quisita or Denization is threefold First absolute to them Ligeantia acquisita Pag. 5. 6. and their heirs Secondly limited as when the King does grant Letters of Denization to an Alien and the Heirs Males of his body or for life The third is when the King by Conquest conquers another Kingdom or part of it the Antenati Postnati are Denizens of the Kingdom or Dominion so conquered Yet sure under correction the Postnati are not only Denizens but Natural Subjects For Power and Subjection being by the Law of Nature all men born in the Dominion of any Soveraign are his Natural Subjects and with this does Sir Ed. Coke agree If a man come into England and have issue two Sons these two Sons are Indigend Subjects born because they Com. Lit. pag. 88. are borne within the Realm that is in the Dominion of the King but if any be borne out of the Realm that is out of the Dominion of the King although of Natural Subjects to the King they are alienigena They therefore who are Postnati in the exercise of the Kings power by Conquest are his natural Subjects 5. Local Ligeance is when any Subject of France is in England or any English in France c. so long as he is in the power of the King he is de Local Ligeance tit 3. pag. 6. facto his Leigeman Therefore a Frenchman being in England joyned with divers Subjects of this
and for the reason De terra vero Salica nulla portio haereditalis mulieri veniat sed ad virilem sexum tota terrae haereditas perveniat Bodin de rep p. 745. 13. For the authority of it the learned do not agree by whom it was The authority of it by D'-Avila made nor whether any French King ever made any such or not D'avila in the beginning of the first book of the Civil wars in France recites the most probable conjecture which is That the French when they left their habitation to seek fresh quarters sate down at the river Sala which divides Misnia Westward from Turingia and there forsooth did agree to choose themselves a King and did make Constitutions which should be fundamental and unalterable ever after and those Constitutions being made at the river Sala are called Salique Laws 14. There is no story of Guy of Warwick Amadis de Gaule or the Dun How probable Cows rib but is of as much authority and probability as this For can it be imagined that a company of Rogues and Thieves going to rob and thieve at Gads-hill should agree at Greenwich to make unalterable Laws for their government and succession before they were possessed of any thing and what they make their Laws of is nothing but what they shall rob and cheat other men of 15. But Bodin will not undertake to tell by whom or when it was made Bodin's opinion it is strange you will say that making up his discourse almost of Histories he hath nothing to say for this he only saies it is not new as many men think but engraven in the most ancient tables of the Salians in these words De terra vero salica c. ut supra So Bodin names neither by whom nor when Para. 12. this Salique Law was made Did ever man infer so fondly that because the Salian women did not inherit therefore the French Crown cannot descend to women But mark now if this be a consequence The women of the Land of Salia do not inherit and therefore no female can inherit the French Monarchy then if the men of the Land of Salia will alter this constitution the descent of the French Monarchy is altered by an Act of the men of Salia for Cessante ratione legis cessat lex and sublata causa tollitur effectus In their contest with the Popes the Kings of France say they hold their Crown of God whereas if Bodin says true they hold it by a Law written in the Tables of the Salians I can say no more for the authority of this Law unless I should repeat the same things again out of De Serres and other learned French Historians 16. This Law cannot be altered by the King and Estates general The eternity of it I had thought that only the Laws of Nature had been unalterable It is a rule that Unumquodque dissolvi potest eo ligamine quo ligatum est And if this Salique Law be a constitution of Man by that power which made it a constitution by that power it may be altered 17. De terra vero Salica nulla portio haereditatis mulieri veniat sed ad virilem The reason of it sexum tota terrae hereditas perveniat Now let any man that is in his wits or understands any thing of the nature of a Law judge whether there be any shadow of reason in this For a Law is the rule or direction of him who does govern to be observed by them who are governed How then can the Crown of France descend according to the customs of the Salians if the French Crown be not subject to the men of Salia and they had given the King and his successors this unalterable Law of not descending to the female but where this country Salia should be I could never find so much as the name in any Geographer or Historian ancient or modern Sure the Romans so curious in searching and describing of Countries would not have overseen it especially the Emperor Julian warring so long in those parts of Germany not above sixty years before they suppose Pharameund departs out of Salia for to seek better quarters in Gaule 18. The two main parts of the Salique Law are That the Crown shall The two main parts of the Salique Law descend to the next heire male and if the heire be ana infant that the next Prince of the blood who is a Major shall during his minority be his Guardian and Regent Yet Bodin is fearful that the Salique Law was not bar enough against our Ed. the third being never before heard of saies Hailâ—n he saies pag. 745. Whenas the controversie concerning the Crown of France was between Philip Earl of Valoys and Ed. the third King of England Philip defended the Salique Law by the Voconian which ordained by the consent of the Fathers and Princes that in that controversie no man should use the authority of forrain Lawes but every one should study for his profit the Salique Law But when the question was 1563 whether Charles the ninth were a Major at fourteen years of Age currant or compleat the Parliament of Paris would have taken upon them to decide it when Charles sends them word I do not mean that you should deale in any thing but with the administration of good and speedie justice to my subjects understand hereafter that you are not confirmed in your offices by me to be my Tutors or Protectors of my Realm nor Governors of my City of Paris as hitherto you have perswaded your selves Besides Charles the seventh Anno 1420. was adjudged to banishment and unworthy to succeed in any of the signories of France by all the Courts of the Parliament of Paris And so about 7 years since was the Prince of Condi and so was Henry the forth by all the three Estates at the general assembly at Bloys Anno. 1588. So that is is evident that this immutable Law is not so inviolably kept by the French themselves when it does not serve their turn How should the Voconion Law oblige against Ed. the third and not the Acts of Parliament of Paris and general Assembly at Blois oblige against Charles the seventh and Henry the fourth for ubi eadem est ratio ibi idem est jus 19. There cannot be a more imprudent act then to make any one Ward The imprudence of the Salique Law to him who is his next heire especially to a Crown which frees any one from all attainders what then can be more imprudent then this part of the Salique Law which gives the pupil King into the hands of the next heire who murthering him makes way for himself to the Kingship By our Country Laws no man could be Guardian to the person of a Ward but the next of blood to whom the inheritance could not descend But this part of the eternal Law has not of late been observed by the French Nation whereas the contrary hath been
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
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-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
men and all the Commonalty assembled in Parliament Statutes made at Westminster were enacted by the King his Prelates An. 4. Ed. 3. Earls Barons and other of the same Parliament at the request of the Commons Statutes made at Westminster The King by the assent of the Prelates An. 5. Ed. 3. Earls Barons and other great men of the Realm at the request of his people granted and established c. Statutes made at York were enacted by the King in Parliament upon An. 9. Ed. 3. the Petition of the Knights Citizens and Burgesses Statute of Money made at York was enacted by the King with the An. 9. Ed. 3. assent of the Prelates Earls and Barons and the Commons not so much as named Statutes made at Westminster were made and established by the King An. 10. Ed. 3. with the assent of the Prelates Earls Barons and other Nobles of this Realm and at the request of the Knights and Commons Statutes of Purveyors made at Westminster were enacted by the King An. 10. Ed. 3. with the assent of the Prelates Earls Barons and also at the request of the Knights of the Shires and the Commons by their petitions put in the said Parliament Statutes made at Westminster were to the honor of God and of Holy An. 14 Ed. 3. Church by the assent of the Prelates Earls Barons and other assembled at Parliament And see almost all the Acts of Parliament in Ed. 3. his time after in Rich. 2. Hen. 4. Hen. 5. Hen. 6. Ed. 4. Rich. 3. the King always made the Law and the Lords Spiritual and Temporal did assent at the instance request or petition of the Commons or by the King with the assent of the Lords and Commons which was not or but rarely used unless in Rich. 2. his time In Hen. 7. his time the Commons got to have their assent as well as the Lords in passing Laws And this manner of passing Laws continued generally until Edward the Sixth's time where they were sometime made by the King with the assent of the Lords Spiritual and Temporal and Commons in Parliament and sometime by the Parliament But the form of enacting Laws by the King and the Lords Spiritual Temporal and Commons assembled in Parliament was seldom or never used before Queen Maries time So that it is as clear as the Sun at noon-day That a King of England Sessions of Parliaments do not derogate from Regal Power by the ancient usages of this Nation is as free and absolute in the Session of Parliament as out And the Act of a King in Parliament is the free and voluntary Act of an absolute Monarch for the Act of the King in Parliament passed by the assent of the Lords Spiritual and Temporal and at the Petition of the Commons is not less the act of the King because it is so passed unless a man will deny that my Will being a faculty of my Soul cannot imperate an act if it takes information from my Understanding or Reason Reason and Understanding being in proportion to the Will as Counsel is to a Law King Charles of Sacred memory commends to his Son the then Prince of Wales in his last Letter and Admonition to him though for his own particular he had little Reason God knows so to do the frequent use of Parliaments as the best means by which Laws may be received of the Subjects and diffused to all parts of the Nation and to hold a right understanding between the King and his Subjects But as nullum medicamentum est idem omnibus nay the same Medicine at one time may kill the same person which at another time may cure him And that thing which at one time may be a very probable reason of an action at another time may be none at all or quite contrary to Reason So in Reasons of State that may be a very probable reason at one time which may be none at all or perhaps destructive at another time As Henry the Third had great Reason of State to form a House of Commons and endue it with large priviledges to secure himself against a stubborn and rebellious Nobility But King Charles had not the same Reason of State to indulge the House of Commons contriving the destruction of himself the Church and Nobility Laws and Liberties of this Nation Edward the First had great Reason of State to call a Parliament and to pass the Act De Tallagio non concedendo for otherwise as the state of affairs then stood he could neither get money to assist his Friend and Ally the Earl of Flanders nor relieve his distressed Subjects in Aquitaine oppressed by the French King which Sir Edward Coke in his Comment upon this Statute observes but King Charles had not the same Reason of State to call the Parliament in 1640. who instead of assisting their natural Sovereign against a Rebellious Rabble of Mungrel Hebrides and Lysisks give them Three hundred thousand pounds to be exported out of the Kingdom for their Brotherly assistance Edward the First had great Reason of State to pass the Statute of Mortmaine when as men were so superstitiously given that no man thought he could merit Heaven if he gave nothing to the Church whereby such large Revenues accrued to the Church that the third part of the Revenues of the Nation was in Church-mens hands who pretending exemption from the Temporal Power if some remedy were not taken the King would probably be left destitute of means to protect himself and his Subjects yet is there not now that Reason of State when in a Sacrilegious age all the Patrimony of the Church goes to wrack and ruine and men of Badges of Sacriledge make marks of Saintship It were endless to enumerate how Reasons of State vary with the times It must suffice that there be means always in the Supream Power to remedy and cure the maladies and mischiefs of State as they arise and represent themselves Yet it is a remarkable thing That they who oblige Kings and Supream Powers to their own Laws will never be obliged by either their own or any Laws of God if ever the Supremacy comes to be vested in them and let any man shew me in Five hundred years one time wherein the Kings of England did alter the Laws out of Parliament and I will shew him an hundred times in seven years where men arrogating to themselves the name of Parliament have altered the Laws without the King They who oblige Supream Powers to Humane Laws the Conditions must oblige God too to such things as is contained in those Laws and Conditions or else it is impossible for Powers to protect their Subjects But Corruptio optimi est pessima there were never so vile things done as have been by Parliaments or by men calling themselves so Sir Edward Inst 4. page 37 38. Coke being always mightily in love with Parliaments gives instances but in two viz. Thomas Cromwel Earl of
Essex and Edmund Earl of March the true and undoubted Heir of the Crown of England both condemned unheard and without tryal in Parliament when as he might have instanced twenty Sir Thomas Seimer Admiral of England and Brother to the Protector Anno 1549. the third year of Edward the Sixth was condemned to death unheard by a Law in Parliament Henry the Third after all the Acts of Grace of Magna Charta Charta de Foresta c. instead of means Good Governors are the Preservers or enlargers of the Government Parliaments have ever been the bane of the greatness of the English Monarchy given him by Parliament for the recovery of his right of the Dutchy of Normandy usurped and taken by the French King from his Father King John and the Dutchy of Guienne and Earldom of March the year before usurped and taken from him by the French King had all the exercise of Regal Government taken from him and given to the Twelve Peers by the * Insanum Parliamentum Mad Parliament whereof ensued the Barons Wars to the destruction and confusion of so many English-men as nothing but a Parliament could have done Henry the Fourth in the first year of his usurped Reign had the Crown entailed upon him and his Heirs in Parliament from whence ensued all the Wars of the Houses of York and Lancaster At a Parliament holden Anne Dom. 1470. begun at Westminster 26 November the Crowns of England and France were entailed upon Henry the Sixth and the Heirs male of his body lawfully begotten and for want of such Heirs unto George Duke of Clarence being the yonger Brother of Edward the Fourth the undoubted Heir of the Crown of England whereby a double injustice was done first to Henry the Sixth excluding his Heirs general then to Edward the Fourth to prefer his yonger Brother Clarence before him in case of want of Heirs male to Henry the Sixth See the Factious Conspiracy of the Commons together with the consequence against the Duke of Suffolk Speeds History Henry 6. p. 675. Para. 47 48. The Parliament in the First of Richard the Third his Reign though a bloody Usurper presented a Bill for the entailing the Crown upon his Heirs Ann. 1 Hen. 7. Nor was the Act of Parliament less injurious which entailed the Crown upon Henry the Seventh and the Heirs of his body he having no colour of title to it but in right of his Wife and because he suspected his title and reigned in his own right to the wrong of his Wife and after her decease to the wrong of his Son Henry the Eighth in the eleventh year of his Reign he got an Act of Parliament to pass which should protect all Subjects who should assist the King be he so by right or not for the time being So that other offences should be punished but he that perpetrates the highest villany by invading a Crown should be protected by Law Henry the Eight by authority of Parliament an 1533. Bastardized Queen Mary and so soon as he had cut off Anne Bullens head by authority of Parliament Bastardized Queen Elizabeth smally to his credit one would think Add hereunto the ridiculous yet cruel Act of Hen. 8 his Headship of the Church So that a stranger being one day in Smithfield and seeing one burnt for denying the Six Articles and another hanged for denying his Headship cried out Bone Deus quo modo hic agunt vivi hic comburuntur Papistae ibi suspenduntur Antipapistae The bloody Laws passed in Parliament in prosecution of the Six Articles in the time of Henry the 8. and the bloody Parliamentary Laws for Religion in Queen Mary's reign c. and all those Sacrilegious Acts made in the reigns of Hen. 8. and Ed. 6. and sure no man can imagine such horrid acts could be perpetrated but by Parliaments Nor have the General Assemblies in France who were wont to be assembled once or twice a year demeaned themselves much better then the Parliaments in England but in stead of providing good Laws fell into such Factions and used such affronts to the Regal power that Lewis the Eleventh a most subtile and cunning Prince was wont to say It was time to put the French Kings horce de page out of their minority and from being Pages any more and so he did And since his time they have been rarely convented in France For since the General Assembly at Bloys anno 1587. by Henry the Third where the famous Duke of Guise was killed there hath been but one anno 1614. in the fourth year of the reign of Lewis the Thirteenth and that succeeded so ilfavoredly that there is no probability of ever being another 4. Besides the general and particular Customs and Acts of Parliament there are almost infinite Corporations Colledges and Companies who have divers and sundry priviledges which are granted by the Kings Letters Patents and are observed as Laws and to all intents and purposes have the effect of Laws 5. But in all Maritime cases the Kings of England being Soveraigns of the Narrow Seas whatsoever Grotius says to the contrary and all actions done upon a Navigable river are judged by the course of Civil law and so the Probate of Wills and Letters of Administration are determinable by the Civil law Judge Jenkins a learned Gentleman and a stout Champion for the Laws of this Nation in the first page of his Lex terrae divides the Laws of this Nation into three grounds or species viz. 1. The Customs 2. Acts of Parliaments and 3. Judicial Records and that the two latter are declarations of the former touching Royal government so that he makes Custom to be the ground of Royal government and Acts of Parliament to have but a declaratory power of the Common Law touching Royal government and Judicial Records to be equivalent to Acts of Parliament In all which he is most manifestly mistaken For first there are an exceeding many Acts of Parliament which have no manner of dependence or affinity with the Common-Law and so cannot be declarations of it nay there are many Acts of Parliament which are so far from being declarations of the Common-Law that they do annihilate it and create other things in lieu thereof as the Statute of West 2. cap. 1. called the Statute de donis conditionalibus annihilated all the Conditional estates in Fee at Common-Law and created estates in Tail in lieu thereof At Common-Law no Lands or Tenemers were deviseable by Will but the Acts of 32 34 H. 8. create a power of devising Lands and Tenements in Fee by Will and Tenants at Common-Law might choose whether they would attorn to any Grant of the Lord but now the Lords Grant is good without it by 27 H. 8. cap. 10. Sir Ed. Coke com on Lit. sect 574. says Stat. 32. H. 8. takes away the reason of the Common-Law so that that cannot be a declaration of what it takes away the reason It were tedious
their submission to the Church of Rome But on the contrary when Austin first arrived in England he stayed in the Island of Thanet until he knew the Kings pleasure and offered not to preach in Kent until he had the Kings licence to preach throughout his Dominions c. Neither was there any Appellant from the Conversion of the English he says to Rome until Wilfrid Archbishop of York who notwithstanding pag. 60. that he gained Sentence upon Sentence at Rome in his favor and notwithstanding that the Pope did send express Nuntio's into England on purpose to see the Sentence executed yet could he not obtain his restitution or benefit of his Sentence for six years during the reigns of Egbert and Alfred his son yea Alfred told the Popes Nuntio's expresly That he honored Spelm. concil an 705. them as his Parents for their grave lives and honorable aspects but he could not give any assent to their Legation because it was against reason that a person twice condemned by the whole Council of the English should be restored upon the Popes Letter And after he says That after Alfred and pag. 62. Theodore were both dead Theodore was the Archbishop of York that opposed Wilfrids Donation from the Pope and continued it so long as he lived we find the Sentence of the Pope and Wilfrids Restitution still opposed by the surviving Bishops in Alfreds Sons reign c. Neither were there any Appeals to Rome from that time until after the Conquest in the reign of Henry the First by Anselm Archbishop of Canterbury 8. See Comment Lit. sect 648. pag. 344. where it appears by our All Bishopricks were of the Kings foundation originally and donative books and divers Acts of Parliament that at first all the Bishopricks in England were of the Kings foundation and Donative per traditionem baculi id est the Crosier which was the Pastoral staff annuli the ring whereby he was married to the Church King Henry the First being requested by the Bishop of Rome to make them elective refused it But King John by his Charter bearing date quinto Junii anno decimo septimo When they became eligible and by what power granted that the Bishopricks should be eligible So that all Bishopricks were not only at first of the Kings foundation and Donative but afterwards became eligible from no other cause but the Kings Charter 9. That the sacred character of Priesthood does not free men from The Kings of England before the Couquest did exercise their Regal power over all persons in all cases the subjection due to the Laws of their Prince and Country is not only evident by many examples in Sacred Writ and by almost infinite precepts and examples of Gospel and holy Martyrs in primitive times but also by a concurrent consent of all Histories where Christianity hath been planted And that these powers have been justly exercised by the Kings of England before the Conquest among the many Laws of Ina Withred Alfred Edward Athelstan Edmund Edgar Athelred Canutus and Edward take these of Canutus Si quis sacra tenens pejerasse convictus fuerit ei manus praeciditor ni dimidiatam Lambert Saxon laws lex 33. f. 113. sui capitis astimationem domino atque episcopo dependerit neque vero deinceps qui juret dignus putandus est nisi quidem Deo cumulatè satisfecerit atque ab ejusmodi in posterum nefario scelere abstinendi fidejussores admoverit If any in Holy orders be convict of Perjury let him be branded on the hand unless he shall pay to the King and Bishop half the price of his head Neither shall he afterward be esteemed worthy to take an Oath unless he shall have abundantly satisfied God and shall have given Sureties that afterward he shall abstain from such wickedness Si quis eorum qui arae deservierint alicui mortem obtulerit omni cum divini lex 36. 114. tum humani juris patrocinio excludatur nisi quidem cum exilio cumulatè id sceleris compensarit atque caesi etiam cognatis satisfecerit aut saltem una cum hominibus qui jurent idoneis omnem criminis suspicionem diluerit Hanc vero quae Deo hominibus debetur compensationem intra ter denos idque cum fortunarum suarum omnium discrimine dies aggreditor If any one who serves at the Altar shall kill any man let him be excluded from the protection of Divine and Humane laws unless with his banishment he may abundantly satisfie that wickedness and shall also give satisfaction to the kindred of him who is killed or at least together with sufficient men who shall give Law-gager their oaths shall wash away all suspition of the crime And let him go in hand to make this compensation which is due to God and men within thirty days and that upon the forfeiture of all his fortunes Si eorum qui arae deservierint aliquis hominem occiderit aut insigne aliquod lex 38. ibid. perpetrarit flagitium gradu honore dispoliatus proinde atque ei Papa circumscripserit habitandi locum exulato ac cumulatè compensato Sin is crimen fuerit inficiatus excusatio tripla esto Atque in hanc quae Deo hominibus debetur compensationem intra ter denos aggrediatur dies ab omni legis commoditate destitutus habetor If any one who serves at the Altar shall kill a man or commit any foul offence despoiled of his honor let him be banished the place of his habitation and make abundant satisfaction yea though the Pope make it void But if he deny the crime let his excuse be threefold and if within thirty days he does not endeavor to give this satisfaction which is due to God and man let him be outlawed Si quis sacris inauguratus rei capitalis obnoxius extiterit comprehenditor lex 40. 115. atque ut tandem episcopo criminis admissi poenas dependat asservator If any one in Holy orders be guilty of any capital crime let him be apprehended and fafely kept until he be punished by the Bishop for the crime committed Si quis sacrum ordinem atque vivendi formulam commutarit pro ipsa lex 46. 116. ordinis dignitate sive capitis aestimatione mulcta legis violatae poena sive rebus suis omnibus compensato If any one shall change his holy order and form of living for the dignity of the order or price of the head let him be fined for punishment of the violation of the Law or forfeit all he hath But how far this good Prince was from having any spight to Holy Orders or men separated to the Worship of God and Service at the Holy Altar he does enact Siquis sacris initiatus incoláve in iis quae ad fortunas Law 37. fol. 114. vitamve ejus spectarint decipiatur tum ei rex ni is aliunde habuerit loco Patroni cognatorum esto Fraudator
this Popes Letter but pleaded the Fundamental Laws and Customs of the Land Consuetudo regni mei est à patre meo instituta ut nullius praeter licentiam Regis appelletur Papae qui consuetudines regni mei tollit potestatem quoque coronam Regis violat It is a Custom of my Kingdom instituted by my Father that no man may appeal to the Pope without the Kings licence He that takes away the Customs of my Kingdom doth violate the Power and Crown of the King And these Laws were no other then the Laws of the Confessor viz. the old Saxon Laws but also in the execution of these things the Bishops of England adhered to the King and Laws and denied their suffrage to their Primate as you may read in the Bishop of Derry's Vindication of the Church of England p. 63 64. 14. After pag. 65. he instances out of Sir Hen Spelman conc an 78. Legations as rare as Appeals before the Conquest that Gregory Bishop of Ostium the Popes Legate did confess that he was the first Roman Priest that was sent into these parts of Britain from the time of Austin and that those Legates were no other then ordinary Messengers or Ambassadors sent from one Neighbour to another Such a thing as Legantine Court or a Nuntio's Court was not known in the British world and long after 15. See Speed in the Life of Stephen para 4. where Stephen having The Pope and all the English Hierarchy conspire with Stephen against Maud the undoubted Heir of Henry the first entred his Government in the year of our Lord 1135. the 2. of December and was crowned at Westminster the 26. of the same moneth being S Stephen's day by William Corbel the Archbishop of Canterbury who with the rest of the Bishops doing him homage and knowing now he would yield to any conditions for performance whereof his brother the Bishop of Winchester did there engage himself for a Pledge they all took their Oath of Allegiance conditionally traiterously I might say to obey him as their King so long as he should preserve their Liberties and the vigor of Discipline And that the Lay-Barons made use also of this policy appeareth by Robert Earl of Gloucester who sware to be true Liegeman to the King as long as the King would preserve to him his dignity and keep all covenants c. And having buried the body of Henry the First he went to Oxford where he acknowledged he attained the Crown by Election only and that the Pope Innocentius confirmed the same 16. The next contest which after Anselm happened between the King The second contest between the King and Pope and from what cause and the Pope was caused by Tho. Becket Archbishop of Canterbury For Stephen the Usurper having made a Law whereby the Temporal Judges might not meddle with Ecclesiastical persons Henry the Second upon many disorders committed by the Clergy did repeal this Law and restored the antient Laws of this Realm commonly called Avitae leges whereby the persons of Priests were not exempted from being judged by the Temporal Judges And though the Archbishop sware to observe the Laws restored by the King yet was he absolved by Pope Alexander 3. Nor could the Archbishop ever after be brought to conform to the Laws called Avitae leges which was the cause of his assassination and of great trouble to the King and Realm And whether this man did deserve to be canonized for his stubborn disobedience to the Laws of his Country which no ways concerned Faith but only Civil and Temporal obedience and those not new neither but a restitution of the antient Laws let any man judge 17. The first occasion of the quarrel between King John and Innocent The quarrel between King John and the Pope the Third was Hubert the Archbishop of Canterbury being dead the Monks of S. Augustine in that City elected without any licence of the King one Rainold and took an oath of him to go to Rome and take his investiture from the Pope The King incensed hereat caused John Gray to be chosen and desired the Pope to ratifie this last choice The Pope notwithstanding confirms the former The King hereupon grows angry and divers of the Monks against their own act refuse to accept him The Pope although Rainold were chosen by the Monks and confirmed by the Pope adviseth the Monks to choose Stephen Langton the Monks do so the King is highly exasperated and forbids all Appeals to Rome and did alleadge that he had Bishops Prelates Nobles and Magistrates of his own who could according to the Laws of the Land decide and determine all Controversies which should arise in Church or Commonweal The Pope insisted upon the election of the Cardinal Stephen Langton was Cardinal of Chirsogone and required the King not only to give him the quiet possession of the See but also to recall all such Monks as were exiled and to restore them to their Goods which were seised on by the King for the last choice and for default to interdict him and the whole Realm The King is so far from obeying that he seised upon the Lands and Goods of those Bishops to whom the Pope had forsooth given the power of Interdiction The Pope constant in his resolutions by Pandulphus and Durant interdicts the King and Kingdom and gives it the French King King John driven into a great strait gives his Crown and Kingdom to the Pope he good man had before given it to the French King Philip the second sirnamed Augustus and his son Lewis had gotten such footing in England that he would not be gotten out The Pope interdicts both father and son but his curses took not such place that they would give over what they had gotten by the first grant nor did these troubles end until the English Nation uniting themselves under Henry 3. did by plain force drive Lewis out of England to such an insufferable height was the Papacy grown in those days 18. Although the stubborn Barons made Henry 3. swear to observe The Bishops in H. 2 his reign conspire against him the Ordinances made in the Mad Parliament at Oxford and the Archbishop of Canterbury and nine other Bishops did denounce a Curse against all those who either by direction arms or otherwise should withstand the Ordinance of the Twelve Peers which gave the exercise of all Regality to them yet did the Pope absolve him from it very easily Addit Matth. Paris 990. 19. How zealous the most noble Prince Edward the first was in the Contests between the Pope and Ed. 2. cause of Christianity and how observant of the Papal power is evident by his victorious Voyage into Holy Land But he afterwards became hated by the Churchmen both in respect of the Statute of Mortmain made in the fourth year of his Reign and also because that by the advice of William Marchyan his chiefest Treasurer he seised into his hands the
sing the 50. Psalm for the King and for all that will as he willeth and for all other who deserve well of him If a man accuse another of any crime let him make him recompence unless he did it upon * * 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Procession-days and if he do so afterward let it be as before it was Ecclesiastical Laws made by King Edmund Who began to reign in the Year 940. EDmund the King in the Solemn Feast of Easter gathered to London a great company as well of Ecclesiasticks as of the People There was Oda and Wulstan Archbishops and many other Bishops that they might as well take care for the health of their own souls as for the souls of them committed to their charge Of the Man who hath vowed Chastity Cap. 1 First they who are entred into Religion and who should give Gods people an example of virtue to imitate according to their Order be they Men or Women let them live chaste But if they shall not do it then let the Canon punish them that is let them forfeit all they have in the world and if they mend not their manners not be buried in the Sanctuary Of Tythes and Church-scot Every Christian which shall not pay his Tythes his First-fruits and his Alms let him be accursed Of him who shall defloure a Nun or commit Adultery If a man shall carnally know a Nun let him be as if he had killed a man or be denied Burial in the Sanctuary and let the same Law be to him who commits Adultery Of Re-edifying the Church We will that every Bishop at his own costs shall repair the House of God and also minde the King that all Gods Houses be well adorned which thing is very behooful Of men Perjured and worshiping Heathen Gods They who are Perjured and offer Heathenish sacrifice shall be for ever shut out from things pertaining to God unless they soon repent and mend their manners Ecclesiastical Laws made by King Eadgar Who began to reign in the year of our Lord 959. THe Laws which Eadgar the King in a great Assembly ordained to the glory of God the ornament of himself and the profit of all his Nation First let the Church of God enjoy all its rights and immunities and let every man pay his Tythes to each Church to which he is subject whether it be of Plow-land or Inland of men of free condition or lands of Villains Of Church-tribute If a man of free condition hath a Church upon his freehold which hath a place of Burial belonging to it let him bestow one third part of his Tithes upon the Church but if there be no place of Burial about the Church let the Lord of the ground give to the Priest of the nine parts what he will And let the Church-tribute of every Church be paid out of the lands of all Freemen Of Tithes And let every one pay tithes of young living creatures before Pentecost and the tithes of the fruits of the earth before the * * Sure it is meant the Autumnal Equinox for no tithes can be renewed before the Vernal Equinox and Church-tribute at the feast of S. Martin If any one shall not pay let him incur the punishment expressed in the Doom-book And if any one shall not pay his tithes as we have set down then may the Kings Sheriff and the Bishop and the Mass-priest of the Church meet and take the tenth part due to the Church and return the ninth part back again to him without thanks as to the other eight parts let the Lord have one half the Bishop the other Let this be though he be the Kings man or of free condition Of the Hearth-penny And let the Hearth-penny be paid before the Feast of S. Peter and if it then be not paid let him carry that penny and thirty pence more to Rome and confirm by a certain Certificate in writing that he did detain it and let him pay over and above one hundred and twenty shillings to the King If afterward a man shall not pay it and carry the penny and thirty pence to Rome he shall pay two hundred shillings to the King but if he shall make default the third time he shall forfeit all he hath Of Festival and Fasting-days Let every Sunday be held a Feasting-day from noontide of Saturday until the twilight of Munday he which will not celebrate it let him undergo the penalty in the Judgment-book and other Feast-days shall be bidden and let all Fasting-days be held with all godliness Canons set forth under King Edgar THese things which follow belong to the Constitutions of King Edgar concerning the Manner of Life of Men ordained to Gods service 1. We teach that the Minister of God do zealously serve and minister to God and intercede to God for all Christian people and that every one of them be faithful and obedient to their Superiors and unanimous in common necessity affording help to one another before God and men and that they be firm and faithful to their Secular Lords 2. And we teach that every one give another honor and that the younger do religiously pay love and obedience to the elder and that the elder do diligently instruct the younger 3. And we teach that at every Synod every year be had Books and Vestiments agreeable to the service of God and Ink and Parchment to write their Constitutions and moreover a Three-days assembly 4. And we teach that every Priest coming to the Synod have his Clerk and man fed at his hand or faithful in service and none unknown or given to folly and let them all come together in the faith and love of God almighty 5. We also teach that if any ill happen to a Priest or any one do him wrong it be referred to the Synod and let all take it as offered to them all and bring help that reparation may be made according to the will of the Bishop 6. And we teach that the Priest make known to the Synod if any in his Parish be found contumacious against God or who does nourish any grievous sin and that he is not able or dares not produce him to amendment for fear of the world 7. And we teach that among Priests there be no strifes and wrangling nor let them be deferred to the Secular power but let them be composed among themselves or if need be put off to the Bishop 8. And we teach no Priest whether consecrate at Benedict shall forsake his Church at his own will but have it for his rightful wife 9. We also teach that no Priest meddle with those things which belong to another Priest whether in his Church or Parish or acquaintance or fraternity nor in any other thing belonging to him 10. And we teach that no Priest take away the Scholar of another not having first asked leave of him to whom he belonged 11. And we teach that every Priest diligently learn to increase the learning
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
Tribute or of St. Peter Cap. 20. Who shall deny the peny of St. Peter the peny let him pay by the Justice of the Church and thirty pence forfeiture and if he will be impleaded concerning it by the Justice of the King let him forfeit to the Bishop thirty pence and forty shillings to the King Of Religion and the publick Peace 51. First of all we Ordain above all things That one God be worshipped all over our Kingdom and the one Faith of Christ be always kept inviolate c. The Laws are Translated out of the Original set forth by Mr. Abraham Whelock in his Appendix to the History of Bede from page 150. to 107. Sir Ed. Coke in Caudrys Case cites a quare Impedit 7 Ed. 3. tit 19. where it is agreed that no man can make an appropriation of any Church having cure of souls being a thing Ecclesiastical and to be made by some person Ecclesiastical but he that hath Ecclesiastical Jurisdiction but William the first of himself without any other as King of England made appropriation of Churches with cure to Ecclesiastical persons wherefore it does follow he had Ecclesiastical Jurisdiction Here is nothing but argumentum à facto ad jus and a man may as well infer that Saul Jeroboam and Azariah did offer sacrifice and burn incense and therefore they had Sacerdotal power in them or that King John did give the Crown and received it again from him and therefore the Crown of England is holden of the Pope Ecclesiastical Laws made by Henry the first Who began to Reign in the year of Christ 1100. THese at last are the happy joys of the long wished for peace and liberty Proem by which the glorious Cesar Henry doth shine forth to his whole kingdom in Divine and Secular Laws written Institutes and Exhibitions of good Works Moderate Just Valiant Prudent whom God may make to command with happy auspices and healthful prosperity of body and minde with his famous wife Maud the second and their children for ever and the everlasting peace of this Nation His Epistle to all his Leigmen 1. Henry by the Grace of God King of Englishmen to all Barons and his Leigmen French English health Know that I by Gods mercy and the Common Counsel and consent of the Barons of the Kingdom of England am Crowned King of the Kingdom aforesaid and because the Kingdom was oppressed by unjust exactions I in respect of God and the love which I have towards you all first of all make the Church of God free so that I will neither sell nor let to farm nor after the death of an Archbishop or Bishop or Abbot will take any thing of the Demesns of the Church or her men until the successor be come in c. Of the propriety of Causes Cap. 5. In all Causes Ecclesiastical and Secular legally and in order to be handled some are Accusers some Defenders some are Witnesses some are Judges In every discussion of honesty fitting men are to be joyned together and that without any exaction until the quality of the Causes and the intention of the Accused the manner of Witnesses and election of Judges be weighed with upright scrutiny Let there be no foreign Judgements nor celebrated by their improper Judge in place or time nor in a doubtful case or the party accused being absent the sentence being pronounced notandum that for all if the accused had competent warning and lawful leave of answering and defending he be not denied or impleaded or outlawed or circumvented by some stealth or judged by deceit If he be satisfied in the Witnesses Judges and Persons If he consent to the Judges or hurt or contradict It is not altogether so in Ecclesiastical business as Secular in Secular business after that any is called shall come and begin to plead in the Court it is not lawful to go back before the Cause be determined although they shall agree but in Ecclesiastical business it is lawful to go back in the Cause aforesaid If a man suspect a Judge or think himself oppressed surely Judges ought not to be so nisi quos impetitus Elegerit Neither may any one be heard or give judgement before that they be chosen and he who refuses to consent to the elected let no man communicate with him until he obey but if in judgement there arises dissention among the parties of which a strife comes forth let the sentence of the more prevail It is Enacted in the Cause of Faith or of any Ecclestastical Order he ought to judge who neither takes reward nor is of another Law and will do nothing without an accuser For God and our Lord Jesus Christ did know Judas to be a Thief but because he was not accused therefore he was not rejected and whatsoever he acted among the Apostles for the dignity of his Office remained firm As also Clerks ought not to receive Laiks Accusers so ought not Laicks to receive Clerks to be Accusers of Clerks in their Accusations and Informations and Witnesses ought to be legitimate and present without any infamy or suspition or manifest spot because they cannot rightly accuse Priests who cannot be Priests nor of their Order nor is it needful to Judge a man before he hath had lawful Accusers present and accepts a place of defence to wash out his crimes And it is our pleasure as often as many crimes are objected to Clerks by Accusers and they cannot make good one of the first of which they are accused they shall not be admitted to the rest And a Bishop shall not be condemned unless by seventy two Witnesses nor the Archbishop be judged of any A Presbyter-Cardinal Note the preheminence of a Bishop in England at this time above a Cardinal shall not be condemned unless by forty four Witnesses a Deacon-Cardinal shall not be condemned unless by twenty six Witnesses nor a Sub-Deacon under seven nor let the greater despair for the force of the lesser men and there always the Cause may be Pleaded where the Crime is admitted If a man stricken will he may plead his cause before his Judge and if he will not before his Judge he may hold his peace and as for men stricken as often as they desire respit let it be granted And every man which objects a crime let him write that he will prove it and if before he be changed he will not follow he is convinced no crime is to be accounted But if he will prosecute if he shall not prove what he objects let him undergo the penalty which he brought the Apostle says Against a Presbyter a writing is not to be received without two or three approved witnesses how much more against Bishops if these things be observed of Presbyters and other faithful men If any one will accuse any of the Clerks in an accusation of Fornication according to the precept of St. Paul two or three testimonies are required from him but if he
an Englishman or thus deny it let him take eleven and he be the twelfth c. Of Homicides by men Ordained Cap. 73. If a Bishop kill a man let it be recorded and let him repent twelve years seven years in bread and water and five let him fast three days in a week and on others let him use common sustenance If a Priest kill a man or a Monk let him lose his Order and repent ten years six in bread and water and four let him fast three days in a week on others let him use his meat If a Presbyter wound a man let him fast one hundred day If a Deacon kill a man let him be degraded and repent seven years four in bread and water and three let him fast three days in a week upon other let him use common meat If a Clerk shall kill a man let him repent six years four in bread and water two years three days in the week If a Laick kill a man let him repent five years three in bread and water and two years let him fast three days in the week If a man kill a man in Orders or his neighbor let him depart out of his Countrey and go to Rome and make the Pope and his Councel let him in like maner repent of Adultery or Fornication or lying with a Nun. These Laws are likewise set out by Mr. Abraham Whelock in the Appendix to his History of Bede Sir Ed. Coke Candrys Case says Henry the first did Ordain Anno 16. Regni sui as well in regard of his Ecclesiastical as Regal power that whensoever the Abbot of Reading shall die that all the Possessions do remain entire and free But how this should make any thing for the Kings Ecclesiastical Right in all Cases I do not understand for this Ordinance was onely concerning the Possessions of the Abbey and it is no Question but all the Bishopricks as well as Abbeys were originally of the Kings foundation and it appears by the Margent that the King was the particular Founder of this Abby what then hinders but that the King might dispose of the Revenues as he should think fit without having any Ghostly power in him Ecclesiastical Laws made by Henry the third Magna Charta FIrst we have granted to God and by this our present Chapter have confirmed Cap. 1. for us and our heirs for ever that the Church of England shall be free and shall enjoy all her whole Rights and Liberties inviolable Reserves to all Archbishops Bishops Abbots Priors Templars Hospitalers Cap. 38. According to Sir Edward Coke Inst 2. yet the Statute-book in large divides this Act but into thirty seven Chapters and all persons Ecclesiastical all their free Liberties which they have had in time passed and all these Customs and Liberties aforesaid which we have granted to be holden within this Realm as much as appertains to us and our heirs we shall observe And all men as well Spiritual as Temporal as much as in them is shall observe the fame against all persons likewise And for this our Gift and Grant of these Liberties and of other contained in our Charter of Liberties of our Forest Archbishops Bishops Abbots Priors Earls Barons Knights Freeholders and other our Subjects have given to us the fifteenth part of their moveables and we have granted to them on the other part that neither we nor our heirs shall procure or do any thing whereby the Liberty in this Charter contained shall be infringed or broken And if any thing be procured by any person contrary to the premisses it shall be of no force nor effect In the Reign of Hen. 3. Cawdries Case 3 H. 3. tit Proh 13. 4 H. 3. c. In all the time of Henry 3. and his Progenitors Kings of England and ever since if any man did sue afore any Judge Ecclesiastical within the Realm for any thing whereof that Court by allowance and custom had not any lawful cognisance the King did ever by his Writ under the Great Seal prohibit them to proceed Answ It is true indeed that not only Probate of Testaments but Cognisance of Tythes Granting of Letters of Administration Mortuaries Pensions Reparation of Churches do not belong to Ecclesiastical cognisance by any Divine positive institution but by allowance and custom of England And if all Customs suppose some Grant originally from Supreme humane Powers then what hinders but that the King might prohibit any Judge Ecclesiastical within the Realm for any thing whereof that Court by allowance and custom had not lawful conusance for Cujus est velle ejus est nolle And if the suggestion made to the Plea King whereupon the Prohibition was grounded were after found untrue then the King by his Writ of Consultation under the Great Seal did allow and permit them to proceed Also in all the Reign of H. 3. and his Progenitors Kings of England if any Issue were joyned upon Loyalty of Marriage General Bastardy or such like the King did ever write to the Bishop of the Diocese as Mediate Officer and Minister of his Court to certifie the Loyalty of the Marriage Bastardy or such like All which prove that those Courts were under the Kings jurisdiction and commandment It is true that not only all Courts and planting of Christianity were originally by the Kings command or permission but the persons of all men within the Realm are in his power And Marriage and Bastardy being so essential and whereupon the strength of mens estates and inheritances do depend what hinders the King to write to the Bishop to certifie the Loyalty of the Marriage And if it pleases him to do it as his mediate officer who shall contradict is Well let it be granted the Kings of England in cases of Bastardy and Loyal Matrimony have written to the Bishop of the Diocese as his mediate officer yet it will not follow that the Bishop is the Kings mediate officer in all things and cases which relate to his Episcopal function and jurisdiction Ecclesiastical Laws made by Edward the First THe King willeth that the peace of the holy Church be maintained in Stat. West an 3. Ed. 1. 1275. all points and that Religious Houses shall not be overcharged nor any Purveyance be made of any Prelate without the owners consent They who shall offend and be thereof attainted shall be committed to the Kings prison and after shall make fine and be punished according to the quantity and manner of the trespass and after as the King in his Court shall think fit c. It is provided also That when any Clerk is taken for guilty of felony Cap. 1. and is demanded by the Ordinary he shall be delivered to him according to the priviledge of the holy Church on such peril as belongeth to it after the custom aforetimes used And the King admonisheth the Prelates and enjoineth them upon the faith that they ow to him and for the common profit and
peace of the Realm that they which be indicted of such offences by solemn Inquest of lawful men in the Kings Court in no manner shall be delivered without due purgation so that the King shall not need to proide any other remedy therein The Statute of Circumspectè agatis made 13 Ed. 1. 1285. Certain Cases wherein the Kings Prohibition doth not lie Cap. 1. The King to his Judges sendeth greeting Use your selves circumspectly in all matters concerning the Bishop of Norwich and his Clergy not punishing them if they hold plea in Court Christian of such things as be meerly Spiritual that is to wit of Penance injoined by Prelates for deadly sin of Fornication Avowtry and such like for the which sometimes corporal penance and sometime pecuniary is enjoined specially if a Freeman be convict of such things As also Prelates do punish for leaving the Church-yard unclosed or for that the Church is uncovered or not conveniently decked in which cases none other penance can be enjoined but pecuniary Item If a Parson demand of his Parishioners Oblations or Tithes due and accustomed or if any Parson do sue against another Parson for Tithes greater or smaller so that the fourth part of the value of the benefits be not demanded Item If a Parson demand Mortuaries in places where a Mortuary hath been used to be given Item If a Prelate of a Church or a Patron demand of a Parson a Pension due to him All such demands are to be made in a Spiritual Court And for laying violent hands on a Clerk and in case of Defamation it hath been granted already that it shall be tryed in a Spiritual Court when money is not demanded but a thing done for punishment of sin and likewise for the breaking of an Oath In all cases afore-rehearsed the Spiritual Judge shall have power to take knowledge notwithstanding the Kings Prohibition Statutum de asportatis Religiosorum made Anno 35. Ed. 1. 1307. Cap. 1 Of late it came to the knowledge of our Lord the King by the grievous complaint of the Honorable persons Lords and other Noblemen of his Realm That whereas Monasteries Priories and other Religious Houses were founded to the honor and glory of God and the advancement of the Holy Church by the King and his Progenitors and by the said Noblemen and their Ancestors and a very great portion of Lands and Tenements have been given by them to the said Monasteries Priories and Houses and the Religious men serving God in them to the intent that Clerks and Laymen might be admitted in such Monasteries Priories and Religious Houses according to their sufficient ability and that sick and feeble men might be maintained Hospitality Alms-giving and other charitable deeds might be done and that in them prayers might be said for the souls of the said Founders and their heirs The Abbots Priors and Governors of the said Houses and certain Aliens their Superiors as the Abbots and Priors of Cistercienses and Promonstratenses and of the Order of S. Augustine and S. Benedict and many more of other Religion and Order have at their own pleasures set divers insupportable tallages payments and impositions uyon every of the said Monasteries and Houses in subjection unto them in England Ireland Scotland and Wales without the privity of our Lord the King and his Nobility contrary to the laws and customs of the said Realm and thereby the number of the said Religious persons and other servants in the said Houses and Religious places being oppressed by such tallages payments and impositions the service of God is diminished Alms be not given to the poor the sick and feeble the healths of the living and the souls of the dead be miserably defrauded Hospitality almsgiving and other godly deeds do cease And so that which in times past was charitably given to godly uses and to the increase of the service of God is now converted to an evil end by permission whereof there grows great scandal to the people and infinite losses and disheritances are like to ensue to the Founders of the said Houses and their Heirs unless speedy and sufficient remedy be provided to redress so many and grievous detriments Wherefore our Lord the King considering that it would be very prejudicial to him and his people if he should any longer suffer so great losses and injuries to be winked at And therefore being willing to maintain and defend the Monasteries Priories and other Religious houses erected in his Kingdom and in all Lands subject to his dominion and from henceforth to provide sufficient remedy to reform such oppressions as he is bound By the counsel of his Earls Barons Great men and other Nobles of his Kingdom in his Parliament holden at Westminster in the 35. year of his reign hath ordained and enacted Religious persons shall send nothing to their Superiors beyond the Sea Cap. 2 That no Abbot Prior Master Warden or any other Religious person of whatsoever condition state or religion he be being under the Kings power or jurisdiction shall by himself or by merchants or others secretly or openly by any device or means carry or send or by any other means cause to be sent any Tax imposed by the Abbots Priors Masters or Wardens of Religious houses their Superiors or assessed amongst themselves out of the kingdom and his dominion under the name of a rent tallage or any kind of imposition or otherwise by way of exchange mutual sale or other contract however it may be termed Neither shall depart into any other country for visitation or upon any other colour by that means to carry the goods of their Monasteries and Houses out of the Kingdom and Dominion aforesaid And if any will presume to offend this present Statute he shall be grievously punished according to the quality of his offence and according to his contempt of the Kings prohibition No Impositions shall be taxed by Priors Aliens Moreover our Lord the King doth inhibit all and singular Abbots Priors Masters and Governors of Religious houses and places being Aliens to whose authority subjection and obedience the Houses of the same Orders in his kingdom and domion be subject that they do not at any time hereafter impose or by any means assess any tallages payments charges or other burdens whatsoever upon the Monasseries Priories or other Religious houses in subjection to them as is aforesaid and that upon pain of all they have or may forfeit By whom the Common Seal of an Abbey shall be kept and how used And further our Lord the King hath ordained and established that the Abbots of the Orders of Cisterciensis and Promonstratensis and other Religious Orders whose Seal hath heretofore been used to remain only in the custody of the Abbot and not of the Covent shall hereafter have a Common Seal and that shall remain in the custody of the Prior of the Monastery or House and four of the most worthy and discreet men of the Covent of the same House to
Item Whereas Commissions be newly made to divers Justices that 6. they shall make enquiries upon Judges of the holy Church whether they made just proces or excessive in Causes Testimentary or other which notoriously pertaineth to the cognizance of holy Church the said Justices have enquired and caused to be Indicted Judges of the holy Church in blemishing of the Franchise of the holy Church That such Commissions be repealed and from henceforth defended saving the Article in Eyre such as ought to be No Scire facias shall be awarded against a Clerk for Tythes Item Whereas Writs of Scire facias have been granted to warn Prelates 7. Religious and other Clerks to answer Dismes in our Chancery and to shew if they have any thing or can any thing say wherefore such Dismes ought not to be restored to the said Demandants and to answer as well to us as to the party to such Dismes That such Writs from henceforth be not granted and that the proces hanging upon such Writs be annulled and repealed and that the parties be dismissed from the Secular Judges of such manner of Pleas saving to us our right such as we and our ancestors have had and were wont to have of reason In witness whereof at the request of the said Prelates to these present Letters we have set our Seal Dated at London this 8th of July the year of our Reign of England 18. of France the 5th In the Reign of Ed. 3. 16 Ed. 3. tit Excom 4. An Excommunication by the Archbishop albeit it be disannulled by the Pope or his Legats is to be allowed neither ought the Judges to give any allowance of any such sentence of the Pope or his Legat. It is often resolved that all the Bishopricks within England were founded In the Reign of Ed. 3. by the Kings Progenitors and therefore the Advousons of them all belong to the King and at first they were Donative and if that any incumbent of any Church with cure die if the Patron present not within six moneths the Bishop of that Dioces ought to collate to the end the Cure may not be destitute of a Pastor if he be negligent by the space of six moneths the Metropolitan of that Dioces shall confer one to that Church and if he also leave the Church destitute by the space of six moneths then the common Law gives to the King as Supream within his own Kingdom and not to the Bishop of Rome power to provide a competent Pastor for that Church The King may not onely exempt any Ecclesiastical person from the Jurisdiction 17 Ed. 3. 23. of the Ordinary but may grant him Episcopal Jurisdiction And thus it appears there the King had done of antient time to the Arch-Deacon of Richmond This resolution is not grounded upon any Custom or Law but onely upon a particular fact of a King à facto ad jus non valet argumentum All Religious or Ecclesiastical Houses whereof the King was Founder are by the King exempt from Ordinary Jurisdiction and onely visitable and 20 E. 3. Excom 9. 19. Ed. 3. corrigible by the Kings Ecclesiastical Commission This resolution too is onely grounded upon matter of Fact and what man will warrant all the Facts of Kings not to be repugnant to the Laws of God and man Yet shall not these men in other things of much less moment allow the Kings Proclamations to be Legal nor any thing less then the Commons Law or Acts of Parliament The Abbot of Bury was exempted from Episcopal jurisdiction by the Kings Charter This is nothing neither but matter of Fact 20 Ed. 3. tit Excom 6. The King presenteth to a Benefice and his presentee was disturbed by one who had obtained Bulls from Rome for which offence he was condemned 21 Ed. 3. 40. fol. 40. to perpetual imprisonment c. Tythes arising out of any parish the King shall have for that he having the Supream Ecclesiastical jurisdiction is bound to provide a sufficient Pastor 22 Ed. 3. l. 1. Ass pl. 75. that shall have the cure of souls of that place which is not within any parish And by the common Laws of England it is evident that no man unless he be Ecclesiastical or have Ecclesiastical jurisdiction can have inheritance of Tithes The King shall present to his free chappels in default of the Dean by 27 Ed. 3. fol. 84. lapsin respect of his supream Ecclesiastical jurisdiction And Fitz Herbert saith that the King in that case does present by laps as Ordinary Fitz nat Br. 34. Au Excommunication under the Popes Bull is of no force to disable any man within England and no suit for any cause though spiritually rising in 30 Ed. 3. lib. Ass pl. 19 c. this Realm ought to be determined in the court of Rome In an Attachment upon a Prohibition the Popes Bull of Excommunication of the plaintiff was adjudged insufficient 21 Ed. 3. tit Excom 6. 33 Ed. 3. tit Agel de Roy. 38 Ass pl. 20. Reges sacro Oleo uncti sunt Spiritualis jurisdictionis capaces A Prior which is the Kings Debtor and ought to have Tithes of another spiritual person may chuse either to sue for substraction of his Tithes in the Ecclesiastical court or in the Exchequer Fitz Herbert in his N. B. fol. 30. holceth that before the St. 18 Ed. 3. Cap. 7. the right of Tithes were determinable at the temporal courts at the election of the party And the courts of divers Manors of the Kings and other Lords in antient times had the probate of last Wills and Testaments and it appeareth by 11 H. 7. fol. 12. That the probate of Wills and Testaments did not appertain to the Ecclesiastical courts but that of late time they were determinable there The King by his Charter did translate Canons secular into regular and 38 Lib. Ass pl. 22. 46 Ed. 3. Proem 6. religious persons Nicholas Moris elected Abbot of Waltham which was exempt from ordinary Jurisdiction sent to Rome to be confirmed by the Pope who not having regard to the said Election gave to the said Nicholas the said Abby with all the said Spiritualities and Temporalities the Bull was adjudged against the Laws of England and the Abbot for obtaining the same was fallen into the Kings mercy whereupon all his Possessions were seised into the Kings hands Where the Abbot of Westminster had a Prior and Covent who were Regular 49 Ed. 3. lib. ass pl. 8. and mort in Law yet the King by his Charter did divide that Corporation and made the Prior and Covent a distinct and capable body to sue and be sued by themselves It was Enacted by the whole Parliament That as well they who obtained St. de 25 Ed. 3. de Provisoribus provisions from Rome as they that put them in execution should be out of the Kings Protection and that a man might do with them as enemies to the King c.
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
a rational Ground is necessary to humane Action Observ WHat our Author means by Rationality I do not understand nor I beleeve he neither for reason must presuppose something before any mans Reason can operate and this thing granted must be superior to Reason and the Reason of the Inference Conclusion or discourse Author And page 180. our Author saies God has no irrational or dead title over his Creatures Observ True but though God has no irrational title over his Creatures yet cannot God have a rational or derived title over his Creatures For if it be rational or derived then would I know from whom is it derived If it be absolute and underived then how can it be rational or what can be the reason of it Author Well but our Author saies As he has none in himself so likewise has he not given any to those he hath put in Authority Observ And I say that if Authority be originally in God from whence it must be derived then cannot it be an artificial or invented thing by our Author or any body else And indeed I must confess to our Author that I can never hope for a rational belief of ever understanding any one Proposition in this Third Ground nor tell how to deduce one Proposition from it I shall therefore observe nothing more upon it then that this whole Chapter is a general Canting The Fourth GROUND Of the vertue of Obedience and wherein it consists Author OUt of this we may easily understand what Nature intends by the vertue of Obedience If any ingenuous man understands one Proposition out of it I will submit and what are the limits and laws of it For it is plain that the immediate end is that our works and all that concern us may be well done even to those things wherein our selves have no skill or not enough and the more remote end to be atchieved by this is that our life may be good and happy and the end of nature arrived at by us Observ Wisely spoke Lucullus It were worth an enquiring whether this be a definition notion or proposition But whether it be sence or nonsence our Author saies it is easie to be understood not what Obedience is but what the Laws and limits of it are And then takes leave both of the Laws and limits of it and saies it is plain that the immediate end is that our works all that concerns us may be well done even to those things wherein our selves have no skill or not enough and the more remote end to be atcheived by this is that our life may be good and happy and the end of Nature arived at by us So here are three ends and all plain viz. the Immediate end the more Remote end and the end of Nature but where the easie to-be-understood Laws and limits of Obedience are or which of the three ends is the plain and immediate end of it and yet we our selves to have no skill in those things it concerns is sure an easie to be understood plain and immediate end only to our Author and no rational or intellectual creature beside What would our Author have I cannot tell Now because aswell in Theologie as in Geometry Physick Philosophy and in all Arts and Sciences whatsoever there must be quaedam postulata some Axiomes and Principles given which must be so plain and perspicuous that no exception can be taken against them and these Aristotle calls Indemonstrable Propositions for if there be any so much as equivocation in any of them the Conclusions and Inferences from them must be infinitely more uncertain And because that Definitio est exclusio aequivoci before we proceed let us define what obedience is Obedience then is the conformation of ones will to the rules precepts of his superior As when a Creature conforms his will to the rules and precepts of God or when a subject conforms his will to the Law of his Soveraign or when a Son conformes his will to his Fathers Commands This is Obedience and he that does not obey sins Author Well our Author goes on and tells us The Conditions are three First That the matter of the action be such as our selves are not sufficiently skilful in and yet Ground first he says The perfection of Government is to make the obeyer understand Secondly That our Commander be a Master in that Art Observ Now how can I tell whether my Commander be skilful in what I do not understand Object Why he tells you in the precedent Ground That I must trust my Lawyer and my Physitian though I be neither Answ True but I am not bound to this Lawyer or that Physitian but in case of subjection I am bound only to my Prince Nor do I sin if I follow not the advice of either which I do in not obeying my Superior Author Thirdly That he be an Honorable person in whom we deal Observ Our Author no doubt is a wise Fellow and likely hopes that he or his Patron may be this Honorable person when this Fustian shall be acted Now here let any man see if any thing may be collected out of this mystical nonsense or what follows hereon in the two next subsequent pages whether our Author does not make Obedience to consist on the Obligors part in conformity to a delegate and subordinate power of their own making As if I give my Servant power to receive my Rents or my Bailiff power to oversee and order my grounds which my Servant and Bailiff do that then I obey my Servant and Bailiff Well therefore may our Author say that it is a fallacious principle to maintain Obedience to be a principal vertue Pag. 22. since he understands no better Why then I will tell our Author that at worst 't is better then the Sacrifice of Fools and therefore better then any thing he can say or do without it But how mean a thing soever he makes Obedience here yet he rarely keeps long in a mind to any thing for pag. 98. he says We know by consequence Ground 12. how excellent a vertue this act of Obedience is having a motive of so great a price and high elevation above other ordinary employments which reach no farther then to his private good And then most senselesly he confounds the offices of Command and Obedience and as absurdly prefers the obedience of the Commander because it is not commanded or limited before the idiotical good of the Subject observing the same method in Obedience as he does in his Laws sometimes they are the Peoples Laws which restrain their Supreme Trustee or Governor otherwhile they are the Trustees Laws who may with our Authors licence at other times do what he list Such plain certain and easie to be understood things are our Authors Laws and Obedience Observ But oh our Authors Will is such a thing as you know who rage and are most confident that by no means he will part with it 'T is all a
seen that the Turkish Muscovitical and other whatsoever Governments setled upon this principle That the goods and lives of the Subjects are the Princes not to defend as our Laws go but to dispose at will c. neither do nor can breed any obligation of Obedience in the Subject more then of Fear and present Utility Observ It seems then neither Fear nor Utility may be expected from our Authors Laws with which his absolute Trustee is impowered And what other means besides the law of God which commands us to be subject to the higher Powers Rom. 13. and S. Peter 1 Ep. cap. 2. 13. To submit our selves to every ordinance of man for the Lords sake whether to the King as supreme c. can any Governor propound to his Subjects for their conformity to his Laws but utility and reward for their obedience and fear of punishment for their disobedience And here our Author calls them Tyrannical c. What 's the matter Have they too much power They have no more then God hath given them and in having less they should soon actually have none at all and Aristocraties and Democraties assume as much Do they eat too good meat or wear too good clothes Why sure Nature intended that the best things should be used and who better use them then the King What are many of their Subjects poor and miserable 'T is not their fault 't is the curse of God upon the ground for Adams sin in not giving up his will to Gods command that in sorrow man should eat of it all the days of his life Gen. 3. 17. And if any of these Tyrannical Governors as our Author calls them should divest themselves of all their power and greatness yet there would not be fewer poor laboring men And let our Author shew me in any of these Goverments half so many Slaves and miserable men as I will shew him have been under the Romans and other popular States Nor need any man in any of these be a Slave if he will become Renegado to his Faith and Religion whereas under the Romans c. they were necessitated to it at the will of their Lords Will they if they fear the power of any man to grow too great use means not fully warrantable in the known Laws either to make it less or none at all why the Portian Law prescribed only banishment to the Citizens of Rome in any offence yet Cethegus Lentulus Longinus c. were put to death for being agents in Catilines Conspiracie The Athenians would by their Ostracism banish any man that they but suspected would grow too great Will they make unjust war without any cause given why the Romans undertook the protection of the Mamertines Livy lib. 16. a company of * Sir Walter Raleigh book 5. ch 3. Hellhounds who had murdered their Hosts the Messanians and took possession of Messana against the Carthaginians which was the ground of the first Punick war And when Greece was divided amongst Athenians Lacedemonians Arcadians Corinthians Achaeans c. when was there any faith or troth among them but the weaker still bandying against the stronger till they were all brought in subjection to Philip the father of Alexander Will they put men to death upon no sufficient proof of crime against them why what proof of suspicion of crime was there against the most excellent and divine Philosopher Socrates or against the victorious Athenian Captains at the battel of Arginusae Will they not reward their good Servants and Captains what reward had Camillus Coriolanus both the Scipio's African and Asiatick See Dio Siculus Bib lib 13. Where the Syracusans before Dionysius his time made it their pastime to reward the vertue of their worthiest Commanders with death or banishment And Nicias lost the whole Athenian Army in Sicily consisting of above forty thousand men for fear if he had preserved them he should have been proscribed or put to death by the Athenians Thucid. lib. 7. Themistocles Alcibiades Hermocrates the noble Syracusan Dion c. Will they take severe revenge upon their enemies although it may be they had no just occasion given The poor Melaeans who were content not to have medled in the wars between the Athenians and Lacedemonians and no occasion of war against them but the will of the Athenians after they were forced to yield up their City at discretion were all of military age slain the women and children made slaves and Melos made a Colony to Five hundred of these cursed Demagogues as you may see at the end of the 5. book of Thucidides And see Plutarch in the Life of Sylla what came upon the Athenians who first called the Romans into Greece when Sylla took Athens Will they take severe revenge where as our Authors calls it the obeyer does not understand that it is his own profit which the action aims at that is to say when the Subject will not obey Let him see the fate of the Capuans in Livy lib. 26. and of the Mytileneans and Scionians in the 3. and 5. book of Thucidides What do they not govern their Subjects in peace Where was there ever any such dissention and confusion as in Democratical and Aristocratical States And the Grecians have seen less war and disquiet two hundred years together under the Turk then ever they saw in three years when it was divided into so many Aristocraties and Democraties But our Author will not endure that the Subject should be protected in his life and estate by the Law of these Tyrannical Governors Why what greater obligation of obedience can there be to Government on the Subjects part then that he is thence protected in his life and from thence holds whatsoever may be called his And since there never was nor can be a fourth species of Government how much better is it for a Subject to obey one Individual Prince then by an imaginary liberty to make his obedience to many for Quantae molis erit dominis servire duobus Author Well but let us compare one of these Tyrannical Governors with our Authors Absolute Governor For though our Authors Absolute Governor be a Mungrel extracted from equivocal generation and such a Beast as Nature never intended and Ground 8. tied up to certain Laws and Limits of the People yet for all that our Author can have a course too with his Lycisce though tied up in a line But then it must be agreed between our Author and his Lycisce that they say it be for the good of the People and then Ground 11. they are his Laws alack the while what is become of the Peoples Laws c. And Gr. 13. p. 101. The lawfulness of a Soveraign Commander is no other then that he truly thinketh to be for the good of the Commonwealth Observ So now Casting of Dollars and Coining of Dollars is all the difference between our Authors Trustee and one of these Tyrannical Governors the same thing differently called by the Author
The Tenth GROUND Why a Man is to hazard himself for the Common good INdeed herein for ought I know may be much Treasure and Learning and there let it be for I never intend to look into it The Twelfth GROUND Who is such a Governor and the Subjects Duty towards him Author WE have long talked of a Supreme Governor it is time we should point him out that he may be known And since all agree that there are three sorts of Government Monarchy Aristocracy and Democracy when they are simple there can be no doubt who is the Supreme Magistrate Now mingled they may be either continually as when all parts mixed are so often engaged that their Authorities run joyntly or else some are continual others but at certain terms Observ Our Author has talked long indeed and to very little purpose of his Supreme Governor and now he thinks it high time to point him out that he may be known and he thinks he has already so sufficiently described him that any Ingenious Rational Man may easily discern him and so takes leave of him and tells us All agree there are three sorts of Government Monarchy Aristocracy and Democracy and that they may be mixed May they so Then sure they may be more then three viz. Monarchy Aristocracy and Democracy Monarchy mixed with Aristocracy Monarchy mixed with Democracy and Monarchy mixed both with Aristocracy and Democracy Aristocracy mixed with Monarchy Aristocracy mixed with Democracy and Aristocracy mixed with both and so Democracy mixed with Monarchy Aristocracy and both So that either these three sorts of Government will admit of no mixture or else there may be above three sorts of Government Author The next stumble for steps our Author makes none is What Monarchy is if it be mixed but if it be mixed how can it be Monarchy for Regia Majestas est indivisibilis with Aristocracy or Democracy so that they be continually joynt Actors the Monarch is but a Servant and the other part the Master Observ Could any Man give a name to this Government it must be either Aristomonarchy or Demo-monarchy in plain English the chief Government of one Man alone or the People-Government of one alone but this is our Author saies but only when they are joint Actors and then the Monarch is but a servant Did ever any Man talk so senselesly as if he understood neither words nor meaning for Monarchy is the Government of one Person alone which is impossible if it be subservient to the Government of any Court or People unless our Author can make a Court or People not consisting of Men. Nor is the Instants he gives of the Italian Dogs and Lacedemonian Kings any thing to the purpose for who in the World ever heard of the Monarch of Venice Genoa or Lacedemon It is true indeed that Euristhenes and his Brother Procles the Sons of Aristodemus Grandchildren of Cleodaeus Great Grandchildren of Hyllus Adnepotes of Hercules were the first two Kings of Lacedemon Anno mundi 2848. and out of their two Families called the Eurypontidan and Agidan the Kings of Lacedemon did joyntly reign until that about the year of the world 3777. Eurydamadas was the last of the Eurypontidan family descended from Procles and almost at the same time Cleomines the last of the Agidan family descended from Eurysthenes was overcome by Antigonus King of Macedon Yet could not this Government be properly called Monarchy but Duarchy Author Nor less childish is his mixture of Aristocracy and Democracy for these will as little admit of mixture as any other But see what a wise observation he makes viz. The quarrel to be more ballanced because the Government is divided in its self and therefore dangerous Observ So then the mixture of Monarchy with either or both the other Governments makes no division or to what purpose does our Author take notice of this dangerous mixture only in these two and then our Author makes no doubt but if Aristocracy gets power enough she is in posture of Supreme Authority Very wittily observed and a very great doubt wisely resolved Author Monarchy and Democracy can hardly be so mixed that Democracy be perpetual and Monarchy by spurts for that is not Monarchy the said Monarch being not long enough in Power to be accounted a setled Magistrate as we see in the Decemvirs Tribunes and Dictators among the Romans Observ So then here is Monarchy mixed with Democracy and not mixed and why not mixed because forsooth it is by spurts and not long enough to be accounted a setled Magistrate no how long then settles a Magistrate our Author no where saies but if he had learned a very little Logick he might have known that majus minus non variant speciem and a Magistrate of an hours settlement is as much a Magistrate as if he had been one never so long And then see the wild instance of the Man for although in the Roman Dictators there were some shadow of Monarchy yet in the Tribunes being two and the Decemvirs being ten there could be no possible colour thereof unless our Author by his Logick can make two Men and ten Men to be but one Man alone But stultum est stolidas opiniones accuratius refellere I will referr my self to the censure of any Ingenuous and Judicious Reader that has patience to read any one Ground in this whole book if there be more sence or reason in it then in this and the foregoing Grounds of this Mans Obedience and Government The Thirteenth GROUND Of the Qualities of Laws and Commands in respect to Obedience HE that can find any good in this Ground of our Authors let him take it for me I will not hinder him The Fourteenth GROUND In what conditions the Subject may resist Government Observ WE left our Author Ground 7 wondring at a Jack-a-Lent of his own making and here we find him throwing stones at it to beat it down again as who indeed may so well marre it as he that made it But why does our Author say the Subject may resist for resistance is usually taken in an ill sence as when the subordinate resists his superior Why if his absolute Governor has no power but what those Laws which the People as he calls them gave him if he does transgress the People might remand him to his Duty and if he does not obey he resists the People Author Then our Author saies It is evident if it be rational to resist Government it will be lawful also to break and remove it Observ So that now all the fat is in the fire all that our prudent Architector has been all this while a building is blown away with this small wind It may be a question hereafter where our Author shall next fetch his fire now his Ignis fatuus is out Plut. in the life of Themistocles recites That Themistocles making himself merry with his Sons insolent usage of his Mother and his Mothers like usage of his
will run upon Scylla shall split himself against Charybdis and he makes jus to be the same thing with libertas and Cap. 1. art 7. the foundation of juris naturalis to be that every Man as much as he can may defend his life and members And Natura dedit unicuique jus in omnia Grotius Art 10. Lib. 2. cap. 2. Para. 2. saies Erant omnia communia indivisa omnibus veluti unum cunctis patrimonium Which is all one and the same thing differently expressed Thus far these Wits jump we shall see them far enough asunder by and by But Mr. Hobbs no where tells us when this Jus Naturale was in the world sure it was when Apes could speak and Owls sing They both agree too that this was a time when there was no Government or subordination of Men nor Women for ought I can find under one another before Men had made Government by giving up their will to any Man or Court Mr. Hobbs calls this time Status merè naturalis Grotius Status Cap. 1. art 10. Lib. 2. cap. 2. Part. 2. qui durare non potuit A little before he says Quod quisque arripuerat id ei eripere alter nisi per injuriam non poterat Mr. Hobbs says It was not at all Cap. 1. art 10. profitable to Men that they had such a common Right in all things for the effect of that Right is almost the same as if there had been no Right at all For although a Man might say of every thing This is mine yet he could not enjoy it because of his Neighbour who with equal right and force here the Wits begin to disagree might pretend the same thing to be his Nay Mr. Hobbs goes further and is so far from supposing it an injury to take any thing from any Man in the state of pure Nature that he makes this state hostile and Art 2. Art 3. Cap. 3. art 4. that Men may kill one another and yet do them no injury And the reason he gives for it is That injury is done only to him with whom we have made a Contract otherwise it is only damage any Man can do to another Observ Here we see these Wits plainly to differ next bout we shall see them removed as far as Gades is from Ganges Grotius defines a Li. 1. cap. 1. para 10. Jus naturale to be Dictatum rectae rationis à Deo ipso immutabile Mr. Hobbs b Cap. 2. art 1. defines Legem naturalem non esse consensum hominum sed dictamen rectae rationis And c Cap. 3. art 3. Leges naturae sunt immutabiles The Laws of Nature are immutable and d Art 31. the same with the Moral Law Here Men begin to speak and the Apes to hold their peace But Mr. Hobbs e Cap. 14. art 3. makes Jus not only different but also contrary to Lex And therefore Mr. Hobbs his Lex naturae is contrary to Grotius his Jus naturae and both immutable And now would I fain see some wiser man then either of these reconcile these two Wits It is a miserable condition Grotius makes all Governors to be in that they cannot make any Law which gives Property to any of the governed nor indeed for ought I can see can there be any Government by this mans grounds for he confounds the relations but that this Law must be against that Right which God conferred upon Mankind generally after the Creation and Flood and is so unalterable that it cannot be changed no not by God himself Let us see whether our Author can reconcile these two but for my part I much fear him because I do not take him to be so great a Master of Reason nor so Book-learned as either of the other two He in Ground 6. makes Jus or Justum Right or Due to be when a man puts himself and his Promissary into a rank of agencie and patiencie upon a new score And supposeth in the next Ground a Company of Men without Government whom forsooth he calls a Rational Multitude but most absurdly not considering where there is no Government there can be no Law and where there is no Law there can be no Property no meum or tuum he makes the Individuals of this Rational Multitude to abound with many goods and to want others the love of which and the fear of losing them are his chief reasons why Government is necessary Observ But it may be the reason why these men agree no better here is because they are in the dark where there is no Government Well we will see how they agree when they have the light of Government And first Whether may the Subject resist Authority or Government We will begin with our Author because we left before with him Our Author tells us Ground 14. In what cases it is rational not only to resist but also to depose Government What those cases are I cannot tell He that has nothing to do may look and see But his last Grounds are Neither Lawyers nor Divines are Judges in those cases So then it seems only the Devil our Author and they who be less book-learned then himself are He tells us wherein the Liberty of the Subject consists He ties up his Ground 15. Ground 8. Ground 11 12. Supreme Trustee to such Laws as the People entrust him withall and yet gives him leave to do whatsoever he thinks good Observ The Governor and Governed are here in a very sweet and secure harmony but no doubt our Author will judge both the one and the other very righteously and uprightly Grotius de bello subditorum in superiores states the question In the five Lib. 1. cap. 4. para 1. next Paragraphs seems to be in the Negative but in the seventh Paragraph he makes it a weighty question Where there is Supreme Necessity For Certain laws of God says he although they be generally pronounced have a tacite exception of highest necessity Which thing was defined concerning the law of the Sabbath by the Wise men in the times of the Hasamonaeans from whence came that proverb Periculum animae impellit Sabbatum which may be understood The danger of the soul necessitateth a Sabbath or the danger of the soul destroys the Sabbath Observ Grotius here is for the destruction or he is like to have small relief from this proverb And Judas as Synesius says gives this reason of his neglect of the Sabbath Grotius 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 We were brought into most certain danger of our lives Which exception is proved by Christ himself as also in the other law of not eating the Shewbread Observ And yet all this in this case will afford Grotius but small relief For sins are twofold either as they are omitted or committed Gods commands are omitted or transgressed either as they refer to God individually or where they are omitted or transgressed to the wrong or injury
Hypocrites to whom alwaies our Saviour pronounceth woes We find but small consort yet between these three Our Author makes it Rational for Subjects to resist and depose Grotius seems not to think so both by the precepts of God and the practice of the Primitive Christians unless a King goes about to destroy all his Subjects Yet too he saies Gods precepts many of them though generally pronounced have a tacite exception in case of highest necessity Observ But how shall I know whether in this and therefore it is much better to obey then venture to break Gods positive command But Mr. Hobbs makes a subjection of Body and Souls absolutely where God reigns not by Covenant and there too by distinguishing between things necessary and not necessary to Salvation Since there is so much contest about the power of the People let us see what these three understand by the People Mr. Hobbs understands by Annot. art 1. cap. 6. the People the Civitas which commands wills and does by the Will of one Man or by the agreeing Wills of more Men which otherwise cannot be done in an Assembly Grotius no where that I know of defines what he means by People But our Author in the seventh Ground when there is no Government makes them a Rational Multitude and when they have made themselves a Government then forsooth to be a People Salus populi suprema lex is when the safety of the people or Subject is in danger then the supream Governor is not to take notice of any Mans particular interest whatsoever he has sworn to the contrary as when an Invasion c. is made though the King at his Coronation has sworn not to oppress nor take without their consents from any of his Subjects any thing which any of his Subjects hold of him or any of his Predecessors yet rather then an Enemy shall be relieved by any of his particular Subjects to the endangering of the rest he then may destroy it for the safety of the people is the highest Law and the end of all Government is the preservation of the Subjects in general and in such cases the lesser evil is to be chosen and no Laws but will suffer a mischief rather then undergoe an inconvenience And therefore could not the Dictator be questioned for any thing done during his Dictatorship because of the danger of the people and so the Romans alwaies understood this Maxim of Salus Populi suprema lex Let us see whether these Men leave Posterity in any better condition then they make the present Age and see how they agree about succession and whether a Kingdom may be aliened by the present King or he name his successor Here we must look upon Grotius either naturally or relatively and yet too as neither As he is naturally a Hogan Mogan he makes the King an Usufructuary only and then he saies he can alter nothing Lib. 2. cap. 6. Para. 11. at all neither in part nor in the whole And sometime like a Mercenary stipendary to Lewis the 13. against all his precedent grounds of the power of the People and of Kings having originally all their Power from the contracts and agreement of the People which yet does not cease their power he makes neither King nor People judge of succession for he saies the People have Lib. 2. cap. 7. Para. 27. transferred all jurisdiction from themselves upon the King and his family neither during that have the People any relicts of it and yet he makes it a very hard question whether the People may alter succession as to them who are not yet born and determineth it affirmatively in these words Quare si Lib. 2. cap. 4. Para. 10. populus à cujus voluntate jus regnandi proficiscitur voluntatem mutet iis qui nondum nati sunt ut quibus jus quaesitum nondum est nullam facit injuriam and the reason he gives forsooth is a very sorry one and a similitude Ejus qui nondum natus est nullum esse jus sicut nec ulla sunt accedentia rei non existentis Nay he does not stay here but goes on and saies sicut autem populus expresse mutare voluntatem potest ita tacite credi mutasse But who shall be Judge of this implicite Faith he saies not one word Because of the damnable consequents which must needs follow from this determination we will examine all the parts of it He almost every where makes a great stir with populus populus vult populus mutare potest voluntatem expresse tacite but never that I can any where find defines what the People is If he had said the People of Rome or the People of Athens or the People of Syracuse he had said something though nothing to his purpose For when a Man speaks of the People of Rome or Athens c. he speaks not formally of Men as born in the Roman or Athenian territories but as men who were civitate donati which it may be were not the tenth part of the Romans or Athenians nor were ever the Roman Athenian or Syracusan People free People jure naturali as he saies but by Civil sanction having made themselves so unjustly usurping dominion over the rest in their Tyranny and Dominions It cannot be then that Grotius means by People such People as were the Romans or Athenians If by People he means any thing in the world for above this 1700 years there have not been any such upon the face of the earth if the Inhabitants of Switzerland be not such who taking advantage from the remiss Government of Wenceslaus having beaten the Archduke Leopoldus about the year 1400 made themselves a Democracy and have almost ever since continued Mercenary Man-killers to the interests of the Pope the Kings of France and Spain Grotius then not meaning such People as were the Romans c. I cannot imagine what he should mean by People unless he means Men Women and Children of all ages and conditions all of them in a parity or equal condition abstracted from all Laws of God or Man and what a Harmony of Confessions would arise from such a rour any sober wise Man may judge Thus much for his populus Observ Well but be the People what it will a beast or no beast a thing or nothing it is from its will all right of reigning proceeds a cujus voluntate jus regnandi proficiscitur What all Right of Governing or Regal Power proceed from the People faith let Grotius or any of his followers shew ever since the beginning of the world any King made by the People and I will grant him all the rest be it what it will But see whether Grotius hath not a forked tongue or not here and in twenty places more with Notandums c. he makes all Regal Power to be from the wills of the People In his Epistle to Lewis the 13. he saies How beautiful how glorious how joyful to your Conscience will
possible that any Power in Government can be derived For to suppose by the Law of Nature all men to be equal and to have a common and undivided Right to all things it is impossible that they can create a power which may give Law Property and Power of Life and Death when as they themselves have none at all But suppose all Men are by nature equal and yet have a right to create a supream Power which may give Property yet then it must follow That all the Men of the World must be subject to one Individual Government For ex hypothesi the Inhabitants of Greece have as much right to all the things in Britain as the Inhabitants of Britain have and the Men of Spain have as much right to all the things in Italy as the Italians have and so have the French to all things in Italy Germany Persia c. Nor can the Inhabitants of France Germany Spain c. frame to themselves any Government for ex hypothesi by the Law of Nature the Persians Indians Moscovites c. have as much right in France Germany Spain c. as the French Germans and Spaniards have And to suppose that by the Law of Nature all Men have all things in common and to suppose that whatsoever is or shall be renewed in Spain England France c. is due by the Law of Nature only to Spaniards Englishmen and French c. is to suppose a contradiction and impossibility Nor is that Fancie less groundless which supposeth that Regal power or government was first instituted from an aggregation or consent of Families For how is it possible there should be a Family where there is no Supreme power which gave Property in that place and habitation where that Family is Nor where there is no Law precedent obliging can it be expected that any man will where he may be free at his own pleasure be a Servant Nor can it in reason be supposed that any man will contract with another to be his Servant whereas he may as well expect to be his Master It shall be therefore our endevour to find out the true Causes and Principles of Power and Subjection But before we proceed it will not be amiss to see in a short view the natural difference between Man and other Creatures of this inferior orb and why Humane or Politick Government is only necessary to Mankind Of all the Creatures of this inferior orb only Man uses Reason by which with the help of his Memory and Experience he proceeds from things manifest and known to the Understanding to find out things less known and more obscure yet still so that subsequent Generations may infinitely adde to what precedent Ages had found out whereas other Creatures do by an impulse of Nature being taught of no Creature nor from any observation by themselves insite and connatural with them at first attain to such perfection that in succession of time nothing is added to it Thus we see all Birds at their first trial make their nests with as much art and ingenuity as those that do live longest And so the younger Bees make the honicomb as perfect as those who had done it twice or thrice before And certainly it is an admirable thing to consider with how great providence these smallest Creatures and imperfect Animals do choose out places for their conceptions even before they be living creatures and but only so in power and with what unimitable art they build fortifie and hide the place wherein they repose them I have seen an Indian Birds nest which was made upon a small bough growing over waters which bough was too weak to support the weight of a Monky the Monkies in those parts of India use to prey upon young Birds and provident Nature points out these places to those Birds for the security of their young ones from the Monkies for of all terrestrial creatures only Men and Monkies and their kindes swim not naturally and the Monky if he in seeking to get the young birds falls into the water drowns himself I have with great admiration seen Frogs which are usually generated in the moneth of March confidently and carelesly swimming croaking upon one another upon the surface of the water whenas Horses and other cattel have been there but upon the coming of Ducks who naturally prey upon and devour them they have been all husht and gone and not one to be seen It being sure worthy admiration that Providence should so direct those spurious and imperfect animals and but of yesterdays being and not of much longer continuance to know without any apprehension of danger those creatures who are not hurtful to them and to fear and avoid those who are enemies and prey upon them Neither is Providence less seen in all creatures if a man considers it in the preservation of themselves and their young ones so that a man must needs confess that in them is some particle of Divine air and this their unlearned art and wisdom is rather to be admired their imitated by us Man by his observation and experience findes out what things and Creatures are hurtful or helpful to him other Creatures by an instinct of Nature at the first sight know what things and Creatures are hurtful to them or not thus we see the timerous young Hare feedes securely among Horses and Cowes and the oldest Hart flyes afrighted from the smallest dogge Man can never attain to the knowledge of what things conduce most for his corporal preservation and therefore the oldest and most experienced and learned Physitian may to morrow find what the day before he was ignorant of and yet shall never attain to the perfection of knowing what is best for his own body which other Creatures by avoiding those things which are hurtful and choosing those things which are most beneficial for themselves do The careful Navigator by the help of some Theorems of longitude and latitude and the use of his Card and Compasse sailes from one Coast to another whereas other Creatures by a propense disposition to this or that place without any observations and direction of their senses fly to other regions where they never were before So Faulcons Wildgeese Woodcocks c. come from other regions into England in the Autumn and at the Spring forsake us And Swallowes Martyns Hobbyes c. which brood with us in the Summer when the Antumn approaches leave this Clymate for another to which they cannot attain by any sense or observation of their own A Gentleman living in Buckingham-shire had a Beagle sent him by Sea from the most Eastern part of Suffolk to London and from thence was conveyed by water into Buckingham-shire some time after upon some distaste taken by the dogg he returned home to his old Master by land which was above an hundred miles But what is most admirable is that omne genus Balaenae as Dolphins Whales Porpices which do not keep in shoales or company and although
accounted Abrahams faith St. James 2. 23. That he would have offered up Isaac though by the law of nature Abraham should have preserved his sonne and so God ceased the motion of the Sun and Moon upon Joshua's prayer Jos 10. 12. And caused the same to go retrogade ten degrees upon the prayer of Hezekias and Isaiah 2 Kings 20. 11. It is true that nothing less then that power which made a Law can alter it the Laws therefore of God whether positive or natural have an eternal and immutable obligation upon all the men in the world but whatsoever power may make a Law that power may alter it Divine Laws therefore whether positive or natural cannot have any obligation upon God but he may alter them when he pleases CHAP. VI. The Obligation of Divine and Humane Laws upon the Consciences and Persons of Men. 1. COnscience comes of con and scio to know together with reason Conscience or some law Conscientia est animi quaedam ratio lex quâ de recte factis secus admonemur Conscience is a certain reason or law of the Mind whereby we are well or ill advised of our deeds The laws therefore of Man may not only be violated by doing contrary to them but by consenting to them As he which does contrary to that he thinks though the doing of the thing be just yet 't is unjustly done by him for whatsoever is not of faith is sin Rom. 14. 23. 2. The affirmative precepts of God they do semper obligare yet they The obligation of the laws of God do not oblige ad semper As when he commands us to pray continually it is not to be expected a man should be always in the act of prayer but so to live as he does nothing which may indispose him from praying But Gods negative precepts do not only always oblige but oblige ad semper too for there is no time at all wherein it is lawful for a man to kill to steal to commit adultery c. Deut. 5. 17 18 19 20 21. negative in all instances 3. Ecclesiastical laws do oblige in Conscience If thy brother shall neglect Ecclesiastical laws oblige in conscience to hear thee tell it to the Church but if he neglect to hear the Church let him be to thee as a heathen man or Publican Mat. 18. 17. And the Scribes and Pharises sit in Moses chair all therefore whatsoever they bid you observe and do but do not after their works for they say and do not Mat. 23. 2 3. If then by the law of our Saviour the Jews were to observe and do whatsoever the Scribes and Pharises commanded them because they sate in Moses seat sure with as much or much more reason ought Christians to observe and do whatsoever the Church which our Saviour Christ himself hath planted doth command them 4. My kingdom is not of this world Joh. 18. 36. God sent not his Son In conscience only into the world to judge the world but that by him he might save the world Joh. 3. 17. And O man who has made me a Judge or divider amongst you If then our Saviours kingdom were not of this world if God sent not his Son to judge the world and if our Saviour were not a Judge among men then cannot the Church of Christ have any power from Christ in the kingdoms of the world nor to judge the world nor to be a Judge or divider among men 5. Ecclesiastical laws according to the usage and custom of England To what things Ecclesiastical laws have reference relate to Blasphemy Apostacie from Christianity Heresies Schisms Holy Orders Admissions Institution of Clerks Celebration of Divine Service Rights of Matrimony Divorces general Bastardy Subtraction and Right of Tythes Oblations Obventions Dilapidations Excommunication Reparation of Churches Probate of Testaments Administrations and Accounts upon the same Simony Incests Fornications Adulteries Sollicitation of Chastity Pensions Procurations Appeals in Ecclesiastical cases Commutation of Penance which are determined by Ecclesiastical Judges 6. So that there is a mixt Conusance in the Ecclesiastical Judicature All things determinable by Ecclesiastical Judges are not meerly spiritual viz. of things meerly Spiritual by which they are impowered to judge and take conusance of and that by no humane power but only as they are impowered and sent by our Saviour and are only his Ministers viz. the taking conusance of Blasphemy Excommunication Heresie Holy Orders Celebration of Divine Service c. And this Ghostly power the Church and Ecclesiastical persons had before ever Temporal powers received the Gospel of Christ or were converted to Christianity And also after it pleased God that Nations and Kingdoms were converted to Christianity and that Kings did become nursing fathers and Queens nursing mothers Isa 49. 23. to Gods Church then did Kings cherish and defend Gods Church and endued it with many Priviledges and Immunities which ere while was persecuted by them or other Powers but yet could not these Immunities or Priviledges divest them of that Ghostly power which our Saviour by divine institution gave his Church It is true no question but that originally not only all Bishopricks and their bounds and the division of all Parishes and the conusance the Church hath of Tythes of Probate of Wills of granting of Letters of Administration and Accounts upon the same the right of Institution and Induction and the erection of all Ecclesiastical Courts c. were all originally of the Kings foundation and donation and that to him only by all divine and humane laws belongs the care and preservation of all his Subjects none excepted in all causes And therefore not only all those things which relate to the extern peace and quiet of the Church although exercised by Ecclesiastical persons but all those priviledges and immunities which the Church or Churchmen have in a Church planted which the Primitive Christians and Apostles had not in the persecution of the Church when planting are originally Grants of Kings and Supreme Powers and so Temporal or Secular Laws but in regard they accidentally have reference to the Church and are exercised by Ecclesiastical persons they are not improperly called the Kings Ecclesiastical Laws And sure either ignorance of this or faction hath made men run into two contrary extremes one That Kings have no right to their Crowns but in ordine ad bonum spirituale and so cannot be Kings or That all power and jurisdiction in all causes is from the King and so cannot there be any such thing as Christian faith Religion or any Ghostly power left by our Saviour with his Church to continue to the end of the world which every Christian man de fide ought to believe and submit to before any Temporal Law or Power in the world Object But beeause Ecclesiastical laws have not infallibility affixed to them if they command any thing repugnant to Divine laws do they then oblige Answer No for God
must be reduceable to some one certain principle or they are irregular or commotions If then Christian Princes have not a right of calling Assemblies but others as well as they then must it either necessarily follow that Christian Princes have not power sufficient to govern and protect their Subjects and that their Subjects motions cannot be regular and orderly but confounded and irregular and so the law of nature and the end for which God ordained Princes inverted For my part I will not dispute the Power of God in the planting of the Church either under the old or new Law how that he did dispence with the actions and motions of his People and Ministers and set Father against Son c. and that to make his Power known he would plant his Church notwithstanding all Temporal Powers whatsoever but this I do affirm that God after the deliverance of the Israelites out of Egypt did give to Moses only this right of calling Assemblies as appears clearly by Numb 10. 2. for only to him is the charge of making the Trumpets to call the congregation together It is true that vers 8. the sons of Aaron shall blow with their Trumpets but neither Aaron nor the Priests had any Power to make them but only Moses they must therefore have them from him and be his Instruments and this Power was given to Moses as the supreme Magistrate and not as High Priest for Aaron was then High Priest being before consecrated Levit. 8. Nor was this Right given personally to Moses but as a Law to last for ever If any allegation be made against Moses because he was a Priest it must cease with Ioshua and the Kings after him who were none for Ioshua by virtue of this ever lasting Law did call an Assembly of all the Tribes and therefore of Levi to Sichem and vers 28. dissolved it After him did David Joshua 24. 18. 1 Chro. 15. 4. 11. call the High Priest and other Priests not to consult of any secular affair but about the removing the Ark and afterward 1 Chron. 23. 2. he gathered together all the Lords of Israel with the Priests and Levites and as he called them together so his dismissed them 1 Chron. 16. 43. The like did Solomon when the Temple was dedicated called the Assembly 2 Chron 5. 2. dissolved it cap. 7. 10. The like did Asa when Religion was restored and a solemn Oath of association for the restoring of it Jehosophat did it when 1 Chro. 15. 2 King 10. 20. 2 Chro. 34. 29 30. 2 Chro. 29. he proclaimed a publick Fast 2 Chron. 20. 3. Jehu assembled them when a solemn Sacrifice was to be performed Joash in a case of Dilapidations Josias when the Temple was to be purified and a mass of superstition to be removed Hezekiah made a law for the Priests and all their brethren to assemble and in conformity to that law they did assemble nor was this v. 15. Assembly for any other thing then to cleanse the house of God and for the affairs of the service of God being things meerly spiritual And since that God hath promised that Kings shall be nursing fathers and Queens nursing mothers to his Church it must be meant of Christian Kings for this could not be of Josias because he was a King at the time of this prophecy or before it could not therefore be meant of him for the prophecy is de futuro Kings shall be c. Nor could it be meant of the Kings of Judah after him for they were all Idolaters and persecutors of Gods Church It was therefore meant of Christian Kings And how Kings can be Kings or Supreme powers without this right I do not understand Nor can that saying of our Saviour's causing of wars and distraction be otherwise reasonably understood but only where Kings and Supreme powers have not received the Faith And that Christian Kings did generally exercise this power after they became Christians we shall shew hereafter 10. He is a rightful Supreme Governor who is a Sword-bearer that is Who is arightful Supreme Governor whom God hath chosen to be his Minister who hath not taken the sword excited thereunto neither from any ambitious or spightful passion or affection either of himself or other men That may make and abrogate Laws determine all Controversies by himself or such Judges as he shall appoint choose Magistrates and Councellors and in whom is the power of making War and Peace Nor did God give Kings to them only over whom he did reign by Covenant but also to Heathens who had not known him as to the Persians Syrians Assyrians c. he gave Cyrus Hazael Nebuchadnezzar c. And all antique History speaks only of the Government by Kings as Justin says Principio rerum gentium nationumque imperium penes Reges erat before any other Government was usurped and made by Men. 11. He is a Tyrant who is a Sword-taker who in stead of executing Who is a Tyrant the wrath of God upon offenders against all Law kills and murders them who are not of his own faction who hath no power from God but only force from the wills of inconstant and seditious men As Hos 8. 4. says They have set up Kings but not by me they have made Princes and I knew it not Nor is it the Command of One which makes Tyranny The Grecians themselves called the Council of the Thirty after the Athenians were subdued by the Lacedemonians the Thirty Tyrants of Athens I am confident there was never any thing so wildly and variously Annot. 1. ghessed at as the manner how Dominion and Power came into the world by those men who derive all power from the People originally Bodin cap. 6. de Rep. p. 46. makes all Dominion to be gotten at first by force and pag. 46. d. he says It is very like that without greatest force and breaking down the Laws of Nature Liberty could not be taken away And many men will not distinguish between Force and Power but only in the possession And sure Athaliah was as much possessed of the Crown of Judah and as quietly as any King before or after her for six years and yet I do not find Jehojadah or the people reprehended for restoring Joash And the children of Israel did not rebel while they could quietly place 2 Chro. 13. 7. Jeroboam over them but Jeroboam was declared a Rebel after he was possessed 12. When they over whom God hath given power shall submit themselves What is a rightful Government to that power this is a rightful Government When all who owe their subjection shall accept and receive the Laws of him who by Right that is by Birth Revelation Lot First possession or just Conquest ought to command As the Children of Israel answered Joshua All that thou commandest we will do and whithersoever thou sendest we will go According as we hearkened unto Moses in all things so will we
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
power which is not restrained The Father hath power of life and death over his children by the Law of Nature the power is absolute But it is evident that the Law of Nature gives Fathers a power over their Children without restriction Therefore the Fathers power is absolute and by consequence he hath power of life and death over his Children See Bodin cap. 4. pag. 21. de rep where he says That the Persians the people of Higher Asia the Hebrews Romans Celtae Gaules the West Indians before the Spaniard subdued them did use this absolute power And see pag. 23 24. how he makes all the strife disorders and contentions among Brethren their Father living the wantonness luxury and riot of youth without fear of punishment the contempt and scorn of the Fathers person and power and the decay of the glory and ennobled virtue of the Romans to proceed from the taking away of the Fathers power Examples of the Fathers power of life and death are hard to find because it cannot easily be imagined a Father should give judgment upon himself his son being part of himself to cut off any part of himself which he hopes might by any means be cured Yet Quintus Fulvius did adjudge his son to death for being of Catelines Conspracie Salust de conj Cat. And see Deut. 21. 18 19 20 21. where it is most evident that the Father hath power of life and death for the People do but execute the judgment of the Father and Mother That such a son is stubborn and rebellious c. The exercise of this power is restrained generally among Christians by positive humane Laws but from what ground I cannot tell 6. The Fathers power arising from generation and the person of the The Son hath propriety against his Father Son being only generated the Fathers power can extend no further and therefore whatsoever the Son does acquire it is his own excluding his Father 7. Though the Son out of wedlock is alike subject to both parents Why out of wedlock the Fathers commands are to be preferred before the Mothers because he is alike part of both yet if the Father and Mother command contrary things whereby it becomes impossible for the Son to obey both there the command of the Father is to be preferred because of the excellencie of his sex CHAP. VII The Husbands Power 1. THe Husbands power doth not arise ex concubitu for then a man hath power over all the women which he hath or shall have known which is absurd besides one woman known by several men should be alike subject to them all which is impossible 2. The Husbands power does not arise from his Wifes being a part of his family for any part of the family may become no part of the family but the Wife can never be out of the power of her Husband therefore the Husbands power does not arise from the Wifes being a part of his family 3. The Husbands power does not arise from the Wifes submission or subjecting herself to her Husband for that is but an act of her will unumquodque dissolvi potest eo ligamine quo ligatum est and therefore by an act of her will she may when she list set herself free 4. It does not arise from the Husbands accepting of the Wifes will for that makes the Husband obedient to his Wife obedience being no other thing but the accepting the will of another which is unnatural 5. The Husbands power does arise from the law of God or Nature by From whence the Husbands power doth arise the conjunction of Man and Wife in wedlock For these two individual persons by the law of God are made one mystical person of which the Husband is head and the head is the directive and ruling part of the body therefore the Husband is the director and ruler of his Wife Object But if the Law of Nature by Marriage gives the Husband a power or right of command over the Wife why may it not be that God by the Civil pact might give a Prince or Court a right of command over those Men who made it Answ I answer That first a Similitude proves nothing Secondly The cases are nothing alike For Marriage was an institution of God in Paradise and the power of the Husband over the Wife being due by the Law of Nature hath been ever since attributed by Mankind to the Husband yet so that after the death of the Husband the Wife becomes free from such subjection until by Marriage she again subjects herself In none of these respects does this hold in the Civil pact for no such thing was ever instituted by God nor any such thing ever constituted or done by Man but only a Chimera invented by capricious men to palliate sedition Nor did ever any man become free from subjection to Supreme powers by the death of him or them to whom they made their subjection by virtue of the Civil pact Nor was it ever known in the world that Men were free before they made their Civil pact as Women are before they marry 6. God gives a power to the Husband without restriction viz. Thy The Husband hath jus vitae necis over his Wife desire shall be to thy husband and he shall rule over thee Gen. 3. 16. And therefore the Husbands power over the wife is without restriction and by consequence the Husband hath power over the life of his Wife Antiently among the Gaules this power was not restrained The Romilian Law restrained the Husbands Caesar lib. 3. de bel Gal. power to put his Wife to death for four causes only This power was used by the West-Indians before they were subdued by the Spaniard and is generally among the Idolaters and Mahumetans But the exercise of the Fathers and Husbands power of life and death over their Children and Wives is restrained not by any law of God that I know of but by the Temporal laws and yet no wrong done to the Fathers or Husbands neither For though their Children and Wives be in their power by the law of Nature yet by the law of Nature are they in the power of their Soveraign and subject unto him And though the Fathers and Husbands power be from the law of Nature yet the exercise of it is humane politick and voluntary and the exercise of all Subjects voluntary actions may be restrained and determined by him who hath the supreme power therefore the Fathers and Husbands exercising their power over their Children and Wives may be restrained by him who commands by the highest right which is the King But supposing the Husbands and Fathers power to be from the law of Nature and Regal power but a politick and invented thing and made only by the will of Man it were then a violence upon the law of Nature that any thing which hath no origination but from the inventions and wills of Men should restrain the exercise of that
derived from this begging the question is false Indeed Mr. Hobbs is no question a man of most exquisite parts and learning and possibly might have a peaceable intention in making the Civitas the Judge of all matters of faith as well as manners But sure many things in his generation of it can never consist as his making Jus and Lex contrary one to another his making the Legislator to depend upon the Citizen for without his consent and proper pact either express or understood the Legislative right can be conferred upon none And yet he says Wherefore doest Cap. 12. art 3. thou call him Tyrant whom God hath made King His making the Civitas to receive all power from the pacts and wills of men and making the Civitas Head of the Church and Judge of Faith makes the power of the Church and all Faith to be a thing invented and to receive their beginnings from the wills and pacts of men then which what can be more destructive to Faith and Religion But for our Author Tho. White Gent. he is not worthy the name of a learned rational nor honest man 13. Slaves are born or made so Slaves born are the children of such Slaves as were so Slaves made so happen two ways For being condemned for some crime committed against some humane Law and therefore by the Condemned persons Law condemned to it Where the Law condemns it is the will of the Supreme power which condemns and therefore not the will of the Slave that makes it so I deny therefore that where the Law does not make Slavery any man can make himself a slave to another nor can any man use another as a Slave where he is not made so by Law Or else Slaves are Prisoners taken in War There is no man will affirm Prisoners by War the taking of another man prisoner gives the taker a power over the others life for then all men falling into the hands of Thieves and Pirates the Thieves and Pirates have a power over their lives and so commit no murder in putting them to death But Slaves from being made Prisoners is when there is competition between two Supreme powers and they give their Subjects power over all their Enemies which they shall take Prisoners It is not therefore the taking of another Prisoner which gives a man power over anothers life but a precedent humane Law which gives this power over those Enemies which any Subject shall take Prisoner and sure no man was ever taken Prisoner by an act of his will It is false therefore that Bodin says That a man may make himself a Slave of his own accord lib. 1. c. 5. p. 31. de repub a man may as well offer violence or kill himself and that a man bought for a price of Thieves and Pirates is a Slave to the Buyer for he is not made so by any humane law Nor can any act of force ever give another any power nor can any continuance of time make any thing good which originally was not so and therefore if all commands were originally from force as he affirms then are no commands now any better and so no difference Pag. 46. de rep between the commands of Thieves and Pirates and of Fathers and Kings Although a man lawfully taken prisoner by another be in his power Slavery moderated so as it is in the Takers power to have taken away his life and so an act of grace in granting it yet the Law which originally gave this power may moderate it as here in England the Law hath restrained the Lord from killing or maiming his Vilain Slaves have nothing proper against their Master 14. Apprentices are when the Father or Mother do oblige a Child Apprentices for such a term to serve such a Master and this act is binding because by the Law of Nature the Father hath an absolute power over his Children But because of the impotencie of Children who cannot by reason of their youth and want of art and experience do any thing which may at first compensate their diet and clothes if the poverty or negligence of parents be such that they cannot or will not procure a Master for their Children and where Children are Orphans they may be bound and compelled to serve Apprentiships in such manner as is prescribed by the publique humane Laws of the place 15. Neither naturalis nor delegata potestas can be communicated nor What power is alienable aliened But acquisita potestas as the power of Masters over their servants and slaves may be sold aliened or otherwise given away And therefore Guardian in Chivalry may give or sell to another the Guardianship of his Ward but Guardian in Socage cannot for his is delegata potestas 16. The Master of every family deriving his power from the humane The Masters power restrained to humane laws Caveat laws of every place his power is restrained to the laws of that place therefore ought he not to command his servant any thing which is against the laws of the place When I say by humane laws such a thing is to be done or not done I always except those laws which God did give to the Israelites and peculiar only to them when he pleased immediately to reign over them which laws did supply those humane laws by which his Vicegerents do procure peace among us CHAP. IX Of Ecclesiastical power THat there is a GOD who is the Author of all good past present By the light of nature God is to be worshiped and to come and that He is to be worshiped and adored not only for the present past and future blessings in this world but also in hope of eternal happiness in the world to come is so naturally ingraffed into the minds of all men that not scarce one man compos mentis in an That there is a God and this God to be worshiped and served is innate in the minds of all men Plato Euthyphro requires as the first axiom of all virtue age did ever deny it It is no wonder therefore if men attaining to such a height of impiety as to sell their inheritance in Heaven unjustly to purchase possessions upon Earth do always make the specious pretences of Religion and Reformation as the easiest way to work upon the giddy and inconstant multitude carried hither and thither with every wind of doctrine the Exordium of all their Enterprises for Quoties vis fallere plebem Finge Deum 2. But how they should worship him aright from the imperfect use of The difficulty of pleasing God from the light of nature their reason prejudiced by their appetitions and affections is not to be imagined For to worship and serve God not according to the will and pleasure of God is superstition and not to worship God is atheism It is therefore an impossible thing without the special assistance of Gods grace that men should not fall either into superstition
institution and therefore incommunicable or alienable yet after it pleased God that Kings should be nursing fathers and Queens nursing mothers to his Church the exercise endowment priviledges and immunities of Christian power is of positive humane institution The obedience therefore or subjection due to them who have oversight over us in the Lord is not formally due to such Bishops and Priests who have once had the oversight over us but to such Bishops and Priests who are legally constituted to exercise the jurisdiction or function in such Dioceses or Parishes where they are so constituted which exercise is alienable or transferrible though not at the will of the Incumbent yet at the will of Supreme powers and legally at the will of the Donor CHAP. II. Of Inheritance and Succession 1. NO humane law can create a humane right Jura sanguinis nullo jure No Humane law can make a Royal heir civili dirimi possint Nor is this right of succession from Divine positive laws but observed as well where Gods revelation of himself is not received as where it is And if according to the resolution of all the most learned and reverend Judges in Calvin's Case subjection is from no humane law but from the law of nature Then of necessity must Regal right and inheritance be from the law of nature for no man supposeth subjection where he does not presuppose power The Will therefore of Henry the Eight where for want of issue of Edward Mary and Elizabeth he gives the English Monarchy to the issue of Frances and Elianor daughters of Mary his younger sister before the right heirs of Margaret his eldest sister wife of James the Fourth of Scotland was void and not to be allowed and so was that of Edward the Sixth who did disinherit his sisters Mary and Elizabeth and gave the Crown to Jane daughter of Frances the French Queen aforesaid by Charles Brandon Duke of Suffolk and so were the Acts of Parliament made by H. 4. 5. and 6. which entailed the Crown upon their Heirs so was the Acts of the last of Henry the 6. which entailed the Crown upon him and the heirs males of his body and so were the Acts of the first of Rich. 3. and H. 7. which entailed the Crown upon them and their heirs Neither is succession and inheritance of Crowns declared by any humane Law in the world that I know of but only the pretended French Salique Law which we shall examine afterwards 2. None but God can make an Heire to a Crown solus Deus haeredem None but God can make an Heire to a Crown facere potest non homo Co. Lit. Sect. 7. And this Heire which Sir E. Co. here speaks of is but heire in fee to Lands or Tenements according to common Law or Custom if then only God can make such an Heire then sure none but God can make an Heire which makes humane Laws and permits Customes 3. It is not only humane Laws which say a bastard is filius terrae None can inherit not born in Matrimony Gen. 22. 2. quasi nullius filius Et qui ex damnato coitu nascuntur inter liberos non computentur but God calls Isaac Abrahams only Son although at the same time Abraham had his Son Ismael by Hagar his Handmaid or Concubine And Abraham gave all he had to Isaac but to the Sonns of the Concubins which Abraham had he gave gifts Gen. 25. 5 6. So though Ismael were Isaacs elder brother yet in comparison of Isaac born in wedlock God himself did not account him Abrahams Son Nor can one instance be given that ever by Gods either command or permission any born out of marriage did inherit By the Law therefore of God aswell as humane Law none can inherit which are born out of matrimony 4. That which no humane Law prescribes and yet is observed by all The Issue male shall inherit before the Issue female in Royalty men generally in all ages is from the Law of Nature But no humane Law prescribes the male to inherit before the female in regality yet it is observed by all men generally therefore that the issue male shall inherit before the female in regality is from the Law of Nature 5. If primogeniture had not been a sacred thing and inheritance annexed Of the Issue male the first born is to be preferred to it by the Law of Nature then could not Esau have been pronounced a prophane person for selling his birthright Heb. 12. 16. although he did it to save his life Gen. 25. 34. but being due by the Law of Nature I say Esau by his sale could not transfer it to Jacob yet because Esau did despise it Gen. 25. 34. it was just with God to transfer it to Jacob neither can it be shewed any where in sacred writ but that alwaies primogeniture in royal descent was a good title where God did not interpose 6. Only the King can inherit and succeed because his Royal capacity is Why only the King is said to inherit and succeed and Subjects do either inherit or succeed but never both affixed and inseparable with his person In the Oath therefore of Ligeance Subjects swear to beare faith to the King his Heirs and Successors but no Subject can both inherit and succeed because there is no succession can be affixed to the person of any Subject by vertue of inheritance All Corporations therefore do not descend by inheritance but are acquired as they are nominated or elected in such manner as is granted by the King or supream power 7. There are but two waies by which hereditary or successive Monarchies How many waies hereditary Monarchies descend do descend the one is Lineal descent the other Lineal Agnatical Cognatical or Collateral or as we say the one descends to the heire general the other to the heire male This latter by vertue of a Salique law takes place only in France we will therefore see what may be said and objected against the former and how the latter hath been observed in France and of what Authority it is 8. That cannot be against the Law of God which he has owned and Gynococratia or inheritance of Women not unnatural nor against the Law of God given a blessed president of but that God has owned Gynaecocraty and that in a great and miraculous delivery of his own people is evident in Deborah And that Women may inherit when the daughters of Zelophehad made their plea for their inheritance Numb 27. They first pleaded negatively Our Father was not of the company of them that gathered themselves against the Lord in the company of Corah which is a plain argument that rebellious Subjects have no property against supream powers but forfeit their goods aswell as lives for God saies ver 7. the daughters of Zelophehad spake right why should the name of our father be done away from his family because he has no Son And God himself
subsequent minute that it was before and therefore the state of Humane affairs being every day variable and putting on a new face to morrow which they had not neither to day nor yesterday which cannot be certainly foreseen by any man or men no more then any Master of a Ship can foresee what winds will blow to morrow or next day or whether it will be serene or stormy weather whether deep or Rockey Seas Yet if no prudent Mariner will venture himself and those under his command to Sea without sufficient provision against all the contingencies which may happen and be prevented Then sure no man or men not vainly blinded with ambition will undertake to manage the Government of a Nation without sufficient means to protect themselves and Subjects from all future storms and confusions which may either arise from within the Nation or be caused from without Yet will it not follow that every day there should be new Laws made for Nihil semel perfectum inventum there is nothing which is perfect so soon as begun and many mischiefs and inconveniencies may be begun and yet be prevented before they can be brought to perfection But then it must be presupposed that there may be remedies used which must of necessity be that there be a present and coercive power in being which may suppress and dissolve those mischiefes and inconveniences by making new Laws if the old ones will not remedy them and this is no new thing but is and alwaies was in all governments that ever were whether Monarchy Aristocracy or Democracy A Parliament is a Politick body compounded of Heterogenial or Of what parts a Parliament is compounded Inst 4. pag. 1. dissimilar parts viz. the King the Lords spiritual and temporal in one distinct house and of a house of Commons another distinct house Since there has been so much contest about the power and jurisdiction What creates the Lords house and cause of Parliament and since it being compounded of unlike parts and some of these unlike parts nay pieces of those parts have assumed the name of Parliament We will examine all the parts of it and see whether it be not all made and created by the King and into him only can be ultimately resolved he being principium caput finis of it First For the Lords spiritual they are all parts of the Lords house and sit there by succession in respect of their Counties or Baronies parcell of their Bishopricks but all Bishopricks were originally of the Kings foundation and donative per traditionem baculi viz. the crosier annuli viz. Inst 4 par 1. the ring whereby he was married to the Church King Henry the first being requested by the Bishop of Rome to make them Eligible refused it but King John by his Charter bearing date 5 Iunii an 17. granted that the Com. Lit. Sect. 648. pag. 344. Bishopricks should be Eligible so that the foundation donation and election to Bishopricks was only and immediately caused by the King and in this capacity by virtue of the Kings Writ out of the Court of Chancery does every Bishop sit as a member of the upper house of Parliament So that Inst 4 par 1. 4. the Lords spiritual did immediately hold their Bishopricks of the King and were members of the upper house only by vertue of the Kings Writ Secondly That the Lords Temporal are created immediately by the King is so manifest that I think no man will question it and that every Temporal Lord is impowred to sit as a Member of the Lords house by vertue of the Kings Writ issuable ex debito justitiae out of the Chancery See Inst 4. part pag. 1. 4. All the Judges of the Realm Barons of the Exchequers of the Coif Temporal Assistants of the Lords house the Kings learned Council and the Civilians Masters of the Chancery all called to give their assistance and attendance in the Upper house of Parliament but have no voices in Parliament How their Writs differ from the Barons see Inst 4. part page 4. In every Writ of Summons to the Bishops there is a clause requiring Spiritual Assistants or Procuratores Cleri them to summon these persons to appear personally at the Parliament which is in these words Premonientes Decanum Capitulum Ecclesiae vestrae Norwicensis ac Archidiaconos totumque Clerum vestrae Dioces quod iidem Decani Archidiaconi in propriis personis suis ad dictum Capitulum per unum idemque Clerus per duos Procuratores idoneos plenam sufficientem potestatem ab ipsis Capitulo Clero divisim habentes praedict die loco personaliter intersint ad consciendum hiis quae tunc ibidem de communi Concilio dicti Regni nostri Divina favente clementia contigerit ordinari So that not only the Lords Spiritual and Temporal but their Assistants are only created by the Kings Writ or immediately by the Kings authority But since there is so much contest about the House of Commons and The House of Commons are not the Representatives of the Free people of the Nation men say they represent the Freeborn people of this Nation and are the Supreme Authority of the Nation We will therefore enquire into the cause and see what may be the Freeborn people and whether a House of Commons as it now stands can be their Representative and whether being their Representative they may be the Supreme Authority of this Nation First What are the People If any man had said the people of Rome or the people of Athens or the people of Carthage c. a man had understood them and only them of Rome Athens or Carthage c. who were civitate donati But in England the case is much otherwise for with us there is no civitate donatus in one more then another but all men are alike born free and so by consequence every man as a freeborn man of England has as much right to his freedom one man as another I say therefore if every man of England has not a like vote and power in electing Members for the House of Commons then cannot the House of Commons be the Representative of the Nation for Plus valet contemptus unius quâm consensus omnium But it is most manifestly evident that the House of Commons are not elected by the equal consent of the freeborn people of England for not only two parts of three have not Forty shillings a year yet are as freeborn as they who have and as liable to penalty for transgressing Laws made in Parliament as they who do elect but many men have double votes in the election in Corporations where they send Burgesses and yet have like power with the Forty-shillings-men in electing a Knight of the Shire and such a place as Rising-Chase and Old Sarum c. have a like power in this House with the County of York and the Bishoprick of Durham sends none
therefore in all men and therefore in all sorts of men As if any man promises another that he will do or give him such a thing although it be to his hinderance he wilfully breaks his promise I say this is a sin of injustice in the promiser for he abuses and falsifies the Law of Nature which obliges every man to the performance of his promise to his hinderance to whom he made his promise And though this be the Law of Nature which does onely oblige in Conscience yet is such a promiser an unjust man nor does he deserve to be trusted as a friend or honest man But this must always be understood of private men and they not pre-engaged Annot. before for the first promise is to be performed Neither must the performance of a private mans promise be to the hurt or damage of another man for by the Law of Nature he was obliged to hurt no man and to give to every man his due before he made such promise A publick person promises to another to do or give him such a thing which will be prejudicial to his trust I say he ought not to perform it for he was obliged to perform his trust before he made such promise What then does preengagement the not injuring of another or publick employment free men and let them loose from all Law of God and Nature I answer nothing less for they sin not less then private freemen in not performing their promise but commit a greater sin in breaking their first promise and betraying their publick trust c. then if they should perform their promise So that in promising they sin but in the performance they commit a greater sin 5. A King promiseth he will not hurt any of his Subjects in their persons How Kings promises are to be interpreted and performed or estates without due Process and after judgment given according to the known Laws He being a King was obliged as King to do to the best of his power all things in order to the good and preservation of his subjects in general and therefore is obliged to this latter promise onely as it is consistent with his former He ought onely to protect his subjects in particular as it does relate to the good and benefit of his subjects in general I say therefore notwithstanding any such subsequent promise is not any King obliged to it but may in case of publick necessity govern by Martial Law and destroy any particular Subjects estate rather then enemies or seditious men should make advantage thereof to the endangering of the publick Nor is this any new thing but always was in all species of Governments since the World began nor does any King sin in making such promise for he may justly do it and thereby secure the mindes of his Subjects who would otherwise be in a continual diffidence nor does he sin in not performing this promise when it becomes inconsistble with the publick good for no King can possibly foresee all the publick necessities and dangers which may happen 6. No mans being greater or lesser does free him from his duty which Injustice in Princes he owes to the Laws of God all men being alike as compared to God Kings therefore being so are not disobliged to the Laws of God and Nature It was therefore a sin of injustice in Ahab to take the possession of Naboth's Vineyard the property and inheritance of the Israelites being given by God and unalienable by the Children of Israel I say this was a sin of injustice in Ahab for his being a King did not free him from Gods Laws but did without any publick necessity abuse the power and command which God had given him as King to the damage and hurt of Naboth and his posterity Davids putting Uriah to death and Ahabs consenting to Naboth's death although after his death were sins of injustice for they were entrusted by God to be Kings for the good of their Subjects Whereas they did abuse and falsifie their trust to the highest wrong of others whom they ought to have protected Princes are Gods Ministers for their Subjects good 7. Man being a reasonable and sociable Creature which being inconsistible Rom 13. 4. Kings by right command next after God with community and parity and mankinde being onely conservable in Society that is in the mutual commanding and obeying of different parties And as God by highest right ought in all things to be obeyed so Kings ought to be obeyed next after God in all things For every Soul ought to be subject to the higher powers for there are no powers but of God and the powers that be are ordained of God And through me Kings reign Rom. 13. 1. Prov. 8. 15. and Princes make just Laws All things therefore which Princes command where God hath not left necessary Laws for the good and governing of their Subjects which he was onely pleased to do to his peculiar people the Israelites are therefore just because they command them they commanding nothing repugnant to the Laws of God 8. A Prince commands a Judge to execute the known Laws uprightly Injustice in Subjects he becomes corrupt and sells or otherwise purloyns judgment I say this is a sin of injustice in the Judge for he abuses the command of his Prince who by right might command him to the damage of another against whom false judgment is given It is an act of injustice in all Subjects in general to abuse the trust committed to them by their Soveraigns for he by right may command and entrust them nor can they abuse their trust but it must be to the damage of the Prince or some other But besides express Obedience of Subjects to their Soveraigns when they are particularly entrusted by them there is a general and implied Obedience which Subjects ow to their Soveraigns and the Laws of their Countrey as Subjects whether they be employed in any place of trust or not For subjection being in the predicament of Relation does imply a right of command and no man can be subject where there is nothing to which he is subject It is therefore a sin of injustice in any Subject to pretend or abuse any of his Countries Laws to the hurt or damage of another 9. Since therefore Kings by highest right next after God may command Highest injustice in Subjects then by consequence is that the highest sin of injustice next after Luciferian pride of Creatures making themselves equal or superior to their Creator for Subjects to tread under foot all Sacred and Civil Laws to make themselves superior to their Soveraigns to whom by all Divine and Humane Laws they ow their obedience to the ruine and destruction of so many thousands of innocent men women and children and families of all sorts which must necessarily come to pass in the attaining their ends And that Subjects do abuse all Humane Laws in pretending them to the advancing of themselves above
Plate Jewels and Treasure of the Churches and Religious Houses within the Realm and compelled the Clergy to give him the one half of one years value of all their Ecclesiastical promotions and dignities But such was the felicity of this Prince that neither Pope nor Clergy durst openly oppugne him but in the 27. year of his Reign at the request of Boniface 8. says Martin he set John Baliol adjudged by Edward before King of Scotland at liberty And having conquered Scotland in the 33. year of his Reign Robert Bruce procured an Instrument from the Pope that the Kingdom of Scotland was holden of the Church of Rome and therefore required the King to desist from the prosecution of his Wars there But how little King Edward regarded this Instrument and what answer he returned to the Pope you may read in our English Chronicles nor do I finde that ever more prosecution was made by the Pope in this Kings life-time 20. From this time until Henry the Eighth the Kings of England and In the reign of Hen. 4. the Popes kept so good correspondence that they never went so far as Excommunication or Interdiction on the Popes part and how far the Kings did restrain the Popes jurisdiction in their several reigns after the Conquest shall be shewed in Chap. 3. Yet I cannot pass over one thing of the whole Hierarchy of the Church of England except only the Bishop of Carlisle who all factiously and traiterously conspired or adhered to Henry the Fourth his unjust Usurpation and Deposition of their Soveraign Richard the Second CHAP. II. Of Ecclesiastical Laws made by the Saxon and Danish Kings before the Conquest I Inas by Gods gift King of the West-Saxons by the advice and instruction Inas began to reign in the year of Christ 712 died 727. of Cenredes my Father and Heddes my Bishop and Eorkenwoldes my Bishop and with all my * Counsellors Earls Ealdermen and them of best birth of the Wisest of my people and eke in a great Assembly of Gods Servants did religiously study as well for the health of my soul as for the common profit of our Kingdom that right Laws of Marriage and just Judgment be firmly established through every folk and that hereafter it shall not be lawful for any Ealderman or any under our rule to make void these our Dooms or Judgments Cap. 1. Of the Rule of Gods Servants First we command that Gods Servants have a right rule of living After that we command all folk to observe these Laws and Dooms or Judgments Cap. 2. Of Children A Child shall be baptized within thirty days after it be born if that be not done let thirty shillings be forfeited If that it die before it be baptized he shall forfeit all he hath Cap. 3. Of working upon Sunday If a Slave work on Sunday by his Masters command let him be free and the Master shall pay thirty shillings But if the Servant did his work without command of his Master beat his hide or make him to fear a hide-beating If a Free servant do any work without his Masters bidding let him forfeit his freedom or sixty shillings and a Priest double so much Cap. 4. Of First-fruits First-fruits shall be paid upon the Mass of S. Martin he who shall not then pay them shall forfeit forty shillings and pay twelvefold the value of the fruits Cap. 5. Of Church-Priviledge or Sanctuary If any man guilty of death flee to the Church let his life be spared and let right be done to him And if any man deserving stripes implores help of the Church let him be remitted his stripes Cap. 6. Of Fighting If a man strike in the Kings house he shall forfeit all he hath and let it depend upon the Kings judgment whether he shall lose his life If one strike in a * Cathedral Church Minster he shall pay one hundred and twenty shillings c. Cap. 62. Of First fruits Every man shall pay First-fruits for the Roof and Hearth where he shall be upon the day of the birth of our Saviour Cap. 75. Of the killing of Godfather or Godson If any one shall slay his Godson or his Godfather he shall compensate so much to his next of kin as the compensation due to his Lord had been And this payment to the value of him which is killed shall be increased or lessened accordingly as the payment to the Lord for the Servant killed should have been performed If it be the Kings Godson which is killed he shall satisfie the King and his kindred but if the next of kin kills him he shall pay to the Godfather so much as should have been paid to the Lord for the slaughter of his Servant If he be a Bishops son he shall pay half so much Ecclesiastical Laws made by King Alfred or Alured who began to reign in the Year 871. The Preface GOD did speak these words to Moses and thus said I am the Lord thy God I led thee out of Egypt land and of the house of bondage Thou shalt not choose other Gods before me Do not take my Name in idleness for I will not hold him innocent who on idleness taketh my Name Remember thou keep holy the Seventh day Do thy work on six days and on the Seventh rest thou and thy son and thy daughter thy servant and handmaid and thy work-cattel and the stranger that is within thy door For on six days Christ made heaven and earth sea and all things thereon were created by him and rested on the Seventh day and therefore the Lord hallowed it Honor thy Father and thy Mother whom the Lord gave thee that thou maist live long on earth Thou shalt not kill Thou shalt not steal Thou shalt not commit adultery Nor report false witness of thy neighbor nor covet thou thy neighbors inheritance without right Nor work golden gods or silver Thou shalt constitute these Judgments If a man buy a Christian man he shall serve six years the seventh let him be free without cost With the same vestment he came in with the same let him go out if he have a wife let her go out with him if his Lord gave him his wife she and her * * Children bearns are the Lords But if the servant shall say I will not part from my Lord nor from my wife nor from my children nor from my work then let his Lord bring him to the door of the Temple and there let him bore his ear with an eal for a sign that ever after he is his servant If any man sell his daughter for an handmaid he shall not use her as an handmaid he shall use her courteously neither shall he sell her to other folk and if she be negligent let him be pacified let him set her free to stranger folk if he ally her to his son in marriage let him give a garment the reward of her modesty and endow
her but if he will do none of these let him set her free without price If a man slea another willingly he shall be slain himself but if a man slea another not lurking or lying in wait or unwillingly or of necessity so as he were given into his hand by God let him flee to Sanctuary and save his life and forfeit nothing If a man of ambition and guile slea his neighbor let him be taken from mine altar and be put to death If a man slea his father or mother he shall be put to death If a man forestall a Freeman and he sell him to another man he shall be put to death If a man revile his father or mother he shall be put to death If a man slea another with a stone or with his fist and yet he can go with a staff get him a Physitian and let him do his work while he is impotent If a man willingly slea his Note slea is to strike as well as kill servant or his handmaid so as he doth not die in a day but live two or three nights although he be guilty let him be free because they were his goods but if he die the same day let him be guilty If a man by contention hurt a wife with child let him repair the damage that shall be adjudged if she die he shall be put to death If a man put out anothers eye let him lose his eye tooth for tooth hand for hand foot for foot burning for burning wound with wound skar with skar If a man strike his servant or handmaid so as he loses an eye let him be free therefore or if he strike out a tooth let him be free If an oxe gore any man or woman so as he die let him be stoned and eat his flesh and let the master of the oxe be guiltless if in two or three days he did not know that the oxe gored a man if he knew it and yet would keep him and the oxe afterward kill a man or woman let the oxe be stoned and the master either put to death or pay that price which shall be imposed upon him for the life be it son or daughter the law is the same if he be a servant or handmaid which is gored to death let the oxe be stoned and thirty shillings be paid to the master If a man dig a pit and shall leave it uncovered he shall pay the value of any beast that falls into it and dies If the oxe of one gores the oxe of another so as he dies let the live oxe be sold and his price and the flesh of the dead one be given to the Lord if after the oxe wound another and he die let him sell the oxe and give the price and the flesh of the oxe that is killed to the Lord thereof If the master knew the oxe had gored another and would not take warning nor sell him he shall give two and four sheep for one if he hath not wherewith to pay let him be sold for theft If a Thief break a mans house in the night and there be slain he shall not be guilty of manslaughter but if it be after sunrise he shall be guilty of manslaughter if ready to be killed he were not necessitated If a man shall put fire into standing corn and burn it the author shall give the value of the damage If a man trust another with goods to keep and he privily steal them let him repay double but if it be not found that he which was intrusted used no deceit let him be excused If the thing intrusted were a living creature if he can bring witness that it was taken away by enemies or that it is dead he shall not repay but if he cannot bring witness nor free himself from guilt let him swear he is not guilty If a man corrupt a virgin unbetrothed and slept with her let him be fined and take her to wife but if her father will not so bestow her let him pay her portion after the value of virgins portion Women Fortune-tellers Charmers and Soothsayers suffer not to live He that hath had any thing to do with a beast shall be put to death He that offers sacrifice to any other Gods shall suffer death A stranger or inhabitant thou shalt not hurt for thou wert a stranger in the land of Egypt A widow or orphan do not oppress nor vex if you shall oppress and they complain I will hear their prayrs and slea you with my sword your wives shall be widows children orphans If thou lend money to thy acquaintance be not a gainer from him nor exact usury of him If thou take the garment of one for a pledg who hath only that for a covering restore it before the sun set but if he complain to me I will hear him for my mercy Do not speak evil of the Lord nor curse him who is the Prince of the people Pay thy Tithes and thy first born and first-fruits give to God Do not taste the flesh torne from beasts but cast it to the dogs Do not trust to a deceitful mans word nor hearken to it as to obey it nor favor him in judgment nor esteem his witness but as a tale Do not follow the ill counsel of the people nor in controversie of right incline to the opinion of the multitude nor do thou hold any thing common with wrong If thou shalt find any fourfooted beast of thine adversary straying out of the way reclaim him Judge rightly do not judge otherwise to the poor and adversary then to the rich and friend Do not tell a Lye Do not slea the innocent and just Do not take a gift for it oftentimes blinds the eyes of the wise and perverts the speech of the prudent Do no injury to the stranger nor inhabitant Do not take the names of other Gods in swearing nor have them in thy mouth These are those Laws which the Almighty God himself did give to Moses and commanded him to keep and also the onely begotten Son of God when he came into the World openly taught That he did not come down to destroy the Law but to fulfil it with gentleness and goodness for he delivered the rule of true Piety After that they nailed him to the Cross before that his Apostles were together nor were scattered for preaching the Gospel converted many Nations and sent Apostles and Interpreters of the Scripture to Antioch Syria and Cilicia to learn Christs Law and what should then befal them should by a Messenger be sent back to them in writing This is that Epistle which the Apostles sent to all the people of Antioch Syria and Cilicia which were converted from the bondage of the Gentiles to Christ The Apostles and Elder Brethren wish health to you Assoon as we heard that certain men which went from us had troubled you with words and commanded some things which they had not in command from us and had made
Court in the conusance of Heresie but onely for the punishment of Heresie adjudged in the Ecclesiastical Court and all men know that it is the Temporal not Ecclesiastical power although it may be executed or pronounced by Ecclesiastical persons that punisheth men for Spiritual Crimes The Pope cannot alter the Laws of England The Judges say that the Statutes which restrain the Popes provisions 11 H. 4. 37. 11 H. 4. fol. 69. 76. to the Benefices of the Advowsons of Spiritual men were made for that the Spiritual durst not in their just Cause say against the Popes provisions so as those Statutes were made in affirmance of the common Law Excommunication made by the Pope is of no force in England and the same being certified by the Pope into any Court in England ought not to 14 H. 4. fol. 14 c. be allowed neither is any Certificate of any Excommunication available in Law but that which is made by some Bishop in England for the Bishops are by the common Laws the immediate Officers and Ministers of Justice to the Kings Court in Causes Ecclesiastical If any Bishop do Excommunicate any person for a cause that belongeth 14 H. 4. 14. not to him the King may write to the Bishop and command him to assoyl and absolve the party If any person of Religion obtain of the Bishop of Rome to be exempt St. 2. H. 4. Cap. 3. from obedience regular or ordinary he is in case of a Premunire which is an offence as hath been said contra Regem coronam dignitatem ejus Upon complaint of the Commons of the horrible mischiefs and damnable customs which there were introduced by the Church of Rome that no St 6. H. 4. Cap. 1. person Abbot or other should have any provisions of Archbishoprick or Bishoprick which should be void till he had compounded with the Popes Chamber to pay great and excessive sums of money as well for the first fruites of the same Archbishoprick or Bishoprick as for the other less services in the said Court and that the said sums or greater part thereof be paid beforehand which sums passed the double or treble of that that was accustomed of old time to be paid c. It was therefore Enacted That they and every of them that did pay greater sums then had of old time been accustomed to be paid into the said Chamber should incur the forfeiture of as much as they may forfeit to the King No person Religious or Secular of what estate or condition that he St 7. H. 4. Cap. 6. were by colour of any Bulls containing Priviledges to be discharged of Tythes appertaining to Parish-Churches Prebends Hospitals Vicaredges Purchased before the first year of King R. 2. or after not executed should put in execution anysuch Bills so Purchased or any such Bulls to be Purchased in time to come upon pain of a Premunire In the Reign of Hen. 5. In an Act of Parliament made in the third year of Henry 5. it is Declared 〈…〉 H. 5. â—â—â— 4. â— That whereas in the time of H. 4. father to the said King the seventh year of his Reign to eschew many discords and debates and divers other mischiefs which were like to arise and happen because of many provisions then made or to be made by the Pope and also of licence thereupon granted by the said King among other things it was Ordained and Established That no such Licence or Pardon so granted before the same Ordinance or afterwards to be granted shall be available to any Benefice full of any Incumbent at the day of the date of such Licence or Pardon granted Nevertheless divers persons having provisions of the Pope of divers Benefices in England and elsewhere and Licenses Royal to execute the same Provisions have by colour of the same Provisions Licenses and acceptations of the said Benefices subtilly excluded divers persons of their Benefies in which they had been incumbents by a long season of the collation of the very Patrons Spiritual to whom duely made to their intent to the final destruction and enervation of the Estates of the same Incumbents The King willing to avoid such mischiefs hath Ordained and Established That all the Incumbents of every benefice of Holy Church of the Patronage Collation or presentation of Spiritual Patrons may quietly and peaceably enjoy their said Benefices without being inquieted molested or any way grieved by any colour of such provisions licencies and acceptations and that all licences and pardons upon and by such provisions made in any manner should be void and of no valour and if any feel himself grieved molested or inquieted in any wise from henceforth by any by colour of such provisions licenses pardons or acceptations that the same molesters grievers or inquesters and every of them have and incur the pains and punishments contained in the Statutes of Provisors before that time H. 4. St. 2 H. 5. Cap. 7. Lollardy Was made for extirpation of Heresie and Lollardy whereby full power and authority was given to the Justices of Peace and Justices of Assize to enquire of those that hold Errors Heresies or Lollardry and of their maintainers c. and that the Sheriff or other Officer c. may Arrest and apprehend them A man should undertake a very hard task that goes about to maintain that all Humane Laws did never transgress their limits nor encroach upon things that were not properly in their conusance and this Law ill suits with the temper of these times The King by consent of Parliament giveth power to Ordinaries to enquire St. 2 H. 5. Cap. 1. of the Foundation Erection and Governance of Hospitals other then such as be of the Kings Foundation and thereupon to make correction and reformation according to the Ecclesiastical Law nor could any other Power grant such Ordinances In the Reign of Henry the sixth 8 H. 6. fol. 3. Excommunication made and certified by the Pope is of no force to disable any man within England and this is by the ancient Common Laws before any Statute was made concerning forein Jurisdiction The King onely may grant or licence to Found a Spiritual Corporation 9 H. 6. fol. 16. The Pope wrote Letters in derogation of the King and his Regality 1 H. 6. fol. 1â— and the Church-men durst not speak against them but Humfrey Duke of Glocester for their safe keeping put them into the fire In the Reign of Edward the fourth The Pope in the Reign of King Ed. 4. granted to the Prior of St. Johns H. 7. f. 20. to have Sanctuary within his Priory and this was pleaded and claimed by the Prior but it was resolved by the Judges that the Pope had no power to grant any Sanctuary within this Realm and therefore by Judgement of Law it ought to be disallowed There it appeareth that the opinion of the Kings Bench had been oftentimes Ed. 4. 3. that if one Spirital
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
with the sword all stubborn and evill doores But whatsoever the Queene or Church did declare the Lawyers would The Lawyers exception of the Statute of 1 Fliz. cap. 1. not lose so much Grist as this Stat. of the first of Eliz. brought to their Mill and therefore the fourth conclusion in the 3 part Institutes 43 is That when an Act of Parliament is made concerning things meerly spirituall as Heresie c. yet the Act being part of the Lawes of the Land the same shall be construed and interpreted by the Judges of the Common-Law who usually confer with those that are learned in that profession so that all Spirituall jurisdiction doth utterly vanish whensoever the Temporall power shall doe any thing in derogation of it and in truth ever since the Statute of the first of Elizabeth all cognizance not only of Heresie c. but the cognizance of the worship and service of God and administration of Sacraments have upon the matter beene determined at quarter-Sessions and assizes and since ths uniting of all forraigne jurisdiction in the Crowne many places in England that were not in ordinary Episcopall jurisdiction and immediatly under the Pope are become out of all cure of Soules and for ought can be known are not any part of any Christian Church If the Queen be supreme Governor in all Spirituall cases under Christ then are not Bishops and Priests immediately Christs Ministers but the Queens Nay then may she ordain confirm and consecrate the Sacraments which the Church of England Art 37. King James Spot Hist anno 7 Regni doth deny The preamble of the first of Eliz. cap. 1. Is a supplication of the Lords Obsecrable things in the 1. 2. chap. 1 Eliz. Spirituall and Temporall and Commons that those things therein might be passed into a Law whereas the Lords Spirituall a a Camb. Eliz. Reg. 16. being nine nor were there then fourteene alive and all who were present not only stiffly opposed it but were all of them deprived because they would not conform thereunto and take the Oath of Supremacy made by that Act. In the 2. chap. Pag. 36. 1 Eliz. there is a very strange clause viz. The Queenes Majesty the Lords Temporall and Commons assembled doe in Gods name earnestly require and charge all Arch-Bishops and Bishops and other Ordinaries that they endeavor themselves to the utmost of their knowledge that the due execution of that Law may be had throughout their Diocesses and Charges as they will answere before God for such evills and Plagues wherewith God may justly punish his people for neglecting this good and wholsom Law and yet the Temporall powers by this very Law have power to heare and determine all things in it as well as the Spirituall whereas Praeces lachrima sunt arma Ecclesiae all alwaies the Church formerly did supplicate protection from the temporall powers The Queene did not make an alteration and change in the Religion and By what degrees Religion was charged Service of God on a suddain but by degrees for for a whole moneth or more after the death of Queene Mary the Roman Religion continued in the same state it did before upon the twenty seventh of December leave was granted to have the Epistles Gospells ten Commandements the Lords Prayer Creede and Letany in the English tongue The two and twentieth of March when the Nobles and Commons were met in Parliament the entire use of the Lords Supper viz. in both kindes was allowed and the Law made to that intent in Edward the sixts dayes revived and put in new force The twenty fourth of June the Sacrifice of Masse was abolished and the Liturgy in the English Tongue established by Parliament In July the Oath of Supremacy was propounded to the Bishops and others and in Aug. Images were removed out of Churches and broken ot burnt Cambd. Eliza Reg. 39. From the first of Eliz. untill the eleventh yeere of her Reigne no person How the Laws made for conformity to the Service of the Church were observed of what perswasion soever at any time refused to come to the publique Divine Service celebrated in the Church of England being so evidently grounded upon the sacred and infallible word of God that the Bishop of Winchester in his answere to Tortus page 42 is not afraid to affirme positively that the Pope Paulus quartus which is misprinted for it should have been Pius quartus if the Queene would have acknowledged his authority would have been so kinde as to have established all the Rites and Ceremonies now used in the Church untill the Bull published against the Queene by Pius the Fift whereby he excommunicated her and deprived her of her Kingdome and forbad all her Subjects upon like penalties to be so hardy as to obey her Admonitions Lawes or Commandements and did absolve all men who had upon any occasion taken their oath to her of all fealty and service due unto her by reason of her Government which Bull produced no other effect then the severe Statute made the thirteenth yeere of the Queene against all men who should endeavor to put it or any such in ure or execution or should receive or take any absolution or reconciliation from the Church of Rome But afterward these Parliament Laws for the conforming to Divine Service established became as much disobeyed by another generation of men called Puritans and therefore the Statute of the thirty fift of Elizabeth cap. 1. was made expresly against them yet would they never be restrained untill they upon pretence of Reformation brought a desolation upon both Church and State Shee was truly pious who daily as soone as she rose set a part some time Of the virtues of Queen Eliz. for the worship and service of God afterwards at set houres retired her selfe into her private Closet frequented the Chappell duly upon Sundaies and holydaies nor was there ever any Prince that with greater devotion was present at divine Service In black aray and after the manner of the former ages she heard attentively Lenten Sermons although she would often say what she had read of Hen. 3. her predecessor That she had rather devoutly speak to God in Prayer then hear others discourse eloquently of God in their Sermons and of the Cross the blessed Virgin and of the Saints shee thought reverently nor did shee ever speake of them without a certain reverence nor patiently heare others speake of them without the like * to these may justly Camb. Eliz. Reg. 14. be added a wisdome and prudence in Government so far above her sex that certainly shee in that kinde is not to be parallell'd by any of her masculine predecessors and these vertues were crowned with that felicity that all along her long Reigne shee was most passionately and obsequiously hononred by her Subjects a rare thing among Islanders and not to be found in any time before her in any of her Predecessors Yet sure
by reason or colour of any such Declaration or Sentence or otherwise and will doe my endeavor to disclose and make known unto his Majesty his Heirs and Successors all Treasons and Traitrous Conspiracies which I shall know or heare of to be against him or any of them I doe farther sweare That I doe from my heart abhorre detest and abjure as impious and Hereticall this damnable Doctrine and Position That Princes which be excommunicated or deprived by the Pope may be deposed or murdered by their Subjects or any other whatsoever And I doe beleeve and in my Conscience am resolved That neither the Pope nor any person whatsoever hath power to absolve me of this Oath or any part therof which I acknowledg by good and full authority to be lawfully ministred unto me and doe renounce all Pardons and Dispensations to the contrary And all these things I doe plainly and sincerely acknowledg and sweare according to these expresse words by mee spoken and according to the plaine and common sense and understanding of the same Words without any Equivocation or mentall Evasion or secret reservation whatsoever And I doe make this Recognition and acknowledgment heartily willingly and truly upon the Faith of a Christan So helpe me God Unto which Oath so taken the said Person shall subscribe his or her name or marke No Indictment to be had or found for not repairing to Church or for not receiving the Sacrament according to Law nor any Proclamation Outlawry or other proceeding thereupon shall be avoyded discharged reversed for default of forme other then by direct Travers to the point of not coming to Church or not receiving the said Sacrament If any Person so Indicted afterward submit and conform himselfe and become obedient to the Lawes of the Church of England and heare Divine Service according to the Statute in that case made and publiquely receive the Sacrament according to the Lawes of this Realm that then every such person may reverse and discharge the said Indictment Every subject of this Realme that shall passe out of this Realme and voluntarily serve any forreign Prince State or Potentate not having taken this Oath as aforesaid shall be a felon If any Gentleman or person of higher degree or any person or persons which hath born or shall bear any office of Captain Lieutenant or any other Office in Camp Army or Company of Souldiers shall after voluntarily serve any foreign Prince State or Potentate before he shall become bound by obligation with two such sureties as shall be allowed by the Officers which by this Act are limited to take such bond unto the King in the summe of 20 l. at least with condition to the effect following shall be a Felon The Tenor of the Condition followeth viz. That if the within bounden c. shall not at any time then after be reconciled to the Pope or Sea of Rome nor shall enter into or consent unto any practice plot or conspiracy whatsoever against the Kings Majestie his Heirs and Successors or any of his or their Estate or Estates Realms or Dominions but shall within convenient time after knowledge thereof had reveal disclose to the Kings Majesty his Heirs and Successors or some of the Lords of his or their honorable Privie Councell all such practices plots and conspiracies That then this obligation to be void The Customer and Controller of every Port Haven or Creek or one of them and their Deputies and none other may receive such Bond to the uses aforesaid and minister the Oath aforesaid taking for such bond six pence and no more and for such oath nothing which said Customer and Controller shall Register and certifie such Bond and Oath so taken into the Exchequer at Westminster once every year upon penalty of 5 l. for every Bond not so certified and 20 s. for every Oath not so certified If any person put in practice to absolve or perswade any of the Kings Subjects from their naturall obedience to his Majesty either within or without the Dominions or upon the Sea c. or to reconcile them to the Pope or Sea of Rome or any other Prince State or Potentate that then every such person their Aiders Counsellors and Abettors shall be adjudged Traitors and every person which shall willingly be absolved or reconciled as aforesaid shall be adjudged a Traitor The last branch shall not extend to any person which shall be only reconciled to the Pope or See of Rome and shall return into this Realm and within six dayes after before the Bishop of the Diocess or two Justices of Peace joyntly or severally submit himself to his Majesties Lawes and take the Oath of Supremacy made in the first year of the Queen * and also the Cap. 1. Oath mentioned in this Statute Where Oathes are so taken the Bishop and Justices shall at the next Generall or Quarter-sessions certifie upon the penalty of fourty pound All persons who offend against this branch of the Statute shall be indicted and tried by the Justices of Assize and Goal-delivery of that County for the time being or before the Justices of the Kings Bench and there be proceeded against according to the Laws against Traitors as if the offence had been committed in the same County If any Peer of the Realm shall happen to be indicted of any offence made Treason by this Act he shall be tried by his Peers If any person shall not resort weekly to some usuall place of Divine Service any Justice of Peace in the Limit Division or Liberty where such person shall dwell may give a Warrant to the Churchwarden of the Parish upon proof or confession made before him to levy twelve pence for every such default by distresse and sale of the Goods of the offendor and for default of such distress the said Justice may commit the offendor to prison untill payment be made No man shall be impeached upon this clause except it be within one moneth after such default made No man being punished according to this branch shall for the same offence be punished by forfeiture of twelve pence upon the Law made in the first year of Queen Eliz. This Statute repeals the two branches of 35 Eliz. 1. the first beginning and for that every person having house or family is in bounden duty to have speciall regard of the Goal governance and ordering of the same and so forth to the next clause beginning thus provided neverthelesse that this Act shall not in any wise extend to punish or impeach any persons for relieving c. ending with these words any thing in this Act contained to the contrary notwithstanding In lieu whereof every person which shall willingly maintain relieve or keep in his house any servant sojourner or stranger which shall not repair to some usuall place of Divine service according to Law by the space of one moneth not having a reasonable excuse shall forfeit ten shillings for every such moneth Every person which
are the English and Scottish And also since the corruption of the best thing is worst it will not be amiss before we conclude this Chapter and Book to discourse this Probleme whether upon all occasions it be the only and necessary way to cure all distempers of State by a full convention in Parliament according to the usuall constitution And first we will see what may be said for it That the passing of Lawes in Parliament where the major part of the Object 1 Freeholders are represented creates and begets a right understanding between the King and his Subjects that it is not the intention of the Prince to alter the old Lawes and introduce new ones to their prejudice To this I subscribe That when Lawes are so passed it confirmes and strengthens the Prince both by the person and purse of his Subjects in any designe he shall undertake because the representatives of the Freeholders consent unto it To this I subscribe That Parliaments have been of that antiquity and the Nation so habituated to them that it will never long be governed peaceably without them To this I subscribe That the grievances of the Nation can never be so well represented and redressed as in Parliament where the major part of the Freeholders are represented To this I subscribe That men will lesse dare to abuse their Prince or Country by any sinister or indirect means when Parliaments are frequent and free To this I subscribe The frequent use of Parliaments takes away all strangenesse between the King and his Subjects and begets a confidence and right understanding between them To this I subscribe That since it is necessary that every Prince in governing must necessarily ultimately resolve his confidence into something besides the Lawes to which upon all occasions he may betake himself for the Execution and defence of himself and Subjects and this must be by a constant Army in pay of his Subjects according to the institution of the Roman Legions or out of a diffidence of his own Subjects or from some reason of state trust the protection of his Person and Lawes into the hands of Foreigners as did the Kings of Aegypt before Sclymus conquered them or as the King of France now does in the hands of Switz and Scots or he must betake himself to the protection of a mercinary Army made up of his Subjects and Foreiners as the Turks Janizaries and Spahi are or establish his security and refuge up-the affection of his subjects and intrust them with the Militia in such manner as hath beene used heretofore in England and that this agrees better with the nature and constitution of English-men then any of the other as being established as well by common-common-Law as many Acts of Parliament To this I subscribe To these may be added that Tacitus in the life of Agricola makes it one great cause of the Romans conquering our Ancestors That they consulted not in common Nec aliud adversus validissimas Gentes pro nobis utilius quam quod in commune non consultant Rarus ad Propulsandum commune periculum conventus It a dum singuli pugnant aniversi vincuntur Quaere Yet quaere whether Rising-Chase in Norfolke and old Sarum in Wilts where are no Inhabitants but a few meane Tenants sending twice the numbers to the Parliament with the county of Yorke and whether the County and City of Durham sending none at all and whether Cornwall's sending ten times as many as either Warwick-shire or Leicestershire and yet eyther of them bigger and far more rich Counties Or whether Cities and Boroughs not only sending a like number of Citizens and Burgesses with the County having alike Vote with them of the County be an equall representative of the Freeholders Or whether the waies used in the Elections doe not animate the Electors and those that stand in Competition against one another and that to such a height That many of the Electors and those who stand are never after reconciled Answer It is true indeed that if God had determined all things in this inferior Orbe without any variation and that this thing were alwaies to be attained only by some one means that this in governing were by councell in Parliament then could there be neither reason or discourse upon variation and alteration of things and no difference betweene the wisest of Princes and the most foolish but this is so far from truth that there is nothing sublunary not only variable but doth vary every moment neither is there any thing in Reason Physick or State alike to all men nay in all of them the same thing may be at one time good and profitable at another time bad and hurtfull What man sees not that in health nature is not repaired by any man without a proportionable measure of diet which when he is indisposed may surcharge nature to the overthrow of it in him Strong physick may be proper to a man at one time and kill him at another Parliaments although ordinarily are the Kings surest refuge yet by how much they are more excellent by so much the worse are they corrupted Times are and will be bad when they are not made so by any cause in the Prince and so bad that in such conjuncture it may prove the utmost evill if the Houses or eyther of them shall assume the title of Parliament or give head to such Factions and distempers And no question when the Scots invaded England in 1640 it was unsafe Councell that advised the King to summon a Parliament and worst of all to convene it at London as things then stood For that saying of Tacitus it is rather Rhetoricall and makes against the Antiquity of Parliaments then any way proves necessity of them upon all occasions unless he could make consulere and pugnare the same thing nor could Agricola ever have obteined such victory against our Ancestors if he had fought with no more then had councelled him Epilogue WHen I looke back and consider the unstable condition of mankinde especially among Islanders and that often times the fate of good religious and just men is in this World more calamitous then of bad and vicious men I did then conclude with my self that Religion Justice and Piety cannot of themselves procure peace and society to mankind nay what is yet more lamentable that first sublunary cause from whence all Subjects derive and expect their protection is more subject to calamity then the condition of the meanest of mortall men Let a man take a survey of all the Kings in Britain since there were any Records of time and see whether neer one halfe of them did attain a naturall death nor is this confined within the Seas which encompass our Isle or a new thing in other parts of the world for Adgenerum Cereris sine caede sanguine pauci Juvenal Sat. 10. Descendunt Reges I shall therefore before I conclude endeavour to shew whether any peace and happinesse may be reasonably