Selected quad for the lemma: religion_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
religion_n	king_n	law_n	liberty_n	6,707	5	6.5575	4	true

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A89520	An argument or, debate in law: of the great question concerning the militia; as it is now settled by ordinance of both the Houses of Parliament. By which, it is endeavoured, to prove the legalitie of it, and to make it warrantable by the fundamentall laws of the land. In which, answer is also given to all objections that do arise, either directly, or collaterally concerning the same. All which is referred to the judicious reader. by J.M. C.L.	Marsh, John, 1612-1657.; Milton, John, 1608-1674, attributed name.	1642 (1642)	Wing M575; Thomason E119_13; ESTC R18112	46,929	48

AN ARGUMENT OR DEBATE IN LAW OF THE GREAT QVESTION CONCERNING THE MILITIA As it is now settled by ORDINANCE of both the HOUSES of PARLIAMENT By which it is endeavoured to prove the Legalitie of it and to make it warrantable by the fundamentall Laws of the Land In which Answer is also given to all Objections that do arise either directly or collaterally concerning the same All which is referred to the judicious Reader By J. Marsh C. L. LONDON Printed by Tho. Paine and M. Simmons for Tho. Vnderhill at the Bible in Wood-street 1642. TO THE READER Courteous READER THat which I framed for my own private satisfaction onely in these distracted times in which every man that resolves not to stand Neuter ought to have his conscience poysed by good grounds and principles l●st that it suffer shipwrack in the conclusion I do here though unwillingly present to the publique view in which weak and poore indeavour I have borrowed some of the Parliaments grounds to exspatiate my self upon that I might the better convince thy iudgement and mine own but the greater part are mine which I hope will not blast the rest nor make it unfruitfull to thee but rather more fully inform satisfie and convince thee of the truth of the Parliaments assertions and to this end I have not used any affected style but have to the utmost of my endeavour invested the Law with its own plainnesse and integrity for I have alwayes raised this conclusion to my self that where I look for words there I expect least Law which is confirmed unto thee as a truth in these dayes Now Reader shortly to conclude this for the Work doth not deserve a Preface or Epistle if happily there may be any thing in it that may merit thy more serious consideration and make thee a true Subiect to the King by being faithfull to the Parliament I shall expect no greater areward of my labour then that confidently beleeving that the issue of it will be thine and my happinesse Farewell Thine to love and serve thee J. Marsh. AN ARGVMENT IN MAINTENANCE OF THE MILITIA Setled by ORDINANCE of PARLIAMENT THe generall Question is but shortly this Whether the Militia as it is now setled by both the Houses of Parliament be warrantable by Law or not The Case with the Circumstances upon which this generall Question is stated depends upon these two Quaeres 1. Whether the King by his Prerogative hath the sole and onely power of ordering and disposing of the Militia of his Kingdome or not Admitting that he hath then the next and maine scruple is 2. Whether both the Houses of Parliament in time of imminent danger the King refusing to settle the Militia for the defence and securitie of his people may by an Ordinance of Parliament without his Majesties consent settle the Militia and put the Kingdome into a posture of defence or not 1. For the first point I conceive very clearly that the King by his Prerogative warrantable by the Lawes of the Land performing the trust reposed in him hath the onely power of disposing of the Militia of this Kingdome and therefore I shall not debate this so much out of scruple or doubt as to give satisfaction to the unlearned and I shall prove it in reason thus The King is Caput Reipublicae pater patriae that is the head of the Common-wealth and Father of his Countrey and hath this great trust committed to him by God and his people of governing of them in peace and happinesse by maintaining and defending of their Religion Lawes and Liberties which that he may be the more obliged to doe he taketh a solemne Oath at his Coronation that he will doe and performe this according to the trust reposed in him the due execution whereof being of so high consequence to this Kingdome and of so great difficultie to himselfe and therefore not to be executed without great care circumspection and trouble the Lawes and Constitutions of this Realme hath in favour and ayde of his Majestie who is intended alwayes to be imployed and negotiated Cirea ardua regni about the high things of the Kingdome allowed unto him many prerogatives priviledges and exemptions above all his Subjects Among which I take this in our Case to be one for as our Religion Lawes and Liberties are committed in trust to the King so are our lives also which he is bound to defend aswell by the materall sword if occasion be as by the sword of Justice and therefore as it is well knowne all prosecutions by way of Indictment against any man for the taking away of the life of another are at the suite of the King and the King onely can pardon the offence and no other For he alone hath the charge of the lives of his Subjects committed to him and this is such an inseperable trust that the King cannot grant this over to another as it is resolved in 20. H. 7. where it is said ●● H. 7. fo 8. a. That a grant of power to pardon Felons by the King to another is not good for that it is a prerogative annexed to the Crowne and cannot be severed But here it is not to be understood that no prerogative of the King can be severed from the Crowne for some may as I shall afterwards shew and that by grant of the King too but that this among others is such a prerogative as cannot be severed and the reason of this is as I conceive for that the life of a man is of so high and puissant nature that none lesse then God or the King ought to have interest and power in and though the Common-wealth loose a member it is the King onely who looseth a Subject and therefore the killing of a man is said in the Indictment to be against his Crowne and dignitie and not against the Common-wealth for though mediately it be an offence against the Common-wealth too yet it is a more neare and immediate offence against the King for that he is intrusted with the lives of his Subjects Now as the King is bound to defend his Subjects by the Law so in like manner he is bound to defend and protect them by the Sword if occasion be as I have said before from all danger both of forraigne and domesticke enemies And therefore as there is a Leigeance that is a faithfull and true obedience of the Subject due to his Soveraigne as it is interpreted in the 7. Rep. Calvines case ● Rep. Calvins ●●se So there is a protection due from the Soveraigne to the Subject for he ought not onely regere to rule but also Protegere subditos suos to protect his Subjects So as betweene the Soveraigne and Subject there is Duplex reciprocum ligamen that is a double and reciprocall bond Quia sicut subditus regi tenetur ad obedientiam ita Rex subdito tenetur ad protectionem for as the Subject is bound to obey the King so the King

alwayes to make such construction of the Deeds of men and of their Grants Vt res magis valeat quàm pereat that is that they should rather take effect then perish so I say it may well be taken for a Rule that the Judges should not so construe the Law that the Law should destroy it selfe which will necessarily follow in the destruction of the Common-wealth but that they should so interpret it V● respublica magis valeat floreat quàm p●reat destruatur that the Common-wealth should rather flourish then perish and be destroyed I agree that in the case in question by the strict Rule and Law of Prerogative the governing and disposing of the Militia of the Kingdome is onely in the King and that he onely may proclaime warre and he alone establish peace amongst his people yet we ought not so t● construe this Law that it is so in the King that it cannot be severed from him and that no other can intermeddle with it without the consent of the King though that it be for the Weale publique and for the securing of the Kingdome being in imminent danger the King refusing to settle it as in right he ought upon the prayer of his people represented in the defires of the Parliament For to make such a construction were utterly to confound and destroy both Law Common wealth as I have said before and therefore ought not to be admitted The King hath this Prerogative allowed him by the Law that he shall not be bound by any Statute except that he be expressely named in the Statute yet it is resolved in the 5. Rep. ● Rep. fo 14. b. that all Statutes which are made to suppresse wrong to take away fraud or to prevent the decay of Religion shall binde the King though he be not named in them for saith the Booke Religion Justice and Truth are the sure Supporters of the Crownes and Diadems of Kings So I say in this case the King by his Prerogative as I have said before ought to have the sole disposing of the Militia But if in imminent danger he refuse to settle this for the safetie of himselfe and his Kingdome according to the trust reposed in him his Prerogative ought then to give way for the securing of his Crowne that those who are intrusted with the Weale publique as the Parliament is may settle this for the defence of the King and Kingdome according as in truth they are bound as I shall afterwards shew It is a Rule in our Law That the King can doe no wrong and with this accords Bracton ●●acton fo 107. Nihil aliud potest Rex in terris cum sit Dei minister vicarius nisi id solum quod de jure potest nec quod principi placet legis habet vigorem the King can doe nothing upon earth seeing that he is Gods minister and Vicar but that onely which of right he ought to doe neither ought the Kings will to have the force and vigour of a Law Here note that the will of the King ought to subscribe to the Law and not the Law to the will of the King And in Pl. Com. 1. Rep. 5. Rep. it is said ●● Com. fo 246. ● Rep. fo 44. b. ● Rep. fo 55. b. That the King cannot doe a wrong neither will his Prerogative be any warrant to him to doe injurie to another and if the King cannot injure one single person without question he cannot injure all the Common-wealth which he should doe in this case if both the Houses of Parliament in this time of imminent danger the King refusing to joyn with them should not have this power of setling the Militia in defence of the Kingdome without his consent I agree with Bracton Bracton fo 5●… that the King Parem non habet in regno nec superiorem He hath no equall nor superiour in his Kingdome but that is to be understood that there is no man above or equall with his Majestie for he saith afterwards Bracton fo 3●… Rex non debet esse sub homine sed sub Deo sub lege that the King ought not to be under man but under God and under the Law and after fo 34. a he saith Rex habet superiorem Deum scilicet item legem per quam factus est Rex item Curiam suam viz. Comites Barones c. the King hath a superiour to wit God in like manner the Law which made him King and also his Court to wit the Earles Barons c. which cannot be understood of any other then the high Court of Parliament And in the places before cited he saith Quod non est Rex ubi dominatur voluntas non Lex He is not King when his will rules not the Law Then if it be thus as Bracton saith that the Law and the two Houses of Parliament are above the King and that the King is as no King when he doth not submit to the Law which will of necessitie follow for that the same Law which made him King injoynes and obliges him also to defend his people committed to his charge and without doubt the one as just as the other and if he refuse to protect his people which is a dispising and a depressing of that Law which gave him this Soveraigntie certainly the Law will not defend him in this his tyranny I conceive that in this case the Law will in its own defence and in default of the King who ought to have maintained the Law inable the two Houses of Parliament to put the Kingdome into a posture of warre in defence of the King his Lawes and Subjects But now the great Question is What and where is the ground of our feares and jealousies and where is the imminent danger for many say that they cannot see it and then it not being visible and obvious to every eye a Question as great in shew as the former arises upon this Who is or may be the proper Judge of this imminent danger To the first I answer that our feare and the imminent danger pretended is no Phantasme or Chimerâ as some would have it but it is a reall and visible cause of feare Et talis metus qui cadere potest in virum constantem such a feare as may befall a constant man as my Lord Cooke describeth a feare Instit fo 253. that may possesse a generous and settled spirit And that it is thus I appeale to the conscience of any wise indifferent man whether that the Commune incendium the common fire or calamitie in our neighbour Nation of Ireland clothed with these three circumstances as I shall set it forth will not cause and justly too a wise man to feare and doubt what the event will be As first that they are our Neighbours and when my Neighbours house is on fire will any man adjudge this to be a phantasme or an effeminate feare in me to

provide for the securing of my person and estate from perishing in the common ruine Secondly It is Religion that these cruell barbarous and unheard of Tyrants make for a ground of their horrid Rebellion and what stronger ingagement can there be then this for to incourage and spurre men forward in any desperate designe Especially those of the Popish faction who may have a pardon before-hand for the act they shall commit be it never so desperate And doe we not thinke that this will be a strong incitement to men who conceive themselves tyed in conscience to undertake that which they doe to wade through any misery for the accomplishment of their desired end knowing before-hand that they have a pardon for the most horrid act or attempt that they can doe conducing to the perfecting of the same And then as this obligeth all Nations besides of the Popish partie ought not we to thinke and beleeve that such an opportunitie must of necessitie stimulate them forward to be ayding and assisting to such a designe which will infallibly at the last merit either Heaven or Hell I am confident and it stands with all reason that it should be so for that they have not for a long time praysed be God had the like opportunitie that the Pope with all his adherents are now plotting and contriving with their holy Father the Devill to operate the ruine of the Protestant Religion and shall this ingage them to fight against God under a pretence of being on his side And shall it not invite us who fight for God and his truth which we have so long time happily peaceably through Gods goodnesse enjoyed to prepare our selves and all that we have for the desence of the same To conclude this we who have the greatest part of the world our enemies may justly feare that they are now plotting and contriving that for England that is already acted in Ireland And let us not say that they are at enmitie one with another and therefore are not at leisure to harme us for we may be sure that they will shake hands to doe us a mischiefe according to that in holy Writ of Pilate and Herod who though they were utter enemies one to another yet they were made friends to combine against Christ ●…uke 23. 12. Thirdly and lastly who is able to say that either he or his children shall live to see an end of that bloudy persecution and rebellion and what the successe of it will be True it is that God hath hitherto gone forth with our Armies and hath in an exceeding measure and above all expectation blessed their endeavours and crowned their actions with a happie successe God be praised for it but yet who knoweth whether they shall ever be able to root out this rebellious Tribe I speak not this out of any diffidence of Gods continued favour and goodnesse towards us or to make others mistrust but onely to demonstrate that there is a just cause of feare for who can divine what the event of warre will be Exitus belli incertus that is the issue of warre is uncertain Besides and which brings me to my second ground of our just and dreadfull feares if the distractions of this Kingdome continue which God defend what ayde can they expect from us who are like to be surrounded with the like misery so that their necessitie may cutt them short of their hopes and by this much adde to our feares Secōndly having shewed our just cause of fear which riseth ab extra from our deplorable brethren and neighbours now I shall shew our cause of fear that ariseth ab intra from the unhappy distractions which are risen amongst our selves Who is it that doth not see the sad divisions and generall sidings throughout the Realm which hath grown upon this unhappy division of the King and Parliament which when it will be reconciled God knoweth And if this which adds much to our miserie had not happened we could not before have been secure without a just cause of fear for what divellish plots and fearfull designes have been discovered through Gods mercy and the vigilant eye of the Parliament tending to the destruction of our best birth-right and inheritance the priviledges and freedome of Parliaments Without the continuance of which that which is nearest and dearest unto thee whether it be thy Religion life or liberty what ever it be that thou most blessest thy self withall will then depend upon the Arbitrary will of thy Soveraign so that thou mayest not then stile ought that God hath given thee thy own which heavy judgement I beseech God to divert from this sinfull Land and Nation for we may truly acknowledge that it were just upon us that we who have so much abused Gods blessings should now be deprived of them and that we who have so much abused the freedome of conscience of our laws lives liberties and estates should now be subjected to a perpetuall slavery Now to conclude this likewise divide the Kingdom into foure parts and I am confident that the Papist Newter and Cavalier I might adde likewise the domineering proud Clergy who would fain reduce all things to their late condition who lie perdue and wait for an opportunitie for to bring a speedie destruction upon this Common-wealth will make two parts I think I might without any imputation or prejudice to judgement say three parts of the foure and now put all these things together and I beleeve that no indifferent understanding man but will be forced to confesse that there was and still is a just cause of fear and of putting of the Kingdom into a posture of warre And then the imminent danger being pregnant and demonstrable to all the world the last question is taken away But admitting that it were not prospicuous and visible to all then the question is who is the proper Judge of this imminent danger and I conceive plainly under favour that the Parliament ought to be and no other and my first reason is grounded upon the rule of Law viz. that the Parliament can do no wrong which is warranted by the 9. Rep. the 6. Rep. ● Rep. 106. b. ●07 a. ● Rep. 27. b. ●… a. and many other books And in Pl. Com. it is said Pl. Com. fo 398 that the Parliament is a Court of thrice great honour and justice of which none ought to imagine a dishonourable thing And this I conceive to be grounded upon the Writ of Summons to Parliament which wils that the elections should be De gravioribus discretioribus viris c. of the most grave and discreet men And Fortescue speaking of the Parliament saith Fortes ca. 18. We ought necessarily to think that the Statutes of this Realm are made with great wisdom and prudence Dum non unius aut centum solum consultorum virorum sed plus quam trecentorum electorum hominum quali numero olim Senatus Romanorum regebatur ipsa sunt edita For