AN APPEAL TO THE CONSCIENCE OF A FANATICK: SHEWING, That the KING of ENGLAND, by the Fundamental Laws of it, is as absolute and In­dependent a Monarch, as any of the Kings men­tioned in Scripture; and consequently as free as any of them, from any Humane, Co­active Power, to Punish, Censure, or Dethrone him.

Whereunto is added, A Short view of the Laws both Foreign and Dome­stick, against Seditious Conventicles.

By a Barrister at Law.

LONDON: Printed by J. G. for John Walthoe, at the Black-Lyon in Chancery-Lane, overagainst Lincolns-Inn, 1684.

AN APPEAL TO THE CONSCIENCE OF A Fanatick, &c.

SIR,

YOurs I have received, wherein you are pleased to signify, that you have shown the several Tracts which have been lately written, and exposed to publick View, in defence of the Doctrine of Non-resistance, to some of your Neighbors, who are much inclined to Fanaticism, and they say, upon per­usal of them, that though they should grant to our Church-men what they have endeavoured to prove out of Scripture, Viz. The unlawfullness of Subjects taking up Arms against their Sovereign in what Case soever, yet [Page 2]they fancy, that the King of England is not such a King as the Scriptures mention. It is (say you) an Eva­sion they much boast of, whensoever they read any pieces of this nature: What is all this to us, who Live not under such a King as the Holy Scriptures makes men­tion of Well, [...]ing that this Evasion is the Diana they so much vaunt or, I am resolved, out of the Zeal and Love I bear my King and Country, and for the prevention of another Rebellion, (having been suffi­ciently sensible of the dire and calamitous Effects of the former) to set forth the excellent and sweet a­greement, which the Municipal Laws of this Realm have with the Laws of God in this particular, affir­ming, That the King of England is such a King as the Scriptures mention, and that in a fourfold Respect.

In Respect
  • 1. Of his Right to the Crown.
  • 2. Of his Authority and Power.
  • 3. Of his Charge, and Duty.
  • 4. Of the Rendring of his Account.

1st. The King of England's Right to the Crown is by Birth, Descent, or Hereditary Succession. And this shall be apparanted in these four particularities.

First, By that part of the Oath of Allegiance which is used in every Leet, You shall swear, that from this day forward, Co. Lib. 7. Calvin's Case. you shall be true and faithful to our Sovereign Lord King Charles and his Heirs, which demonstrates the Descent. And by the by, I presume it will not be amiss to present to our Fanaticks the whole scope and aim of this Oath of Allegiance, as it is expressed in the Laws and Constitutions of our King William the First.

Statuimus ut omnes Liberi Homines faedere & Sacra­mento [Page 3]affirment, quod intra, & extra universum Regnum Angliae (quod olim vocabatur Regnum Britanniae) Willi­elmo Regi Domino suo fideles esse volunt Terras & Hono­res illius omni fidelitate ubique servare cum eo, & contra inimicos & alienigenas defendere. Lex 52. De fide & obsequio erga Regem. Add hereto another Constitution of the Conqueror, whereby all subjects are commanded, ut Jura Regia illaesa servare pro viribus Conentur.

Statuimus etiam, & firmiter praecipimus, ut omnes Liberi homines totius Regni nostri praedicti, sint fratres Conjurati ad Monarchiam nostram & ad Regnum No­strum pro viribus suis, & facultatibus contra ini­micos pro posse suo defendendum, & viriliter servan­dum, & Pacem & dignitatem Coronae nostrae integram observandam. Lex 59. Both which Laws, and many others enacted and granted by the Conqueror, were observed and kept in the Reign of King Edward the Confessor.

Secondly, For that we do our Ligeance to the King in his natural Capacity, that is, as he is Charles, the Son and Heir apparent of King Charles the Glorious and Royal Martyr. For Ligeance, or Homage cannot be done to the King in his Politick capacity,Coke Lib. 7. Calvin's Case. for so the Body of the King is invisible. If this be true Law, as it is, what shall we judge then of the new Coined distinction, to make a difference betwixt the King and his Autho­rity? betwixt his Personal Will, and his Royal and Authoritative Will? to pursue the late Kings Person with a Cannon-Bullet at Edge-hill, and to preserve his Authority at London or elsewhere? I am sure 'tis Evi­dent by the 25. E. 3. C. 2. De proditionibus, that it is High-Treason to compasse the Kings Death, by which must be meant to endeavour his Personal ruine; be­cause [Page 4]the Regal Authority never dies in England. Oh Fanaticks! take heed then for the future of New­coined distinctions; take heed of the cunning Wiles and Sleights of the Jesuits: There is no Wickedness but hath some excuse.

In that great Insurrection, in Richard the Seconds time, the Commons had a fair pretence. Their In­tent was (as they said) to abollish the Law of Vellei­nage and Servitude, and to slay the Corrupt Judges. And they took an Oath, forsooth, to be true to the King and Commons, and that they would take nothing but what they paid for; and they punished all Theft with death: yet in the Parliament of 5. R. 2. N. 3, and 32. They were adjudged Traytors.

The Earls of Northumberland and Westmerland, in the Reign of Queen Elizabeth; could in the Queens: Name command the Country to follow them in Arms: some­times pretending the safety of Her Majesties Person; in dan­ger (they said) by Treasons in working; And sometimes in case of Conscience, for restoring their former Religion. And in this Zeal they hasted to Durrham Minster, where they tare the Bible (and Communion Book, and such other things as there were, saith Stow) in great Contempt. Yet these were mere Rebels and Traytors. Speed Lib. 9. Cap. 24.

Wherefore examine, search diligently into the Cause, every thing is not as it seems: All is not Gold that Glisters: I beseech you to look before you leap into Rebellion, that Sin of Witch-craft.

Thirdly, It is expresly affirm'd in the Case of Calvin, That the King holds the Kingdom of England by Birth-Right Inherent by Descent from the Blood-Royal; Co. Lib. 7, Calvin's Cases. where­upon Succession doth attend, and therefore it is usually [Page 5]said, To the King, his Heirs and Successors; wherein Heirs is first named, and Successors attendant upon Heirs; but the Title is by Descent. By Queen Elizabeth's Death the Crown and Kingdom of England descended to King James, and from him to King Charles the First, and from him to the King that now is, and they were fully and absolutely thereby Kings, without any essential Ceremony or Act to be done, Ex post facto.

And by the way, how inseparable this Right of descent is from the next in Blood, you may see in H. 4. who though he was also of the Blood-Royal, and had the Crown resigned unto him from R. 2. and confirmed by Act of Parliament; yet upon his Death-Bed he acknow­ledged he had no right thereunto, as Speed tells us, Lib. 9. C▪ 14. Add to this acknowledgment the words of Sir Edward Coke; The Dignity Royal (saies he,)Co. Lib. 12. F. 28. is an Inherent inseparable to the Royal Blood of the King, and descendable to the next of Blood of the King, and can­not be transferred to another.

Lastly, By all the Judges 1. Jacobi, at the Arraign­ment of Watson and Clerk, Two Seminary Priests, it was resolved, That immediately by descent His Majesty was compleatly and absolutely King, without the Ceremony of Coronation, which was but a Royal Ornament, and ex­ternal Solemnization of the Descent. This is plainly il­lustrated by several precedents taken out of our Histo­ries.

King H. 6. was not Crowned till the 9th year of his Reign;Speed. lib. 9. c. 16. yet divers were attainted of Treason before that time, which could not have been, had he not been King.

So Queen Mary Reigned Three Months before she was Crowned; in which space the Duke of Northum­berland [Page 6]and others were Condemned and Executed for Treason, which they had committed before she was proclaimed Queen.

So King Edward 1. was in Palestina when his Father died, and in his absence, the Nobility and Prelates of the Realm assembled at London, and did acknowledge him for their King. In his return homeward he did Homage to the French King, for the Lands which he held of him in France: He also repressed certain Re­bels of Gascoin, amongst whom Gasco of Bierne Ap­pealed to the Court of the French King, where our King Edward had Judgement, That Gasco had perpe­trated Treason, and thereupon he was delivered to the pleasure of King Edward. Walsingham in Edw. 1. And all this happened before his Coronation, which was a Year and Nine Months after he began to Reign.

Besides, we know, that so soon as the King depart­eth out of this Life, His Successor is forthwith pro­claimed; all Writs go forthwith in his name; all Courts of Justice exercised, and all Offices are held by his Royal Authority; all States, all Persons are o­bliged to bear him Allegiance: Which things plainly demonstrate, that the King hath his Kingdom by de­scent, and stays not to be made King by the People at his Coronation. Indeed the people are at that time asked their Consent; not that they have power to de­ny, but that the King having their Consent, may with greater Security and Confidence rely on his people. Fides vestra & Conftantia (says King Alexander) ut Regem me esse Credam, Curtius, lib. 5. facit. Ferrum tuetur Principem, melius fides. Seneca.

Thus you see, That the King of England's Right to his Emperial Crown is by Birth, Descent, or Hereditary Succession.

[Page 7]As to the Second Respect, it is evident▪ That the Power of the King of England, is by the Fundamental Laws of the Land as Great and Royal, as that which our Divines have proved out of the Scriptures to belong unto the Kings of Juda and Israel. For,

1. He has vested in his Royal person the power of making Laws,The Royal Power set f [...]rth in Scripture; By it War pro­claimed, 2 Chr. 13.4 By it Peace conclu­ded, 1 Kings 15.19. By it the people as­sembled and dismissed, Jo­shua 24.1. and 28. 1 Kings 8.1, and 66. By it a Law is made; By a Law repealed. 1 Sam. 14.24, 34. By it Of­fenders are par­doned, 2 Sam. 14.21. By it all Officers are chosen, as well Ecclesiastical as Civil, 1 Chr. 26.32. Gen. 41.33, 34, 41. Exod. 18.25, 26. 2 Sam. 23.23. 1 Kings 4.3, to 20. 2 Chron. 17.7, 8. Nehemiah 5.14, 15. Hester 3.1 [...]. Dan. 2.43, & 49. By it all Arms and Fortifications are disposed, 2 Sam, 8.14. 1 Kings 9.15, 17, 18, 19▪ and Chap. 26.9, to 16. Nehem. 7.1, 2, 3. the Authority Legislative being a pecu­liar and incommunicable priviledge of the Supreme Power; so that the Office of the Two Houses of Par­liament in this affair is only Consultive, or Preparative; but the Character of the Power rests in the final San­ction, which is in the K [...]g of England.

2. To him belongs the power o [...] Life and Death; He hath the Sword of Justice to punish them that transgress his Laws, and endeavour to cause Sedition; 'Tis he that can remit the severities of the Penal Laws, by pardoning both the smaller Breaches of them, and more Capital Offences, which he might most justly punish. Bracton, Lib. 1. c. 9. N. 3. Lib. 3. c. 8. N. 4. & lib. 3. c. 14. N. 18. Fleta, lib. 1. c. 16. N. 3 Sir Thomas Smith, de Rep. Angl. lib. 2. c. 4. Lambard inter Leges Edovardi, F. 143.9. E. 4.2. a. 27. H. 8. c. 24.

3. He only may Proclaim War, and he solely can establish Peace among his people, Co. Lib. 7. Calvin's Case, F. 256. Smith's Common wealth, Lib. 2. c. 4. 19. E. 46. Co. 4. Just. f. 152. 2. H. 5. cap. 2.

4. There is no Lawful Assembly, Meeting, or Court, but by Authority from him: Yea, the High Court of Parliament was at first devised, framed, and instituted by him. Polyd. Virg. Lib. 11. Speed, Stow, Martin, Baker, and many others in the Life of H. 1.

[Page 8]5. By him all the Officers of the Realm, whether Temporal, or Ecclesiastical, are chosen and establish­ed; the Chief and Highest by himself immediately; and mediately the Inferiour Officers by Authority from him. Sir Thomas Smith, Lib. 2. Cap. 4, & 5. Bracton, Lib. 2. c. 24. Mirror c. 4. Sect. 2, & 4. Fleta Lib. 1. c. 17.12. H. 7.17. b. Co. Lib. 12. Case of Con­spiracy, f. 25.27. H. 8. c. 24.

6. By him all Liberties, Franchises and Customs are granted and confirmed to the people. Bracton, Lib. 2. c. 24. N. 2. Cowells Just. 1, 2, 5. Dyer 44. b. Co. Lib. 11.87. Case of Monopolies.

7. He hath the sole Power of ordering and dispo­sing all the Castles, Forts and strong Holds, and all the Ports and Havens, and generally all the Militia of the Kingdom. Co. Litt. 5. a. Co. 2. Just. 30.13. Car. 2. c. 6.14. Car. 2. c. 3. Co. 3. Just. 160, & 83. Co. Lib. 12. The Case of the Kings Prerogative in Salt-Peter.

In short, The Prince is the Life, the Head, and Au­thority of all Things that be done in the Realm of England. Smith, Lib. 2. c. 4.

Cambden in his Britania of the King of Eng­land. Supreman potestatem, & merum Imperium apud nos habet: Nec in Imperii Clientela est, nec Investituram ab alio accipit, nec preter Deum, supremum agnoscit: He hath Soveraign Power, and Absolute Command among us; neither holdeth he his Empire in Vassallage, nor receiveth the Investiture, or Enstalling from another; nor yet acknowledgeth any Superiour but God Al­mighty above.

Bracton, That Wrote in the Reign of H. 3. says thus,Lib. 1. c. 8. N. 5. Sunt etiam sub Rege Liberi Homines & servi ejus potestati subjecti, & omnis quidem sub eo, & ipse sub nullo, nisi tantum sub Deo: And in another place after says he, [Page 9] Rex habet Jurisdictionem supra omnes, Lib. 4. c. 24. N. 1. qui in Regno suo sunt.

King H. 8. upon a Contest touching an Ecclesiasti­cal Immunity, uttered these very words;Doct. Burnet's Hist. of the Reformation, Lib. 1. part. 1. f. 17. By the per­mission and Ordinance of God we are King of England, and the Kings of England in times past had never any superi­our, but God only; Therefore know you well, that we will maintain the Right of our Crown, and of our Temporal Jurisdiction, as well in this as in all other Points, in as ample manner as any of our Progenitors have done before our time. Add hereunto, That this Soveraignty and Su­premacy appertaining to our Kings, and to the Empe­rial Grown of England, is asserted, not only by our Books of Law, but likewise those Statutes that have been Enacted by our Princes and Nobles in Parliament, do affirm the same; witness 16. R. 2. C. 5.24. H. 8. c. 12.25. H. 8. c. 21, & 22 1 Eliz c. 1. & 1. Jac. c. 1. All which Statutes you may peruse at your own leisure. Now I would fain know of any Popeling or Fanatick, what greater or more Royal Power can any Prince of Juda or Israel claim, than is here by our Laws ac­knowledged to be in the King of England.

The Third Respect in his Charge and Duty, which consists in the observance of the Law of God, the Law of Nature, and the Laws of this Realm.

To observe the Law of God, He is bound as a Chri­stian; to observe the Law of Nature, he is obliged as a Man; to observe the Laws of his Realm, he is bound as a King: Nor is he only bound, vinculo Offieii, as he is a King, tho' this is a strict tye, considering to whom he must one day render an Accompt of his Steward­ship; but he is also bound, Vinculo Juramenti, by an Oath taken at his Coronation: The effect whereof is [Page 10]this,Of the Oath at the Coronati­on. see Flesa Lib. 1. c. 17. N. 12, 13, 14, &c. To keep, confirm, and defend all Laws, Customs, and Freedoms, granted by his Predecessors to the Clergy or People; to preserve Peace and Concord, and cause equal and right Justice to be done, according to his Power. Whence it is very evident, that the King hath his Duty enjoyned him, and ought not to make his Will the Rule of his Actions. Temperent igitur (says Fleta Lib. 1. c. 17. N. 11.) Reges potentiam suam per Legem, quae frenum est Potentiae, quod secundum Leges vivant, quia hoc sanxit Lex humana, quod Leges suum ligent Lato­rem, & alibi digna vox ex Majestate Regnantis est Legi­bus alligatnm se principem profiteri: praeterea nihil tam proprium imperio quam Legibus vivere, & majus est Impe­rio Legibus submittere Principatum.

The fourth and last Respect, is in the rendring of his Account; For as the King's mentioned in Scripture were not, so the King of England is not accountable for his Actions to any but God alone.

First, Because the King of England hath not his Crown from any but God alone. Not only Holy Prov. 8.15. Rom. 13.2. Psalm 82.8. John 19.11. Psal. 62.11. Scrip­ture, but the writings of Heathens have declared, that in Soveraign Princes there is, [...] something di­vine, above the reach of man, which cannot be de­rived from them; and therefore they are descended more immediately from the gods, and more particular­ly depending on them. Kings are from Jupiter, (says Callimachus,) and nothing ever descended more sacred from him. And Homer [...], [...]; Ab Jove summus Honos. Omnis provectus, maxime Regius, ad divinitatis munera referendus est Says Vitigis, apud Cassiodorum. M [...]terent. apud Tacitum lib. 6. Tibi summum Rerum Judicium, dii de­dere, nobis obsequii gloria relicta est; no Law could pu­nish, nor any call Kings to account but the gods; who [Page 11]as they gave them the highest Empire here, so did they leave their Subjects nothing but the Glory of obeying.

But it may be said by our Fanaticks, how can the Kings Power be thought to be only and immediately from God, when it is derived to him by ordinary means of Hereditary Succession?

It is answered, That Election, Succession, and Lawful Conquest, are Titles whereby Princes receive their Au­thority; they are not the Original and immediate Foun­tain of this Authority. Heat, Moysture, Cold, Dry­ness, and our Temper arising from them (whilst we are miraculously fashioned in our Mothers Womb) are preparations, whereby our Bodies are made fit Recep­tacles for our Souls; but the Creator of our Souls is God: So Princes have just claim to their Soveraign Power, by the titles of Succession and Conquest; but the Prime Author of their Power is God. Cujus jussu (says Irenaeus) nascuntur homines, ejus jussu Constituun­tur Principes: By whose appointment they are born Men, and made reasonable Creatures; by his appointment are they made Princes. And as they receive their Power only from God, so for the good or evil Administra­tion thereof, they are accountable only unto God, as unto their Superior, and not unto any mortal Crea­ture. God only maketh them Kings, and only can unmake them, and deject them from their Thrones; according to the Rule of Law, Ejusdem est destituere, cujus & instituere.

Secondly, The Oath that the King takes at his Coro­nation, binds him only before God; for there is no Condition, Promise or Limitation, whereby he is made Accountable to his People.

[Page 12] Thirdly, By the suffrage, and Testimony of our Lawyers, it appears, that the King of England is un­accountable to any humane Power on Earth. And we begin with Bracton, who tells us, that we have no Legal Remedy, we can only humbly Petition His Sacred Majesty, Locus erit Supplicationi, quod factum suum cor­rigat, Lib. 1. cap. 8. N. 5. & emendet; Quod quidemsi non fecerit, satis suffi­cit ei ad praenam, quod dominum expectet ultorem. Nemo quidem de factis suis, praesumat disputare, multo fortius Contra factum suam venire. If he will not hearken to our just and reasonable desires, satis sufficit, his punish­ment is more than enough; for he must render an ac­count to him that judgeth Righteously. Let not men presume to question his deeds, much less to undo by force what he shall do, though not according to Right. That our Fanaticks may not think this dropt from our Bracton unwariily, he repeats it in other places, and Lib. 5. Tract. 3. De defaltis, Cap. 3. N. 3. He puts the Case, that the King should do injury, and a Plea is brought against him, in whose behalf he did it; the King being Petitioned and Persisting, and he rules it thus, Quo casu cum dominus Rex super hoc fuerit interpellatus in eadem perstiterit voluntate, quod vellet tenentem esse defensum injuria, cum teneatur justitiam totis viribus defensare, ex tunc erit injuria ipsius Domini Regis, nec poterit, ei necessitatem imponere, quod illam corrigat & emendet nisi velit, cum superiorem non habeat nisi deum, & satis erit illi propaena, quod deum expectet ultorem. If the King, who is bound to Administer Justice to his utmost power, will not recall the wrong he did upon a false suggestion, in this case he injures his Subjects; but no body can force him to do Right, because he hath supream Power; he hath no superior but God only, and it is sufficient [Page 13]that we shall have a day of hearing hereafter at a just Tribunal, where he shall be punished for doing wrong, and we amply requited for our patient suffering.

Gilbert de Thornton, Chief Justice under Edward the First, speaketh in the same manner; Cum provisum sit, Fleta Lib. 1. c. 17. N. 9. quod quilibet in sui juris prosequutione potius judicio, quam viribus utatur, & oportet Laesos Regem adire, ut ostensis sibi injuriis illatis, Celerem justitiam petentibus faciat exhiberi, qui si noluerit de seipso, vel de alio, [...]x tunc deum expectent conquerentes ultorem: Nemo enim de facto Regis praesumat disputaare, nec contrafactum suum venire. Stamford in his Exposition of the Kings Prerogative is of the same mind with Bracton and Thornton; for he says, That by the Common Law, there lyeth no Action or Writ against the King, but when he seizeth the Subjects Lands or Goods, having no Title by order of Law so to do: Petition is all the Remedy the Subject hath, and this Peti­tion is called a Petition of Right.

With our Lawyers do concurr two of our Parlia­ments, which have declared that the King of England is, [...] accountable to none but God, and therefore no way obnoxious to any humane co­ercive Power. Thomas de Walsingham mentions a Letter written to the Bishop of Rome in the name of the whole Kingdom, from the Parliament held at Lincoln, Anno Domini 1301, wherein are these words, Scimus, Pater Sanctissime, & notorium est, a prima institutione Regni Angliae, tam temporibus Britannorum, quam Anglorum, quod certum & directum dominium ad Regem pertinuit ne (que) Reges Angliae ex libera pre-eminentia Regiae dignitatis, & Consuetudine cunctis temporibus observata, coram aliquo Ju­dice Ecclesiastico, velseculari responderunt, aut respondere debebant. We know most holy Father, and it is mani­fest, [Page 14]from the very beginning of the Kingdom of Eng­land, as well in the time of the Brittains as of the An­gles, that the certain and direct dominion hath be­longed unto the King, neither have the Kings of Eng­land (by reason of the undoubted preheminence of the Royal Dignity and Custom observed in all Ages) answered, or ought to answer before any Judge Ecclefi­astical or Civil.

The other Parliament was held at Westminster in the Reign of the King that now is, whereat the Lords and Commons have declared,12. Car. 2. c. 30. That by the undoubted, and Fun­damental Laws of this Kingdom, neither the Peers of this Realm, nor the Commons, nor both together in Parliament, nor the People collectively, or representatively, nor any other persons whatsover ever had, have, hath, or ought to have, any coercive Power over the persons of the Kings of Eng­land.

You see, (Sir) that though there be Laws to guide and direct our Princes, yet if they chance to forget them­selves so much as to violate and break through them, there is no Law whereby Subjects may resist and punish them; their Ministers and Instruments are ever account­able, but as to themselves, it is a known Maxime a­mong our Lawyers, That they can do no wrong.

But after all that has been said, there are some Hunt-Scrap Lawyers and Polititians ready to raise such objections as these following.

From whom the King receiveth his power,Object. 1. to them he is accountable; but from the people the King recei­veth his power; as Fortescue delivers, Cap. 13. Ad tu­telam Legis subditorum ac eorum Corporum & Bonorum, Rex erectus, & hanc potestatem a populo estluxam ipse habet. A King is ordained for the defence of the Law of his [Page 15]Subjects, and of their Bodies and Goods; whereunto he receiveth Power of his People: Therefore to his People, the King is accountable.

If the Makers of this Objection did rightly set down the words of Fortescue, Solution. they might easily An­swer themselves; for it is not barely Rex a King, but Rex hujusmodi, such a King, meaning a King whose Government is meerly Politick. But the Govern­ment of England is not meerly Politick, nor meerly Regal, but mixt; partly regal and partly politick: as Fortescue saith presently after, Regnum Angliae ex Bru­ti Comitiva Trojanorum, in dominium politicum, & Rega­le prorupit; The King of England out of Brutus his retinue of the Trojans, first grew into a Politick and Regal Dominion. And in the Ninth Chapter, Rex An­gliae principatu, nedum regali politico, suo populo Domina­tur: The King of England Governeth his People by Dominion, notonly Regal, but also Politick.

How it is Regal, and how Politick, doth plainly appear by what hath been before spoken; for in regard all Power and Authority is derived from him, and he holds his Kingdom, and there withal his Power from God only, it must needs be, that his Government is Re­gal; and in regard he is tyed to the observance of the Laws of his Kingdom, (whereby Potestas Regia Lege po­litica cohibetur Fortescue, Cap. 9. The Power Regal is re­strained by a Law Politick) it must needs follow, that this Government is Politick: So that in reference to his Power, he is a Regal King; in reference to his Duty, he is a Politick King.

The Objection therefore being grounded upon For­tescues words, of a Kingdom meerly Politick, does not concern our Kingdom.

[Page 16]He who is under the Law,Object. 2. may be called to account for his Actions; but the King is under the Law, Bracton says, Ipse Rex non debet esse sub homine, Lib. 1. c. 8. N. 5. sed sub Deo, & sub Lege, Quia Lex facit Regem. The King himself ought not to be under man, but under God; and under the Law, because the Law makes the King.

In Answer to this Objection,Sulution. we must call to mind that there is a two fold Power in the Law, a Directing Power, and a Correcting-Power.

In respect of the former, the King is under the Law, That is to say, the Law is the Line and Rule whereby the Will of the King is guided and directed; and in this sence Bracton spake.

In respect of the later, the King is not under the Law. For how can we possibly conceive, that he who giv­eth Life to the Law, should by the Law offer force un­to himself, and compel himself; for as with the Gram­marians the Imperative-Mood hath no first Person, so with the Civilians;D. 4.8.51. d. 36.1.13. d. 24.1.7, 8. ne (que) imperare sibi, ne (que) se prohibere quisquam potest, no man can Command or forbid him­self; at leastwise no man can impose such a Law up­on himself, but that he may recede from it when he pleaseth. D. 32.1.22. de Leg. 3.

He that is under the former power only, is account­able to God only for his Actions; as the King. But he that is under both Powers of the Law, is accountable both to God and the Law; as is every Subject.

Again, In respect of the Directing Power, the Law is the Object and Rule of Justice, and so the King is un­der the Law: In Respect of the Correcting Power, the Law is the Instrument of Justice, and so the King is not under the Law; but the Law is a means, serving the King, to govern his People.

[Page 17]To illustrate this by an example; a Servant who guides and directs his Master, as he is a Guide, is superi­our to his Master; but consider him as an Instrument and Servant unto his Master, and though he be never so Wise and Upright, yet his Master is above him.

And as the Law is said to be above the King, so in the same Sence His Council may also be said to be a­bove him; that is, in respect they guide,Bracton Lib. 2. c. 16. N. 3. Fleta Lib. 1. c. 17. N. 9. direct and advise the King in the Governing of his People. For so say our two antient Lawyers; The King hath Superiors in the Governing of his People, the Law by which he is made, and his Council, to wit, The Earls and Barons.

But here a scruple may arise, what Bracton and Fle­ta mean, when they say, The Law makes the King. It is answered, there are two singular and excellent bene­fits, which by the Law redound unto the King. The one is, the Law does declare and publish unto the Peo­ple the Kings Right unto the Crown, so that they qui­etly and willingly receive him as their King, and sub­mit unto him. The other Benefit is, the Law doth support and strengthen him in his Emperial Throne. In both which respects it may well be said, That the Law makes the King, and so Sir Edward Coke spake right when he told King James, That the Law set the Crown upon his Head.

Sir, These Objections being fully (as I think) an­swered, I shall leave you, and your Fanatick Neigh­bours, to compare what hath been now by me proved, with what hath been by some of our Divines lately delivered out of the Scriptures; and you will clearly find, That the King of England is such a King as the Scriptures make mention of. And if it be so, how then can Fanaticks take up Arms against him? If he be wick­ed, what advantage will it be to them to be worse? [Page 18]If he break his Oath, will they also break theirs? Or can they say, that they swear Allegiance unto him on conditon of his good Behaviour? Does the Statute of 25. Ed. 3. C. 2. declare it to be Treason only, to Levy War against a good, a just King? Why then did not the Protestants take up Arms against that bloody Idolatrous Queen Mary? Why then is it Treason to compass the Death of an Usurper of the Crown? Dalt. 227. Was not Spencer banished for the affirming,Co. Lib. 7. Calvin's Case. That if the King did not demean himself by Reason, in the Right of the Crown, His Subjects were bound by Oath to remove him? Oh Fanaticks! take heed of this unhap­py principle, which not long since ruined as Flouri­shing a Kingdom as any in the Christian World. By the dire Effects of it, our Religion was abolished, our Foundations over-turned, our Laws abrogated, the Government of Church and State dissolved; instead of Religion, Atheism and Infidelity, Fanatick Rage, and wild Enthusiasme; In short, instead of Liberty and Property, the voice of Sequestrations, Plunders and Decimations were heard in the Land.

FLAGELLƲM CONCILIABƲLORƲM: OR, A ROD for the FOOLS-BACK.
SHEWING What Laws, both Forreign and Domestick, have been framed for the Prevention and Suppression of Conven­ticles.

THe gathering of Assemblies is reckoned as an especial Priviledge of Soveraign Princes; who in all times have been jealous of them, and provided severe Laws against them; and good Reason for such Jealousy, for that it is impossible (be the pretences of Meeting never so specious and fair) to Govern People, and keep them quiet long, if they have liberty to flock together at their pleasures: And therefore there is a necessity, that all Assemblings of people, whether upon a Sacred or Civil account, should be absolutely in the Power of Princes.

To which purpose, both remarkable and agreable are those Laws and Edicts made by the Policy of the Greeks and Romans, whereunto we will add those Laws, Canons, and Constitutions that have been Enacted in our Parliaments and Convocations. And we shall be­gin with those that are Foreign.

Isocrates, under the person of King Nicocles, thus in­structs his Subjects; [...] [Page 20]In English thus, ‘Make no Societies nor Coventicles with­out my License: Assemblies of this kind, as in other Go­vernments they are hurtful, so in Monarchies they are ex­ceeding dangerous.’ Agreable hereto is that of Mecenas in Dio, who pronounceth, [...]. That is in English, Combinations, and Assemblies, and Associations, are things that do not very well consist with a Monarchy.

Upon this account Arnoldus Clapmarius shews, how pernitious and dangerous are Conventicles in a Govern­ment;L [...]b. 3. cap. 13. de Arcanis Do­nationis. and gives us Tacitus's Note, In Rebellione Gallia­rum: Igitur (says Tacitus) per conciliabula & Caetus sedi­tiosa disserebant. From whence such unlawful Assemblies are prevented and suppressed by the Decrees and Con­stitutions of the Roman Princes, and Senators, which are to be found in the Body of the Civil Law; which I now present to the Reader.

Sub praetextu Religionis, D. 47.11.2. de caetibus illi­citis. vel sub species solvendi voti Caetus illicitos nec a veteranis tempetare oportet.

Mandatis principalibus praecipitur praesidibus provincia­rum, ne patiantur esse Collegia sodalitia neve milites, Collegia in castris habeant. D. 47.22.1. de Collegii. Sed permittitur tenuioribus Stipem men­struam Conferre dum tamen semel in mense caeant ne sub prae­textu hujusmodi illicitum Collegium coeat. Quod non tantum in urbe sed & in Italia, & in provinciis Locum habere Divus quo (que) severus rescripsit Sed Religionis Causa coine non pro­hibentur, D. 47.22.2. de p [...]na. dum tamen per hoc non fiat Contra Sena­tusconsultum quo illicita Collegiaarcentur. Quisquis illicitum Collegium Ʋsurpaverit, ea paena quo Tenetur qui hominibus armatis Loca publica vel templa occupasse judicati sunt.

In summa autem nisi ex senatusconsulti auctoritate, vel Caesaris; D. 47.22.3.1. Collegium; vel quod cunque tale Corpus coierit, contra senatusconsultum et mandata, & constitutiones colle­gium celebrant.

[Page 21]By these Texts of Law, we are informed, that un­lawful Colledges, Corporations and Assemblies, gather­ed together to bad uses, as to Eating, Drinking, Wan­tonness, Conspiracy, are punished as publick Routs and Riots. Thus much for the Digests, I come now to what is said of Conventicles in those parts of the Civil Law, we call the Codes, the Novels, and the Feuds.

In the Code of the Emperour Justinian, Cod. 1.3.15. de illicitis conventiculis. you have this Text of Law; Conventicula illicita etiam extra Ecclesi­am in privatis aedibus celebrari prohibemus, proscriptionis domus periculo imminente, si dominus ejus in ea Clericos no­va, ac tumultuosa Conventicula extra Ecclesiam celebrantes susceperit. For more of this matter of Conventicles, the Reader may at leisure see. Cod. 1.12.5. Cod. 1.5.6. and 8.

In the Novels it is declared, That the sacred Mysteries or Ministeries be not done in private Houses, but be ce­lebrated in publick places, least thereby things be done contrary to the Catholick, and Apostolick Faith: unless they call to the celebrating of the same, such Clerks of whose Faith and Conformity there is no doubt made, or those that are deputed thereunto by the good will of the Bishop. But places to pray in, every man may have in his own House; if any thing be done to the contrary, the House wherein these things are done shall be con­fiscated, and themselves shall be punished at the discretion of the Prince.

In the Feuds it is deereed thus;Feudorum, lib. 2. Tit. 53. Conventicula quoque in Civitatibus, Omnesque Conjurationes, & extra etiam oc­casione parentelae, & inter Civitatem, & Civitatem, & inter personam & personam, sive inter Civitatem & per­sonam, modis omnibus fieri prohibemus: Et in preteritum factas Cassamus, singulis conjuratorum paena unius Li­brae [Page 22]auri puniendis. Episcopos vero Locorum Ecclesiastica censura violatores hujus sanctionis, donec ad satisfactionem veniant, voluimus coercere. Receptoribus etiam malefacto­rum, qui praedictam pacem violeverint, & praedam ementi­bus nostram indignationem subituris, & ejusdem paenis feri­endis. Praeterea bona ejus publicentur & domus ejus destru­atur. By this edict it appears, that Domus ubi conven­ticula, aut Conspirationes fiunt confiscatur, & Receptans violatorem Legis pari cum eo paena punietur. The House where Conventicles or Conspiracies are made, is to be con­fiscated; and he who receives any offender against this Law, must be lyable with him to the same Punishment.

Thus much of the Foreign Edicts made against Con­venticles and unlawful Assemblies, I pass on to give an account what Laws, Canons and Constitutions have been ordained both in the Church and State of Eng­land, for the preventing and suppressing of the Conven­ticles of Sectaries. And we begin with the Laws enact­ed in the Reign of Queen Elizabeth, in whose name our Whiggs pretend to cast out of the Kingdom those Devils the Jesuits, &c. but will not observe one tittle of her Laws and Constitions made for the better Go­vernment of the Church and State.

In the 35th. year of the Queens Reign are enacted two Laws:

The first is for the punishment of those persons that obstinately refuse to come to Church, and perswade others to impugne the Queens Authority in Ec­clesiastical Causes, &c. For what end this Punishment and for what persons intended, the preamble of the same Statute demonstrates; It is, For the preventing and avoid­ing of such inconveniences and perills as might happen and grow by the wicked and dangerous practices of Seditious Sectaries, and disloyal Persons.

[Page 23]The Second Law is,35 Eliz. c. 2. to impose a penalty on a Con­victed Popish-Recusant, removing above five Miles from the House, &c. And for what end the penalty is imposed, and what persons are meant by this Law, the preamble thereof will inform us, It is for the bet­ter discovering and avoiding of such Trayterous and most dangerous Conspiracies and Attempts as are daily devised and practised against the Queens Majesty, and the happy E­state of this Common Wealth, by sundry wicked and Sediti­ous persons, who terming themselves Catholicks, and being (indeed) Spies and Intelligencers not only for her Maje­sties Foreign Enemies, but also for Rebellious and Traytor­ous Subjects, Born within her Realms and Dominions, and hiding their most detestable and divilish purposes under a false pretext of Religion and Conscience, do secretly wander and shift from place to place within this Realm, to corrupt her Majesties Subjects, and to stir them to Sedition and Re­bellion.

From the Reign of Queen Elizabeth, we come to that of King James.

In 1. Jacobi Regis, Anno 1603. there is a Canon and Constitution whereby maintainers of Conventicles are censured; the words of the Canon are these:

Whosoever shall hereafter affirm or maintain, that there are within this Realm, other Meetings, Canon. 11. Assemblies or Con­gregations of the Kings born Subjects, then such as by the Laws of the Land are held and allowed, which may rightly Challenge to themselves the name of True and Lawful Churches: Let him be Excommunicated, and not restored but by the Arch-Bishop, after his Repentance and publick Revocation of such his wicked Errors. And as the maintainers of Conven­ticles are censured, so against the maintainers of Con­stitutions made in Conventicles, there is ordained a [Page 24]Canon, which is the 12th. The words whereof are as follow.

Whosoever shall hereafter affirm, Canon 12. that it is Lawful for any sort of Ministers and Lay-persons, or either of them to joyn toge­ther and make Rules, Orders or Constitutions in Causes Ecclesiastical, without the Kings Authority, and shall submit themselves to be Ruled and Governed by them: Let them be excommunicated ipso facto, and not be restored until they Repent and publickly revoke those their wicked and Ana­baptistical errors. Add hereto a Third Canon against Ministers holding private Conventicles; the very words whereof are these:

For as much as all Conventicles, Canon 73. and secret Meetings of Priests and Ministers, have been ever justly accounted ve­ry hurtful to the state of the Church wherein they live; we do now Ordain and Constitute, That no Priests or Ministers of the Word of God, nor any other persons shall meet to­gether in any private House, or elsewhere, to consult up­on any matter or course to be taken by them, or upon their motion, or direction by any other, which may any way tend to the impeachment or depravation of the Doctrine of the Church of England, or of the Book of Common-Prayer, or of any part of the Government and Discipline now establish­ed in the Church of England under pain of Excommunica­tion ipso facto. From King James's Reign I descend to that of the Royal Martyr King Charles the First; by whose License and Authority there was a Constitution and Canon Ecclesiastical framed and agreed upon, (in the several Synods held at London and York, Anno 1640) against Sectaries; And it is this; Whereas there is a Pro­vision now made by a Canon for the suppressing of Popery, and the growth thereof, by Subjecting all Popish Recusants to the greatest Severity of Ecclesiastical censures in that be­half; Canon 5. [Page 25] This present Synod well knowing that there are other Sects which endeavour the subversion both of the Doctrine, and Discipline of the Church of England no less than the Papists do, although by another way; for the preventing thereof, doth hereby decree and ordain, That all those Pro­ceedings and Penalties, which are mentioned in the afore­said Canon against Popish-Recusants as far as they shall be applyable, shall stand in full Force and Vigour against all Anabaptists Brownists, Separatists, Familists, or other Sect or Sects, person or persons whatsoever, who do or shall either ob [...]nately refuse, or ordinarily not having a Lawful Impediment, (that is for the space of a Month) neglect to repair to their Parish-Churches or Chapels where they in­habit, for the hearing of Divine-Service Established, and receiving of the Holy-Communion according to Law.

And further, because there are sprung up among us a sort of factious people, Despisers and Depravers of the Books of Common-Prayer, who do not according to the Law resort to their Parish-Church or Chappel, to joyn in the publick Pray­ers, Service, and Worship of God with the Congregation, contenting themselves with the hearing of Sermons only, thinking thereby to avoid the Penalties due to such as whol­ly absent themselves from the Church. We therefore for the restraint of all such wilfull Contemners or Neglectors of the Service of God, do ordain that the Church or Chappel-War­dens, and Questmen, or Sidemen of every Parish, shall be careful to enquire out all such disaffected persons, and shall present the names of all such Delinquents at all Visitations of Bishops, and other Ordinaries; and that the same Pro­ceedings and Penalties mentioned in the Canon aforesaid re­spectively, shall be used against them as against other Recu­sants, unless within one whole Month after they are first de­nounced, they shall make acknowledgment and reformation [Page 26]of that their fault. Provided always that this Canon shall not derogate from any other Canon, Law, or Statute in that behalf provided against those Sectaries. From the Reign of King Charles the 1st. I come to the Reign of the King that now is; wherein are Laws enacted (besides those against Nonconformists) for the preventing and suppressing of Conventicles. As for Example,

In the 16th. of King Charles the 2d. there is a Law,16. Car. 2. c. 4. Intituled, An act to prevent and suppress Seditious Con­venticles; and in the preamble thereof are these words to be read;

Whereas an Act made in the five and thirtieth Year of the Reign of our late Sovereign Lady Queen Elizabeth, Entituled, An Act to retain the Queens Majesties Subjects in their due Obedience, hath not been put in due Execution by reason of some doubt of late made, whether the said Act be still in force; altho' it be very clear and evident, and it is hereby declared, that the said Act is still in force, and ought to be put in due Execution. For providing therefore of further and more speedy Remedies against the growing and dangerous practises of Seditious Sectaries, and other disloyal persons, who under pretence of tender Consciences, do at their Meetings contrive Insurrections, as late Experi­ence hath shewed. As for the Punishment, &c. of this same Law, I shall not mention, because it is expired.

In the 22d. year of the Reign of the King that now is,22. Car. 2. c. 4. there is another Law made, whereby 'tis enacted,

1. That if any of the Age of Sixteen years or up­wards, being a Subject of this Realm, shall be present at any Conventicle, under pretence of any Exercise of Religion, in other manner than according to the Church of England, any Justice of Peace, &c. on Proof, Confession, Oath of two Witnesses, or notori­ous [Page 27]Evidence of the Fact, may make a Record of such offence, which Record shall be a Conviction, and set a Fine of Five Shillings for the first offence, and for the second, Ten Shillings, to be Levied by distress and sale of the offenders Goods; or in case of Poverty, on the Goods of others then convicted of the like offence at the same Conventicle.

2. That every person convicted of Preaching at any such Meeting, shall forfeit for the first offence Twenty Pound; and if it be a Stranger, and his name and habitati­on not known, or he cannot be found, or be unable to pay, the Justice of Peace &c. may Levy it upon any persons that were present; and for the second offence Forty Pound to be levied, and disposed, &c.

3. That every person convicted of wittingly suffer­ing any such meeting to be held in his House, Yard, &c. shall forfeit Twenty Pound; and in case of his Po­verty, upon persons convicted of being present at the same.

4. That if any Constable, &c. knowing, or being in­formed of such Meetings within his Precinct, shall not inform a Justice of Peace, or chief Magistrate, &c. but they or others called in their aid, shall wilfully omit their Duty, and being convicted thereof, they shall for­feit Five Pound. and the Justice of Peace and chief Ma­gistrate, &c. omitting their Duty, shall forfeit one Hun­dred Pound. Now for what end are these penalties im­posed? Why the preamble of the Law will tell you, That it is, For providing Remedy against the growing and dangerous practices of Seditious Sectaries, and other disloy­al persons, who under pretence of tender Consciences, have, or may at their Meetings contrive Insurrections, as late ex­perience hath shewed.

[Page 28]Now, Reader, if this very last Statute be put in due execution, I should think our Sectaries would not have long, Pocket Courage enough to frequent Conventicles; and if they themselves would but consider, and weigh the preambles of the Laws and Canons before mention­ed, they would pronounce themselves Guilty of the greatest folly and Impudence in the World, to be found at such unlawful Meetings. Well, I have no more to say to our Sectaries not only to desire them to read these following Lines, spoken by a most excellentDoctor La­ney late Lord Bishop of Ely, on 1. Thess. 4.11. Prelate of our Church in a Sermon Preached before his Maje­sty at White-Hall, 12. Martii 1664.

A Man (saies he) may go far in Religion, without trou­bling any; and if then they fall into some Error, or Misbe­lief in Religion, they ought not to be severely handled; but when they betake themselves to a Sect, that alters the case, it will then be Compassion mistaken. A Locust alone is no such perilous Beast to be fear'd or regarded by any; but when they come in shoals and swarms, and cover the Face of the Earth, they are a plague to the Country where they light. So to look upon a Sectary single, who out of simpli­city and good meaning, follows his Conscience, our Hearts should be every whit as tender for them as their Consciences are; But if we look upon them in Company, they are as ill and dangerous as the Company they are found in; and the dan­ger of all popular Meetings and Associations to a State, makes it the proper business of a King and his Ministers to look to it, and to provide against it; wherein the care hath been taken, deserves a just Commendation.

FINIS.

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