The Sovereign Power of Parliaments and Kingdoms
Seventhly, It must of necessity be granted; that for any King to levy war against his Subjects, unless upon very good grounds of Law and conscience, and in case of absolute necessity, when there is no other remedy left, is directly contrary to his very Oath and duty, witness the Law of King Edward the Confessor, cap. 17. and Coronation Oaths of all our Kings forementioned; To keep PEACE and godly agreement INTIRELY, ACCORDING TO THEIR POWER to their people; Contrary to all the fundamental Laws of the Realm, and the Prologues of most Statutes, entirely to preserve, and earnestly to endeavor the peace and welfare of their people's persons, goods, estates, laws, liberties; Contrary to the main tenor of all Sacred Scriptures, which have relation unto Kings; but more especially to the 1 Kings 12. 21. 23. 24. and 2 Chron. 11. 1. 2. Where when King Rehoboam had gathered a very great army to fight against the ten Tribes, (which revolted from him for following his young Counselors advice, and denying their just request, and crowned Jeroboam for their King) intending to reduce them to his obedience by force of arms; God by his Prophet Shemaiah expressly prohibited him and his army, to go up, or fight against • hem; and made them all to return to their own houses without fighting; and to Isaiah 14. 4. 19. to 22. where God threatens, to cast the King of Babylon out of his grave, as an abhominable branch, as a carcass trodden underfoot, (mark the reason)
Eighthly, It is the received resolution of all Canonists, Schoolmen, and Civil Lawyers; That a defensive war undertaken only for necessary defense, doth not properly deserve the nam of war, but only of Defense: That it is no levying of war at all, (which implies an active offensive, not passive defensive raising of forces, and so no Treason nor offense within the statute of 25. E. 3. c. 2. as the Parliament, the only proper Judge of Treasons, hath already resolved in point of Law) but a faculty only of defense Cuilibet Omni Iure, ipsoque Rationis Ductu Permissa; &c. permitted to everyone By all Law, (or right) and by the very conduct of reason, since to propulse violence and injury, is permitted by the very Law of Nations. Hence of all the seven sorts of war which they make, they define the last to be, A just and Necessary War quod fit se et sua defendendo; and that those who d • e in such a war (caeteris paribus) are safe (Causa 23. qu. 1.) and if they be slain for defense of the Common-wealth, their memory shall live in perpetual glory. And hence they give this Definition of a just War. War is a Lawfull Defense against an immi e • t or praeceeding offense upon a public or private cause, concluding: That if Defense be severed from W • rre, it is a Sedition, not War; Although the Emperor himself denounce it; Yea, although the whole World combined together. Proclaime it: For the Emperor, or King, can no more lawfully hurt another in War, t • en he can take away his goods or life without cause. Therefore let Commentato s • b • awle et • rnally about War, yet they shall never justify nor prove it lawful, Nisi ex Defensione Legitima; but when it proceeds, from Lawfull defense, all Wars be •• g rash and unjust, against those who justly defend themselves. This War then being undertaken by the Parliament, only for their own, and the Kingdoms necessary defense, against the Kings invasive Armies and Cavaliers (especially, now after the Kings rejection of all Honorable and safe terms of Peace and accommodation tendered to him by the Parliament:) must needs be just and lawful; and so no Treason, nor Rebellion, in point of Law or Conscience; Since no Law of God, nor of the Realm, hath given the King any Authority or Commission at all to make this unnatural War upon his Parliament, his people, to enslave their Souls and Bodies, or any inhibition to them, not to defend themselves in such a ca • e.
These general Considerations thus premised, wherein Law and Conscience walk hand in hand; I shall in the next place lay down such particular grounds for the justification of this War, which are merely Legal; extracted out of the bowels of our known Laws; which no professors of them can contradict.
First, it is unquestionable, that by the Common and Statute Law of the Land, the King himself, who cannot lawfully proclaim War against a Forraigne Enemy, much less against his people, without his Parliaments previous assent, as I have elsewhere proved; cannot by his absolute Sovereign Prerogative, either by verbal Commands, or Commissions under the great Seal of England, derive any lawful or just Authority to any General, Captain, Cavaliers, or person whatsoever, without Legal Trial and Conviction, to seize the Goods or Chattels of any his Subjects, much less, forcecibly to R • b, Spoile, Plunder, Wound, Beat, Kill, Imprison, or make open War upon them, without a most just and in • vitable occasion, and that after open hostility) denounced agai • st them. And if any by virtue of such illegal Commissions or Mandats, Assault, Plunder, Spoile, Rob, Beat, Wound, Slay, Imprison, the Goods, Chattels, Houses, Persons of any Subject not lawfully convicted; They may, and ought to be proceeded against, resisted, apprehended, indicted cond • mned for it, notwithstanding such Commissions, as Trespassers, Thieves, Burglarers, Felons, Murderers, both by Statute, and Common Law; As is clearly enacted and resolved, by Magna Charta, cap. 29. 15. E. 3. Stat. 1. cap. 1. 2. 3. 42. E. 3. cap. 1. 3. 28. E. 1. Artic. super Cha • tas, cap. 2. 4 E. 3. c. 4 5. E. 3. cap. 2. 24. E. 3. cap. 1. 2 R. 2 cap. 7. 5. R. 2. ca 5. 1. H. 5. cap. 6. 11. R. 2. cap. 1. to 6. 24 H. 8. cap. 5. 21. Jacob. c. 3. Against Monopolies. The Petition of Right. 3. Caroli 2. E. 3. c. 8. 14. E. 3. ca. 14. 18. E. 3. Stat. 3. 20. E. 3. cap. 1. 2. 3. 1. R 2. cap. 2. And generally all Statutes against Purv • yers 42. Ass. Pl. 5. 12. B • o • ke Commissions, 15. 16. Fortescue, c. p. 8. 9. 10. 13. 14. 26. 1. E. 3. 2. 2. H. 4. 24. Br. Faux Imprisonment, 30. 28. 22. E. 4 45. a Tr. 16. H. 6. Monstrans de Faits 182 Stamford lib. 1. fol. 13. a. 37. a. The Conference at the Committies of both Houses, 3 • . Aprilis, 4 • . Caroli, concerning the Right and Privilege of the Subject: newly Printed. Cook lib. 5. fol 50. 51. lib. 7. fol 36. 37. lib. 8. fol. 125. to 129. Judge Crooks and Huttons Arguments, against Sh • pmoney, with divers other Law-Books. Therefore the Cavaliers can no ways justify, nor excuse their Wounding, Murthering, Imprisoning, Assaulting, Robbing Pillaging, and spoiling of his Majesty's people and Subjects, and making War upon them, by virtue of any Warrant or Commission from the King; but may justly and legally be apprehended, resisted, and proceeded against, as Murderers, Rebels, Robbers, Felons, notwithstanding any pretended Royal Authority to countenance their execrable unnatural proceedings.
Secondly, It is irrefragable, that the Subjects in defense of their own Persons, Houses, Goods, Wives, Families, against such as violently assault them by open force of Arms, to wound, slay, beat, imprison, rob, or plunder them (though by the Kings own illegal Commission) may not only lawfully arm themselves, and fortify their houses (their Castles in Judgment of Law,) against them; but resist, apprehend, disarm, beat, wound, repulse, kill them in their just necessary defense; not only without guilt of Treason, or Rebellion, but of Tresspas, or the very least offense; And Servants in such Cases may lawfully justify, not only the beating, but killing of such persons, who assault their Masters persons, goods, or houses; as is expressly resolved by the Statute of 21. E. 1. De malefactoribus in Parcis; By 24. H. 8. cap. 5. Fitzherbert, Corone, 192. 194. 246. 258. 261. 330. 21. H. 7 39. Trespas, 246. Stamford, lib. 1. cap. 5. 6. 7. 22. Ass. 46. 11. H. 6. 16. a. 14. H. 6 24. b. 35. H. 6. 1. a. 9. E. 4. 48. b. 12. E. 4. 6. a. 12. H. 8. 2. b. Brooke, Coron 63. & Tr • spas 217. Therefore they may justly defend themselves, resist, oppose, apprehend, and kill his Majesty's Cavaliers, notwithstanding any Commissions, and make a defensive War against them; when as they assault their persons, houses, goods, or habitations, without any Treason, Rebellion, or Crime all against the King or Law.
Thirdly, It is past dispute,
Fourthly, it is most certain, that every Subject by the very Common Law of the Realm, (yea Law of Nature) as he is a member of the State and Church of England, is bound both in duty and conscience, when there is necessary occasion, to Array and Arm himself to resist the invasions, and assaults of o • en enemies of the Realm, especially of Foreigners, as is clear by infinite * Presidents, cited by the Kings own Council, and recited by Judge Crooke in his Argument concerning Ship-money; in both the Houses two Remonstrances and Declarations against the Commission of Array; and the Answer of the first of them in the Kings name; all newly Printed (to which I shall refer the Reader for fuller Satisfaction:) and by the express statutes of 1 E. 3. c. 5. 25. E. 3. c. 8. and 4. H. 4. c. 13. The reason is from the Original compact and mutual stipulation of every member of any Republic, State or Society of men for mutual defense one of another upon all occasions of invasion, made at their first association and incorporation into a Republic, state, kingdom, Nation, of which we have a pregnant example, Judge. 20. 1. to 48. If then the King himself shall introduce foreign Forces and enemies into his Realm to levy war against it, or shall himself become an open enemy to it; the Subjects are obleiged, by the self-same reason, law, equity, especially upon the Parliaments command, to Arm themselves to defend their Native Country, Kingdom against these foreign and domestic Forces, and the King himself if he join with them; as far forth as they are bound to do it upon the Kings own Writ and Commission, in case he joined with the Parliament and Kingdom against them; the necessary defense and preservation of the Kingdom and themselves (and of the King only so far forth as he shows himself a King and Patron, not an enemy of his Kingdom, and Subjects,) being the sole ground of their engagement in such defensive wars: according to this notable resolution of Cicero, Omnium Societ • tum nulla est gratior; nulla cari • quàm ea quae 〈◊〉 Re • ublica est unicuique nostrum Cari sun • pare • t • s, cari liberi, propinqui, familiares, SED OMNES OMNIVM CARITATES PATRIA VNA COMPLEXA EST, iro qua quis bonus dubit • t mortem oppetere; si ei sit profuturus? Quo est detestabilior illorum immanitas, qui lacerant omni scelere Patriam, & n • a fun • itus delenda occupati & sunt & fuerunt: and seeing kings themselves as well as Subjects are bound to hazard their lives for the preservation of their Kingdoms, and people's safety; and not to endanger the ruin of the Kingdom and people to preserve their own lives and prerogatives, as I have elsewhere manifested; it cannot be denied, but that every Subject, when the King is unjustly divided against his Kingdom, Parliament, and People, is more obleiged to join with the kingdom, Parliament, and his Native dearest Country, (who are most considerable) against the King; than with the king against the • ; and rather in such a case than any other, because there is less need of help, and no such danger of ruin to the whole Realm and Nation, when the King joins with them against foreign invading enemies; as there is when the king himself becomes an open intestine Foe unto them, against his Oath and Duty: and the Peop • es safety being the Supremest Law, & the Houses of Parliament the most Sovereign Authority, they ought in such unhappy cases of extremity and division to oversway all Subjects, to contribute their best assistance for their necessary just defense, even against the king himself and all his Partisans, who take up Hostile Arms against them, and not to assist them to ruin their own Country, Kingdom, Nation, as many as now over-rashly do.
Fifthly, I conceive it clear Law, that if the King himself, or his Courtiers with him, shall wrongfully assault any of his Subjects to wound, rob, or murder them without just cause, that the subjects, without any guilt of Treason or Rebellion, may not only in their own defense resist the King and his Courtiers assaults in such a case, and hold their hands (as Doctor Ferne himself accords) but likewise close with, and disarm them; and if the King or his Courtiers receive any blows, wounds, in such a case; or be casually slain, it is neither Treason nor Murder, in the Defendants, who had no Treasonable nor murderous intention at all in them, but only endeavored their own just defense, attempting nothing at all against the kings lawful Royal authority: as is clear by all Law Cases, of man slaughter, se defe • dendo, and to put this out of question, I shall cite but two or three cases of like Nature. It hath been very frequent with the Kings of England, France, and o • her Princes, for trial of their man hood, 〈◊〉 run at Iousts, and fight at Barriers, not only with foreigners, but with their own valiantest L • rds and Knights, of which there are various Examples. In these Martial disports, by the very Law of Arms, these Subjects have not only defended themselves against their kings assaults and blows; but retorted lance for lance, stroke for stroke, and sometimes unhorsed, disarmed, and wounded their Kings, our Ki • g Henry the eight, being like to be slain by the Earl of • uffolke, at a 〈◊〉 in the 16. year of his reign: and no longer since then the year 1559. Henry the 2 d , King of France, was casually slain in a Ioust by the Earl of Mountgommery, his Subject, (whom he commanded to Just one bout more with him against his will) whose Spear in the counter-blow ran so right into one of the Kings eyes, that the shivers of it pierced into his head, perished his brain and slew him: yet this was Iudged no Treason, Fellony, nor offense at all in the Earl, who had no ill intention. If then it hath ever been reputed lawful and honorable, for Subjects in such military exercises, upon the challenges of their kings, to defend themselves courageously against their assaults, and thus to fight with and encounter them in a martial manner, though there were no necessity for them to answer such a challenge; and the casual wounding or slaying of the King by a Subject in such a case be neither Treason nor Fellony: then much more must it be lawful by the Law of Arms, Nature, and the kingdom, for the Parliament and subjects in a necessary, just, unavoidable war, to defend, resist, repulse the kings and his Cavaliers personal assaults, and return them blow for blow, shot for shot, if they will willfully invade them; and if the king or any of his Forces miscarry in this action, they must (like King Hen • y the 8 th when endangered by tilting) blame themselves alone, and have no other just legal remedy but p • tience, it being neither Treason, Rebellion, nor Murder in the defensive party, and most desperate folly and frenzy in any Prince, to engage himself in such a danger, when he need not do it. I read of Charles the first of France; that he fell suddenly destracted upon a message he rec • ived from an old poor man, as he was marching in the head of his Army; and thereupon thinking himself betray • d encountered his own m • n, and slew two or three of them • ere they were ware of him, wounding others. Whereupon they closing with him, dis • rmed and led him away forcibly, keeping him close shut up like a Bedlam, • ill he recovered his senses. I think no man in his right wits, will deem t • is their action Treasonable or unlawful; neither did the king or any in that age thus repute it. If then a King in an angry frantic passion (for Ir • brevius furor est; ) shall take up Arms against his loyal Subjects, and assault their persons to murder them and spoil their goods; if they (by common consent in Parliament especially) shall forcibly resist, disarm or restrain his person, till his fury be appeased, and his judgment rectified by better councils; shall this be Treason, Rebellion, or Disloyaltie? God forbid: I think none but mad men can or will aver it. It was a great doubt in Law, till the statute of 33. H. 8. c. 20. settled it, If a party that had committed any high Treasons when he was of perfect memory; after accusation, examination, and confession thereof be • came mad or lunatic; where he should b • tried and condemned for it during this distemper? And some from that very act (and 21. H. 7. 31. 36. Ass 27. 12. H. 3. For faiture 33 and Dower 183. Fitz. Nat. Br. 202. D. Stamford Pleas, 16. b. and Cook. l. 4. f. 124. Beverlyes case, which resolve, that a Lunaticke or Non Compos cannot be guilty of murder, feloney, or petite Treason, because having no understanding, and knowing not what he doth, he can have no fellonius intention ) conceive, that a real mad-man cannot be guilty of high Treason (though Sir Edward Cook in Bev • rlies case, be of a contrary opinion) if he should assault or kill his king. And I suppose few will deem Walter Terrils casual killing of King William Rufus with the glance of his arrow from a tree, shot at a Deere, high Treason; neither was it then reputed so, or he prosecuted as a Traitor for it, because he had no malicious intention (as most think) against the King, or any thought to hurt him. But I conceive it out of question, if a king in a distracted furious passion without just cause, shall invade his subjects persons in an open hostile manner to destroy them; it neither is, nor can be Treason nor Rebellion in them, if in their own necessary defense alone, they shall either casually wound or slay him contrary to their loyal intentions; and those Statutes and Law-books which judge it high Treason, for any one maliciously and traitorously to imagine, compass or conspire the death of the King; will not at all extend to such a case of mere just defense; since a conspiracy or imagination to compass or procure the Kings death, can neither be justly imagined nor presumed, in those who are but merely defensive, no more then in other common cases of one man's killing another in his own inevitable defense without any precedent malice; in which a Pardon by Law, is granted of course: however, questionless it is no Treason nor murder at all to slay any of the kings soldiers and 〈◊〉 who are no kings, in such a defensive war.
Sixthly, suppose the King should be captivated, or violently led away by any foreign or domestic enemies to him and the kingdom, and carried along with them in the field, to countenance their wars and invasions upon his loyallest Subjects, by illegal warrants or Commissions fraudulently procured, or extorted from him. If the Parliament and Kingdom in such a case, should raise an Army to rescue the King out of their hands, and to that end encountering the enemies, should casually wound the King whiles they out of loyalty sought only to rescue him; I would demand of any Lawyer or Divine, whether this Act should be deemed Treason, Rebellion or Disloyalty in the Parliament or army? Or which of the two Armies should in point of Law or Conscience be reputed Rebells or Traitors in this case? those that come only to rescue the King, and so fight really for him indeed, though against him in show; and wound him in the rescue? Or those who in show only fought for him, that they might still detain him captive to their wills? Doubtless there is no Lawyer, nor Theologue but would presently resolve in such a case, that the Parliaments Army which fought only to rescue the King were the loyal Subjects; and the Malignants army who held him captive with them, the only Rebels and traitors; and that the casual wounding of him (proceeding not out of any malicious intention, but love and loyalty to redeem him from captivity,) were no trespass nor offense at all, being quite besides their thoughts: and for a direct president; It was the very case of King Henry the third; who (together with his son Prince Edward ) being taken Prisoner by the Earl of Leycester in the battle of Lewis, and the Earl afterwards carrying him about in his Company in nature of a Prisoner, to countenance his actions, to the great discontent of the Prince, the Earl of Gloucester and other Nobles; hereupon the Prince and they raising an Army, encountered the Earl, and his Forces in a battle at Evesham where the King was personally present, slew the Earl, Routed his Army, and rescued the king; in this cruel battle, the king himself (being wouded unawares with a Iavelin, by those who rescued him) was almost slain, and lost much of his blood: yet in a Parliament soon after summoned at Winchester, Anno 1266. the Earl and his Army were dis-inherited as Traitors and Rebels; but those who rescued them though with danger to his person, rewarded as his loyal subjects. And is not this the present case? A company of malignant ill Counselors, Delinquents, Prelates, Papists, have withdrawn his Majesty from his Parliament, raised an Army of Papists, Foreigners, Delinquents and Male-contents, to ruin the Parliament, Kingdom, Religion, Laws, Liberties; to countenance this their design, they detain his Majesty with them, and engage him all they can on their side: the Parliament out of no disloyal intention, but only to rescue his Majesty's person out of their hands, to apprehend delinquents, preserve the Kingdom from spoil, and defend their Privileges, Persons, Liberties, estates, religion, from unjust invasion, have raised a defensive Army, which encountered these Forces at Edgehill, (where they say the King was present) slew the Lord General (Earl of Lindsey ) with many others; and as they never intended, so they offered no kind of hurt or violence at all to his Majesty's person then or since; and now full sore against their wills, Petitions, endeavors for peace, they are necessitated to continue this offensive war, for their own and the Kingdoms necessary preservation. The sole question is; Whether this Act, this Defensive War of the Parliament and their Forces be high Treason or Rebellion? and who are the Traitors and Rebells in this case? Certainly, if I understand any Law or Reason, the Parliament and their Forces are and must be innocent from these crimes; and their opposite Popish Malignant Cavaliers, the only Rebels and Traitors; as this Parliament (the only proper Judge of Treasons) hath already voted and declared them in point of Law.
Seventhly, it is Littleto • s and other Law-books express resolutions; That if a man grant to another the Office of a Parkership, of a Park for life, the estate which he hath is upon condition in Law (though not expressed) that he shall well and lawfully keep the Park, and do that which to his Office belongeth to do, or otherwise it shall be lawful for the grantor and his heirs to remove him, and grant it to another if he will: and if the Parker negligently suffer the Deere to be killed, or kill the Deere himself without sufficient warrant from his Lord, it is a direct forfeiture of his Office. If then a Keeper of Forrester cannot kill or negligently suffer his Deere to be killed (no nor yet destroy the vert on which they should feed, or suffer it to be destroyed) without forfeiture of his Office, even by a condition annexed to his Office by the very Common Law; shall a King, think you, lawfully murder, plunder and destroy his Subjects, his kingdom, without any forfeiture or resistance at all? or will the Common Law of the Land in such a case which provides and annexeth a condition to the Office of a Parker, not much more unite it to the royal Office of a King, (who is but a regal Keeper, or shepherd of men, of Christians, of free men, not of slaves) for the Subjects preservation and security? Doth the Common-Law thus provide for the safety, the Liberty, welfare of our beasts, yea our wild beasts, are our Deere so dear unto it, and will it not much more provide for the security of our own persons, Lives, Liberties, estates? shall not these be dearer to it than our Deere? How many riged Laws have been anciently, and of late years made, against the killing, the destroying of the kings, the Subjects Deere in Forrests and Parkes, for which some have lost their Liberties, Lives, members? And shall not the Laws for the preservation of the Subjects Lives, Liberties, estates be more inviolably observed, more severely prosecuted? May a Forrester, Warrener, or Keeper of a Park lawfully beat and kill another in defense of his Deere and other game, without any penalty or forfeiture at all, enjoying the Kings Peace as before this fact, by the express statute of 21. E. 1. Rastall Forrests 19. and Stamfords Pleas, l. 1. c. 5. 6. And cannot a poor subject defend his own person, family, house, goods, Liberty, life, against the kings Forces, or Cavaliers without the danger of Treason or Rebellion, if the king himself be present with them, or they come armed with his unjust Commission? Certainly this is a too absurd, irrational, bestial opinion for any to believe. It is our Savior's own doubled argument, Mat. 6. 26. Luke 12. 24. Behold the fowls of the air, and consider the Ravens, for they neither sow nor reap, neither have storehouse, nor barn; yet your heavenly Father feedeth them: ARE NOT YEE MVCH BETTER THEN THEY? THEN FOWLES? And Luke 12. 6. 7. Mat. 10. 29. 30. 31. Are not two sparrows sold for a farthing? and not one of them shall fall to the ground without your Father: But the very hairs of your head are all numbered: Fear ye not therefore; YE ARE OF MORE VALVE THEN MANY SPARROWES And the Apostle hath the like argument, 1 Cor. 9. 9. 10. Doth God take care for Oxen? Or saith he it no • altogether for our sakes? for our sakes, NO DOUBT THIS IS WRITTEN, &c. Men are the Sovereign Lord's of all the Creatures, of far more excellency and dignity then all, • r any of them; especially Christian men; whence the Apostle Paul gives this strict charge to the Elders of Ephesus (belonging as well to kings as Ministers) Act. 20. 28. Take heed therefore unto all the flock over which the holy Ghost hath m • de you over-seers to feed the Church of God which he hath purchase • with his own blood: and God himself hath given this express inhibition even to Kings themselves, concerning his and their people's safety (most strangely inverted by flattering Divines, quite contrary to the words and meaning:) Touch not mine anointed, and do my Prophets no harm. And shall not men then made after God's own Image; men redeemed and purchased by the blood of Christ; men made Kings and Priests to God their Father, whom God himself hath expressly prohibited Kings themselves to touch or harm; not be allowed liberty to defend their persons, houses, lives, liberties, without offense or Treason, against Kings or any their Cavaliers assaults, by the Law of God, the Common or statute Law of the Realm; when as their very Keepers, Warreners, Forresters may lawfully resist, and slay them to without crime or punishment, if they should offer but to kill, to steal their Deere or Connies? Are they not much better, much dearer to God, to Kings, then fowls? then Sparrowes? then Oxen? then Deere? and their lives, their blood more precious then theirs? surely the Scripture is express: that precious in the sight of the Lord is the blood the death of his Saints; and therefore he that sheddeth man's blood (be he whom he will in an unlawful way) by man shall his blood be shed; if not in a judicial way, yet by way of just defense, as Christ himself expounds it, Mat. 26. 52. ALL they that take the sword, shall perish with the sword: and Rev. 10 10. He that killeth with the sword, MVST BE KILLED WITH THE SWORD; (no doubt he may be killed by way of necessary defense;) then it immediately follows; here is the patience and faith of the Saints: that is, Saints will and must patiently endure many pressures and wrongs from Tyrants and oppressors without resistance, but if they once come to make war with them, as the seven headed beast there did v. 7. then both the faith and patience of the Saints themselves will bind their hands no longer, but give them free liberty in such an extremity (for their own and the Churches preservation, in their just defense) to slay those seven headed beasts that shall assault them; the very faith of Christ then teacheth them no other lesson but this: he that lead • th into captivity shall go in • o captivity, and he that killeth with the sword must be killed with the sword: and in such a case, God saith, Psal. 149. 6. 7. 8. 9. Let a two edged sword be in their hands, to execute vengeance upon the heathen, and punishment upon the people: to 〈◊〉 their Kings with chains and their Nobles with fetters of Iron; to execute upon them the judge • meant written: This honor (this privilege in such cases) HAVE ALL THE SAINTS, Praise ye • he Lord. And very good reason is there for it. For as Nature it self hath instructed Lions, Bears, Wolves, Boars, Stagges, Backes, and most other beasts, not only to defend themselves against the violence of one another, but even of Men their supreme Lord's, when they assault and hunt them to take away their lives, over which God hath given men a lawful power: much more then may men by natures dictate, defend their persons, lives against the unlawful violence of their kings or Armies (over which God hath given them no power at all but in a legal way of justice for capital offenses) when they assault or make war upon them to destroy them. Not to trouble you with Histories of Stagges and other beasts which have killed men th • t chased them, in their own defense, of which there are infinite examples in the Roman and Spanish Histories, in those Amphithreatricall sports and spectacles wherein men encountered and fought with Lions, Tigers, Bears, Bulls and other savage B • asts; I shall only recite some few examples even of Kings themselves, who have been slain and devoured by such beasts as they have chased: Mad •• King of Britain (as Polycronicon Fabian, Grafton and others record) being in his disport of hunting, was slain of the wild beasts he pursued, when he had reigned 40. years: so was his son King Mempris slain and destroyed in hunting in the same manner. Merind •• King of Britain, was devoured by a Sea monster which he encountered: and Basilius the 33. Emperor of Constantinople hunting a Stag, of an extraordinary greatness, and thi • king to cut off his neck with his sword; the Stag ranfiercely at him, gored him with his horns on which he tossed him, bruised his entralls, whereof he died some few days after, and had been slain immediately, on the beasts horns, had not one there present drawn his sword and cut off his girdle, by which he hung on the horns, to whom he gave a very ill requital for this loyal service: other stories of kings slain by beasts in their own defense occure in story, and examples of kings slain by men in and for their preservation, are almost innumerable: that of our king Edmond is observable among others, who as our Historians write being at a feast at Pulkers Church on Saint Augustine's day, espied a thief named Leof, whom he had formerly banished, sitting in the Hall, whereupon he leapt over the Table, assaulted Leof, and plucked him by the hair of the head to the ground; who in his own defense, wounded the king to death with a knife, hurt many of his servants, and at length was himself hewn all in pieces. But that of our King Richard the 1. is more remarkable, who being shot in the arm with a barbed Arrow by one Peter Basil, (or Bertram Gurdon as others name him) at the siege of Chaluz Castle in Aquitain which rebelled against him; the Castle being taken, and the king ready to die of the wound, commanded the person that shot him to be brought into his presence, of whom he demanded, What hurt he had done him that provoked him to this mischief? To whom he boldly replied: Thou hast killed my father and my two Brothers with thine own hand; and now wouldest have slain me: take what revenge thou wilt; I shall willingly endure what ever torture thou canst inflict upon me, in respect I have slain thee, who hast done such and so great mischief to the world. The king hearing this his magnanimous answer, released him from his bonds, (though he slew the rest) and not only forgave him his death, but commanded an hundred shillings to be given him. If then brutes by the very law of Nature have thus defended themselves against kings, who have violently assaulted them, even to the casual death of the assailants: Why men by the selfsame Law, may not justly defend themselves against the unjust assailing wars of their Princes, and Armies, without Treason or Rebellion, exceeds my shallow understanding to apprehend: and I doubt those very persons who now plead most against it, only to accomplish their own pernicious designs, would make no scruple of such a necessary defensive wars and resistances lawfulness, were the case but really their own; and those Papists and Cavalieers who now take up arms against the Parliament, the supremest lawful power in the Realm, and their own native Country, without check of Conscience, would doubtless make no bones at all forcibly to resist or fight against the King himself, should he but really join with the Parliaments Army, against them and their designs; there being never any Soldier or Politician, but those only who were truly sanctified and religious, that made any conscience of fighting against, yea murthering of his natural king, not only in a lawful defensive war, but in a Trayterous and R • bellious manner too, if he might thereby advantage or promote his own particular interests, as is evident by the council and speech of David's soldiers, and King Saul himself. 1 Sam. 24. 4. 5. 6. 7. 18. 19. 21. by the words of Abishai, to David, 1 Sam. 28. 8. 9. 23. 24. by the Council of Ahithophel, which pleased Absalom, and all the Elders of Israel well, 2 Sam 17. 1. 2. 3. 4▪ and the infinite number of Emperors, of Kings, which have been traitorously, and rebelliously slain, without any just occasion by their own Soldiers, and that in a mere offensive, not defensive way; above half the Roman, Grecian, and German Emperors dying of such assassinations, or poysonings, very few of them of mere natural deaths, as the Histories of their lives declare.
Eighthly, It is in a manner agreed by Historians, Politicians, and Divines, that if a King will desert the defense and Protection of his people in times of war and danger, and neither aid nor protect them against their enemies according to his Oath and Duty, they may in such a case of extremity, for their own necessary defense and preservation, desert him, who deserteth them, and elect another King, who can and will protect them from utter ruin. Upon this very ground the Brittons of this Nation after many hundred years subjection to the Roman Emperors, rejected their yoke and government, when they refused and neglected to defend them against the barbarous Picts and others, who invaded them, when they had oft craved their assistance; electing them other Patriots: So the Spaniards being deserted by the Roman Emperors and left as a prey to their enemies; abandoned their government, and elected them Kings of their own to protect them, which they justified to be lawful for them to do. And in like manner the Romans and Italians being forsaken of the Emperor Constantine, when they were invaded by Aistulfus King of the Lumbards; Elected Charles the Great for their Emperor, and created a new Empire in the West, distinct from that of Constantinople in the East, which Bishop Bilson himself concludes they might lawfully do, in point of conscience. So Childerick being unfit to govern, and unable to repulse the enemies of the French which invaded his territories; thereupon by the advise of Pope Zacharias, and of a whole Synod and Parliament in France, they deposed Childericke, and elected P • pin for their King, who was both able and willing to protect them; Upon this very ground the Emperors Charles the third, and Wencestius were deposed, as being unable and unfit to defend and govern the Empire, and others elected Emperors in their steeds, Thus Mahomet the blind, King of Granado, was in the year 1309. deposed by his own Brother, Nobles, and Subjects, who were discontented to be governed by a blind King, who could not lead them to the wars in person. And Ethodius the 2 d king of Scotland, being dull of wit, given to avarice, and nothing meet to govern the Realm; thereupon the Nobles took upon them the government, appointing Rulers in every Province, & so continued them all his reign, leaving him nothing but the bare title of a King, (not depriving him thereof, out of the respect they gave to the family of Fergusius ) but yet taking away all his regal power. And not to multiply cases or examples of this nature: Andrew Favine in his Theatre of Honor, out of the Chronicle of Laureshe • m and A • monius in his 4 th Book of the History of France, relates a notable resolution given by the Parliament & Estates of France in this very point. In the year 803. Louis the De • onnaire king of France holding his Parliament in May, there came thither from strange Provinces two Brethren, kings of Vuilses, who with frank & free good will submitted themselves to the judgment of the said • arliament, to which of them▪ the kingdom should belong. The elder of these two brethren was named Miligastus, and the younger Celea • raeus, Now albeit the custom of the said kingdom, adjudged the Crown to the eldest, according to the right of 〈◊〉 allowed and practiced by the Law of Nature, and of later memory, in the person of the last dead King Liubus, father to the two contendants; yet notwithstanding in regard that the Subjects by universal consent of the kingdom, had rejected the elder brother FOR HIS COWARDISE AND EVILL GOVERNMENT (cum secundam ritum ejus gentis commissum sibi Regnum parum digne administraret) and had given the Crown to the younger brother FOR HIS VALOVR & DISCREETE CARRIAGE; after full hearing of both parties, BY SENTENCE of PARLIAMENT, the Kingdom was adjudged to the younger Brother, (stat •• t ut junior frater delatam sibi à Populo suo pot • statem haberet, &c) and thereupon the eldest did him homage, with oath of Alleigance in the said Parliament, and submitted to this sentence. And upon this very ground in some of our ancient British and Saxons Kings Reignes▪ when the right heir to the Crown was an infant, unable to defend his kingdom and people against invading enemies, the Crown hath commonly descended to the Uncle or next heir of full age, who was able to protect them and repulse their enemies, till the right heir accomplished his complete age, as I have elsewhere manifested. If then a Kingdom by general consent; may elect a new King to defend and preserve it, in case of invasion and eminent danger of ruin by foreign enemies, when their present King either cannot, or will not do his duty in protecting them from their enemies, and exposeth them for a prey to their devastations, as these examples and authorities conclude they may, though I will not positively determine so. Then certainly by equal, semblable and greater reason, subjects may lawfully take up necessary defensive Arms against their Kings, when they shall not only desert, but actually invade and wage war against them, destroy and wast them in an open Hostile manner, and handle them as cruelly as the worst of enemies: such a willful unnatural Hostile invasion, being far worse than any cowardly or bare desertion of thē when they are invaded by a foreign enemy. And if Kings in case of • ot • ishnesse or Lunacy may be lawfully deposed from their kingdoms by common consent of their Realms, when they are altogether unfit or unable to govern, as Bishop Bilson asserts, and I have manifested elsewhere: then much more may they be lawfully resisted by force without guilt of Treason or Rebellion, when they willfully and maliciously, contrary to their oath and duty, cast off their Royal governments, the protection of their subjects, and wage open war against them, to enslave or ruin them. If a Father shall violently and unjustly assault his son, a husband his wife, a master his servant, a Major or other inferior Officer, a Citizen to murder, maim, or ruin them; They may in such a case by the Law of Nature, God, man, resist, repulse them in their own defense without any crime at all, as daily practice experimentally manifests; yea they may swear the peace against them, and have a Writ de securitate Pacis in such cases. Therefore by the selfefame reason they may resist the King and his Army in like cases; there being no more human nor divine Law against resistance in the one case, than in the other.
Finally, it is the resolution of John Bodin and others, who deny the lawfulness of Subjects taking up Arms against their Sovereign Prince, or offering violence to his person, though he become a Tyrant:
From Reasons, I shall next proceed to punctual Authorities. Not to mention our ancient Brittons taking up of arms by joint consent, against their oppressing, tyrannizing Kings A • chigallo, Emerian, and Vortigern, whom they both expelled and deposed, for their tyranny and mis-govenment; nor our Saxo • s. ray • sing defensive Forces against King Sigebert, Osred, Æthelred, Beornard, Ceolwulfe and Edwyn, who were forcibly expelled, and deprived by their Subjects for their bloody cruelties and oppressions; which actions the whole Kingdom then, and those Historians who recorded them since, reputed just and honorable, and no Treasonor R • bellion in Law or Conscience, being for the Kingdoms necessary preservation, and the people's just defense; which Histories I have elsewhere more largely related. Nor yet to insist long on the fore-mentioned Barons war, against king John and Henry the 3 d . for regaining, establishing, preserving Magna Cha • ta, and other Liberties of the Realm, which our Kings had almost utterly deprived them off; I shall only give you some few brief observations touching these wars, to clear them from those black aspersions of Rebellion, Treason, and the like, which some late Historians (especially John Speed ) to flatter those Kings to whom they Dedicated their Histories, have cast upon them, contrary to the judgment of our ancienter Choniclers, and Matthew Paris; who generally repute them lawful and honorable.
First then consider, what opinion the Prelates, Barons, and Kingdom in general, had of these Wars at first, Anno 1 • 14. in a Parliament held at Paul's the 16. year of King John's reign, Steven Langton Archbishop of Canterbury, produced a Charter of King Henry the First, whereby he granted the Ancient Libert • es of the Kingdom of England (which had by his Predecessors been oppressed with unjust exactions, according to the Laws of King Edward, with those emendations, which his Father, by the cou • sell of his Barons, did ratify: which Charter being read before the Barons, they much rejoiced; and swore in the presence of the Archbishop,; that for these Liberties they would, if need required, spend their blood: which being openly done in Parliament, they would never have taken such a public solemn Oath, had they deemed a War against the King, for recovery, or defense of these their Liberties unlawful, and no less then Treason and Rebellion in point of Law or Conscience. After this the Barons assembling at Saint Edmond bury, conferred about the said Charter, and swore upon the high Altar, That if King John refused to confirm and restore unto th • m those Liberties (the Rights of the Kingdom) they would make War upon him, and withdraw themselves from his Allegiance, until he had ratified them all w • th his Charter under h • s great Seal. And further agreed, after Christmas to Petition him for the same, and in the mean time to provide themselves of Horse and Furniture to be ready, if the King should start from his Oath made at W • nchester, at the time of his absolution, for confirmation of these Liberties, and compel him to satisfy their demand. After Christmas they repair in a Military manner to the King, lying in the new Temple, urging their desires with great vehemency: the King seeing their resolution and inclination to war, made answer, That for the matter they required, he would take consideration till after Easter next, In the mean time, he took upon him the Cross, rather through fear, then devotion, supposing himself to be more safe under that Protection: And to show his desperate malice and wilfuln • sse (who rather then not to have an absolute domination over his people, to do what he listed, would be anything himself under any other that would but support him in his violences) he sent an Embassage (the most base and impious that ever yet was sent by any free and Christian Prince) unto Miramumalim the Moore, entitled the great King of Africa, Morocco, and Spain; wherein he offered to render unto him his Kingdom, and to hold the same by tribute from him as his Sovereign Lord; to forgo the Christian Faith, as vain, and to receive that of Mahomet, employing Thomas Hardington and Ralph Fitz-Nicholas, Knights, and Robert of London Clerke, Commissioners in this negotiation; whose manner of access to this great King, with the delivery of their Message, and King John's Charter to that effect, are at large recited in Matthew Paris, who heard the whole relation from Robert one of the Commissioners, Miramumalim having heard at large their Message, and the Description of the King and Kingdom, (governed by an anointed and Crowned King, known of old to be free and ingenuous; ad nullius, praeterquam Dei spectans dominationem ) with the nature and disposition of the people, so much disdained the baseness and impiety of the Offerer, that fetching a deep sigh from his heart, he answered,
Secondly, the Lawfulnesse and justness of the B • rons Wars in Defense of Magna Chart • , with other their Hereditary Rights and Liberties, appears most evidently, by the resolution of all those Parliaments summoned by King Herry the 3 d . Edward the 1 • . 2. 3. Richard the 2 d and other our succeeding Kings; which have many times, even by force of Arms, or Menaces; and sometimes by fair terms, caused these Kings by new Acts of Parliament of ratify Magna Charta, the Chart • r of the Forest, with other Fundamental Liberties, thus forcibly extorted from King I • hn at first; and constrained them to confirm hem with their Oaths and sol • mne public Excommunications, to be published by the Bishops in their Diocese twice every year; oft solemnly vowing, and protesting, both in and out of Parliament, to defend these Laws and Liberties, with their estates, arms, lives, blood; which their anc • st • rs had purchased with their blood; as I have manifested in the two first parts of this Discourse: All which they would no doubt have forborne, had they deemed it high Treason or Rebellion in point of Law, to take up arms against their Kings in defense o • these Laws and Privileges; neither would our Kings and Parliaments in times of Peace, have so frequently confirmed these Laws and Immunities, as just and necessary for the people's welfare, had they reputed their former purchases and confirmations by war and arms, no less then Treason or Rebellion. And if it were neither Treason nor Rebellion in the judgments of our Ancestors and those Parliaments which procured, and ratified Magna Charta, to take up arms in defense thereof; much less can it be Treason or Rebellion in the Parliament and Subjects now (by Votes, by Ordinances of both Houses) with force of arms to preserve • , not only these their hereditary Charters, Laws, Privileges, but their very Lives, Estates; yea, the Privileges and being of Parliaments themselves, which are now invaded, endangered.
What opinion the world had of the lawfulness of most of the Barons Wars in King Henry the 3 d . his Rain, against this troublesome perfidious King, in defense of their Laws, Liberties, Estates, appears first, by the Dialogue between Agnellus, a Frier minorite, one of King Henry his Counsel, (purposely sent to the Earl Marshall, then in arms against the King) and this Martial Earl, in the Abbey of Morgan. Anno 1233. I will first relate the true state of that War, and then their Dialogue concerning it: King Henry by the ill counsel of Peter Bishop of Winchester, removed all his English Officers, Counselors, and Servants from his Court, and put Poictovines, and Foreigners in their places, being ruled wholly by them; withal he puts the English Garrisons out of all his Castles, and substitutes Foreigners in them, which daily arrived both with Horse and arms in great multitudes, and much opprested the people, calling them Traitors; so that the power and wealth of the Realm was wholly under their Command. The Earl Marshall seeing the Noble and Ignoble thus oppressed, and the rights of the Kingdom like utterly to be lost; provoked with a zeal of Justice, associating to himself other Noble men, goes boldly to the King, reproves him in the hearing of many,
William Roshanger in his continuation of Matthew Paris, speaking of the death of Simon Monfort Earl of Leycester, slain in the Battle of Ev • sham, the greatest Pillar of the Barrons wars; useth this expression. Thus this magnificent Earl Simon, ended his labors, who not only bestowed his estate but his pe • son also, for releiefe of the oppression of the poor, for the asserting of Justice, and the right of the Realm: he was commendably skillful in learning, a daily fr • quenter of divine Offices, constant in word, severe in countenance, most confiding in the prayers of Religious persons, always very respectful to Ec • lesiasticall persons. He earnestly adheared to Robert Grosthead Bishop of Lincoln, and committed his children to his education. By his advise he handled difficult things, attempted doubtful things, concluded things begun, specially such things whereby he thought he might gain desert. Which Bishop was said to have enjoined him, as he would obtain remission of his sins, that he should undertake this cause for which he contended even unto death, affirming, that the peace of the Church of England could never be esta • lished, but by th • material sword and constantly averting; THAT ALL WHO DIED FOR IT WERE CROWNED WITH MARTYRDOME. Some say that this Bishop on a time, laying his hand on the head of the Earls eldest son, said unto him. O most dear son, thou and thy father shall both die on one day, and with one hand of death; YET FOR IVSTICE AND TRUTH. Fame reports that Simon after his death grew famous by many miracles, which for fear of the King came not in public. Thus this Historian, thus Robert Grosthead the most devout and learned Bishop of that age, (who most of any opposed the Popes Usurpations and exactions) determine of the justice and lawfulness of the Barons Wars; Walter Bishop of Worcester concurring in the same opinion with Grosthead. The same author Rishanger records; that the Earl of Gloucester, a great stickler in these wars against the king with whom at last he accorded; signified to the King by his Letters Patents under his seal, that he would never • eure Arms against the King his Lord, nor against his Son Prince Edward, NISI DEFENDO; but onel • in his Defense: which the King and Prince accepting of, clearly proves; that defensive Arms against King or Prince were in that age generally reputed Lawfull, by King Prince, Prelates, Nobles, People. I may likewise add to this what I read in Matthew Westminster, that Richard Bishop of Chichester the day before the battle of Lewis against King Henry and his son (who were taken prisoners in it by the Barons and 20000. of their Soldiers slain;) absolved all that went to fight against the King their Lord from all their sins. Such confidence had he of the goodness of the cause and justness of the war.
In one word, the oath of association prescribed by the Barons to the King of Romans, brother to King Henry the third, in the 43. year of his Rain; Hear all men, that I Richard Earl of Cornewall, do here swear upon the holy Evangelists, that I shall be faithful, and diligent to reform with you the Kingdom of England, hitherto by the council of wicked persons overmuch disordered: and be an effectual Coadjutor TO EXPELL THE REBELLS, and disturbers of the same. And this Oath I will inviolaby observe, under pa • ne of losing all the lands I have in England: So help me God. Which Oath all the Barrons and their associates took, (by virtue whereof they took up arms against the Kings ill Counselors, and himself when he joined with them,) sufficiently demonstrate their public opinions and judgments of the lawfulness, the justness of their wars; and of all other necessary defensive arms, taken up by the Kingdoms general assent for preservation of its Laws, Liberties, and suppression of those Rebels, and ill Counselors who fight against, or labor to subvert them by their policies.
In the third year of King Edward the 2 d , this king revoking his great Mynion Piers Gav • ston, newly banished by the Parliament into Ireland, and admitting him into as great favor as before, contrary to his oath and promise: the Barrons hereupon by common consent sent the King word; that he should banish Piers from his company according to his agreement, or else they would certainly rise up against him as a perjured person. Upon which the King much terrified suffers Piers to abjure the Realm; who returning again soon after to the Court at York; where the king entertained him; the Lord's spiritual and temporal, to preserve the liberties of the Church and Realm, sent an honorable message to the King, to deliver Piers into their hands, or banish him, for the preservatio • of the peace, Treasure and weal of the Kingdom; this willful King denies their just request; whereupon the Lord's thus contemned and deluded, raifed an army, and march with all speed towards New-Castle, NOT TO OFFER INIVRIE OR MOLESTATION TO THE KING, but to apprehend Peirs, and judge him according to Law: upon this the King fleeth together with Peirs to Tinemouth, and from thence to Scarborough Castle, where Piers is forced to render himself to the Barrons, who at Warwick Castle, (without any legal trial by mere martial Law) beheaded him, as a subvertor of the Laws, and an OPEN TRAITOR TO THE KINGDOME. For which facts this King afterwards reprehending and accusing the Lord's in Parliament, in the 7 th year of his Rain; they stoutly answered, THAT THEY HAD NOT OFFENDED IN ANY ONE POINT, BV • DESERVED HIS ROYALL FAVOVR, for they HAD NOT GATHERED FORCE AGAINST HIM (though he were in Piers his company, assisted, countenanced, and fled with him) BVT AGAINST THE PVBLICKE ENEMIE OF THE REALME: Whereupon there were two acts of oblivion passed by the King, Lord's and Commons assembled in that Parliament, (Printed in the 2 d Part of old Magna Charta:) The first, that no person (on the Kings part) should be questioned, molested, impeached, imprisoned, and brought to judgment, for causing Pierce to return from Exile, or barboring, councelling or aiding him bere after his return: The second on the Barons part, in these words: It is provided by the King, and by the Archbishops, Bish • ps, Abbots, Priors, Earls, Bar • ns and Commons, of the Realm, assembled according to our Command, and unun mously assented and accorded, that none of what estate or condition soever he be, shall in time, t • come be appealed or challenged, for the apprehending, deteining, or death of Peirsde Gaveston, nor shall for the said death be appr • hended▪ nor imprisoned, impeached, mol • stead, nor grieved, nor judgment given against him by us, nor by others at our suite, nor at the suite of any other, either in the Kings Court or elsewhere. Which act the King by his Writ, sent to the Judges of the Kings Bench, commanding that t • is grant and concord shall be firm and stable i • all its points, and that every of them should be held, and kept in per petuitie; to which end he commands them to cause this act to be there enrolled, and fi • mely kept forever. A pregnant evidence that the Barons taking up Arms then against this Traitor and enemy of the Realm, in pursuance of the Act and sentence of Parliament for his banishment, though the King were in his company, and assisted him all he might, was then both by King and Parliament, adjudged no Treason, nor Rebellion at all in point of Law, but a just & honorable action: Wherefore their taking up Arms is not mentioned in this Act of oblivion, seeing they all held it just, but their putting Piers to death, without legal trial; which in strictness of Law, could not be justified. Now whether this be not the Parliaments and kingdoms present case in point of Law (who took up arms principally at first, for defense of their own Privileges of Parliament, and apprehention of delinquents who seducing the king withdrew him from the Parliament, and caused him to raise an Army to shelter themselves under its power against the Parliament) let every reasonable man determine: and if it be so, we see this ancient Act of Parliament resolves it, to be no high Treason, nor Rebellion, nor offense against the King; but a just, lawful act, for the kings, the kingdoms honor and safety.
Not long after this, the two Spensers getting into the kings favor, and seducing, miscouncelling him as much as Gaveston did; the Lord's and Barrons hereupon in the 14 th and 15 th years of his reign, confederated together, to live and die for justice, and to their power to destroy the TRAITORS OF THE REALME, Especially the two Spensers: after which they raised an Army, whereof they made Thomas Earl of Lancaster General; and meeting at Sherborne, they plunder and destroy the Spensers Castles, Manors▪ Houses, Friends, Servants, and marching to Saint Albanes with Ensigns displayed, sent Messengers to the King then at London, admonishing him not only to rid his Court but Kingdom, if the TRAITORS TO THE REALME, the Spensers, (condemned by the Commons in many Articles) to preserve the peace of the Realm; and to grant them and all their followers Lette • s Patents of indemnity, for what they had formerly done. Which the King at first denied but afterwards this Army marching up to London, where they were received by the City, he yielded to it, and in the 15 th year of his Rain by a special Act of Parliament the said Spensers were disinherited and banished the Realm (for mis-councelling the king, oppressing the people by injustice, advising him to lovie war upon his Subjects, making evil Judges and other Officers to the hurt of the King and Kingdom, engrossing the Kings ear, and usur • ing his Royal authority) as ENEMIES of the King and OF HIS PEOPLE: and by another Act of Parliament, it was then provided, that no man should be questioned for any felonies or trespasses committed in the prosecution of Hugh • e de Sponsers the father and son; which Act runs thus?
From which Act of Parliament I shall observe these three things. First, that this their taking up Arms to apprehend the Sp •• se • s as enemies to the King and kingdom, and marching with banners displayd, was not then reputed high Treason or Rebellion against the King, though it were by way of offense, not of defense, and without any authority of Parliament: for there is not one word of Treason or Rebellion in this Act, or in the Charter of pardon pursuing it: and if it had been high Treason, this Act and Charters on it extending only to Fellonie and Trespasses not to Treasons and Rebellions, would not have pardoned these transcendent Capita • l crimes. Secondly, that the unlawful outrages, robberies, and murders committed by the soldiers on the kings leige people, and not on the two Spensers the sole delinquents, were the occasion of this Act of oblivion and pardon, not the Armed pursuing of them, when they had gotten above the reach of Law. Thirdly, that though this were an offensive not defensive war, made without common assent of Parliament, and many murders, robberies, and misdemeanors committed in the prosecution of it upon the kings leige people who were no Delinquents; yet being for the common good to suppress and banish these ill Counselors, enemies, Traitors to King and Kingdom, the King and Parliament though it such a public service as merited a pardon of these misdemeanors in the carriage of it, and acquitted all who were parties to it, from all suites and punishments. All which considered, is a clear demonstration, that they would have resolved our present defensive war, by Authority of both Houses, accompanied with no such outrages as these; for the apprehension of such as have been voted Traitors and Delinquents by Parliament, and stand out in contempt against its justice, for the defense of the Privileges and Members of Parliament, the Liberties and properties of the subject, the fundamental laws of the Realm, the Protestant Religion now endangered by Papists up in Arms in England and Ireland to extirpate it, and the removing ill Counselors from his Majesty; to be no high Treason, Rebellion or offense at all against the king, but a just and lawful Act, the very miscarriages whereof in the general (except in such disorderly Soldiers for whom martial Law hath provided due punishments) deserve a public pardon both from King and Kingdom. And to put this out of Question; as no fancy of mine own, we have an express Act of Parliament, resolving the taking up of Arms by the Queen, Prince, (both but subjects and capable of High Treason in such a case as well as others) the Nobles and people of the Realm against these two Spensers and other ill Counselors about this king in the last year of his reign, (though the King himself were in their Company, and taken prisoner by the Forces raised against them,) for the necessary preservation, relief, and safety of the Queen, Prince, Nobles, Kingdom, to be no high Treason nor offense at all: namely, the statute of 1. E. 3. c. 1. 2. 3. which I shall recite at large.
Certainly here was an higher pursuit and levying war against the King and his evil Counselors, then any yet attempted by this Parliament; and a war rather offensive, then defensive, in which the king himself was both taken and d • t • ined Priso •• r, and then forced to resign his Crown to his son; yet this is here justified, as a necessary, just and lawful war by an Act of Parliament, never yet repealed; and all that bare Arms against the king and his ill Counselors, yea they who pursued, apprehended, and imprisoned the king himself, are, as to this particular, discharged by the king, and whole Parliament from all manner of guilt, or punishment, or prosecution whatsoever against them. Which consideration mak • s me somewhat confident, that this King and the Parliament held in the 25. year of his Rain, ch. 2. Which declares it high Treason, to levy war against the King in his Realm • , did never intend it of a necessary defensive war against a seduced King and his evil Counselors (especially by the Votes of both Houses of Parliament, who doubtless would never pass any Act to make themselves, or their Posterity in succeeding Parliaments, Traitors, for taking up mere necessary defensive Arms for their own, and the Kingdoms preservation) for that had been diametra • lie contrary to this statute, made in the very first year and Parliament of this King; and would have l • yd an aspertion of High Treason upon the king himself, the Queen his Mother, their own Fathers, and many of themselves; who thus took up Arms and made a defensive kind of war upon King • dwar • the 2 d , taking him p • isoner: but only to Rebellious insurrections, of private persons, without any public authority of Parliament, or the whole Kingdom in general; and of mere offensive wars against the King without any just occasion, hostility or violence on the Kings part, necessitating them to take up defensive Arms: which I humbly submit to the judgment of those grand Rabbies and Sages of the Law, and the Honorable Houses of Parliament, who are best able to resolve, and are the only Judges to determine this point in controversy, by the express letter and provision of 25. Ed. 3. ch. 2. of Treasons.
In the first year of king Richard the 2 d . John Mercer a Scot, with a Navy of Spanish, Scottish & French ships much infested the Merchants and Coasts of England • aking many prises without any care taken by the king, Lord's, or Council to resist them. Whereupon John Philpot a rich Merchant of London, diligently considering the defect, that I say not treachery of the Duke of I ancaster, and other Lord's who ought to defend the Realm, and gri • ving to see the oppressions of the people, did at his proper charge hire a thousand soldiers and set out a fleet, to take the said Mercers ships, with the goods he had gotten by Pyracie, and defend the Realm of England from such incursions: who in a short time took Mercer prisoner, with 15. Spanish ships, and all the Booties he had gained from the English: whereat all the people rejoiced exceedingly, commending and extolling Philpot for the great love he shown to his Country, and casting out some reproachful words against the Nobles and Kings council who had the rule of the kingdom and neglected its defense: Whereupon the Nobility, Earls and Barons of the Realm, conscious of this their negligence, and envying Philpot for this his Noble praise-worthy action, began not only secretly to lay snares for him, but openly to reproach him, saying: That it was not lawful for him to do such things without the advise or council of the King and Kingdom: quasi non licuisset benefacere Regi VEL REGNO sine consilio Comitum & Baronum: (writes Walsingham) as if it were not lawful to do good to the King or Kingdom, without the advise of the Earls and Barrons, or Lord's of the Privy Council. To whom objecting these things, and especially to Hugh Earl of Stafford, who was the chief Prolocutor and spake most against it, John Philpot gave this answer:
In the 8. year of King Richard the 2 d . there arose a great difference between the Duke of Lancaster, & the king & his young complices, who conspired the Dukes death; agreeing suddenly to arrest and arraign him before Robert Trisilian Chief Justice, who boldly promised to pass sentence against him, according to the quality of the crimes objected to him. Upon this the Duke having private intelligence of the • r treachery, to provide for his own safety, wisely withdrew himself, and posted to his Castleat Ponfract, storing it with Arms and Victualls. Hereupon not only a private but public discord was like to ensue; but by the great mediation and pains of Ione the kings mother, an accord and peace was made between them: and this defense of the Duke by fortifying his Castle with Arms against the King and his ill instruments for his own just preservation, held no crime. If such a defense then were held just and lawful in one particular Subject and Peer of the land only, much more must it be so in both Houses of Parliament, and the Kingdom, in case the Kings Forces invade them.
In the 10 th year of King Richard the second this inconstant king being instigated by Michael de la Pole, Robert Vcere Duke of Ireland, Alexander Nevill Archbishop of York, Robert Trysilian, and other ill Counselors and Traitors to the kingdom, endeavored to seize upon the Duke of Gloucester, the Earls of Arundell, Warwick, Derby, Nottingham, and others who were faithful to the kingdom, and to put them to death, having caused them first to be indighted of High Treason at Nottingham Castle, and hired many Soldiers to surprise them: Hereupon these Lord's for their own just defense, raised Forces and met at Harynggye Park with a numerous Army: whereat the King being much perplexed, advised what was best for him to do. The Archbishop of York and others of his ill Council, advised him to go forth and give them battle▪ but his wisest councellors dissuaded him, affirming, that the King should gain no benefit if he vanquished them, and should sustain great dishonor and loss if he were conquered by them. In the mean time Hugh Linne an old Soldier, who had lost his senses, and was reputed a fool, coming in to the Council, the King demanded of him in jest, what he should do against the Nobles met together in the said Park? who answered; Let us go forth and assault them, and slay every mothers son of them, and by the eyes of God, this being finished, THOU HAST SLAINE ALL THE FAITHFVLL FRIENDS THOU HAST IN THE KINGDOME. Which answer, though uttered foolishly; yet wise men did most of all consider. At last is was resolved by the mediators of Peace, that the Lord's should meet the King at Westminster, and there receive an answer to the things for which they took Arms; thither they came strongly Armed with a great guard, for fear of ambuseadoes to entrap them: where the Chancellor in the Kings name spake thus to them. My Lord's, our Lord the King hearing that you were lately assembled at Harenggye Park in an unusual manner; would not rush upon you as he m • ght have easily done, had he not had care of you, and those who were with you: because no man can doubt, if he had raised an Army, he would have had many more men than you, and perchance much • lood of men had been spilled, which the King doth most of all abhor, and therefore assuming to himself patience and mildness, he hath made choice to convent you peaceably, and to tell him the reason why you have ass • mbled so many men. To which the Lord's answered, That THEY HAD MET TOGETHER FOR THE GOOD OF THE KING AND KINGDOME; AND THAT THEY MIGHT PVLL AWAY THOSE TRAITORS FROM HIM, WHICH HE CONTINVALLY DET AINED WITH HIM. T • e Traitors they appealed were the foresaid ill Counselors, and Nicholas Brambre the false London Knight: and to prove this appeal of them true, casting down their gloves they said they would prosecute it by Duel: The King answered; This shall not be done now, but in the next Parliament, which we appoint to be the morrow after the Purification of the blessed Virgin, to which as well you as they coming, shall receive satisfaction in all things according to Law. The Lord's for their own safety kept together till the Parliament, and in the mean time d • feated the Forces of the Duke of Ireland, raised privately by the Kings Command to surprise them. The Parliament coming on in the 11. year of Richard the second: these ill councellors were therein, by special Acts attainted, condemned of High Treason, and some of them executed; and these defensive Arms of the Lord's, for their own and the Kingdoms safety, adjudged and declared to be no Treason: but a thing done to the honor of God, and Salvation of the King and his Realm: witness the express words of the Printed Act of 11 R. 2. c. 1. which I shall transcribe. Our Sovereign Lord the King amongst other Petitions and requests to him made by the Commons of his said Realm in the said Parliament, hath received one Petition in the form following. The Commons prayed, that whereas the last Parliament for cause of the great and horrible mischiefs and perils which another time were fallen BY EVILL GOVERNANCE WHICH WAS ABOUT THE KINGS PERSON, by all his time before by Alexander late Archbishop of York, Robert de Veere late Duke of Ireland, Michael de la Pole late Earl of Suffolk, Rober Trisilian, late Justice, and Nicholas Brambre Knight, with other their adherents, and others, Whereby the King and all his Realm, were very nigh to have been wholly undone and destroyed; and for this cause, and to eschew such perils and mischiefs for the time to come a certain statute was made in the same Parliament, with a Commission to diverse Lord's, for the weal, honor and safeguard of the King, his regalty and of all the Realm, the tenor of which Commission hereafter followeth: Richard, &c. as in the Act. And thereupon the said Alexander, Robert, Mighill, Robert, and Nicholas and their said adherents, seeing that their said evil governance should be perceived, and they by the same cause more likely to be punished by good justice to be done, and also their evil deeds and purposes before used to be disturbed by the said Lord's assigned by commission as afore; made, conspired, & purposed divers horrible Treasons, and evils against the King, and the said Lord's so assigned, and against all the other Lord's and Commons, which were assenting to the making of the said Ordinance and Commission, in destruction of the king, his Regalty, and all his Realm. Whereupon Thomas Duke of Gloucester the kings Uncle, Richard Earl of Arundle, and Thomas Earl of Warwick, perceiving the evil purpose of the said Traitors, did assemble themselves in forcible manner for the safety of their persons, to show and declare the said Treasons and evil purposes, and thereof to set remedy; as God would, and came to the Kings presence, affirming against the said 5. Traitors appealed of High Treason, by them done to the King, and to his Realm: upon which appeal the king our Sovereign Lord, adjourned the said parties till this present Parliament, and did take them into his safe protection, as in the record made upon the same appeal fully appeareth. And afterwards in gre • t Rebellion, and against the said protection, the said Traitors, with their said adherents and others aforesaid, continuing their evil purpose, some of them assembled a great power (by letters and Commission from the King himself, as Walsingham and others write) to have destroyed the said Duke and Earls appellants, and other the kings lawful leige people, and to accomplish their Treasons and evil purposes aforesaid. Whereupon the said Duke of Gloucester, Henry Earl of Darby, the said Earls of Arundell and Warwick, and Thomas Earl Marshall, Seeing the open Destruction of the King and all his Realm, if the said evil purposed Traitors and their adherents, were not disturbed, which might not otherwise have been done, but with strong hand; for the weal and safeguard of the King our Sovereign Lord, and of all his Realm, did assemble them forcibly, and rode and pursued till they had disturbed the said power gathered by the said Traitors, and their adherents aforesaid, which five Traitors be attainted this present Parliament of the Treasons and evils aforesaid, at the suite and appeal of the said Duke of Gloucester, Earls of Darby, Arundle, Warwick, and Marshall. That it would please our redoubled Sovereign Lord the King to accept, approve, and affirm, in this present Parliament, all that was done in the last as afore, and as much as hath been done since the last Parliament by force of the statute, Ordinance, or Commission aforesaid; and also All that the said Duke of Gloc • ster Earls of Arun • ell and Warwick did; and that the same Duke and Earls, and the said Earls of Derby, and Marshall or any of them did, Or any other of their company or of their aid, or of their adherents, or of any of them, or touching the Assemblies, Ridings, Appeales, and Pursuites aforesaid, • As a thing made to the Honor of God, Salvation of the King, maintenance of his Crown, and also of the Salvation of all his Realm (therefore doubtless no Treason Rebellion, nor any offense in point of Law:) and also to Or 〈◊〉 and St • bl • sh, that' the said Duke of Gl • c • ster, Earls of Darby, Arundell, W • rwicke and Marshall, nor none of them, nor none of such as have been of their return, or company, force, aid or council, or any of them in the things aforesaid, nor none other person for anything aforesaid shall be impeached, molested, or grieved at the suite of the king, nor of the party, nor in other manner, because of any assembly, riding, beating, levying of Penons, or of Banners, discomfiture, death of a man, imprisonment of any person, taking, leading away, or detinue of any horses or of any other beasts, taking or carriage of goods, harness, armor, cattle, and other movable goods, breaking of houses, or of other possessions or goods, assault, battery, robberies, thefts, coming or tarrying with force and arms, or armed in the Kings presence at the Parliament, or Council, or else where. Raysing of people, or exciting the people to rise forcibly against the peace by letters, commissions, or any other deeds, or of any other thing that may be surmised by them, or any of them, or ought or purposed to have been done from the beginning of the world, touching any of the said matters before the end of this present Parliament by any imagination, interpretation, or other color, but shall be quit and discharged forever: except that the King be answered of all the goods, and cattels that were to them which be attainted in this present Parliament, or to any of them, and which goods and things were taken by any person the first day of January last past, or after hitherto. We considering the matter of the said Petition to be true, and the request of the said Commons in this party to be to the honor of God, and the profit of us and our Realm, of the assent of the Prelates, Dukes, Earls, Barrors and all others of this present Parliament, do garnt the requests of the said Commons in all points, after the form of the said Petition. And moreover of the assent aforesaid, we will and grant for the greater quietness of our said Realm, though that the said Duke or Earls appellants, or any other of their company, retinue, force, aid, council or adherents, or any of them have taken, led away, or withholden any of our Iusticers, or any other of our ministers, in disturbance of execution of the Law of our Realm of England, or in other manner, or that they have taken any manner of person as Traitors to Us or to our Realm, or other person, and the same have voluntarily suffered to go at large, or escape beyond the sea from the 14 th day of Novemb. last past, till the end of this present Parliament; that they nor any of them be for this cause impeached, molested, nor grieved any manner of way at the suite of us, our heirs, nor none other party, but thereof they shall be quit, and discharged forever; nor that they nor any of them be in any wise molested, grieved, nor impeached at the suite of us, our heirs, or other party for anything done at any time for to a taine to their purpose against the said appealers or any of them, or against any other person for this cause, nor for any other thing or deed to affirm the same purposes, till the end of this present Parliament, but thereof shall be acquitted.
This Act with others made the same Parliament continued inviolable without dispute for 10. years space, during w ch there were 8. more Parliaments held w ch approved in but it: 21 R. 2. the King having violently seised upon the Duke of Gloucester & the Earls of Warwick and Arundell, and packed a Parliament to his mind, by not summoning any Lord's thereto but those of his party, by causing divers Knights and Burgesses of his own nomination, never chosen by the people, to be returned in divers places, and overawing the rest with a guard or 4000. Cheshire Archers, caused these Lord's to be illegally attainted of Treason upon feigned pretences, out of this old grudge, and the Acts of this Parliament to be reversed; yet not this Act, as I conceive, which is part of it, being specially saved by 21. R. 2. c. 13. But however by the statute of 1 H. 4. c. 3. 4. the Parliament of 21. was wholly repealed, reversed, revoked, voided, undone and anulled forever, with all the Acts, circumstances, and dependants thereof: and this Parliament of 11. R. 2. Enacted to be firmly holden and kept after the purport and effect of the same; as a thing made for the great Honor and common profit of the Realm, and ch. 5.
So that by the express resolution of these two several Parliaments, these Lord's and Commons taking up defensive Arms and making war against those wicked Counselors of this King which sought their ruin, and endeavored the destruction of the Realm (though they had the kings presence and commissions to countenance all their actions and proceedings of this nature, and the Lord's wanted the Ordinances of both houses to authorize this their arming, and war) was solemnly declared and adjudged, to be no Treason nor Rebellion at all, nor levying of war against the king, within the statute of 25. E. 3. but contrariwise; a thing done to the honor of God, the Salvation of the King, (for if the Kingdom perish or miscarry, the king as king must needs perish with it) the maintenance of his Crown, (supported only by the maintenance of the kingdoms welfare) and the Salvation and common profit of all the Realm: and this being one of the first solemn judgments (if not the very first) given in Parliament after the making of the statute of 25 E. 3. which hath relation to its clause of levying war, must certainly be the best exposition of that Law: which the Pa • liament only ought to interpret, as is evident by the statute of 21. R. 2 c. 3. ( It is ordained and stablished, that every man which, &c. or he th • raiseth the people and riseth against the King to make war within his Realm; and of h • t be duly attainted and judged in the Parliament shall be judged as a Traitor of High Treason against the Crown, ) and other forecited Acts: and if this were no Treason, nor Rebellion, nor Trespass in the Barons against the king or kingdom; but a war for the honor of God, the salvation of the king, the maintenance of his Crown, the safety and common profit of • ll the Realm; much more must our Parliaments present defensive war against his Majesty's 〈◊〉 Counselors, Papists, Malignants, Delinquents, and men of desperate fortunes, risen up in Arms against the Parliament, Laws, Religion, Liberties, the whole Kingdoms peace and welfare, be so too; being backed with the very same, and far better, greater authority, and more public reasons then their war was, in which the safety of Religion was no great ingredient, nor the preservation of a Parliament from a forced dissolution, though established and perpetuated by a public Law.
King Henry the 4 th . taking up Arms against King Richard, and causing him to be Articled against, and judicially deposed in and by Parliament for his Male-administration; It was Enacted by the Statute of 1. Hen. 4. cap. 2. That no Lord Spiritual nor Temporal, nor other, of what estate or condition that he be, which came with King Henry into the Realm of England, nor none other persons whatsoever they be, then dwelling within the same Realm, and which came to this King in aide of him, to pursue them which were against the Kings good intent, and the COMMON PROFIT OF THE REALME, in which pursuit Richard late King of England, the second after the Conquest, was pursued taken and put in Ward, and yet remaineth in Ward, be impeached, grieved, nor vexed in person, nor in goods, in the Kings Court, nor in none other Court, for the pursuits of the said King, taking and with-holding of his body, nor for the pursuits of any other, taking of persons and cattells, or of the death of a man, or any other thing done in the said pursuit, from the day of the said King that now is arrived, till the day of the Coronarion of Our said Sovereign Lord Henry. And the intent of the King is not, that offenders which committed Trespasses, or other offenses out of the said pursuits, without special warrant, should be aided, nor have any advantage of this Statute, but that they be thereof answerable at the Law. If those then who in this offensive War assisted Henry the 4 th . to apprehend, and depose this perfidious, oppressing tyrannical king, seduced by evil Counselors and his own innate dis-affection to his natural people, deserved such an immunity of persons and goods, from all kinds of penalties, because though it tended to this ill kings deposition, yet in their intentions it was really for the common profit of the Realm, as this Act defines it. No doubt this present defensive War alone against Papists, Delinquents, and evil Counselors, (who have miserably wasted, spoiled, sacked many places of the Realm, and fired others in a most barbarous manner, contrary to the Law of Arms and Nations, and labor to subvert Religion, Laws, Liberties, Parliaments, and make the Realm a common Prey) without any ill intention against his Majesty's Person, or lawful Royal Authority, deserves a greater immunity; and can in no reasonable man's judgment, be interpreted any Treason, or Rebellion against the king, or his Crown, in Law or Conscience.
In the 33. year of king Henry the 6 th . (a weak Prince wholly gui • ed by the Queen and Duke of Somerset, who ruled all things at their wills, under whose Government, the greatest part of France was lost;) all things went to ruin both abroad and at home; and the Queen (much against the Lord's and Peoples minds.) preferring the Duke of Sommerset to the Captain ship of Calais, the Commons and Nobility were greatly offended thereat, saying, That he had lost Normandy, and so would he do Calais. Hereupon the Duke of York, the Earls of Warwick and Salisbury, with other their adherents, raised an Army in the Marches of Wales, and Marched with it towards London, to suppress the Duke of Sommerset with his Faction, and reform the Governement. The king being credibly informed hereof, assembled his Host, and marching towards the Duke of York and his Forces, was encountered by them at Saint Albanes, notwithstanding the kings Proclamation to keep the Peace; where in a set Battle, the Duke of Somerset, with divers Earls, and 8000. others were slain on the kings part, by the Duke of York, and his companions, and the king in a manner defeated. The Duke after this Victory obtained, remembering that he had oftentimes declared and published abroad; The only cause of this War to be, THE ADVANCEMENT OF THE PVBLIKE WEALE, and TO SET THE REALME IN A MORE COMMODIOVS STATE and BETTER CONDITION; Vsing all lenity, mercy, and bounteousnesse, would not once touch or apprehend the body of King Henry, whom he might have slain, and utterly destroyed, considering that he had him in his Ward, and Governance; but with great honor and due reverence, conveyed him to London; and so to Westminster: where a Parliament being summoned and assembled soon after; It was therein Enacted, That no person should either judge or report any point of untruth of the Duke of York, the Earls of Salisbury and Warwick, For coming in Warlike manner against the King at Saint Albanes, Considering that their attempt and enterprise, Was only to see the Kings Person in Safeguard and Sure-keeping, and to put and Alien from Him the public Oppressors of the Common wealth; by whose misgovernance, his life might be in hazard, and his Authority hang on a very small Thred. After this, the Duke, an • these Earls raised another Army, for like purpose, and their own defense in the 37 and 38 years of H. 6. for which they were afterwards, by a packed Parliament at Coventree, by their Enemies procurement, Attainted of high Treason, and their Lands and Goods confiscated. But in the Parliament of 39. H. 6. cap. 1. The said attainder, Parliament, with all Acts and Statutes therein made, were wholly Reversed Repealed, annulled; as being made by the excitation and procurement of seditious ill disposed Persons for the accomplishment of their own Rancor and Covetousness, that they might enjoy the Lands, Offices, Possessions, and Goods of the lawful Lord's and liege People of the King; and that they might finally destroy the said lawful Lord's, and Liege People, and their Issues and Heirs forever (as now the Kings ill • ounseilors, and hungry Cavalleers seek to destroy the Kings faithful Liege Lord's and People, that they may gain their Lands and Estates; witness the late intercepted Letter of Sir John B • ooks, giving advise to this purpose to his Majesty:) and this Assembly was declared; to be no lawful Parliament, but a devilish Counsel, which desired more the destruction then advancement of the Public weal; and the Duke, Earls, with their assistants were restored, and declared to be Faithful and Lawful Lord's, and Faithful liege People of the Realm of England, who always had great and Fathfull Love to the Preferrement and Surety of the Kings Person, according to their Duty.
If then these two Parliaments acquitted these Lord's and their companions, thus taking up Arms, from any the least guilt of Treason and rebellion against the King, because they did it only for the advancement of the public weal, the setting the Realm in a better condition the removing ill Counselors; and public oppressors of the Realm from about the King, and to rescue his person out of their hands: then questionless by their resolutions, our present Parliaments taking up defensive arms, upon the self-same grounds, and other important causes (and that by consent of both Houses, which they wanted) can be reputed no high Treason nor Rebellion against the King in point of Law; and no just, no rational Judge or Lawyer can justly aver the contrary, against so many forecited resolutions in Parliament, even in printed Acts.
The Earl of Richmund, afterward King Henry the seventh, taking up arms against Richard the third, (a lawful King, de facto, being crowned by Parliament; but an Usurper and bloody Tyrant in Verity;) to recover his Inheritance, and Title to the Crown, and ease the Kingdom of this unnatural blood-thirsty Oppressor, before his fight at Boswell Field, used this Oration to his Soldiers, pertinent to our purpose.
Which battle though it were just, and no Treason nor Rebellion in point of Law in those that assi • ted King Henry the 7 th . against this Usurper; yet because the killing of men, and seising their goods in the time of War, is against the very fundam • ntall Laws of the Realm, they needed an Act of Parliament to discharge them from suits and prosecutions at the Law for the same: the true reason of all the forecited Acts of this nature, which make no mention of pardoning any Rebellions or Treasons against the King, (for they deemed their forementioned taking up of Arms no such offenses) but only discharge the Subjects from all suites, actions, and prosecutions at Law for any killing or slaying of men, batteries, imprisonments, robberies and trespasses, in seising of Persons, Goods, Chartels.
What our Princes and State have thought of the lawful • esse of necessary Defensive Wars of Subjects against their oppressing Kings and Princes, appears by those aides and succors which our Kings in former ages have sent to the French, Flemmings, Almaines, and others, when their Kings and Princes have injuriously made Wars upon them, and more especially, by the public aid and assistance which our Queen Elizabeth and King James by the public advise and consent of the Realm, gave to the Protestants in France, Germany, Bohemia, and the Netherlands against the King of France, the Emperor, and King of Spain, who oppressed and made War upon them, to deprive them of their just Liberties and Religion, of which more hereafter. Certainly, had their Defensive Wars against their Sovereign Princes to preserve their Religion, Liberties, Privileges, been deemed Treason, Rebellion, in point of Law: Queen Elizabeth, King James, and our English State, would never have so much dishonored themselves, nor given so ill an example to the world, to Patronize Rebells or Traitours; or enter into any solemn Leagues and Covenants with them as then they did, which have been frequently renewed and continued to this present.
And to descend to our present times; our King Charles himself hath not only (in show at least) openly aided the French Protestants at Ree and Rochelle against their King who warred on them; the Germane Princes against the Emperor; the Hollanders, and Prince of O • a • ge, (to whose Son he hath married his elstest Daughter) against the Spaniard, and entered into a solemn League with them, (which he could not have done in point of Law, Justice, Honor, Conscience, had they been Rebells or Traitors, for standing on their guards, and making defensive Wars only for their own and their Religions preservation;) but likewise by two several public Acts of Parliament, the one in England, the other in Scotland, declaring, the Scots late • aking up Arms against him and his evil Counselors, in defense of their Religion, Law • s, Privileges, to be no Treason, nor Rebellion; and them to be his true and loyal Subjects (notwithstanding all aspersions cast upon them by the Prelatical and Popish Party) because they had no ill or disloyal intention at all against his Majesty's Person, Crown, and Dignity, but only a care of their own preservation, and the redress of th • se Enormities, Pressures, grievances in Church and State, which threatn • d desolation unto both. If then their seizing of the Kings Fortes, Ammunition, Revenues, and raising an Army for the foresaid ends, hath by his Majesty himself, and his two Parliaments of England and Scotland, been resolved and declared to be no Treason, no Rebellion at all against the King; by the very same, (or better reason, all circumstances duly pondered) our Parliaments present taking up Arms and making a Defensive War for the ends aforesaid, neither is, nor can be adjudged Treason or Rebellion, in point of Law or Justice.
In fine, the King himself in his Answer to the 19. Propositions of both Houses, June 3. 1642. Confesseth, and calleth God to witness: That a • the Rights of his Crown are vested in h • m for his Subjects sake: That the Prin • e may not make use of his high and perpetual power to the hurt of those, for whose good he hath it; nor make use of the name of public Necessity, for the gain of his private Favorites and Followers, to the detriment of his people; That the House of Commons may impeach those, who for their own ends, though countenanced with any surreptitiously gotten Command of the King, have violated that Law, which he is • ound (when he knows it) to protect, and to protection of which they were bound to advise him, at least, Not to serve him in the Contrary (let the Cavalleers and others consider this:) and the Lord's being trusted with a Iudiciary power, are an excellent screene and bank between the King and people, to assist each against any Incroachments of the other; and by just Judgments to preserve that Law, which ought to be the Rule of everyone of the three. Therefore the power Legally placed in both Houses, Being more then sufficient to prevent and restrain the power of Tyranny; by his Majesty's own Confession; it must needs be such a power as may legally enable both Houses, (when Arms are taken up against them, by the King or any other, to subvert Laws, Liberties, Religion, and introduce an Arbitrary government;) not only to make Laws, Ordinances, and Assessements, but likewise to take up Arms to defend and preseve themselves, their Laws, Liberties, religion, and to prevent, restrain all forces raised against them, to set up Tyranny; else should they want not only a more then sufficient, but even a sufficient necessary power, to prevent and restrain the power of Tyranny; which being once in arms cannot be restraned, prevented, repulsed, with Petitions, Declarations, Laws, Ordinances, or any Paper Bulwarks and Fortifications, or other such probable or possible means within the Parliaments power, but only by Arms and Militarie Forces, as reason and experience in all Ages manifest.
From all which pregnant punctual domestic Authorities and resolutions of Ancient, Moderne, and present times, I presume I may infallibly conclude; That the Parliaments present taking up necessary Defensive Arms, is neither, Treason, nor Rebellion, in judgment of Law; but a just and lawful Act, for the public benefit and preservation of King, Kingdom, Parliament, Laws, Liberties, Religion; and so neither their General, Soldiers, nor any person whatsoever employed by them in this War, or contributing anything towards its maintenance, are or can be Legally indicted, prosecuted, or in any manner proceeded against as Traitors, Rebels, Delinquents against the King or Kingdom; and that all Proclamations, Declarations, Indictments, or proceedings against them, or any of them, as Traitors, Rebels, or Delinquents, are utterly unlawful, unjust, and ought to be reversed as mere Nullities.
It would be an infinite tedious labor for me to relate, what Civilians and Canonists have written concerning War, and what War is just and lawful, what not: In brief, they all generally accord; That no War may or ought to be undertaken cut of covetousness, lust, ambition, cruelty, malice, desire of hurt, revenge, or fer booty: propter praedam enim militare peccatum est; Whence John the Baptist, Luke 3. 14. gave this answer to the Soldiers who demanded of him, what shall we do? Do violence to no man: neither accuse any man falsely; and be content with your wages. Ne dum sumptus quaeritur, praedo grassetur. Which proves the Wars of our plundering, pillaging Cavalleers altogether sinful and unjust: And that such a War only is just, which is waged for the good and necessary defense of the Common-wealth, by public Edict or consent; or to regain something, which is unjustly detained or taken away, and cannot otherwise be acquired: or to repel or punish some injury; or to curb the insolency of wicked men, or preserve good men from their unjust oppressions; which Wars ought only to be undertaken out of a desire of Peace; as they prove out of Augustine, Gregory, Isidor Hispalensis, and others. In one word, they all accord; That a necessary defensive War to repulse an Injury, and to preserve the State, Church, Republic, Freedomes, Lives, Chastities, Estates, Laws, Liberties, Religion, from unjust violence, is, and ever hath been lawful by the Law of Nature, of Nations; yea, By all Laws whatsoever, and the very dictate of Reason: And that a necessary defensive War, is not properly a War, but a mere Defense, against an unlawful Viol • nce; And therefore must of necessity be acknowledged lawful; because directly opposite to, and the only remedy which God and Nature have given men against Tyrannicall and unjust invasions, which are both sinful and unlawful. And so can be no Treason, no Rebellion, no crime at all, though our Princes or Parents be the unjust assail • nts. Of which see more in Hugo Grotius, de Iure Belli, l. 2. c. 1.
I shall closeup the Civillians and Canonists Opinions touching the lawfulness of a Defensive War, with the words of Albericus Gentilis, Professor of Civil Law in the University of Oxford, in Queen Elizabeth's Rain, Who in his learned Book, De Iure Bel • i & Pacis, Dedicated to the most illustrious Robert Devoreux Earl of Essex; (Father to the Parliaments present Lord General:) determines thus,
Lib. 1. cap 13 pag. 92. &c.
Although, I say, there be no cause of war from nature, yet there are causes for which we undertake war by the conduct of nature; as is the cause of Defense, and when war is undertaken, because something is denied to to be granted, which nature it self affords, and therefore because the Law of nature is violated, War is undertaken. We say there is a threefold Defense, one Necessary, another Profitable, a third Honest; yet we shall deem them all Necessary. He who defends himself, is said to be necessitated, neither will Baldus have us distinguish, whether he defend himself, his goods, or those under his charge, whether near, or remote; His defense is necessary, and done for necessary defense, against whom an armed enemy comes, and his against whom an enemy prepares himself: and to such a one the same Baldus truly teacheth, aid is due by compact, whom others likewise approve . This war we may say, was anciently undertaken against Mithridates, and against his great preparations. Neither ought wise men to expect, till he had professed himself an enemy, but to look more into his deeds, then words: Thus whiles we say necessity, we speak not properly, but we understand, that necessity which is not rare in human affairs, and hath wont to be called need: which yet precisely is not that true necessity, &c. It is a most unjust conflict, where the one side being agent, the other is only patient. There is a just defense, and slaying, although the slayer might flee without danger, and so save himself, whether the slayer who defends himself be of that condition, that it would be a disgrace to him to flee, or whether it would be no disgrace. Which opinions are received in the causes of private men; and to me are much more approved in public causes. Defense even in Bruites is a Law of nature: it is persuaded and constituted in us, not by opinion, but by a certain imbred faculty: and it is a necessary Law; for what is there (saith Cicero ) that can be done against force, without force? This is the most approved above all Laws. All Laws, all Rights permit to repel force with force. There is one Law and that perpetual, to defend safety by all means. All means are honest of preserving safety: this, reason to the Learued, necessity to Barbarians, cust • me to Nat • ons, nature it self to wild Beasts, hath prescribed; and this is no written, but borne, or native Law. Likewise, to defend our Estates, is a necessary defense, and this is a just cause of defending, if we be assaulted by • arre, though we ourselves have demerited the war: which things others, and Paulus Cas • ensis have taught. And it will follow and add this reason; because the Law or Force of war is not en • ed by • btaining the things first demanded; but walks according to the conquerors pleasure. Who is content to repay so much revenge only as he hath received wrong? saith Augustine, and all know it. This arbitrary power all not subdued may justly decline, and therefore defend themselves against it with Arms. Witnesses, Judges who are enemies are repelled, although they against whom they proceed gave the cause of the enmity. To one in Arms he gives all things who denies just things: said Caesar. Neither do we hear make question of that blameless moderation, where there is no superior. These things therefore are avoided: and therefore the cause of Romulus shall be said right to me, who defended himself by war against the invading Sabines, albeit he had given them cause of war and offense, by the rape of their women. The force of necessity is so great, when men are pressed with Arms, that those things which are unjust may s •• me most just; as Bodin well, war is just, to whom it is necessary; & pia arma, quibus nulla nisi in armis relinquitur spes: and Arms are pious to those to whom no hope is left but in Arms. Extreame necessity is exempted from all Law. And yet I restrain not the present definition, to extreme necessity, or take extreme according to the condition of men's affairs: for be it so, let it be no necessity, which may be no necessity; Romulus might have avoided war by restoring the ravished women; yet he might likewise defend himself against the enemies even soon after marching against him. I stay not in this definition: for that is a question belonging to Citizens. He who being banished may be hurt without danger, yet he may defend himself.
CHAP. XIIII. De utili Defensione:
He proceeds thus,
I Call that a profitable defense, when we move war, fearing least we ourselves should be warred upon: no man is sooner oppressed then he which fears nothing, and security is the most frequent beginning of calamity. This first. Next, we ought not to expect present force, it is more safe if we meet that which is Future. There is more hope and more courage in him that infers force, then in him who repels it: he hath more courage who infers danger, then he who repulseth it, Livy and Vigetius: if the enemy should once prevent, all things are disturbed with fear; it behooves them therefore (saith Nicephorus, an historian of no contemptible authority) who would live without danger, to meet with, and prevent impendent evils, and not to delay or expect, that thou mayst revenge the received injury with danger, if for the present thou mayest cut out the root of the growing plant, and suppr • sse the endeavors of an enemy who thinks ill. And Soudas, yea Demosthenes; war is not to be delayed but urged, least being first injured, we be compelled to repulse force. This (as the Latin De n • sthenes Cicer • saith) is likewise a disgrace, that if thou mayst prevent future thou wouldest rather redress Present evils. That rude youth likewise (so hath nature it self prescribed this Law) I would rather look to our selves, then I would be revenged having received injury: But Philo most excellently, that we presently slay a serpent at the first sight, although he hath not hurt us; nor perchance will hurt us; so careful are we of ourselves before he move himself. Am I not over-tedious to thee in naming these Authors, which yet are none of ours? But the consent of various and many authors is great reason, &c. Neither yet omit I, things held in lieu of proverbs, and therefore prove much what they signify. Meet the approaching disease. Withstand beginnings; else medicines are provided overlate. Neglected fires are wont to g • t strength. Behold something out of the Authors of Law: It is better to keep Laws unviolated, then afterwards to seek remedy. It is lawful to prevent: One providing to offend, I offend lawfully; and others of this nature, which are more defined to humanity, and approved by men's judgments. No man ought to expose himself to danger: no man ought to expect himself to be smitten or slain unless he be a fool. We ought to meet the offense not only which is in act, but that likewise which is in possibility to act. Force is to be repelled and propulsed with force; therefore not to be expected; in which expectation there are also both other the foresaid certain evils, and that likewise which is mentioned in the causes of private men, least perchance by giving the first stroke we be slain; or lest we yield by flying, and be oppressed lying down. But not to fly is to repel force: all these things are clear, and tried, and most apt to warlike tractates. What follows, hath some doubt, when the thing may seem to come to that pass, that we must now run to this profitable defense. A just cause of fear is required, suspicion is not sufficient. Now a just fear is defined, a fear of a greater evil, and such as may deservedly happen unto a constant man. But here in this great cause of Kingdoms, a fear that no damage should happen although not very great, or if there be an evident cause of fear although the danger be not true, but the cause only of fear just, is sufficient: but not when a man fears that he ought not, &c. But concerning prevention there are notable things in Gellius. In all things to be taken heed of, there is not the same cause; neither in the affairs and actions and Offices of human life; or of taking, or deferring, or revenging, or bereaving. To a gladiator, ready to fight this lot of fight is propounded; either to slay, if he shall prevail, or to beslaine if he shall give over. But the life of man is not circumscribed with such unjust untamed necessities, that therefore thou oughtest first to do the injury, which unless thou shalt do, thou mayest suffer. And Cicero; who hath ever enacted this, or to whom can it be granted without the greatest peril of all men, that he might lawfully slay him, of whom he might say he hath been afraid, lest he himself might be slain afterward by him? yet rightly, notwithstanding, the Mitileins against the Athenians. If we seem injurious to any, if we have first failed, not tarrying • till we might plainly know, if they would do us any hurt: he doth not rightly consider • for if we had been of equal power, we m • ght safely lay ambushes for them again, and we might delay: then he should speak truth: but since they have always wit • them a power of hurting, it beseemed us to have this power, that we might anticipate a defense. Why again do we ask for Bartolusses, or Baldusses with whose bare names we might rest satisfied? and yet do not more esteem the defense of a most noble Republic, yea of Thucydides, a most noble man, and the sentence of a most wise man fortified with reason? And seeing there may not be one probable cause of fear, and generally nothing can be defined concerning it, here we shall only say, that it hath always been very considerable, and at this day, and hereafter it is to be considered, that potent and ambitious Princes may be resisted, for they being contented with no bounds will at last sometime or other invade the fortunes of all men. Thus the Romans move war against Ph • lip, lest Greece being subdued, he should first make war upon them. Thus Lysimachus, when D • metrius had gotten the Kingdom, fearing least he should provoke him, first moved war, for he knew that Demetrius had it from his father, always to think of promoting the Empire. Thus the Lacedaemonian Ambassadors, move the King of Sicily to war, because all the rest of the Grecians being overcome by Persa, he might in like manner stir up ware against the Siculi: Men say, by helping us thou mayest defend thyself. Thus the Lacaedemonians themselves, persuaded by the Acanthu took up war against the Olynthii: who by conquering their neighbors everywhere, and proceeding always to further parts, they made no end of wars and of increasing their dominion. Thus the Campani for the Fidicini against the Samnites, and they say. We have fought in word for the Fidicini, in deed for ourselves: when we saw a neighboring people, to be set upon by the wicked plundering of the Samnites: and when the Fidicini had been inflamed, that fire would h • reafter be transferred upon us: which also Herm • crates a just man of Syracuse doth any of us think, that a neighbor further off being already overcome the calamity will not come upon him also? Thus Perseus, thus Metridates did move and call in others against the power of the Romans: for neither are occasions of war wanting to those that aspire to the Empire, and now they are hated for their power. Which thing Appius somewhere saith to those his Romans; and it appears most true; for by aiding their confederates and friends, presently they got the Empire of the whole world. But to omit these manifold examples, which even others have thus noted, and which do thus declare to us the Law of Nations, which we seek; might not all men most justly withstand the Turk on that side, and the Span • a • d on this, meditating dominion everywhere and plotting it? for indeed the Turk wrongs not many, nor yet the Spaniard, neither can the one or other do it; but they both do injury to some, and he that doth wrong to one, threatens many: shall wars themselves be expected? we have heard of the Turks before, and we all see it: if any one discerns it not of the Spaniards; he may hear of P. Iovius, that the nature of these are both impotent and greedy of bearing rule; and when they have once crept in, endeavor always by all means to attain the highest power. Therefore we ought to resist; and it is better to beware that men increase not too much in power, then to seek remedy afterward against the mighty. While the enemy is little, kill him. Wickedness lest Tares grow, is to be crushed in the seed. Why are not these sayings of Jerome pertinent even here? We cannot jointly resist a common danger: a common fear unites even those that are most divided and furthest off: and that by the instinct of nature, and our Baldus teacheth out of Aristotle; This is the reason of Empyres, that they may not hurt; as he, whosoever he was, said well in Dionysius, and nothing more true, and uttered as it were from an Oracle, In the judgment of Bodin: It is sufficient to have power to hurt, and that which can destroy others, dee thou destroy first: as aptly here the witty Poet; and truly it is very grievous, that we may possibly suffer an injury although we do not suffer it: as Plutarch speaketh: and Baldus, that it is lawful to use means for resistance: nor ought it to be in the power of an adversary to hurt us if he would: and that we ought to consider, that which hurteth, and that which can hurt. Even the continuing of concord among the elements is this, by equal proportion, and while in none, one is subdued of the other: • And this is that, which that most wise, most desirous of peace, and father of peace, Laurencius Medices procured always, that the affairs of the Italian Princes should be balanced with equal weights, whence both Italy might have peace, which both it had whiles he lived, and was the preserver of this temper; and which peace ceased when he deceased, and that temperature. The great offspring of Medices, was a great safeguard both to his own City and the rest of Italy: doth he not as yet endeavor this, that one should not be able to do all things, and all Europe come under the command of one? unless some be able to resist the Spaniard, Europe will certainly fall. If any will pull a middle stone out of the wall, upon which all relies, the rest being carried together will follow. No, this must never be permitted, that the dominion of any should grow so great, as neither to doubt before so much as of most manifest injustice, which Polybius saith, and saith again: whence Hero therefore aided the Carthaginians against the Mercenaries, least the Carthaginians being oppressed, the Romans should be able to do all things. Thus Livy of the diverse conceits of men upon the war of the Romans, and Perseus, that some favored him, some them, but there was a third part, the best and most prudent, who would have neither part to become • more powerful, the other oppressed, for so themselves should be in the best condition, always protecting them from the injuries of the other: And these things ing • niously, Marcus Cato for the Rhodians: who thorough hatred to the Romans, by their good will at least, or wishes had favored Perseus, They would not that we should have conquered the King: but also many other people, and many Nations; and partly not for reproach sake, but because they feared, that if there were no man whom we stood in awe of we might do what we list, and everyone of us, if any think any thing to be attempted against his own estate, doth even with his strength contrarily endeavor that it be not attempted against him. This the Embassador of Persius had thus discussed before the Rhodians, that they ought to endeavor, that the right and power of all things be not devolved to one people. Cato adds, that their will ought not to be punished so much, because it ought to be discerned more certainly. Caesar doth not contradict, who thus disputes of raising of war against King Ari • vistus, that he ought to be punished before he became great, or should do any evil, even because he had a thought to do them hurt. Neither ought this to be understood of the naked thought, and bare will; but of that which hath assumed the Act, declared in another place; that King was now fearful to the Romans in France, and his Arms threatened danger: Caesar therefore wisely and justly thought that there was no further delay to be made, but that he might restrain Arms with Arms. The Swiss lately very wisely, that they will favor neither the French nor Emperor, but would keep a league with them both, until their Armies should not be hurtful to the Helveti •• Common-wealth. But I conclude, the defense is just which prevents dangers already meditated of, already prepared; and also not thought upon, but very likely, possible: yet neither this last simply; or would I call it just, to endeavor this war, as soon as ever any should be made too potent; which I do not affirm. For what if any Princes power should be increased by successions, by elections; wilt thou trouble him with war, because his power may be dangerous to thee? Another thing therefore must be added concerning Justice. We will add to others, who what they have thought of a just war, attend.
CHAP. XV. of Honest Defense.
IT remains to speak of honest defense, which is undertaken without any fear of danger to us, sought for no want of our own, for no profit, but only for other men's sakes, and it resteth upon this foundation, that (as Marcus Tullius saith) nature hath ordained among men affinity, and love, and good will, and the bond of good will, and that the law of nations is placed in the society of men, which therefore is called by Cicero also, Civil. Thus Verilie the Stoics would have the City of the whole world to be one, and all men to be commoners, and townesmen; and like one Heard feeding together in a Common ground. All this that thou beholdest, wherein heavenly and earthly things are contained, is one; and we are members of one great body, and the world it self is one body. But Nature hath made u • allied, seeing she hath begotten us of the same, and in the same, also endued us with mutual love, and hath made us • ociable. And this our society is most like the joining of stones, in a wall; which would fall, if the stones did not withstand, and uphold one another, as Seneca excellently; and which as Gellius, consisteth, upholden as it were, with a mutual contrariety and support. This is the desagreeing concord of things, as Horace speaks, and we also before • And now thou hearest that all the world is one body, and all men are members of this one body, and thou hearest the world to be an house, and to be a City; which hear again, for they are beautiful. The world is the greatest house of things, thus V • rro. Man is a sociable creature, and being 〈◊〉 for the good of all, looks upon the world as one house: thus Seneca 〈…〉 〈◊〉 , the world it a Common-wealth, having one form of 〈…〉 one Law; Philo, there is one Commonwealth of all and a common 〈…〉 Tertullian, Minutius, and also in Aristotle, There is one great City: what an ha •• ony is here of wise men? Add touching Society that of Cicero; Society in the largest extent, (which though it be often said we must repeat more often) is of men towards men, more inward, of those that are of the same Country; ne • rer of those that are of the sane City: and in another place: We are so borne that there may be a c • rtaine Society between all; but greater as any one is nearer: Citizens are better than strangers; kindred • ha • Forriners. And thus doth Augustine note there soci • ti • s; the first of the household, the second of the City, the third of the world, and saith, all the Nations in the world are joined together by human society. But what is this society and conjunction? Among the good there is as it were a necessary benevolence, which spring of friendship, is constituted of nature; but that same goodness belongs also to the multitude; for virtue is not inhumane, nor cruel, nor proud, which will not look upon all people, writeth Cicero; and Ambrose, the law of nature binds us to all charity; that one should bear with another, as members of one body: and so also Baldus, we are borne for our own▪ and for strangers by the bond of Charity: those that say, care ought to be had of Citizens, deny it of strangers, these men take away community and society of mankind. Also Cicero: which Lactantius both citeth and hath approved. And the same Cicero. It is a filthy opinion of them, who refer all things to themselves, filthy indeed, for man is borne for society, and it is his duty to help others, and not live to himself only: and for this cause Cicero condemned the Philosophers, because while they lacked one kind of justice, and (as another holy man writes) fulfilled indeed the greatest part of equity, not to hurt any, they offended against the other, because they forsook the society of life, and so forsook this part of justice, to profit when thou canst; Dost thou not see how the world it self, the most beautiful of all works doth bind it self with love? we are bound by the Law of nature (so says the interpreter of the Law) to be profitable every way: and the same men deliver an equal defense of their own and of strangers, but specially of confederates, from whom we must keep off an injury; and that this defense is both of divine and human law. Plato thinks, he ought to be punished that keeps not back an injury offered to another. Now that which Plato and these Interpreters say of private Citizens we may very well apply to Princes and people: for what reason there is of a private man in a private City, there is the same in the public and universal City of the world, of a public Citizen, that is, of a Prince, of the people of a Prince: As a private man hath relation to a private man, so a Prince to a Prince, saith Baldus, A man is a Citizen to a man in the greater City, and borne for mutual succor saith Seneca. And because we are one body, if one member will hurt another member, it is meet the others should help that which is hurt, because it concerneth the whole, even that which hurteth, that the whole be preserved. So men should help men, for society cannot be preserved, but by the love and safety of the people. Vespatian cannot be approved who denies aid, I know not to whom, upon this pretence, because the care of other men's affairs appertained not to him: for what good man is there who doth nothing but for his own sake? Cicero again, even to Lazius King of Persia, that he is not therefore just, because he doth nothing unjustly, unless also he defended the unjustly oppressed; and by that means they obtained help, and bands of Soldiers against the Romans: for it is not a strange thing amongst men for a man to defend the estates and safety of men. Cicero had said the same; he should have respect if not of the man, yet of humanity, which is due to everyone from every one, for this very cause, because they are equally men: and human nature the common mother of all men commends one man to another, It is a noble example of the barbarous King of Mauritania: who, when he heard that his enemy Alfonse, king of Castile, was pressed and almost oppressed by the Armies of his son, he sent a hughe mass of gold unto Alfonso, he himself went over with a great Army of Soldiers into Spain, judging it a most unworthy thing that his Son should expel his Father from his Kingdom; adding withal, that the victory obtained, he would be an enemy again unto the same Alfonso. What? do I fear the Barbarians, enemies also, and bringing gifts? That the deed of an enemy should be taken in the worst sense? doth Guiccardine say truth; that these things are not done of any but in hope of some profit? The saying of Guicciardine is dispraised by noble Mountaygn in those his Noble examples? I demand of what right it is? It is a question, if any be bound by Law to defend another, when he can? and they seem commonly to deny this, and the Law sometimes saith, that we may without offense neglect other men's affairs: but our proper question is; if any can thus justly defend another? wherein no man denieth just defense, even for the defense of a stranger it is lawful to kill another, by the opinion which is approved of all Doctors: yea, the defense of him is approved, that neglects to defend himself, yea that refuseth to be defended by another, whether a friend defend him or another, even an enemy: and thus it is called the rule of humanity, and so a benefit to be conferred often times upon the unwilling. So also there be many other definitions. Also they conclude by an argument, not firm enough that way, in another quest • on: that a man may take money for defending another, which he should receive dishonestly, if he were bound to defend him by law: for may not a servant get a reward from him whom yet notwithstanding he might not neglect without punishment? neither is it dishonestly given nor dishonestly taken, in way of thankfulness. So it is not ill taken of a Citizen from a City, nor by a son from a father: for truly it is manifest, tha • many things cannot be done without offense; and therefore if done they are worthy of rewards, yet not of punishment, if they be not done. Again, some things on the contrary neglected, indeed contract offense, but reformed they merit not glory, so Bernard: to which I add a mean, that there be some things which being neglected contract offense, and fulfilled deserve reward. But also even in the Court of conscience they will have a man to be bound to defend a man. But conscience is the will of a good man, yea of the best: but they deliver this also even in the way of honesty: and we follow honesty here, and that arbiterment: but both in Civil and Canon Law, against the rest Bartolus inclines thus: Albericus, Igneus, Decius, Alc • atus, Molineus, so teach: and Baldus elegantly, that it is a fault to omit the defense of another; of himself, a treachery: which also in another place he determines. Pla • o is also of this mind: and thus also Siracides: free him to whom injury is done, out of the hand of the injuri • us. I also am of the same mind, especially, if, which the forenamed interpreters add, defense be not made with the danger of the defender. For no man is bound to put himself in danger; no man is bound so to assist against a fire. Otherwise thou hearest Constantine say, that they which live by the rule of God's Law, account an injury done to another, to be their own. Behold that thus also he aided the Romans against Maxentius. Hear again Baldus his Lawyer, he that defends not, nor resists an injury, is as well in fault, as he that forsakes his parents, or friends, or Country: and if these be true in private men, how much more will they be in Princes? These mutually call themselves Cozens, Cosen-germans, Brothers. They are so much the more true in Princes, by how much if a private man defend not a private man, the majestrate remains, that can both revenge the wrongs, and repair the losses of private men, but there is none can piece up the injuries and hurts of Princes, but the same Prince, who after had rather apply a medicine to the evil, than hinder at the first that evil be not done. These things are true, but that also you may hold with Baldus that although these were not true out of Philosophy of judgments, which is of things nec • ssary: the • ar • c •• tainely true from Philosophy of manners: which consists of things persw • d • d, which Philos • phie also we follow in this whole • reatise. The Philosophy of Judgments▪ permits a man to neglect even himself, as Baldus writes, and if besides, as it falls out almost always, another special cause be joined to this general rule of honesty, it may come nearer to justice. Let the opinion verily be true for me, that this cause of honesty alone, perch •• ce hath never m • ved any man to that honest defense. Guicciardines mouth said truly, no Prince will make war for Pe • ant, unless persuaded w •• h desire of his own gain: yet that is ignominous to Princes and sa • ours not of justice: but I had rather concur with Leo the Philosopher. We know very few to keep true love, for its sake alone to be stirred up to succor those that are entangled in misery, but on the contrary side, that the number is very great of those that for hope of getting anything, come to help the unworthy: which is a more mild saying, and I think more true. But I seek another thing, it is complete justice which defends the weak: so Ambrose, and the Canon Law, and I seek for that Justice. The Romans also join • d this cause with others by which they were moved often times to make war: the defense of the Lucans (saith Dionysius) was the manifest cause of the Samnitic all war, which might have a show of honesty, as common, and a National custom of the Romans to aid those that fled unto them: but the secret cause which did more urge, was the power of the Samnites was great, and greater would it have been, if the Lucans had been subdued, so the reason of profit lies hid: and therefore seems not so good, as it is honest: and yet we call profitable also, good and just, and the one is made just by the other: therefore what if they be dear unto us whom we should defend? Vlpianus saith, that for love and friendship, for no other reason defense ought not to be omitted. The defense of those that ought to be dear unto us, is from nature, witness M. Tullius. What, if our allies and confederates? He that keeps not of an injury from his fellow when he can, is as well in fault, as he that doth it. Am • rose, and even we ourselves are hurt when our fellows are hurt: as in Livy. John Bodin judgeth amiss, that an ally and a confederate is not bound to help his fellow, if there be no caution of help in the league; and the contrary is now shown by us, and also shall be shown in the third book. What if they be of the same stock and blood? Agesilaus made war against the Persians, that he might bring the Greeks of Asia into liberty. And the petty Kings of Germany by an old custom of the Nation, think it an heinous offense, not to be assistant to those that implore mutual help: although there is there besides a certain body of a Common-wealth: as it is reported long since, that there was of the Achai. What if of the same Religion? Nations are joined together by the tie of Religion, more than either by the communion of another law, or contract of a league: and therefore if we implore nature by communion, the law of Nations by covenant, the Common-wealth by laws, by common Religion (the most powerful thing of all) we implore the bowels of men and of the holy One, who is the head of that communion. So there was war with the Persians, because their fugitives were not delivered them, and they were not delivered by the Romans, who would not despise the humble professors with them of the same religion, who fled from the Persian cruelty. Thus Justinus answered the Persian, that he could not but receive those of the Christian Religion, falling away to him from the Persian, who compelled them to forsake Christian Religion. And our writers do thus resolve, that war may be made if any converted to Christian Religion, should be oppressed by their Lord's, and that for the right of society contracted from conversion. What if neighbors? for what? had I not very many, very just tyes of familiarity, of neighbourhood of country, of friendship to defend Plancus? saith Cicero. And here is our case. q We are in danger if our neighbors house be on fire, for if fire have fiercely taken hold of some houses, they will hardly be defended but that the next houses will be burnt, which was elsewhere in Salust, and now in Ovid. s Fire that is near is hardly kept off from houses: it is good that we abstain from near adjoined places: which verses are proverbial in this thing; and proverbs add some credit. This notes something that as it is lawful to pull our neighbors house down, least the fire should come to us: and that question of a house infected is the same, although touching this it is answered contrary: Yet the House infected with Leprosy was pulled down. And in many cases it is so, that we may do ill to others, that it be not ill with us. We must beware of all contagion, especially of our neighbors: the ill contagions of a neighbouring People are hurtful. The Romans (saith Florus) as a certain infection ran over all, and taking in all the nearest people, brought all Italy under them, and whatsoever Dominion they had. Before fire is the vapor and smoke of the Chimney, Syracides also. So we see smoke from our neighbors fire, and will we not run and put out the fire where it is? It is written again, that it is lawful for any to help his neighbor against an injury, yea, he seems to be partaker of a fault, who doth not aid his deadly foe, even speaking against help, nor yet desiring it. Concerning which I have noted before, and will note further in the Chapter following.
CHAP. XVI. Of aiding Subjects that are Strangers against their Lord.
I Demand, if we may justly defend Subjects also that are Strangers against their Lord? What if their cause also be unjust? Ambrose noteth those three gods, Jupiter, Neptune, and Pluto, have thus Articulated, lest upon their entrenching on one another's jurisdiction, they might make War among themselves: they should not usurp the rule of the Sea, &c. They say likewise, that we gods have this Law, none of us will cross the desire of him that willeth, but we yield always one to another. Which being the fictions of very wise men, are applied unto Princes of the earth. But even without any circumstance at all, the Corinthians speak thus to the Athenians: We do plainly deny that any is forbidden to punish his ow • e: for if thou shalt defend those that have offended, even your own Subjects will defend themselves from you. Yet I think not Subjects of other men are altogether strangers from that neerensse of nature, and union of Society, you do also cut off the unity of mankind, whereby life is sustained, as excelently Seneca. And if we make not Princes lawless, tied to no Laws nor Conditions; It is necessary, that there be some to admonish them of their duty, and may hold them fast bound; which reason I expounded in the second Book of Embassies. Neither will I here infer any confusion of kingdoms, or any inspection of one Prince over another Prince: neither do I suffer those things to be distinguished, which are most firmly glued together by nature, I mean, that kindred with all, among all. Neither here otherwise may one Prince have inspection over another Prince, but such as may happen by every other War, wherein one Prince carries himself as a judge both of himself, and of another. If a question were among private men, it were most unjust to go to a Forraigne Prince about it. Also if there arise a difference between a private man and his Sovereign, there are Magistrates appointed which may be sought unto. But when the controversy is touching the Common-wealth, there neither are, nor can be any judges in the City. I call that a public matter, when such, and so great a part of the Subjects is moved, that now there is need of War against those that defend themselves by War. And as if those should come into part of the Principality of the public, and are Peers to the Prince, who can do so much as he. Even as one King is said to be equal to another, who can resist another offering wrong, however greater, and more powerful; although I say not these things of the Subjects themselves, unless it be in respect of Forraigne Princes, which will aid the Subject against their Sovereign, and who can aid them no otherwise then in a controversy, as I have expounded, of the Common-wealth. And indeed, if the Subjects be used more cruelly and unjustly, this opinion of defending is approved even of others, who both bring that laudable example of Hercules, the Lord of Tyrants and Monsters. There is also the example of Constantine, who aided the Romans against Maxentius, as I noted before. We defend Sons against injust Fathers. Add now those golden Sayings of Seneca. That being cut off, whatsoever it was, whereby he did cleave unto me, the Society of human right is cut off. If he do not impugn my Country, but is burdensome to his own, and being bannished my Country doth vex his own, yet so great naughtiness of mind hath cut him off: although it maketh him not an enemy, yet hateful unto me. And the reason of the duty which I owe unto mankind, is both more precious, and more powerful with me, then that which I own to one single man. Thus verily; or else we make all men foreigners to all Princes, if we determine that they can do according to their pleasure and lust. Now what if the cause of the Subject be unjust? The foresaid Authors deny, that men ought to aid unjust Forraigne Subjects, least any by so aiding introduce the same Law into his own Kingdom, which the Corinthians did before. Yea, Aristotle thinks, that neither a wicked Father is to be loved nor assisted with help. But this is false of a Father, as I taught in a certain Disputation, perhaps it is more true, that those may be defended of us by war, who are unjust. For if it be a just war which is to repulse a wrong, although they that repulse an injury, have given occasion to the war: the same it seems may be determined in the defense of others, even of Subjects, for the same reason. Surely there is that iniquity in War, that it will make the same man to pronounce law to himself in his own cause, or verily willing to pronounce it. Upon which pretence another Prince may bring aid on the contrary side, that things may more civelly be composed without war. And this is that which Pyrrhus did when he came to aid the Tarentines against the Romans; he admonished them first, that they would by their own endeavor put an end to the Controversy; although neither the Romans would not unjustly hearken unto the King; or because they might deservedly suspect him, as being sent for by enemies, armed with enemies, ready to fight for enemies, and of kin to enemies. He that stands armed with another, is said to bring help and aid unto him; neither is there need to prove anything against that at all. Even he that arms himself, is believed to think upon war, And if he that is the friend of an enemy be excluded from being a witness, much more from being a Judge. For it is easier, if any be received for a witness then a Judge; The friend of my enemy is not presently meant my enemy, as neither my friends friend is my friend; but there is a great suspicion of them both, and of the friend of an enemy the more. But I return to the question. We are bound both to defend justly unjust Sons against the cruelty of a Father, or Servants against the cruelty of a Master; and we laudably endeavor that by fury (here is War) no not wicked men should be chastened and punished, for fury and war have no measure. And he that led by humanity or pity, or any other approved and just cause, hath received another man's Servant, is not bound by the Statute of a corrupt Servant, and that reception is accounted in the nature of good, &c. Even he is commended, who being angry with his servants committed them to be punished by another, this commendation being added, because he himself was angry. Therefore a good Prince will have the Liberty of rage against his own Subjects to be taken from him, being angry, as a good Father, as a good Master, and he will always judge, That Kingdoms were not made for Kings, but Kings for Kingdoms, which is most true. This also of Plato availeth, that we ought to use Eloquence, chiefly to accuse our friends, to whom it is the best, thus to be drawn from future evils. And so I think that we may defend unjust Forreigne Subjects, yet to this end only, for the keeping off immoderate cruelty and too severe punishment: Seeing it is not inhumane to do good to those that have offended. Yet I dare affirm, that this reason of bringing help doth seldom stand alone, but that another of necessity and profit may be pretended, or truly shewn, as is said before. Behold now is the greatest question: If the English have justly aided the Hollanders because their cause was unjust, & the Hollanders were even now Subjects to the Spaniards? both which notwithstanding are false. It was said, that a War was to be undertaken upon that occasion, that a good Peace might be obtained of the Spaniard, which otherwise, as is thought, could not have been had: And so truly War is lawfully undertaken, as our men allege: And the most wise reason of the Physicians maketh for it, That if any Feaver be slow which holds the body, and which yields to no cure, then the Disease is to be changed, yea, to be augmented and heightened. For when it doth not receive cure for the present as it is, it may receive that cure which is future. But even War might have been undertaken without that evil of an unfaithful Peace. As there be many bonds of nearness between the English and the Hollander: the ancient friendship with the Dukes of Burgondy, the familiarity of these people, and the old Consanguinity; all the rest, which are noted at the end of the former Chapter. And therefore with Cicero, They think not that the nocent are not to be defended, if they be the friends of a good man. Add one thing of great moment, that the Hollanders overcome in War, should altogether change their condition, and we see it in the conquered part, being for the most part, cast down from their ancient Liberty, and for the most part oppressed with Garrisons, are governed now only at the pleasure of the Prince. But this our Neighbors cannot endure. Neither is any other forbidden to favor Liberty. But it much behooveth Neighbors to have a Neighbor. For if one man hath need of another man, what shall we say that one Neighbor is to another, saith Pindarus, and Callimac • us: Ill Neighbors are odious to me, and some wise Hebrew, The worst of all diseases is an ill Neighbor: And another of the same Nation, Woe to the wicked, and woe to his Neighbor. And where may Moral Fables be silent? An evil neighbourhood is like a mis-fortune; The vicinity of great Men is always to be shunned of the weaker; Good men receive good things from good Neighbors, and evil Men, evil things, &c. So * Plato, and so Th • mistocl • s; When he • old a pi • ce of ground, • ee commanded the Crier to Proclaime, that it had a good Neighbor: Which Interpreters note, to the Law. And there be many things of the same kind. Wherefore neither if these neighbouring Subjects would change their condition, neither if by reason of a fault committed against their own King, they be compelled to alter it, is another Neighbouring Prince compelled to suffer it, to whom neither another man's will nor offense ought to bring damage. The Venetian Ambassadors when they interceded for Sigismund of Maltesta, to Pope Pius the second, they spake even this, that Neighbouring Princes would not have another Neighbor, whom furthermore they knew not, what he might hereafter be. And you may note, that Sigismond held Towns from the Church, and for his committed offenses, he ought worthily to lose them. Perhaps some will doubt, whether these things be true in private men's causes. For a private man seems to have power to do with his own what he list, if it be profitable to himself, and hurt not another. Yet these things be true thus in the causes of Empires. For Princes ought to take heed for the future, that another if he will, may not yet be able to hurt another, which is expounded in the Treatise of Profitable defense. But even that rule, that it is lawful for any to do what he list with his own, holds not otherwise; then if the condition of a Neighbor be made neither worse nor more grievous thereby: although it be true that no man may take care of the gain, which his Neighbor made, and which was owing to him by no obligation. But even security, and a certain singular conjunction of love from a Neighbor, is due to Empires: Now this we know, what things are taken away when Neighbors are changed.