« AnteriorContinuar »
son, and receive judgment from the same bishop and his clergy, who upon his penitence acquitted him, for no other cause than lest the kingdom should be destitute of a successor in the royal line. These examples are of the primitive, British, and episcopal church, long ere they had any commerce or communion with the church of Rome. What power afterwards of deposing kings, and so consequently of putting them to death, was assumed and practised by the canon law, I omit, as a thing generally known. Certainly, if whole councils of the Romish church have in the midst of their dimness discerned so much of truth, as to decree at Constance, and at Basil, and many of them to avouch at Trent also, that a council is above the pope, and may judge him, though by them not denied to be the vicar of Christ, we, in our clearer light, may be ashamed not to discern further, that a parliament is by all equity and right above a king, and may judge him, whose reasons and pretensions to hold of God only, as his immediate vicegerent, we know how farfetched they are, and insufficient.
As for the laws of man, it would ask a volume to repeat all that might be cited in this point against him from all antiquity. In Greece, Orestes, the son of Agamemnon, and by succession king of Argos, was in that country judged and condemned to death for killing his mother; whence escaping, he was judged again, though a stranger, before the great council of Areopagus in Athens. And this memorable act of judicature, was the first that brought the justice of that grave senate into fame and high estimation over all Greece for many ages after. And in the same city, tyrants were to undergo legal sentence by the laws of Solon. The kings of Sparta, though descended lineally from Hercules, esteemed a god among them, were often judged, and sometimes put to death by the
most just and renowned laws of Lycurgus, who, though a king, thought it most unequal to bind his subjects by any law, to which he bound not himself. In Rome, the laws made by Valerius Publicola, soon after the expelling of Tarquin and his race, expelled without a written law, the law being afterward written; and what the senate decreed against Nero, that he should be judged and punished according to the laws of their ancestors, and what in like manner was decreed against other emperors, is vulgarly known, as it was known to those heathen, and found just by nature ere any law mentioned it. And that the christian civil law warrants like power of judicature to subjects against tyrants, is written clearly by the best and famousest civilians. For if it was decreed by Theodosius, and stands yet firm in the code of Justinian, that the law is above the emperor, then certainly the emperor being under law, the law may judge him, and if judge him, may punish him proving tyrannous. How else is the law above him, or to what purpose? These are necessary deductions, and thereafter hath been done in all ages and kingdoms, oftener than to be here recited.
But what need we any further search after the law of other lands, for that which is so fully and so plainly set down lawful in our own, where ancient books tell us, Bracton, Fleta, and others, that the king is under law, and inferior to his court of parliament, that although his place to do justice' be highest, yet that he stands as liable to receive justice' as the meanest of his kingdom? Nay, Alfred, the most worthy king, and by some accounted first absolute monarch of the Saxons here, so ordained; as is cited out of an ancient law book called the Mirror;' in 'Rights of the kingdom,' p. 31, where it is complained on, as the sovereign abuse of all,' that the king should be deemed
above the law, whereas he ought to be subject to it by his oath;' of which oath, anciently it was the last clause, that the king'should be as liable, and obedient to suffer right, as others of his people.' And indeed it were but fond and senseless, that the king should be accountable to every petty suit in lesser courts, as we all know he was, and not be subject to the judicature of parliament in the main matters of our common safety or destruction; that he should be answerable in the ordinary course of law for any wrong done to a private person, and not answerable in court of parliament for destroying the whole kingdom. By all this, and much more that might be added, as in an argument overcopious rather than barren, we see it manifest that all laws, both of God and man, are made without exemption of any person whomsoever; and that if kings presume to overtop the law by which they reign for the public good, they are by law to be reduced into order; and that can no way be more justly, than by those who exalt them to that high place. For who should better understand their own laws, and when they are transgressed, than they who are governed by them, and whose consent first made them? And who can have more right to take knowledge of things done within a free nation, than they within themselves?
Those objected oaths of allegiance and supremacy we swore, not to his person, but as it was invested with his authority; and his authority was by the people first given him conditionally, in law and under law, and under oath also for the kingdom's good, and not otherwise. The oaths then were interchanged and mutual; stood and fell together. He swore fidelity to his trust, not as a deluding ceremony, but as a real condition of their admitting him for king; and the conqueror himself swore it oftener than at his crowning.
They swore homage and fealty to his person in that trust. There was no reason why the kingdom should be further bound by oaths to him, than he by his coronation oath to us, which he hath every way broken; and having broken, the ancient crown oath of Alfred abovementioned conceals not his penalty.
* * * *
TREATISE OF CIVIL POWER
THAT IT IS NOT LAWFUL FOR ANY POWER ON EARTH TO
Two things there be, which have been ever found working much mischief to the church of God, and the advancement of truth; force on one side restraining, and hire on the other side corrupting the teachers thereof. Few ages have been since the ascension of our Saviour, wherein the one of these two, or both together, have not prevailed. It can be at no time, therefore, unseasonable to speak of these things, since by them the church is either in continual detriment and oppression, or in continual danger. The former shall be at this time my argument, the latter as I shall find God disposing me, and opportunity inviting. What I argue shall be drawn from the scripture only, and therein from true fundamental principles of the gospel, to all knowing Christians undeniable. And if the governors of this commonwealth, since the rooting out