Refractoria disputatio: or, The thwarting conference,: in a discourse between [brace] Thraso, one of the late Kings colonels. Neutralis, a sojourner in the city. Prelaticus, a chaplain to the late King. Patriotus, a well-willer to the Parliament. All of them differently affected, and disputing on the subjects inserted after the epistle, on the dissolution of the late Parliament, and other changes of state.

Of the Kings assertion, that he was not accomptable for his actions to any but to God alone.

AS to that odious position or rather Ty∣rannical assertion, both of the Fathers and the Sons, that they were not accomptable

for their actions to any but to God alone, doubtless 'tis an impious position, and in the next degree to blasphemy, and cannot be (without repentance) forgiven of God, nor forgotten of men, and those of their subjects which felt the effects thereof. Should we longer insist on this Theam, and produce proofs that Kings for their irregularities and Tyrannies, have in divers Kingdoms been call'd to account, they would amount to a Vo∣lumn. The Justice of Arragon, the Ephori amongst the Lacedemonians, the Senate of Rome, the Parliaments of England and Scotland, will soon evince and put this que∣stion out of doubt; for Kings as well as subjects, both by Gods Laws and mans, are under the Law; and in this kingdom and many other well regulated Soveraignties, they have been often over-ruled, withstood in their exorbitancies, sued at Law and evi∣cted, and some deposed, expeld and sen∣tenced to death; and should it not be so, Subjects would be no other then inanimate slaves; sure we are, Almighty God never impowered Kings with such absolute So∣veraignty that might enable them to tram∣ple on their subjects without controule. Saul made a rash vow (as a Law to the Isaelites) that none should eat any food

all the day until the evening but he should die; Ionathan, being then absent & not know∣ing thereof, had dipt his rod in a Honey∣comb and tasted it; but being told of his Fathers Law, he answered the people, My Father troubles Israel; and indeed such troublers there are amongst kings; howsoever Ionathan was sentenced to death; but the people withstood the king, and swore that a hair of his head should not fall, and they rescued him in the face of the king; cer∣tainly should not there be some one other power in a kingdom to curbe and con∣troule the exorbitancies of irregular kings (for few of them are Saints) no man should be exempted from their oppressions; and therefore Bracton delivers it as the law of the Land, that in such cases the Barons or Parliament ought not onely to withstand oppressive kings, but to call them to account for their misdemeanors, which may suffice to show how much the two late kings were mistaken in this their Tyrannous asser∣tion.

Now Gentleman Royalists, these So∣veraign Rights (as you would have them) so often treated on, utterly dissonant to the Laws of the Land, whereunto particularly I have briefly made answer, are those good∣ly

Prerogatives wherewith you would have invested the late king as his indubitable birth∣rights, and inseparables of his Crown, for which you still constantly aver he was com∣peld to fight, and your selves with him to uphold them; where I must by the way remember you of a time, when he shamed not to divulge it to the whole Nation, that he fought for the Protestant Religion, the Laws of the Land, and Priviledges of Parlia∣ament (for he was not to seek wherein to please the people, and win them to his cause, though never so unjust) when as in truth he fought against all those three, and so long as untill he could fight no more; but by what law or reason other then his own, none may better know then your selves, which as well as infinite others that opposed him, have felt the fruits of your unadvisedness, & the effects of his obduracy, his cunning and crafty fetches to attract friends for backing of an unlimited Soveraignty, to which had he at∣tained, it would have been no other then too heavie a burthen for him to bear, a sting in his own conscience, & a sore in yours, which you will all finde, whensoever it shall please God to open the eyes of your understanding, and

enable you to see how you have bin decoyed in with Oathes, Protestations, and hopes of preferment, & made the instruments of your own Invassalage. This if you believe not to have been the design, yet you may finde it legible, not onely in the claims and pretences he made to those illegal and irrational Pre∣rogatives before recited, but more appa∣rently figured in that bloody Rubrick of a continued War, which he so long waged to be absolute master of them, and consequenly over all the free people of England. Thus have I shewed you how invalid the grounds are whereon you continue to insist in ju∣stifying the late king and your selves; how dissonant, and contrary to the Laws, usuages, and Statutes of the land; such was the wise∣dom and providence of our ancient Parlia∣ments in all their enactings, evermore to pre∣fer the common interest before the kings, though they failed not to gratifie them (as they found them compliable, to the redress of the publick grievances) with many Royal immunities, as we may finde them registred in the Statutes at large, on the Title of Pre∣rogative, some whereof I think fit here to present to your view, that so you may judge whether Sir Walter Rawly was not in the right, who avoucheth that few of our kings

but have gotten ground and improved their Soverainties meerely by their Parliaments, & as I verily believe none more then the late unfortunate King, had he been pleased, (in imitation of Queen Elizabeth) to have com∣plyed with the late Parliament. But as to his Prerogative of Wardships and Marriages, they were first conferr'd on our Kings 17 of Edw. 2^d, their primer session, 52. Hen. 3^d, the tuition of Ideots and distracted persons, 17. of Edw. 2^d, 32. of Hen. 8^th, but with several proviso's of accompts to be made to the next Heirs of Ideots, and the children of him that was incompos mentis. As to wracks of Sea, Whales &c. they were given by Parlia∣ament to Edward the Second the 17 of his Raign; Felons goods the 9 of Hen. 3. power to make Justices of peace; 27. of Hen. 8. the Legitimation of the Kings children born be∣yond the Seas; 25. Edw. 3. Tonage and Pondage to Edw. 4. pro tempore, yet granted to every of his Successors by the meer in∣dulgence of their Parliaments, though the late King challenged it as his own right. I may not omit farther to inform you, that this Nation hath not been so much abused and deceived by any one proficient in our Laws, as by that false and jug∣ling Judge Ienkins, who in his Lex Terrae, by his

accumulation of several Statutes, insinuates and endeavors to make the Kings power absolute, and consequently the people mee•• Slaves and Vassals, alledging this and that to be the Law of the Land, which is not or ever was, taking his Authorities and Authors by piece-meals, curtaling the Statutes in their sense, without the explanation of their mean∣ings and intents; whereby (on my own knowledge) he hath deceived and prevailed on the belief of many in the Nation: But not longer to insist on this subject, I shall onely say, that the Soverainty of our kings hath been ever of a mixt nature and not ab∣solute; and as Bellarmine affirms of Mo∣narchies in his Chapter De Romano Pontifiee, Monarchiam temperatam & mixtam inter Aristocratiam & Democratiam, semper me∣liorem esse puts: That a Monarchie mixt and tempered between an Aristocratical Go∣vernment and a Democratical, is the best of all Governments: so am I bold to avouch such hath ever been the nature of our English Soverainty; would the late King have so conceived of its constitution, or given credit to the old learned Lawyers, viz. Bracton, Fleta, Fortiscue, and many others; for the Kings of England have originally received their power from the people; Potestatem à populo effluxam Rex habet, quo non licet

••••potestate alia populo suo dominari, Fort. de leg. Aug. The King hath his power from the people, and ought not to govern them but by that Power and Law which he had from them; though Royalists generally have otherwise conceived thereof, supposing that the King cannot be a King, unless he be absolute in power and command over the people: which was the error or rather wilfulness of the late King, who knew not or would not know the extent of the English Soveraignty; but what out of his own inclinations, and others infusions he was induced to believe, that he could not rule otherwise then by a plenary power: which is most dangerous to himself: for plenitudo potestatis, est plenitudo tempestatis, and enables him to destroy himself at his own plea∣sure, though the late King conceived otherwise, and that to be subject to the controule of a Court of Parliament, he could be no more then a mock-King, or a Duke of Venice; And certainly the gene∣rality of the people thought no less; and that a king was such a supernatural and Divine creature (not made up of sinful flesh and blood like other men) as the poor woman conceived of Henry the Eighth, who riding in progress through a Country

Village, attended with a great train of No∣bility, the Woman cryed out, Shew me the king; which of these is the king? He (quoth a foot-man) whom thou seest with a Feather in his Cap and a blew Ribban about his neck; Whoo! crys out the wo∣man, will you make me believe the Moon is made of Cheese; that's a very man, or else I never saw one in all my life; And the silly soul was in the right; for kings in their humane nature, are no other then mortal men, though in their other capacity (as they are kings the best of men in Supremacy) yet the worst, if they neglect the duty of that great Office wherewith they are invested (by Gods appointment) for the publick good, more then their own; but I have taken too much liberty in ex∣patiating my self on a subject so often treated of; though my design therein ex∣tends not beyond my affection, which hath lead me rather to perswade by the soft Argument of Law and Reason, then in bit∣terness of language to exclaim against any mistaken in their opinions; not doubting that either themselves or any other (on due consideration) will tax me for imper∣tinency; when as 'tis well known the whole state of the old Controversie (since the dis∣solution

of the late Parliament) hath been and is assidually revived by Royalists, and a new disconted sort of male-con∣tents, which forbear not to justifie the late King in all his errors, and condemn the Parliament for invading his just and right∣ful Prerogatives; so that what and how many soever they are, they must not ex∣pect but that of necessity there will new An∣swers be made (though upon the old matter) to new objections, which may satisfie all such as out of the over-fineness and sharpness of their wits, will censure whatsoever hath been afore said on a sub∣ject long since determined, to be both needless and impertinent; But to con∣clude;

It now onely remains, that we proceed to the Law of God and by Scriptural proof to facillitate a reconciliation be∣twixt Royalists and that party which ad∣heres to the present Government, wherein I shall briefly shew first the justness and lawfulness of their cordial submission to the powers in being; secondly, the neces∣sity of their union one with the other, with the profit which thereby will re∣dound to the mutual benefit of the whole Nation, not doubting but that by this little

which hath been spoken as concerning the Royal Prerogatives, they may receive some kind of satisfaction, that neither the Kings Interests in them were sufficient grounds whereon to lay the foundation of those bloody wars he so long waged against the great Judicature of the Nation, or that they were so valid in Law as to warrant Royalists to assist him to win them by the sword: That controversie being long since decided, and the Power of Go∣vernment in other hands; yet in a little let us now examine to whom in con∣science we all ought to yield our obedi∣ence: S. Paul to the Romans 13. on this very subject of obedience to Authority, prescribes this as a general rule to all men, viz. Let every soul be subject to the higher Powers; The reason of this Precept fol∣lows, viz. for there is no power but of God; And thereupon he infers, Therefore ye must needs be subject not onely for wrath but for conscience sake; and to this he ex∣horts Timothy to pray for a blessing up∣on all those in Authority: Now if Roya∣lists make question, (as usually they do) of the lawfulness of the present Authority, and say 'tis usurpatious and unlawful, then they fall foul on Gods Oordinance, and

they question S. Pauls Doctrine, and con∣tradict the very reason of obedience in the Text, viz. for the powers that are, are the Ordinance of God: Now that this may more evidently appear, upon what a rock Royalists fall, by calling into question the lawfulness of the present powers, I shall intreat them to take it into their second considerations, whether then the Apostle was not out of the way, when he delivered this Doctrine of Obedience to Authority to his Coun∣try-men the Jews, which was in the raigns of Claudius Caesar and Nero, both which came to their powers meerly by usurpation and the sword; but these Em∣perours being in possession, S. Paul takes no exception (as Royalists do) against their unlawful coming into power, but en∣joyns obedience to be yielded to them; and can any of them positively and of truth affirm, that the powers of this Common-wealth are not devolved and confer'd on the States here by the Ordinance of God? Bucer on this very Text. Rom. 13. says, That when the question is, whom we should obey, we ought not to question, what he is that exerciseth the power, or in what manner he dispenseth it; but it only sufficeth those which live under it that he hath power;

for if any man hath obtained power, its then out of doubt, that he received that power of God; and then without farther scruple, thou must yield thy obedience to him and heartily obey him: And 'tis mani∣fest, that when Christ and Iohn Baptist preach't the Gospel, it was at that very time that the Romans by plain Conquest and Usurpation had gotten the possession of all the Territory of Iudea; neither of them did then teach or disswade the peo∣ple from their obedience to them, or that they should not yield submission to those that had Tyrannically obtained their power by the sword; for 'tis plain, Mat. 22. that Christ did teach that Tribute was due unto Caesar, and he himself paid it: Again, Pet. 2. Be ye subject either to the King as Suprem, or unto Governors as those which are sent of him. It would be superfluous longer to insist on this subject, on which so much hath been exposed to the publick view; it may therefore suffice without other Argu∣ments then such as our blessed Saviour and his Apostels taught and practised, to perswade obedience to powers in ••eing: Onely I shall close up this hearty ad∣••ress to all Royalists with a piece of a Speech delivered by a Learned Gentle∣man

; viz.

The Law of God in Scripture and Rea∣son, is the main and gene∣ral root and trunk; and all good Laws are banches that grow from thence; and whatsoever hu∣mane Constitutions cannot either in a direct line or collateral derive themselvs from them, are bastard Issues and shameful to their Pa∣rents, and the Law-makers sins in framing of them; yet the difficulty of Government is to be considered, and many things to be born with; for though they have no ground in Gods Law for the injunction, but are meerly frivolous, and perhaps bur∣thensome; yet if their Authority disables them to make it, and enjoyns me to no Act contrary to my allegeance to God, it is their sin, but my affliction, and must be born as other calamities; for though that law hath no good end, yet my obedience hath; Obedience it self is a good and laudable thing, and I may have the end of maintain∣ing order or preserving peace, and avoyd∣ing disturbance in the Church and Com∣monwealth, of preventing scandal and the like, which are ends prescribed by Gods Law to regulate and frame our actions by: All things are not to be turned upside down

upon every inconvenience that may be ap∣prehended in a Law, whether it be Ecclesia∣cal or civil; for besides that there are few that are fit Judges of a Law: that may be unlawful for Governours to command, which yet is not unlawful but expedient for me to obey being commanded; as it was un∣lawful for Pharoah to command the children of Israel to make Brick without Straw (as being tyrannons) and so sinful in him, as it was unlawful: but rather commendable in them to obey it as far as they could; and S. Paul will have servants to be obedient unto their Masters, though they be froward and perverse. Indeed, if they enjoyn me to do any thing wherein I should offend against Gods Laws in the least degree; no pretence of any, though never so many or so great good ends, must make me withdraw my allegeance from him, and pay it to humane powers; The authority of all men is limited, and so must our obe∣dience to them be also. The Supream power of God is the foundation of all Au∣thority; and therefore our duty unto that must be preferr'd in the first place, and without all leave or exception whatso∣ever: peace must be maintain'd with the rules of piety and trust; and any scandal

to my brother, must rather be admitted then I should prevent it without Gods leave: The rule of Mr. Calvin is good here, Sicut libertas charitati, ita charitas fidei subjicienda est; yet in this case I am to disobey, as modestly and as inoffensively, and with as much shew of reverence to the Ma∣gistrate as may stand with our duty unto God; yet resolutely too, not faintly or fearfully, as the three children unto Nebu∣chadnezzar, Dan. 3. 17, &c. And where we cannot yield obedience, we must yield the third duty of subjection; especially where the Authority is absolute and supream under God, which may be variously stated according to the Laws and Customs of se∣veral Countries and Dominions; then in case we cannot obey, we ought not to resist but suffer, and yield a passive obedience where we may not yield an active one, according to the rule of Gods Word, They that resist, shall receive unto themselves damnation.

Thus Royalists and all may see the judgement of a Gentleman of temper and learning, concerning obedience to be given to powers and Magistrates in being.

I come now to the necessity of Royalists obedience to the present Government, with the profit and security that of course will

acrew to themselves and the whole Nation, by their cordial conjuncture and compliance with the present powers; As to the ne∣cessity thereof I shall say no more, but that if they continue obstinate and fix'd to their erroneous principles, and look back with Lots Wife, to him that claims as heir to the late unfortunate king, the consequences and sad effects whereof are particularly layd down in the former discourse, if they be not hardned and past understanding, they will make the best of them to tremble to think upon the issues, whensoever he comes in by their assistance (though surely very impro∣bable) and their posterity will doubtless curse the time that ever they had such Fa∣thers as were the unhappy Authors of their invassaladge, and the betrayers of the com∣mon freedoms of the English Nation; which of necessity must follow whensover the Scotch Pretender comes in by the sword; so that the necessity of their compliance depends on this hinge onely, their present conjuncture with the present establishment, since this state cannot be secure so long as such a numerous party of rotten hearts re∣maines, lurking in all corners of the Land, and lying at catch (on all opportunities) to disturb the present settlement; for preven∣tion

whereof, it hath been the advice of none of the worst heads, on their next di∣sturbance or insurrection, to proscribe not onely all such as shall be suspected, but to take the course of Justice with those that shall be known actors in any such attempt; neither let any of them think this course strange, since there is no reason to be given to cherish the Viper too long in the bosom of the Nation, least in the end he eats through the bowels thereof; and as a wise man says, What wisdom or providence can it be for this State to suffer such to live amongst them that will not co-operate, act, and joyn with the present powers? And what sense is there, that after so bloody and rapacious a war ended, and peace resettled, that if Royalists will, they may live quietly and peaceably, yet cannot forebear to spit their venome against those which have rescued them from invassalage; why then should others be seen in unlawful things for their benefit, which refuse to do right to others and them∣selves?

Gentlemen Royalists, I have now done, and more I would be willing to do for you, may it be to your advantage; but I know not a more ready way thereunto then at

least to advise you to sit quiet, or cordially to employ your selves in the publick ser∣vice.

To conclude, I wish you all to call to minde, the late banishment of the Moors, out of the Kingdom of Granado into Africa, for no other cause but that the King could not convert them from their Mahometan to the Roman Catholick Re∣ligion; a punishment that at best will befall you, whensoever you shall be found con∣triving of any new disturbance. On this consideration I leave it to your selves to make judgement whether there be not a ne∣cessity of your timely compliance and con∣juncture with the rest of the Nation, that stands firm and faithful to the present Au∣thority; under which we are all bound to give God the glory and praise, that since the sheathing of that raging and bloody sword of the late kings, we may if we list live quietly, enjoy the benefit of our old Laws (if not better) and the peace of our own houses in security; blessings which of late years we had not, neither can we ever have them by the way you perserve to walk in, and wish for by re-introducing Regal Ty∣ranny inseparably united to the Scepters of

most Kings, but undoubtedly to all those which are brought in by the power of the sword: from such, that our good God will deliver us, shall be the hearty prayers of

Yours, most devoted to serve you in all honest and just Endeavors. T. L. W.

Notes

• Vide, The Kings Coyn at Oxford.
• Lex Terrae, a most vile and fraudulent peice.
• Mr Thomas Warmistry in the Convoca∣tion, 1640.
• Philip the Second.