Christianity a Doctrine of the Cross, Doctrine · Chapter 2

Christianity a Doctrine of the Cross · Doctrine · Chapter 2

p. 22Of the Unlawfulness of taking Arms against the Supreme Power, in defence of the Laws, and Legal Rights, and Liberties.

CHAP. II. That the Subjects of the Empire had legal Rights.

HAving said thus much, to shew men how far their arming against their lawful Sovereigns is from doing any good to Religion: I now proceed in the next place to shew, that Religion's being back'd by Law, and made a civil Right, will by no means justifie them in so doing.

p. 23Their Plea is, That the Scripture Precepts, of Obedience, and Submission, and not-resisting higher Powers, but bearing crosses under them; were not design'd for Sufferers in all cases, but only for Sufferers according to Laws. They forbid all liberty of resisting, not absolutely, say ‖‖See the Authors cited p. 2.they, to every man: but to him only, that has the Laws against him; or, who suffers under a Prince, whose Will is his Law, and without any Law to cover him. But, where men suffer in their civil Rights; or, where Religion suffers, that stands by Law, and is taken into the Subjects civil Properties; especially where they suffer an invasion of most important Rights, or a breach upon the Constitution it self: those Precepts, they say, forbid not Resistance in such cases, nor were they given, or intended for any such Sufferers. And tho the nature of Religion will not, yet the nature of civil Right, they think will authorize men, notwithstanding those Gospel Injunctions, to arm in defence thereof.

I take this to be a great, and most lamentable perversion of those Gospel Precepts, which were given to men that had legal Rights, and suffer'd the most illegal invasions of them. And to clear this point, I shall endeavour to shew, how under the most heinous and notorious Invasions, that oppressive Sovereigns have made upon Laws and Rights; God has still call'd Subjects to this Non-Resistance. And how such Invasions gave no exemptions therefrom, either to the Christians, under the persecuting Emperors; nor to the Jews, under their Kings; nor is allow'd to exempt us, by our own Laws. Nay, if this plea, of defensibleness of legal Rights, can exempt us: I think it will be found, that a like defensibleness of natural Rights, would as well exempt all other Subjects, and so leave no such duty in the World, as Passive Obedience. There being as good Authority, to defend our natural Rights this way, against persecuting Laws; as there is to defend any legal Rights, against illegal Persecutors.

p. 24First, I shall shew this of the Christians, under the Roman Emperors. And this I shall endeavour to do, with the more exactness; the Gospel Precepts, of Submission and Non-Resistance, being, by our Lord and his Apostles, most indispensably injoyn'd, and afterwards, during all the ten Persecutions, most carefully and strictly practised, under their Invasions.

First, to clear this point I observe, that there was a great, and most notorious Invasion of Rights and Liberties, when yet the Authority was own'd, and Non-resistance and Allegiance injoyn'd, by Christ and his Apostles.

The Imperial Power became a legal Constitution, and was setled by Law upon Augustus, by the Senate and People themselves. His Country gave up the Care and Authority of the whole Empire to him, that for his Life he should have the power both of Peace and War, says **Geog. l. 17. sub fin.Strabo. This was, when in a set speech in free and open Senate, he offered to restore and give up all the Power into their hands, both Arms, Laws, and Provinces, as ††Lib. 53.Dio reports. They had passed through a long series of civil Miseries and Distractions, through the Factions and bloody Wars of the great men, that appeared now plainly unavoidable under the popular form. And being made sensible thereby, of the great inconveniency of their former popular State, and of the Sweetness of that Ease and Quietness, which all experienced under his Government: they all pray'd him with many words, laying before him many Arguments, as the same ‖‖ib. l. 53.Dio relates, that he would take the Empire, which he offer'd to restore back to them, upon himself alone. And thus, adds he, was all the power of Senate and People transferr'd upon Augustus, and confirmed to him by themselves. The Emperors, as he farther notes to this purpose, received all the Power of the whole Commonwealth, by means of those Names, of Consul, Proconsul, Imperator, of the p. 25Pontifical, and Tribunitial Powers, &c. which were used in the popular State, and which they now assume according to the Laws. — taking the Names, together with the Powers of the former Magistrates, upon themselves, that they may not seem to hold them by Force, but by the Laws. Thus, according to this noble Historian, did the Imperial Power become the legal Constitution and Government of the Roman Empire. And this was by the Royal Law or Lex Regia, a Law past, as Justinian **Sed & quod principi placuit Legis habet vigorem: quum Lege Regia quae de ejus imperio lata est, populus ei, & in eum, omne imperium suum & potestatem concedat. Instit. l. 1. tit. 2.6.declares, about the Authority of the Emperor, whereby the People conferred upon him all their Power, and whence his Placita (as well as any Leges, Plebiscita, Senatusconsulta, &c. in their Law Books,) should have the force of Law. This Law gave him also the Prerogatives ††Faedusve cum quibus volet facere liceat — utique ei senatum habere, relationem facere, &c. Utique quaecunque ex usu reipublicae, Majestate Divinarum, humanarum, publicarum, privatarumque rerum esse censebit, ei agere facere jus potestasque sit, ita ut Divo Augusto, Tiberio &c. fuit.of calling and holding Senates, of making Leagues and Alliances, of acting whatsoever he should think of use to the Commonwealth, or for the majesty of humane and divine things, with other particular Powers mention'd in a Fragment thereof upon its renewall to Vespasian, still extant in an Inscription on ‖‖Apud Jan. Gruterum Inscript. Antiqu. p. 242. & Inscript, de Caesar. Suetonio Annexis Ed. Ox. sub Vespas. nu. 10.a Brazen Table in the Lateran at Rome.

But after the erection of the Empire, and making it, as by the Lex Regia it begun to be in Augustus, a legal Establishment; several Powers still remain'd in the People and Senate. Publick business, and the chief of his private also, were treated of by the Senate. The Consuls, and the Praetors too, retain'd their Figure. The lesser Magistrates likewise, exercised each their several Powers; and the Laws, bating only in Questions of Treason, were in good use, **Annal. l. 4. p. 190, 191. Ed. Gryphii.says Tacitus of the Empire, as it had stood ad eam diem, viz. till the ninth year, or thro all the best days of Tiberius. The Senators and the Magistrates, had p. 26both their ancient Majesty, and Authority preserved to them. And before them were brought, both the matter of Customs and Monopolies, of raising and disbanding Soldiers, of continuing Commanders, or nominating them for extraordinary Wars, and of answering the Letters and Ambassadors of Kings, ††In Tiber. c. 30.says Suetonius, of the way and administration of the Emperor, in the days of that Prince. By the ‖‖Dio l. 53.Tribunitial Power, the Emperor, indeed, could interpose, and, when he saw fit, with power of Negative stop any matters. Tho here also, ††c. 31. vid. &c. 32.Suetonius notes the Temper and Moderation of Tiberius in his good years, suffering, and that without complaint, some things to be carried in the Senate, against his Mind and Suffrage. Albeit, in most things, either about Men or Money, or whatever else, wherein they were to refer to the Senate, the Emperors, having such height of power in themselves, found the Senators very obsequious. But the Emperors, not content with this original Power, tho **Principem quem vos tanta ac tam Libera potestate instruxistis, Senatui servire debere. c. 29.mighty free and large indeed, as Tiberius tells the Senate who had confer'd it: still sought one after another, to stretch the Imperial Prerogative more and more, till by degrees they had swallowed up most of that, which, by the allowance of the Lex Regia, at first remain'd, of the Powers and Prerogatives of the People and Senate.

Nay, not content thus to incroach, on all that seemed to carry any competition in point of Power: when they had taken from them, almost all the Authority of Governors, they would not permit them to rest safe in the Rights and Immunities of Subjects, or keep in their Administration, to the known Laws and Justice of the Empire. For they were very heinous and notorious Invaders, of the Lives and Properties of the Roman Subjects, and those too of highest Dignity: as may appear to any, that will read the Lives of Tiberias, Caligula, Claudius, Nero, who sway'd all in the days of Christ and his Apostles.

p. 27But what say the Prince, and the Preachers of the Gospel of Peace, to the Subjects of the Empire, under these Invaders of Rights and Properties, or Ravishers of Liberties, as the phrase of some now is? Render to Caesar the things which are Caesars, says our Saviour to the Jews under Tiberius, towards the end of his Reign, and in his worst times. Mat. xxii.21. Whoever resists, resists the ordinance of God, and shall receive damnation. Wherefore ye must needs be subject, not only for wrath, but also for conscience sake, says S. Paul to those at Rome, Rom. xiii.2.5. And submit for the Lords sake to every ordinance of man, whether to the King as supreme, or to Governors, who are sent by him, says S. Peter to the strangers or converted Jews, thro Pontus, Galatia, Cappadocia, Asia, and those parts. 1 Pet. ii.13, 14. And this charge he laid on them, and was instant in it, when their Countrymen were busily meditating a Revolt, which was abetted by those in the Provinces, as well as acted by those in Judea, as **L. 66.Dio says: and that from under Nero, the worst of invading Tyrants, and monster of men; this Epistle being writ, as Dr. ††Harm. of New Test. ad An. Ner. 11. Christi 65.Lightfoot conjectures, in the eleventh year of Nero, when the Jews had begun those Commotions, the factious spirits had been so long driving on, it being the ‖‖Joseph. de Bell. l. 2. c. 24.year before Cestius Gallus laid siege to Jerusalem, which a few years after was taken and destroy'd by Vespasian.

These were the Rules of Christian Subjection, under all the aforesaid Emperors, whereby the Christians of that, and of the ensuing Ages, were to govern themselves. And these, do not teach taking up Arms against invading Princes; but passive Obedience or Non-resistance under them. And that at a time, when the invasion of Rights, was most crying and notorious; and in the tenderest points, both of Life, Power, and Fortunes. And when they had not merely the nature of Right to plead, as implying a power, as some say now, of forcible Defence p. 28even against the Prince himself, should he offer to infringe it. But when also, ‖‖P. II.says the Pastoral Letter, (tho I think the Lex Regia and the erection of the Empire, had taken the force of that off) they had the Lex Valeria or Valerian Law to secure those Rights. That is, a Law of Valerius, from this, and other such like Laws passed in his Consulship, sirnamed Publicola, as **Dec. 1. l. 2.Livy says: who, upon the Expulsion of the Kings, and change of Government to a popular state, ††Vid. Paulum Manut. de Leg. Ro. p. 37, 38.enacted, That it should be lawful for any one to kill him, who took upon him any Magistracy, without the Peoples order and consent.

And indeed, the meaning of all the Gospel Precepts, of taking up the Cross, Patience, and Non-resistance, must needs be meant of Invaders of Rights, whether natural or civil, matters not much, as I shall shew afterwards. For where are the Crosses, what place for Patience, or what provocation to Resistance, under the Maintainers of Rights or righteous Rulers? There is difference between the Patience and Non-resistance of Criminals, and the Patience and Non-resistance of Christians. That is, when they suffer according to Right; this, when against Right: that, when they suffer for ill; this, when for good and rewardable things. If, when ye suffer for your faults, ye take that patiently, what glory is it to you? But, if when ye do well, and suffer for it, ye take it patiently, that is acceptable with God. 1 Pet. ii.19, 20. So that to pretend we are for Passive Obedience, and yet, not to be for suffering, but resisting, when our Rights are invaded; seems as much as to say, we are always for it, but when we are call'd to use it. Good Kings, will not punish, but reward good men and well-doers; and that will afford, but very little tryal of their Passive Obedience.

Under the Successors of these Emperors, the Persecutions of the Christians, were carried on still by the breach of Rights. Not only the Rights of God, and Religion: as all their Persecutions, were a reverse of his Orders, p. 29and usurping a Power to punish and torment his servants, for obeying him. But by a breach of the Rights of the Empire too.

To clear this I observe, that though the Roman Emperor, had a very large and extensive Power, much wider than is injoyed by our Kings, and as absolute by the Lex Regia, as could well consist with the Government of a Free People: yet was this Imperial Power, to be administred by stated Laws, and to consist with popular freedoms and immunities.

In several things, the Emperor was bound up to the consent of the Subject, not having a plenary Power to act alone, without the concurrence of the Senate. Such was the Consecrating of any new God; which, as ††Apol. p. 6. c. 13.Tertullian notes, was not to be done, nisi à Senatu probatus, without the approbation of the Senate. On which account, though on the credit of Letters he received out of Palestine declaring his Divinity, Tiberius was for it; and brought it into the Senate, as that Father observes, with the prerogative of his Suffrage: yet, the Senate refusing, our Saviour Christ was not admitted into the List of the Roman Deities. To say nothing now, how, by the Original Constitution, he was to bring before them several great matters of State, as about raising Taxes, and Soldiers, and answering Ambassadors, and the like, as I observed before. Such also was that Creation of Magistrates, reserved at first ‖‖Utique quos Magistratum, Potestatem, imperium, Curationemve cujus rei petentes, Senatui populoque Ro. commendaverit, quibusque Suffragationem suam dederit, promiserit, eorum Commitiis quibusque extra ordinem ratio habeatur. Inscript. Tab Lateran.by the Lex Regia to the Senate and People, (the Emperor, as Head of the Senate, giving his Suffrage,) which Tiberius first ††Tum primum è campo comitia ad Patres translata sunt. Nam ad c…m diem, ets… potissima arbitrio Principis, quaedam tamen studiis tribuum fiebant. Tacit. An. l. 1. p. 29. Ed. Gryph.took away from the People in the Assembly of their Tribes, to restrain it to the Senators, as is observed by Tacitus; and which Caligula was afterwards for restoring to them, as we are told by ‖‖In Calig. c. 16.Suetonius.

p. 30The Imperial Power was Established by Law in Augustus, on his Speech to deliver it up to the Senate and People, as I shewed before. And cannot be thought to have been such a Power, as should set aside all their Laws, since in that very Speech he exhorted them firmly to retain, and make no change in their received Laws, as Dio ‖‖Lib. 53.says.

And after it was set up, to profess and bear out their Liberties as Free Subjects, and their not coming thereby into a state of Servitude, or subjection to mere Will and Discretion as the Emperors Slaves, the Romans would not give, nor the Emperors, as ††Suet. in Aug. c. 53.Augustus, ‖‖Id. in Tib. c. 27.Tiberius, &c. receive or admit the Title of Domini but of Principes, not be stiled Lords, but Princes. They had erected an Imperial Sovereignty, which should proceed according to Roman Laws and Liberties: and so would not look upon their Empire, as a Regality, which in their ordinary account spoke a Government more absolute, and inconsistent with Popular Rights and immunities. So in Caligula, who was for wearing the Regal Diadem, ††In Calig. c. 22.Suetonius taxes it as an high enormity, that he was for changing the Fashion of a Principality, into that of a Regaliy.

Nay, the Law it self declares the Imperial Power, to be a limited Power, and tied to go by Laws, and with regard to Legal Liberties. ‖‖Digna vox est Majestate Regnantis, Legibus alligatum se Principem profiteri. Cod. l.1. Tit. 14. De Legibus, &c. l.4.It is a voice worthy of the Majesty of one that Reigns, to profess himself tied to go by Laws, says the Roman Law. And again, ††Nihil tam proprium Imperii est, quam Legibus vivere. Cod. lib. 6. Tit. 23. de Testam. l. 3.Nothing is so much the Property of Empire, as to live and go by the Laws. Agreeable to which, is the saying of Socrates, who, from his being an Advocate, was stiled Scholasticus: who says of Maxentius's illegal outrage, killing without Process, and otherwise illegally oppressing the Romans by a Yoke of Tyrannical Servitude; that it was treating them in the way of a Tyrant, foreign. Soc. Hist. Eccl. lib. 1. c. 2.not of a Roman p. 31Emperor. And that also of Tertullian, well skilled likewise in the Roman Laws, who tells the illegally oppressive Magistrates and Grandees of Rome, ††Hoc imperium, cujus ministri estis, Civilis, non Tyrannica Dominato est. Apol. c. 2.This Empire, whereof you are the Ministers, is a Civil or Politick, viz. as proceeding by Laws and Right: not a Tyranical Domination, wherein all is left to the Lust of those that administer it.

The Power of the Emperor, was a Complex thing; integrated of the Consular, and Proconsular, the Tribunitian, the Censorian, the Imperatorian, the Pontifical, and other Branches, whereinto the Power and Polity was divided, under the Democracy or Common-Wealth. All these Powers, saith ‖‖foreign, &c. Dio l. 53. p. 581, 582.Dio, as they were by Law Established in the Democracy, do the Emperors take to themselves, together with the names, that they may appear to have nothing, but what is freely given to them; —and to hold them, not by Force, but from the Laws.

Now all these, were Legal Powers, and to be administred according to the direction of the Standing Roman Laws. ††Ut Populo praesunt magistratus, ita Magistratibus Leges. Cic. de Legib. lib. 3. initio.As the Magistrates are to Rule the People, so are the Laws to Rule them, says Cicero. ‖‖Ipsi Legibus teneantur. id. Orat. 8. quae est in Verrem, l. 3. in fine.They are bound to go by Laws, says he again, And the better to secure their maintenance of Laws, they took an Oath to proceed by them, when instrusted with the Execution thereof. The Judges must observe the Laws, being obliged by Law to swear they will do so, before they can take their place in Court, as ††Judice, qui ex Lege jurati judicatis, Legibus obcemperare Debetis. l. 1. De Inventione. §. 60. so called juratorum hominum Orat. 5. because jurare in Legem judicaturi solebant, Gothofred Not. in loc.he elsewhere observes. The Foundation of the Roman Liberties, says ‖‖Haec sunt fundamenta firmissima nostrae Libertatis, sui quemque juris, & retinendi, & Dimittendi, esse Dominum. Orat. 35. pro Cornel. Balbo.he, was laid on this, that they were Masters and Disposers of their own Rights. And these Rights, they could not be deprived of by Will and Pleasure, but by Judicial Process.

p. 32‡‡Hoc nobis esse à majoribus traditum, hoc esse denique proprium Liberae civitatis, ut nihil de capite civis, aut de bonis, sine judicio senatus, aut populi, aut eorum qui de quaque re constituti judices sint, de…rabi possit. Id. Orat. 29. Pro Domo sua ad Pontif.This we have received from our Auncestors, and this is the Property of a free City, that nothing shall be diminished from the Lives or Goods of any Citizens, without Judgment or Sentence first pass'd, either by the Senate, or People, or others, who, in any matter, are the established Judges. Which Judges, in passing those Sentences or Awards about them, were bound, as he has told us, to proceed by the known and stated Laws.

And therefore when the Emperors received all these Powers, as Consular, Proconsular, Tribunitial, &c. they received such Powers, as were under the Regulation of Laws. And accordingly Dio, speaking of that Plenitude of Power carried in the foremention'd Titles, whereby they had Authority, as **Lib. 53. p. 582.he says, to raise men and money, to make Peace and War, &c. yea, to put to death, even Knights and Senators themselves, and that within the Pomaerium or Precincts of the City: notes, that this was now lawful for them, in like sort, and under like Regulation only, as before it had been lawful for the former Magistrates. They may by Law do all these things, ††Ibid.saith he, and all other things, which it was before lawful for the Consuls, and other Magistrates, that had full power, to do.

They were Sacro-sanct, indeed, as he there says, and so without Process, could stay any Man foreign, as a Piacle or Devotum Caput, that hurt them either in word or deed. But this was a privilege under the Regulation of Laws, not superseding Process in ordinary course of Justice, but only in case of Violence to their own persons; and had formerly appertain'd to the Tribunes, (as now from them it must to the Emperors, since on them the Tribunitial Power was devolved,) whilst the Lawsare allow'd to have been in force, and the ordinary course of Administration to have been according to them. It being stood upon by the Commons, and per sacratam Legem, p. 33by the sacred Law establish'd, as ††Dec. 1. l. 2.Livy says, at the first creation of the Tribuni Plebis, that they should be Sacrosancti Magistratus, a Sacrosanct Magistracy. That is, such as no man could violate, but the Sacrata Lex did **Sacrosanctum-sanctione poenae, cum caput ejus, qui contra facit, consecratur. Cicero pro Cornel. Balbo Orat. 35.sacrare caput cum bonis, as the same Livy ††Ibid. lib. 2.says was decreed against the Affecters of Empire by the popular Law of Valerius; viz. ‖‖Vid. Macrob. Sat. l. 3 c. 7. p. 319, 320.Cursed him to Hell as a Devoted man, so that it might be lawful for any one to kill him.

They were also loose from the Laws. foreign, ‡‡ib. p. 582.says Dio, and Princeps Legibus solutus est, saith the ††Digest. lib. 1. tit. 3. l. 31.Law. That is▪ they were loosed from all such Laws of the popular State, as were against Monarchy, and inconsistent with their Imperial Sovereignty: but not from those Laws, which concern'd it in all the parts thereof, and ordered how each of them should be administred. So in one Clause of the Lex Regia it self, as it is in the forecited Lateran Table, as on the one hand it is decreed, that **Utique quibus Legibus, Plebeive scitis scriptum fuit, ne Divus Augustus &c. ten… rentur; iis Legibus, plebisque scitis, Imp. Caes. Vespasianus solutus sit: Quaeque ex quaque Lege, Rogatione, Divum Augustum &c. facere oportuit, ea omnia Imp. Caes. Vespasiano facere liceat.From what Laws, and Plebiscita, it was ordained, that the Emperors Augustus, Tiberius, and Claudius, should be loosed; from those Laws and Plebiscita, let the Emperor Vespasian be loosed. So is it decreed on the other, that What things soever, by what Law or Asking soever, the Emperors Augustus, Tiberius, and Claudius [facere oportuit] was bound to do, let it be lawful [facere liceat] for the Emperor Vespasian to do them all. It puts liceat in Vespasian's Case, for oportuit in Augustus's, &c. for Deference and Respects sake; and to note, that, tho equally bound as they; yet if he fail'd, he was not under Coercion, or by any Superior compellable thereto.

Or, the Emperors were loose in respect of other Laws, from the Restraint thereby as Subjects, in their private p. 34actions. To this, I think, that Rule, of Princeps Legibus solutus est, refers. And therefore in that Law it is declared, not only to be the Privilege of the Emperors, but to be communicable by them to the Emperesses. **Princeps Legibus solutus est. Augusta autem, licet legibus soluta non est, Principes tamen eadem illi Privilegia tribu…nt, quae ipsi habent. Lib. 1. Dig. Tit. 3. l. 31.Titus 3The Prince is loose from the Laws. But the Emperess, tho she is not loosed from the Laws, yet the Princes give her the same Privileges which they have themselves. Thus, as to place of Sepulture, when not allow'd by Law ††— Experiar quid concedatur in illos Quorum Flaminia tegieux cinis atque Latina. Juv. Sat. 1.within the City: yet, Imperatores, & Virgines Vestae, quia Legibus non tenentur, in Civitate habebunt sepulchra; The Emperors, and Vestal Virgins, being they are not bound by the Laws, shall have their Sepulchres in the City, ‖‖ad Aen. 11.says Servius. Or, their loosness from Laws, was from the punishments of Laws, or not being coercible by their Penalties. Thus Harmenopulus expounds it, by foreign, i.e. The Prince is loose from the Laws, because not punishable by any on Earth when he breaks them. And so as**Floriun Sparsio adjus Justin. p. 87. Grotius observes, doth S. Ambrose too, who had been a Judge of the Empire, in his Apologia Davidis. Rex utique erat &c. i.e. He was a King, and so not bound by the Laws, because Kings are free from the bond of their offences. For they cannot be called to punishment by any humane Laws, being secure by the Authority of Empire.

But tho thus loosed, from the direct Authority and Restraint of Laws, in their private Actions; yet were the Emperors tyed to Laws, as well as others, and to have only what the Law gave them, in any claims of Rights and Properties. ††Ex imperfecto Testamento nec imperatorem haereditatem vindicare posse saepe constitutum est. Cod. lib. 6. Tit 23. de Testam. l. 3.If the Testament is imperfect, and not valid, the Emperor himself cannot claim the Inheritance thereby, as has often been determined, says the Law. Tho loose from all Coercion, and suffering punishment by them, as Subjects: yet were they not loose from the tye, of administring by them, as Rulers; it p. 35being a voice worthy of the Majesty of one that reigns, as to this matter, as I noted from the Law before, to profess himself a Prince, not left to Rule at Will, but tyed to the Laws. The Emperors were to Rule, and administer Justice, not after their own Will and arbitrary Pleasure, but ut Dominatio Civilis, as I observed from Tertullian, or according to Laws, till they were taken off by regular Repeals. And what possession they had of the Legislative, was to be Legislators to a Free People. Tho altering in other matters, as might make most for the good of their Subjects; yet having no Power to vacate those Laws, which were the Guard of Roman Liberty and Property. They were not free by Law, to make the Free-born Romans, Slaves; or ordain any thing, but what was suitable to a People of Free condition.

For the Roman Subjects, had both their Laws and Customs, their jus-scriptum and non scriptum, written and unwritten Laws, as ‖‖Instit. l. 1. Tit. 2.Titus 2Justinian calls them. They were not as the Emperors Slaves, who, as 'tis in the **l. 1. Tit. 16. & l.2. Tit. 9.Institutes, have no head in Law, nor can acquire or receive any thing for themselves, but all for their Masters. But, as Free-men, had their several Properties, and were Masters of Estates, some vastly great, and others less, according to their several Degrees and Qualities. Whereof they could dispose, as Proprietors, by Sale or Gift, either in their Lives, or by their Testament at their Deaths. They had their Rights and Freedoms, and distinct Steps and Degrees, of Immunity and Privilege; some, having the Rights of Liberty; others, of Citizens or of the City, which ††Suet. in Aug. c. 40.Augustus was careful to keep in great price, and dispens'd so very sparingly; others, of Dignity. And in Dignities, the several Degrees had their proportionable Privileges and Exemptions. And, indeed, since the Romans were such unmeasurable Affecters of Liberty, and prided themselves above all the p. 36World on the score of their Freedoms and Privileges: when, on Augustus's offer, to restore the Power and Authority back into their hands, both Arms, Laws, and Provinces, as ‖‖l. 53. p. 570.Dio says, they chose rather to erect the Imperial Power by the Lex Regia: no man can imagine, that by this Law they would pass away, not only their former Power as Rulers, but also their Freedoms and Immunities, as Subjects, and make themselves and their Posterities, instead of priviledg'd and Free-born Romans, to be all thenceforward mere Slaves. The Freedoms of Romans, they still kept on; and a great price was set upon these Freedoms, to those who needed to purchase, and were not born to them, as well under the Emperors, as it had been before their time. With a great sum of money, obtain'd I this Freedom, viz. of being a Roman, saith the Chief Captain; but I, says S. Paul, was Free born. Act xxii.27, 28.

Among these Freedoms and Immunities of Roman Citizens, one was, that they should not be put in Bonds. Another, that they should not be punish'd with Stripes and Scourges. A third, that it was not lawful to fix any of them upon a Cross, which were Servilia Supplicia, or Punishments appointed for their Slaves. **Facinus est vinciri civem Rom…num; scelus verberari; quid dicam in crucem tollere? Cicero Orat. 10. quae est in Verrem l. 5.'Tis a great offence, to bind a Roman; a more heinous one to scourge him; and what name can be hard enough for the Crucifixion of him? says Cicero. What cause, ††Ob quam causam, Dii immortales? tametsi injuriam facio communi causae, & juri civitatis. Quasi enim posset esse ulla causa, cur hoc cuiquam civi Romano jure accidat. ib.adds he, could Verres have, for treating any Citizen of Rome thus? Tho, indeed, in asking for what cause, I do an injury to the Common Cause, and to the Rights and Liberties of the City: as if there could be any cause, for which the Magistrate might deal thus by Roman Citizens. ‖‖O! Nomen Dulce Libertatis. O! jus eximium nostrae civitatis! O! Lex Porcia, Legesque semproniae, &c. ib. vid. & Orat. pro C. Rabirio.This, says he again, is the sweet of p. 37Liberty, and the singular Right and Privilege of our City, secured to us by the Lex Porcia and the Leges Semproniae, which no Praetor, or other Person whomsoever, should impunely transgress. Another of their Rights and Privileges, was not to be condemn'd unheard, or suffer without a Tryal: which was not only the Law of Rome, but of all civiliz'd Nations. **Nocens, nisi accusatus fuerit, condemnari non potest. Orat. 2. pro Sexto Roscio.No Malefactor is to be condemn'd, till he has first been accused, and had his Tryal, says Cicero. And the Law of the twelve Tables, forbids interfici indemnatum quemcun que hominem, any man to suffer before hearing and Condemnation, as ††De Provid. l. 8. in fine.Salvian notes. Not to mention the Lenity and Temper in other Respects, which ‖‖Pro Domo sua ad Pontif. Orat. 29.Cicero observes of the Roman Law towards accused Persons.

These, were popular Rights and Immunities, not only under the Commonwealth, but afterwards under the Emperors. S. Paul pleads them under Nero, and tells the Chief Captain he had infringed his Roman Privileges, and acted illegally by him, both in binding, and scourging him being a Roman, and in inflicting all this upon him unheard, and before Condemnation. Is it lawful for you, says he, as they bound him with Thongs, to scourge a Man that is a Roman, and uncondemn'd? And the Chief Captain was afraid, because he was a Roman, and because he had bound him. Act. xxii.25.29. The like plea of Privilege he also makes, and therewith put the Invaders thereof in fear, upon a like Violation of these Rights of a Roman Subject, before the Magistrates of Philippi. Act. xvi.37, 38.

Another Privilege, of the Free Subjects and Citizens of Rome, was that Persons of Honor, as the Decurio's or Senators in any of the municipal Courts, but especially the Chiefs of the City, as those of the Title of Egregii and Perfectissimi, should not, unless in some special Cases, as of Treason, be examined by Torture. As it was moreover, that a Mans Servant should not be put to the p. 38Torture to confess against his Master. Both which, as well as Bonds, and Stripes, and Crosses, towards Romans, Lactantius cries out of in Galerius, as Violations of Roman Liberties, and **De Mort. Persec. c. 21.23.calls a treating of them by a Right of War as Captives; not as Roman Subjects, but as Persian Slaves. And the like might be shown of others; but it would be too tedious to recount particulars.

Thus, to insist on no more instances, which were very numerous, both to Persons and Places, were the Subjects of the Empire under the Protection of Laws, and in the legal and customary enjoyment of Freedoms and Privileges. The Administration of the Emperor, was to be according to the Laws and Liberties of the Empire. He owed his Power to the Law. ††Digna vox est Majestate regnantis Legibus alligatum se Principem profiteri. Adeo de auctoritate juris nostra pendet Auctoritas. Cod. l. 1. Tit. 14. de Legibus &c. 4.On the Authority of Law hangs our Authority: So that 'tis a Voice worthy of the Majesty of one that reigns, to profess himself tyed to Laws, say the Emperors Theodosius and Valentinian. And as he had his Power by Law; so had they too their Rights and Privileges, in these, and many other instances. Yea, these Rights, the Law would defend them in, against the Emperor himself. For, by the Rule of the Roman State, and by the practice of it, not only all the days of Augustus, but all the best days of the Reign of Tiberius, they had the Protection of Law for their Rights and Properties, against their Prince, as well as against their Fellow Subjects. If the Emperor [Tiberius] ‖‖Si quando cum Privatis disceptaret, forum & jus. Tacit. An. l. 4. p. 191. Ed. Gryphii.says Tacitus, and any private man had any Dispute, the Law and Courts were to decide it. He was to have no more, than what the Law allow'd him. **Ex imperfecto Testamento nec imperatorem haereditatem vindicare posse saepe constitutum est. L. 3. de Testam. Cod. l. b. 6. Tit. 23.If the Testament be illegal, the Prince cannot inherit by it, as has often been decreed, says the Law. So that, altho the Imperial Power was very large, yet was it not without p. 39its Bounds, and by Law should comport, with popular Rights and Immunities. And this Point, of the Romans, being Free Subjects, that have Rights and Properties, under a Civil and Politick Power; not Slaves, which have none, under a Despotick: made a wide distinction, betwixt the way of a Roman Emperor, and a Persian Monarch; as Lactantius ††De Mort. Persec. c. 21.notes against Galerius, who affected to Rule the Free born Roman, in way of Servitude, like Eastern Kings.

And therefore, when the Emperors, after all the Powers of Senate and People, had by Law been transferr'd on them, were styled absolute: that is, not as being loose in their Administration, from all Laws, or popular Immunities. But from that Dependance, wherein others for a limited time had held these Powers, whilst they were parcell'd out among many Magistrates, in the Freedom of the Roman State; and from all Sharers and Partnership, either of People or Senate, in their Imperial Sovereignty and Government. Yet still so, as to be Governors of Free born Subjects, not of Slaves. And to administer the several parts of their Power, by the Laws of the Empire; as the other Magistrates, ere it was taken out of their hands, had done before, Especially, whilst those Laws were in force, and before they themselves, when possessed of the Legislative in such sort as might consist with the Liberties of a Free People, had alter'd or revoked any that were legally revocable, by Regular Repeals. Whilst any Laws were in force, those Laws, as I noted from Cicero, were to model the Courts, and guide the Sentences. And S. Ambrose afterwards, who had himself been first an Advocate, and then a Judge of the Empire in Civil Affairs, ‖‖In Psal. 118. Octon. 20. p. 500. 1 Vol.Ps 118says, A good Judge doth nothing of his own will or private choice; sed juxta Leges & jura pronunciat. Sicut audit, ita judicat — obsequitur Legibus, non adversatur. i.e. but pronounces according to the Laws. As he hears, p. 40so he judges — he follows the Laws, never opposes them.

Yea, even the Persians themselves, whose Princes did so exceed in Prerogative; yet in the height of their absolute Power, were not loose from inviolable Laws, however few those Laws were, or free they were from being call'd to account, for any Breaches of them. For the Scripture tells us, of the Laws of Medes and Persians, which alter not. Esth. i.19. and Dan. vi.8.12.15. And when the Princes had got one of these Laws, to destroy Daniel; we see, when his heart was the most set upon it, it was not in the Power of the King himself to save him. Dan. iii.14, 15, 16.

Thus were the Roman Emperors, not merely arbitrary, but limited Governors, who were to Rule their People according to stated Laws. And the Roman Subjects, were privileged Subjects, who lived under the Benefit and Protection of Legal Rights, Freedoms, and Properties; for which they had as good Law, as the Emperor had for his Prerogatives, and whereof they could not be despoiled, without Violence to the Law and legal Constitution, whereupon the Emperor himself stood. And this I have taken the more pains to clear, because one main Foundation of the Advocates for Resistance, is, the supposed absolute Power of these Emperors. They own the Scripture Prohibitions of Resistance, which no man certainly can deny, till he has either lost all Modesty or Understanding. But ††Discourse about the Justice of the Gent. undertaking at York. p. 6.they say they are not to our purpose, nor suit our Case, because their Kings and Emperors Wills were their Laws, and their People had no Magna Charta's or Records of Liberties to show, as we have. So that the Frame of the Government warranted all those Commands that had the Royal Pleasure, and the People could plead no legal Injustice. Whereas, in truth, their Emperors, as I have shown, were tyed to Laws; and the Subjects had legal Rights, (yea and those not coming from the Emperors Grants, p. 41but antecedent to them in virtue of their ancient Laws, which were still reserved and kept on when his Imperial Power was first given;) and so were capable to suffer illegal Injustice, as any other privileged Subjects of legal and limited Governments, may do.