Peeres and Commons gives weight and testimony unto the Law but the King only gives it force and authority And it will be thus proved the Legislative is the most soveraign power jus dare is somewhat more then jus dicere If then this most supreame power were formalitèr subjectivè aswell in the Lords and Commons as in the King the Government of this kingdome during Parliament would be Democraticall or Aristocraticall not Monarchichall or Regall Nor would it be a kingdome or Realme but a Republique For what else is Aristocracy but the supreme power seated in divers of the Nobilitie or what Democracy but a like power in the people The Legislative power is then solely in the King ut in subjecto and the consent of Lords and Commons is no parting or sharing in that power but onely a condition requisite to the use of that power in the King And this I conceive is evidently proved by the Oath of Supremacy whereby the King is acknowledged the onely Supreame Governour and likewise by the forme of all our ancient Statutos in which the King only speaks as the Law-maker some Statutes are in forme of a Writ in the Kings name only directed to the severall Sheriffs some in form of a Charter made by the King sometimes it runs the King wills the King ordained or the King in Parliament or the King with the assent of the Lords and Commons c. And never did any Act runne thus The Lords and Commons with the assent of the King or the Lords and Commons in Parliament ordaine or order c. And in the passing Bills to this day the imperative is only by the King Soit fait come est desire or Le Roy voet 22. E. 3. 3. Pl. 25. Le roy fist les leyes per assâ—nt des Peeres de la comune non pas lâ—s Peeres le comune In a learned argument made in Parliament against impositions and printed by command of a Committee this Parliament that Champion for liberty examining where the soveraigne power is in this kingdom The soveraigne power saith he Is agreed to be in the King but in the King is a twofold power the one in Parliament the other cut of Parliament the correcting of the errors of the ordinary Courts is by him Acts of Parliament be they Lawes grounds or whatsoever the Act and power is the Kings but with the assent of the Lords and Commons which maketh it the most supreame power not controlable by any but controling the regall power out of Parliament so he Now by all that hath been said 't is apparant That in the Lords and Commons severed from the King there is onely power in particular cases as is before expressed but that power that may oblige the subject in generall by Lawes Ordinances or such like Acts or Orders is solely in the King In the name of goodnesse then what is that which the people speak of when they talke of the power of the Parliament in such generall cases without and in opposition to the King How can they without the King the power being only in the King make Lawes and Ordinances and with binding authority declare the Law Is the Legislative power solely in the King and yet hath he not a free assent but must of necessity follow the major Vote The Royall assent was that which onely did give power and force unto the Law and it is now turned to an empty piece of formality a matter of course that without any Election must follow which way the Vote shall lead it Or if the Royall assent bee not added yet if the major part at any time shall deeme it necessary that their Votes stand for Lawes without it they are as compleatly and firmely binding as if they were added I wish some man would first sadly consider and then give me satisfaction if by these very Votes the Government be not already altered and Monarchy regulated by Law turned into an arbitrary boundlesse Cligarchy altered I say as farre forth as meere Votes are abâ—e to prevaile which yet I hope will never be actually effected This and many other Observations that may be made out of the premisses I shall remit unto the ingenious reader I shall only make application of what hath been said against the Observator pag. 9. It is alleadged saith he in derogation of Parliament that whatsoever the right of Parliaments is to assemble and treat in all cases of a publike nature yet without the Kings concurrence or consent they are livelesse conventions without all vertue and power the very name of Parliament not due to them This Allegation saith he at one blow confounds all Parliaments and subjects us to as unbounded a regiment of the Kings meere will as any Nation under heaven ever suffered under Patience good Observavator The very name surely is not due but to the very thing In conjunction with the King I can say the King and Parliament nâ—ming the King specially propter excellentiam but I cannot rightly say the King or Parliament or the King against the Parliament can you shew me where the Lords and Commons opposed to the King are termed a Parliament Did ever any man describe a Parliament to be a body consisting of Lords and Commons only with some difficulty I could find where it is said to be a body consisting of King Lords and Commons I would not strive about words but that I see the very name of Parliament misapplyed to the two Houses doth somewhat abuse the people As for Parliamentary power itselfe I have proved it to be formally and immoveably in the King only ut in subjecto and that the consent of Lords and Commons is but a requisite condition to compleat that power as to the doing of some Acts to which it cannot other wise extend If then there bee no concurrence of the King in whom only the power is what are they but a livelesse Convention without all value and power What 's a confirmation of the Deane and Chapter without a grant of the Bishop to be confirmed An assent oâ— Lords and Commons without an Act to be assented to is somwhat like two cyphers without any figure which yet if added to a figure make it centuple If this Allegation against which the Observator doth exclaime with so much vehemency be any new doctrine I am content to bee discarded but if it shall appear to be a most known truth and such as doth not more support the Royall Prerogative then the liberty of the subject then I trust men will be satisfied upon what grounds that odious scandall is raised against his Majesty of intention to bring in an Arbitrary Government such as the French are subiect to A calumny not a little practised to beat off the subiects from their due Allegiance The truth then of this position that the Houses without the King as to the making of any publike Acts Orders or Ordinances are livelesse
Houses without the King represent the Universall Realm shall be considered anon passing that by I conceive that the Parliament truely so called is above the King taken solely for that it doth involve the King without whom they are not truely a Parliament The Parliament then thus considered is a whole compared with some part and the King but a part though the most excellent part of the whole Now every whole is greater then any part the Head though more excellent then all the other Members yet not more excellent then the whole Man whereof the Head is but a part But the King solely compared with the Parliament or rather the Houses of Parliament excluding or not involving the King is superiour and above them whether you consider them scorsim or conjunctim for taken conjunctim they make but a Body which though it be greater then then the Head in Bulk yet doth the Head excell in Vertue Excellence and Authority And although by vertue of representation they are the Body of the whole Kingdom yet is the King the Head of that Body and the Representative of God himself who I am sure is above the Body they represent It is a Principall undeniable Pax in parem non habet imperium multo minus in superiorâ—â—â— If then the Houses be above nay if but equall with the King He can have no Command over them But it is evident He hath Command over them He calls and commands them to assemble being assembled or united together He may command them to prorogue or adjourn for time or place upon which Command it is then their Duty to rise and remove and again at His pleasure He can dissolve them Although for this time His Majesty hath been graciously pleased to restrain Himself from the exercise of that Power yet the Power it self is still in Him as an Inheritance inseparable from His Crown The Representatives of the Kingdom either are Subjects or not That they are not Subjects by reason that they are assembled is absurd and so would not the Kings Protection due unto Subjects belong unto them If they are Subjects then doth the King remain their Soveraign and Superiour And indeed so far is their uniting and assembling in Parliament from diminishing the Kingly Soveraignty to which they were before all and every one Subject as that the Regall Majesty is thereby much more encreased and augmented Cromp. Jurisâ— 10. We are informed by Our Judges saith King H. 8. to His Parliament That We at no time stand so highly in Our Estate Royall as in the time of Parliament wherein We as Head and you as Members are conâ—oyned and knit together in one Body Politique If the Houses as representing the Universall Realm are above the King then they may judge Him punish or depose Him But they cannot judge Him 22 Edw. 3. 3. Le Roy per cux ne doit estre ajuge 3 Edw. 3. 19. Scrope Those which are Judges of Parliament are Judges of their Pâ—â—rs but the King hath no Peer within His Own Kingdom and therefore ought not to be judgedly them And for deposing a King or depriving Him of His Right and Authority or any necessary part thereof no Act of Parliament can prevail much lesse the Lords and Commons An Attainder by Parliament could not barre the title to the Crowne from descending on King H. 7. nor was an act of Parliament disabling King H. 6. to reassume the Government of his people of any force but without any repeale in it selfe frustrate and voyd 7. Rep. 14. Calvins case an act of Parliament cannot take away the Kings protection or the Subjects service which is due by the Law of nature 11. Rep. Sur de la wares Case William de la ware although disabled by act of Parliament was neverthelesse called by Q. Eliz. to sit as a Peere in Parliament for that it seemes the Queene could not be barred of the service and Counsell of any of her Subjects 2. H. 7. 6. A statute that the King by no non obstante shall dispence with it is void because it would take a necessary part of Governement out of the King If then no act of Parliament be of force to take away the government or any necessary part thereof from the King then surely is not any Ordinance of the Lord and Commons of force to doe it And consequently the Lords and Commons as representing the vniversall Realme cannot be above the King but inferior to him Before the King commanded them to assemble each particular and all of them were his Subjects and inferior to him If by assembling into one body and the vertue of representation they cease to be his Subjects and inferiors why doe they then in all their petitions and declarations or Answers proceeding from them not as particular men but as houses of Parliament united stile him Their gracious Soveraigne and themselves His Majesties most humble Subjects the Lords and Commons in Parliament Let our Observator judge whether these representatives have not ill discharged their duty to the Kingdome by debasing thus the underived Majestie so he calls it of the people by petitioning in so low and humble a forme him that is but their creature and in whom there is no Majestie but what is from them derived downe unto him for so the Obseruator conceives it But now to answer the Observators Argument which is thus There is nothing saith he more known or assented to then this that although the King be singulis major yet universis minor being below the people then in universali he must likewise be below the representatives of that universalitie I will not stand to question what necessary connexion these propositions have The people are above the King therefore their representatives are so The King of England is above the King of Spain doth the English Embassadour therefore take place of the King of Spain But admitting a necessary Connexion The people are above the King ergo the houses representing them Why then è converso The houses representing are not above the King ergo the people represented are not and so having proved the houses below the King I have already proved the King above the people yet a word more 'T is true as the Observator saith nothing is more known or assented to then this that the King solely is Minor universis the universalitie including the King For no part be it the head can exceed or be greater then the whole But againe if the King and universalitie bee contradistinguished nothing is more known or assented to then this That the King I speake of the King of England a Soveraign King not a Duke of Venice is not onely singulis major but major universis Nay most properly is the King above the people considered as an entire Congregation For chiefly as he is King he is above all others Now King relates to kingdome Rex to Regnum and Kingdome or Regnum denotes an
universalitie or body collected As he is head so is he in place power and dignitie above the body politique or universalitie and not otherwise the head of any particular but as he is a part of that universalitie As out of the Embrion saith Fortescue ariseth a body naturall ruled by one head even so of a multitude of people ariseth a kingdome which is a body mysticall governed by one man as by its head As then in the naturall body the head is improperly said to be the head of the arme or of the leg but the head of the body so in truth must the King be made the head of the misticall body not of the particular members The King is but one head and therefore but of one body not then of the particulars which are many bodyes but of the universall one body There is a politique body wich is the Vniversalitas Angliâ— hath this body politique no head or is the head inferiour to its body and yet no Monster The Observator will object that the politicall head must be sâ—bservient to its body for that it received its first being and subsistence from the body we shall hereafter prove that the Regal power hath alwayes its being from God though it be sometimes with the peoples approbation And as the politicall head hath its subsistence with the body and must be destroyed by its dissolution so if you destroy the head or kingly power you destroy the kingdome and dissolve it into a Chaos and confused multitude Nec populus Acephatus saith Fortescue corpus vocari meretur quiaut in naturalibus capite detruâ—cato residuum non corpus sed truncum appellamus Sic in politicis sine capite communit as nullatenus corporatur But admitting that in the body politique the head hath its power authority derived meerly and solely out of the politique provision that radically and habitually was in the people to provide for its own safety and weale yet I cannot see how it will follow that therefore the Regall power must be subservient and subject unto the people for as in the naturall body the heart being primum vivens distributeth blood and spirit unto all the members and giveth life and vertue unto the head it selfe yet must that and the whole body be subject unto the head which as Supreame governeth and directeth the whole man A second kingly Attribute is this that he is Sponsâ—s regni and at his Coronation wedded with a Ring unto the kingdom The Observator saith this must be applyed to subjects taken devisim not conjunctim Otherwise as the wife is inferiour to the husband so would the people be in politiques to the King But in sadnesse is the King wedded to the particular men and women within this kingdome with beards and without I pray how many wives will he so have The Observator foresaw the Arguments which might be drawne from these and other attributes whereby Princes are 〈◊〉 Gods Lords Fathers c. and that therefore subjects must stand by the same relation as Creatures Servants Children c. all Which he would shift off by his misapplyed distinction of Kings are such singulis but not universis But indeed a King is said to be a Father or Pater patriae that is of the universalitie not of particular persons And elsewhere the King is termed an Oeconomus or Paâ—eâ—familuis which with no congruity can be said in respect of particulars Nor can the Observator satisfie any man considering that Domesticall government is the very Image and modell of Soveraignty in a Common-weale why children and servants might not as wel use this distinction against their Parents and Masters as subjects against their Soveraign for may it not be objected though the Father in relation to his Children or a Master of a Family in relation to his servants be singulis major yet Vniversis minor and therefore if all the sons or servants hold together they may command their Father or Master or turn him out of doores which was wisely foreseen by Agesilaus when he returned this answer to a Citizen of Sparta that desired an alteration of the Government That kind of Rule which a man would disdain in his own house were very unfit to governe great Regions by But the Observator will object that the relation holds not alike betwixt King and Subjects as between Master and servants For that the Master saith he is more worthy then his servants and above them all but this holds not in relation betwixt a King and his Subjects Why that 's the question For proofe whereof although he neither doth or can alleadge any one authority yet to prove the contrary that the people neither conjunctim nor divisim and much lesse then representatives are more worthy or above the King amongst many peruse these few Bracton l. 1. cap. 8. Omnis quidem sub eo rege ipse sub nullo nisi tantum sub Deo parem non habet in regno suo quia sic amitteret praeceptum nam par in parem non habet imperium item nec multò fortiùs superiorem nec potentiorem habere debet quia sic esset inferior sibi subditis If he be tantum sub deo then not under the people or their representatives 19. E. 4. 6. If all the people in England would make a warre yet if the King will not assent it cannot be said a warre but the King alone may make a warre or league Is not the King in this above all the people in England 24. H. 8. cap. 12. Where by divers sundry old authentique histories and Chronicles it is manifestly declared and expressed that this Realme of England is an Empire and so hath been accepted in the world governed by one Supreame head and King having the Dignity and royall estate of the Imperiall Crowne of the same unto whom a body politique compact of all sorts and degrees of people been bounden and owen to beare next to God a naturall and humble obedience c. Note the King the supreame head true saith the Observator singulis not universis unto whom a body politique compact of all sorts been bounden and owen next to God Then no mediate underived Majestie 'twixt God and him a naturall obedience that is due by the law of nature or the Divine Law not onely by the pactions and agreement of politique Nations 25. â—â— 8. 25. H. 8. This your Graces Realme recognizing no Superiour under God but only your Grace By Realme is meant either Subjects divisim or conjunctiâ— If divisim then no particular is subject to Judges and Justice nor to the Lords and Commons in Parliament but onely to the King which is absurd If conjunctim then is the King in the act recognized Major universis Camb. Eliz. pag. 39. The Queene explaines the Oath of Supremacie that she claymes nothing thereby Quam quod ad coronam Angliae jam olim jure spectavit scilicet se sub Deo
c. Dan. 4. Cuicunque voluerit det illud Prov. 8. By mee Kings reigne by mee Princes rule By these places it is manifest I thinke that although the peoples election may sometimes operate in the specifying of power and designing the person yet never is it a cause of that power God onely is the authour and efficient cause thereof See Kitchin fol. 10. Le Roy est ordaine de Dieu And therefore was that ever renowned Elizabeth acknowledged by her Parliament to be the lawfull Queen of England Iure Divino so saith Cambden pag. 25. And the Parliament thought it just that King H. 8. Having his Kingly and Regall power given by God saith the Act should in case of necessity that would not abide the calling of a Parliament by his Proclamation or Edicts provide for the safety of the Realme Regall power in specie if it were conveyed or given by the people then must it first have been in the people for Nihil dat quod non habet Now that Regall power could be in the people is impossible for 't is against the nature of Regality to be in more then one Rex unicus esto If the people had Regall power I would know over whom Multitudo Deorum nullitas est Deorum Were supream power radically and originally in the people and by them delegated to some particular person that should governe as a King the King as their instrument would but propound Laws but the people must enact them As in Rome while it was a popular State and that Magistracy was but beneficium populi Leges saith Livy à Magistratu proponuntur tantum sed â populo jubentur But now in the government of this Realme 't is cleere contrary Leges tantum proponuntur à populo jubentur à Rege By which it is manifest that Regall power with us cannot be beneficium populi But again the Observator must not take it for granted that the determination of power to Regall rather then Aristocraticall c. or the placing of it in such particular person was always with the peoples election for surely Regall power and the persons that should governe without any choice of the people hath been determined by God himselfe I shall not insist on the particular institution of Monarchicall Government amongst the Angels good and bad nor on that which Bees and other sensitive Creatures doe observe by that instinct of nature that the Divine Goodnesse hath implanted Nor on that Monarchicall Government amongst the Iews which was often particularly determined by speciall ordinance sent from Heaven by the Ministery of Angels or Prophets though this were sufficient to disprove what the Observator affirmeth That God is no more the Authour of Regall then Aristocraticall power I shall only observe that even in Adam and after among the Patriarchs Noah Abraham Iacob and others the common Fathers of Mankind Regall Government was instituted by GOD himselfe without any Election of the people GOD created Mankinde ex uno ut esset inter homines non Democratia sed Regnum after which the Elders or Fathers of Families successively had by their Eldership not only paternall but Regall power as appears by their making war and execoting sentence of death upon offendors And from these originall Stock-fathers Kingdoms and Monarchies I suppose for the most part have had their beginning without popular Election in their first commencement and therefore I would have our Kings style continued Carolus Dei gratia rather then Carolus electione populi This is excellently declared by Sir Thomas Smith in his Commonwealth lib. 1. cap. 12 to have bin the naturall source or beginning of that Government which is termed legitimum regnum to difference it from Tyranny and absolute Dominion Such as Nimrod and others first gained by usurpation and after held by violence over the people And which is not otherwise from God then as the Divine providence pleaseth to direct it to the punishment of a sinfull people or to such other purpose as to his divine wisdom seems best But with such absolute Dominion England hath nought to dâ—e 't is legitimum regnum that takes place with us where the royall power saith Fortescue is restrained by power politique that the King can neither change the law without the consent of the subjects nor charg them with any strange impositions against their will And hee there cites Aquinas to prove that by this Rule and kind of Regiment should all Mankind have been governed if in Paradise they had not transgressed By which iâ— appears that God in the Law of nature instituted this forme of Government And whether we call it Paternall or Regall it refers to that institution and is from thence derived True it is that violence of war and vulgar Commotions may in most places have interrupted and altered the course of succession according to this Divine institution upon which occasion popular Elections may have interposed But the King once Elected and seated in his Throne is thenceforth dâ—â—mâ—d to reigne by that Paramount right unto which the peoples election is but a restitution or as that learned Historian Kings are made by God and Laws divine and by humane Laws only declared to be Kings and thereupon he observes that David thought himself accountable onely to God Tibi soli peccavi Psal. 51. But againe if it were admitted that the people originally were the Authours of that Regall power by which they are governed I cannot see how it doth necessarily follow that therefore there remayns in them a power above the King I acknowledge that Maxime with its just limitations holds truly in naturall causes Quicquid efficit tale est magis tale but surely it is mightily misapplyed by the Observator who would have us imagine if the people made a King they are themselves more King then he I should rather think if Regall power were originally conveyed from the people they by conveying it over have devested themselves of it If it were conveyed with conditions then under those conditions may it be held against them if absolutely then may it be held absolutely over them It was necessary by the Law of nature that they should convey over a power unto some for will they nill they a people cannot be without a Government Or were their conveyance voluntary have they therefore a power over it at pleasure to revoke it although it were often ratified by Oaths of Allegiance and Supremacy Doth not this doctrine destroy not one y Monarchy but all Government whatsoever The people you say are the Authors and efficient cause of that power that the Parliament Members have by Conveyance from them may the people therefore conclude themselves to be above the Parliament and at pleasure revoke and controll their power May Newcastle or any other particular Borough or County disauthorize those they have impowred Or if a particular Borough or County cannot remove their proxies yet the major part of the
omnia jura in scrinio pecttoâ—s sui And yet as the government of this Kingdome is now setled the King cannot make void or vertulesse the setled Courts of Justice and thereby draw all things to a determination within his owne breast And if any cause shall come before him as a Judge to determine yet he hath a rule to follow and that 's the Law not his will which Law in respect of the King hath somewhat more then a directive force restrayning him and disabling him to goe against it so that he can doe no wrong The Lawes are made by the Kings power with the peoples or Parliaments assent which is a superiour power or rather the same power in a higher degree or extent to the Regall power alone and withâ—â—â—â— their assent And therefore the Regall power out of Parliament cannot change nor alâ—â—â— the Lawes and Ordinances made in Parliament but is bound by them as being made by a superiour power whence it is that Bracton every where affirmes the Law to be above the King solely And by this superiour power that is by the King with the assent of his people or Parliament were the ordinary Courts of Justice founded and established and their jurisdiction assertained and therefere may not be altered by the Regall power alone and by the same reason the King cannot alter the Constitution of the Court of Parliament but is the Constitution of all Courts alike the ordinary Courts are so constituted as that the Kings speciall Concurrence is not neeessary Arts and Judgements by the ordinary Judges alone are compleat and binding their assembling and departing is setled and doth not depend on the speciall pleasure of the Prince But the Court of Parliament hath another kind of Constitution the Kings speciall concurrence is in that a necessary and essential part Rex est capâ—t principium et finis Parliamenti Their assembling expects his speciall call their continuance depends on his will the Judgemements Arts and Ordinances made in Parliiament and concerning the Kingdome in generall are the Kings onely and without him frustrate and null Consider this good observator and then tel me if you did not endeavor grosly to abuse your reader by telling us that by the same reason the Parliament is not a Court compleâ— without the King the Common-pleas and all other Courts are not I confesse I have wondred to see it of late so often aâ—â—iâ—med That as the King cannot nor ought to declare by prâ—claimation or otherwise his disalowance of the acts judgments of the ordinary Courts so not of the Votes Ordinances of the Lords Commons in Parliament being the highest Court Should the ordinary Courts take upon them to dispose of the Militia by vertue of an Ordinance by them made might not the King by his Proclamation declare the Militia of that Ordinance and forewarne his Subjects not to be abused by it if the Observator can prove that the Lawes and Ordinances made by the now major part of the Lords and Commons are without and against the Kings pleasure of any more validitie that they are in themselves Lawes and Ordinances and not onely so called then I shall admit that the King either by Prociamation or otherwise ought not to declare against them meane while let every man judge how well the observatour hath maintained the power of the Lords and Commons mauger their King to make Lawes and Ordinances that shall bind the people in generall By which Ordinances the Militia the taking of Hull the Navy the Magazine the intercepting all mony and other provision that is but suspected to be passing towards the King the imprisoning all such as appeare dutifull towards his Majesties commands and such like Acts must be justified or acknowledged unjust The Observator finding it more then difficult in a plain field to maintaine his cause endeavours to shelter it under famed pretences of extraordinary danger and necessity in this extremity the King neglecting the helme nay purposely stearing towards rocks and shelves It is the duty of his Parliament in this case to oppose and preserve him and his Kingdome from utter wrecke and ruine He will then acknowledge that in ordinary cases without the King they cannot make a binding Law or Ordinance but in danger that is when they please In the miast of our calamities we are sensible of none thankes be to God but what their Ordinances have occasioned the Parliament seeing they must make use of their legislative power and make Ordinances to secure sâ—me Forts and settle the Militia or else two Kingdomes probably will be lost they doe accordingly the King proclaimes to the contrary in this contrariety consider if the Parliament 〈◊〉 vertually the whole Kingdome if it be not the supreame Judicatory as well in maâ—â—â—â—â— of State as Law if their grounds of jealousie be vaine To what purpose shall we consider of their jealousies if we thinke them to be but pretended by the cunning and practise of some few for accomplishing their designes and plots invented by some of their owne partie to be againe by them discovered yet must King and people submit to their judgement Are not the now major part the supreme Judges of danger to whom King and people are bound to submit If they are is it lesse then a mockery to bid us consider when as after consideration will we nill we we must subjugate our understandings and opinions to whatsoever they already have or hereafter shall declare But yet at your bidding I le consider in this contrariety whether the Parliament pray call them the Lords and Commons now assembled may not make use of their legislaiâ—e power yes if they have any such but I would not have them make use of the King legislative power without him and against him had they beene partners in that power some colour you might have had to have called it theirs but it seemes the power is solely the Kings they are onely to give an assent to the use of it Then you will I consider whether they be not the supreme Judicatory I thinke not the Parliamentiâ— supreame and above them both in matters of State and Law but againe I must consisider you say if the Lords and Cammons be not vertually the whole Kingdome why doe you put in the Lords whom at other times you can be content to spare The Lords Vote in respect of their Barronies derived from the Crowne the Commons Vote in right of their electors whom they represent at least nine parts of the Kingdome neither doe nor may Vote in their election the Clergie in respect of their spirituall livingt may not nor the most substantiall Coppy-holders Farmours nor Lessees for yeers not inheritrixes Jointresses nor reversioners Heirs apparrent and men that live upon Interest are excluded and all that have not 40. s. per annum free hold Land which I imagine cannot be above a tenth part of the Kingdome Tell me good Sir you that
not an absolute but an admirably well tempered Monarchy Now if you compare the 3 simple formes of Government Aâ—istotle will thus determine Harâ—â—â—â— optima est Regnum deterima Democratia In so cleere a truth the spirit of opposition could not force him to dissent from his Master Plato who having set downe those 3 simple formes of Government with three mixt and compounded thus delivers his judgment Vâ—iâ—â— dominatio bonis instructa legâ—bus sex illarum omnium optima est Gubernationem vero â—aâ—in quâ— non multi imperant mediam censâ—re dâ—bâ—mus caeterum multorum administrationâ—m â—â—â—ibus is rebus debilematque infirmâ—m And surely if this judgement be not right neare all the world are in error But nâ—w though simple Monarchy doe farre excced their Consâ—â—ar or popular Government yet is it not without its inconveniencies and therefore it may be so tempered and mixt as that it may still remaine Monarchy and yet have its inconveniencies restrayned avoyded as farforth as may be then will it of all others whether absolute or mixt become the most usefull and convenient forme of Government Now such and no other is the constitution of Government in England so well poysed and molded by the wisedome of our ancestors as that it gives to this Kingdome the conveniencies of all without the inconveniencies of any one as far forth as by humane prudence they may be prevented The supreame power therefore of making Laws whereby to governe and judge the people in time of peace as likewise the power of armies for preventing of invasions and insurrections rests in a King only immovably whereby he is sufficiently enabled to protect his people And againe as the King himselfe acknowledgeth those lawes by which he is to govern may not be made but by the Consent of the house of Peers and by the house of Commons chosen by the people all hâ—ving free votes and particular priviledges And that the Prince may not make use of his high and perpetuall power to the hurt â—f â—hoâ—e for whose good he hath it the house of Commons as an â—â—cellent conservâ—r of liberty is solely intrusted with the first propositions concerning the levies of mâ—â—y the sinewes of peâ—câ— aâ—â—â—â— and for the impeâ—ckiâ—g of thoâ—e who for their own ends though countenanced by any surreptitiâ—usly gotten command of the King have violated that law which the King is bound when hâ— knows it to protect and to the protection of which they were bound to advise him at the least not to serve him in the contrary And the Lords being trusted with a judâ—â—atory power are an excâ—llent skâ—â—ene and bank between the prince people to assist each â—gainst the incroachment of the other Now whether it be more safe for the supreame indisputable power after this manner to rest in the King or els to be in the Lords and Commons excluding the king that 's the question The â—bserâ—ator vrgeth these inconveniences that sâ—eme to remâ—iâ— in this regulated Monarchy so that it is at the kings pleasure when hâ— shal iudgâ— fit to cal parliamentâ— and being called by dissent hee my frustrate their proceedings and at his pleasure dissolve â—heir being If this be so how have they a power more than sufficient to restraine Tyrannie â—â—â—â—ly if these principles hold Parliaments will be made the very Engines and Scaffolds whereby to erect a Government more tyrannicall then ever was knowne in any other kingdome What â—â—mes doe we live in when the known principles of ancient Government shall be thus impudently railed at That it is left at the Kings just pleasure to call Parliaments upon which oâ—â—er rights depend is a truth so manifest that I am ashamed to alleadge any proofe of it that the King hath indisputable power of dissolving of Parliaments is equally manifest and acknowledged by the Act for not dissolving this present Parliament and that the King in his â—udgment dissenting may thereby quash their proceedings for as much as it is at this time denied I have formerly proved it But if this be so what is left to restraine Tyrannie Marry as much as conveniently may be For though it be at the Kings pleasure to call and dissolve Parliaments he is disabled to make any new Lawes or repeale the old how great need soâ—ver there be for it Nor may he raise Subsidies for his Warres or other occasions without 〈◊〉 in Parliament If impositions be otherwise indirectly laid upon the subject the ministers ought not to levy it or if it be levied experience teacheth that the King will be thereby the greater looser These and many other motives there are inforcing a King to call Parliaments and to comply with the just desires of his subiects And yet of late I must confesse we have had occasion to bewaile the too long intermission of Parliaments of which a reverend Iudge complaining gives us the probable reason At the last meeting in Parliament saith he either by ill choice of the members of that House or by the great increase of the number or by the ambitious humours of some Members of that House who aimed more at their owne â—â—ds and designes then the generall good of the Common-wealth things were so carried not â—â— was used in ancient time but so disastrously that it hath wrought such a disease of this course of Parliaments as we and all that love the Common-wealth have just cause to be sorry for it But now the fruits that have sprung from this error in Government are discovered the remembrance whereof will ever hereafter put Princes in mind of calling Parliaments And to secure this unto us His Maiestie hath now passed an Act for Trieninall Parliaments not dâ—â—â—olvable within the space of 50 dayes then which can there be a better assurance against Tirannie not destroying Monarchie it selfe Yet all this will not satisfie the Observator If the King shall have the disposing of the Militia or power of the kingdome according to the established laws and may so claime a share in the Legislative power as that the Lords and Commons may not without him make lawes and ordinances whensoever themselves shall think fit and necessary so to do or if at any time without presupposing a necessity he shal not according to his oath and office assent to what lawes and ordinances the Houses shall Vote though they go against his own Iudgment and Conscience there will be still a meanes left for the King to make himselfe a tyrant or an absolute Lord not limited by Law but disposing all things according to his lawlesâ—e wil and pleasure A power you say is left that hee may these but the Law trusts him presuming he wil not abuse it and that obiection that is against the presumption of the Law none should presume to make Something must be left if it cannot be restrained but that Monarchy will be destroyed or disabled to performe its office that restraint that you would put upon
Church and Common-wealth and yet before that the Lords had rejected a bill for imposing the same Protestation How shaâ—l I defend their published orders as that of the ninth of September in derogation of the book of Common prayer and for suspension of some lawes in force concerning Church-government Or if not in ordinary â—ases yet informe me whether in case of neâ—essitie the Commons may make Oâ—dinances mauger the King and Lords and dispose of the strengeh of the Realme And if so whether they may not likewise levie Subsidies and impose taxes in such manner as they shall think fiâ— Whether is it pliamentaâ—y when a Biâ—l hath been once and againe rejected to obtrude it a third time in the same Session taking advantage of the absence of such as are knowne to oppose it Thus it is said was done to passe the Ordinance for the Militia How shall I satisfie such as saw heard and felt the frequent tumults resorting to the Parliament house dâ—ores o be no tumults but lawfull assemblies although they threatned and assaulted some Members and afâ—righted very many If I yeeld they were tumults I contradict a Declaration in the name of the Lords and Commons defining them to be lawfull assemblies If I say they were not tumults I am threatned by a Declâ—ration formerly made by a fuller house of Peers and sâ—nt downe to the house of Commons to have had their assistance for the suppressing of such tumulâ—s If it be objected to me that the new major part of the Houses doe assume and challenge ordinary power to make new and repeale old lawes shall I answer that they have not as yet so farre incroached upon the libertie of the Subject my opponent will I doubt reply that indirectly and impliciteâ—y they have alrâ—ady done it though polâ—â—ie will that they forbeare a while to claime it in downe right termes for feare it should too much staâ—tle the subject whose libertie must be invaded by degrees at first thâ—refore the vâ—te shall be onely thus Whensoever the Lords aâ—â— Commons shall dâ—claâ—e what the law of the land is the same must be asseâ—ted to and obeyed Let this be â—rst swallâ—wed and it wâ—ll â—hence be early proved in good time that those that may authorative declare the law lâ—ying an obligation immediately upon all to obey such Declaration may likewise whensoever they please make new or repeale the old law this will wilâ— be proved by a Declaration of the Lords and Commons If it were admitted say they that the King by his Proclamation â—he â—ow major part of Loâ—ds and Commons by their vote may declare a law thereby his Proclamation their vote will in effect become lawes which would turne â—o the subversion of the law of the land and the rights and liberties of the Subject This againe the Observator proves There is saith hee in the interpretation of law upon the last appeale the same supremacy of power requisite as is in making it and therefore grant the King to be supreme interpreter and t is all one as if we grant him to be suprâ—mâ— maker of law grant him this and we grant â—im to be above all limits all conditions all humane bounds whatsoever we resigne all into his hands Lives Lawes Liberties Parliaments all to be held at meâ—re discreâ—ion But the King will my opponent say never câ—aimed to himselfe alone any such power but the now major part of the two Houses do claime to themselves and such as shall at any time make themselves a major part this supreme power of interpreting and declaring law and accordingly they declare that the King may not send for Serjeant Skippon nor require any subject to come to him which by some speciall service is not bound to come to him That the Kâ—ng could not by the law adjourne the Terme to York and many such other Declarations and Interpretations of law they have made to all which they require the kingdome should obey without appealing And so they not the King will have our Lawes Lives Liberties Parliaments all to be held at meere discretion Now what cleere answer may be made to this reply I desire to be instructed Another doubt that perplexeth me ariseth from their declaring the priviledge of Parliament to extend to high treason now I do not know that any priviledge can have its ground or commencement unlesse it be by statute grant or prescription no statute grant or presciption can be alledged for this priviledge against treason nor indeed can a grant in such case hold foâ—ce if the King and Pope when the Pope was conceived to have had plenitude of power should have both joyned in granting a Sanctuarie for treason although it were not to exempt traytors from all manner of triall or punishment yet was such a grant in it selfe meerly void 1 Hen. 7. Staffâ—rds case c. And by the statute 26 Hen. 8. cap. 13. it is enacted that no offendor in any kinde of high treason shall have the priviledge of any manner of Sanctuarie And as there is neither statute nor grant so no prescription neither to exempt the members of Parliament wholly from punishment nor yet to change the method and manner of their triall for no prescription can be but it must be both reasonable in it selfe and also used and allowed now there hath not been nor can be any one instance given to prove that this priviledge was either allowed or so much as claimed nay the contrary practise hath been witnessed by Wentworths case cited by his Majestie whereunto many others might be added and as it wants allowance or claime so is it in it selfe unreasonable for if after the rising of the House I shall overheare or discover a Parliament man plotting treason and yeâ— may not attach him till I have acquainted the House which cannot be till next day or perhaps two dayes after that they againe sit the treason in the meane while will be executed or the traytor perceiving himselfe discovered will be fled So if a Parliament man at York commit treason murder or robberie if you may not arrest him till you have been at London and got leave of the House the offendor without doubt will not stirre away till you returne to apprehend him Can we imagine any should have greater priviledge then the law of Nations gives to Embassadours and yet they have no priviledge iâ— case of high treason being an offence against the lawes of Nations and Nature Cambd. Eliz. fol. 201. May not every Iudge in Westminster Hall claime this priviledge with better colour then a Member of Parliament though the Parliament be a higher Court then any of them For as the King may impeach one Iudge so more and then it will be in his pleasure or of any other accuser to make the ordinarie Courts though setled by prescription and Acts of Parliament and lesse depending upon the will of the King then doth the being of the two Houses what they will
when they will and then if the King hath any suit depending in the Common Pleas and finds some of the Iudges inclyning against him they may be held under a fained accusation of Treason till the others have given judgement for the king Surely though the Parliament be a superiour Court yet have the ordinary Courts as firme a foundation as that can have and are more necessary for the people and yet without question upon such pretence no judge may claime a priviledge from arrest in Case of Treason If wee consult with our Law bookes they tell us that the priviledge of Parliament doth not extend to Treason nor yet breach of the peace nor yet as I thinke against the kings debt for the reason and ground of priviledge is because the king hath an Interest in the members to have their advice therefore no subject may arrest them for his debt But that cannot give them priviledge against the king himselfe Vidâ— Dyer 59. 60. Every Burgasse hath priviledge quant larrest nest forsque al suite dun Subject 2 8. 4. 8. b. per Danby Dyer 275. Crompton 8. b. 9. 10. 11 Elsmâ—re Postnati 20. 21. Now whereas the observator saith that this priviledge is Claymed in case of suspition onely and when leave may be had and when competent accusers appeare not This overthrowes the reasons given by the Houses and is not in it selfe satisfactory For thâ—e Attorney Generall in the most competent accuser and the accusation was of downe-right High Treason not onely of suspition and yet upon probable suspition the accused ought to be imprisoned I must therefore intreat the observator in this particular for that it hath beene a cause of so great combustion and taking up of armes within this Kingdome to give me a more full satisfaction There remaines one other scruple wherewith I am perplexed and it ariseth for their voting the Commissions of Array to be illegall whether they deny the power it selfe or onely dislike the â—orme of this present Commision is uncertaine Now as concerning the first it seemes to me that posse regni or the power over the Militia muster array c. is by the fundamentall Law inmovably setled in the Crowne or rather the Crowne setled on it â— being such an individuall right of the Crowne as if a King without it is in truth nothing Opâ—rtet saith Glanvill regiam potestatem armis esse decoratam Jn rege saith Bracto qui recteregit necessaria sunt hac duo arma viz et leges and the Statute maâ—e Elâ—â—ven Henry the Seaventh Cap 1. tells us that by duty of All glance the Subjects are bound to serve their Sovereigne Lord for the time being in his warres fâ—r dâ—fâ—nce of him and the Land against every Robellion power and miget reared agâ—inst â—im And with him to enter and abide in service in battailâ— if the case so require c. And another Statute 4. 5. Phil. Mary Cap 3 Shewes that the Kiâ—gs of his Realm have ever used to muster their Subjects and to Levy a number of them for servâ—ce in waâ—res And so those Reverend Iudges Hutton and Crooke arguing for the Sâ—â—ject in Case of Shipmoney acknowledge the mustering and arraying of the Subjects by Commissions to be undoubted right of the Crowne Hutton fol 39. That there have beene Commissions of Array and provision for Armes and for preparing Armour according to the variety of times for training and disciplining of Souldiers to be prepared for defence c. That this hath beene in use no man can or ever could deny But the armes where-with they were charged were still their owne proper goods And doth not the whole frame of Government of the Realme depend and ever hath done upon Commissions granted by the King to Shereiffs and Iustices of peace whiâ—h are in substance the same with this 12. Hen 7. 17. tels us that at first all administration of Iustice was in the Crowne till people multiplying Shereiffs were deputed under whom are all to be ready for defence of the Realme when enemies come And the Sherifâ—e is to attend the King in time of warre and shall cause the people to goe with the King for the defence of the Realme against enemies and now by all this it appeares that it is the kings right to discipline and array the souldierâ— and to dispose of the strength of the Realme And that this power is inseperable from him even an act of Parliament if it would disable the king tâ— defend the kingdom is voyd being agâ—inst Law and reason Cookâ—s Argument 56. But you saâ— that the Parliâ—ment â—esires no â—em vall of that power which was in the King but that which was in such or such a substituâ—e But whether they desire it or no they have by thâ—i ordinance of Militia taken away that power which was in the King unlesse we shall thinke those to be his substitutes that take it against his wiâ—l and hold it and imploy it against him Againe you tell us it is but for a time disposed of by a tâ—mporary Ordinanc and not absolâ—tely and for ever takâ—n from the King and seeing thâ—y deâ—â—red it not for the present occasion why shâ—uld the King dâ—ny it Should a good fellow desire the observators wiâ—e fâ—r the present occasion I doubt he would not be so kind hearted as to grant it And surely there bee some kinde of things that are not to be departed with though for a day Semiramis desired of her husband king Ninus that he would grant unto her the sovereigne power for five dayes as Diodorus Siculus or as Plutarch reporteth but for one day which being granted her she in that place caused her husband to be slaine and ever after ruled as Queene I hope no body is so wicked as to imagine any such vile intention and yet this story may well shew how a king is no more himselfe iâ— he but for a day depart from his individuall right And such it appeares by his right to the Militia of the Realme and therefore the Commission of Array is in substance undeniably good But then whether the forme of the Commission be legall I can see as little reason to doubt seeing it is for substance and forme both by a very act of Parliament now in force and by his Majesties Ceclararation cleared from all colour of objection So that in mine owne understanding it seemes unquestionable both for matter and forme You will say neverthelesse that I ought to submit my understanding and implicity beleeve it illegall because so voted But this sound somewhat harsh that we should be bound to submit to such votes against an Act of Parliament upon record vnlesse you can assure me that they are proper â—udges against the king and all such as discent from them wheather it be an Act of Parliament or not And if they are yet I pray satisfie mee concerning the manner of their proceedings why was it so hastily determined being a question of that weight and which required a perusall of many ancient Statutes and Records Why were none of the Iudges nor Sarjeants advised within such a quâ—stion of legalitie or illegalitie The Commission is in Latine and old legall Latine are all the members that voted against it able to give the Grammer Construction of it But above all why was it voted without so much as hearing the King or his Counsell to speake in his cause before it were condemned You know what the Poet saith Qui statuit aliquid parte inaudita altera aequum licet statuerit haud aequus futi I spare to load the Observator with any more doubts concerning their past votes the good Consequences whereof and of other concomitant proceedings I doe much feare If the observator shall give me but probable hope of the good event of things and satisfy my doubt in these perticulars I shall with cheerefulnesse ever after pay an humble obedience unto all such votes and proceedings and shall from thenceforth acknowledge my selfe for his industry in setling and satisfying my yet unsatisfied Conscience to be much indebted unto him Meane while I bid him heartily farewell FINIS Decl of the Lo Com of the 2 of Novemb. Luciâ—â— Sâ—â—mâ— 158. 1. H. 74. 6. Plow Com. 238. 244. Camb. Britan. 163. The King hath Soveraign power hee acknowledgeth no superiour but God alone See Sir Tho. Smith de Rep. Ang. li 2. cap. 4. 5. Rep. so 86. de Iure regis Eccl. siastico Rodin de Rep. cap 8. 7 Rep. 12 13. Câ—lv Case Prov. 11. Livy Gen. 14. â—â—od 32. Sir W. Rawley l. 2. Hist. Mund. Sozomen li 6. Seneca Stamford Preface Cokes Instiâ— 2 part pag. 379. â— H. 7. 20. Stamf. 72. 12 H. 7. 17. Mirror of Iustice Bracton lib. 3. fol. 107. Fortescue cap. â—â— 13. â— Rep. Calâ—ins â—ase 13. Virg Davis rep. Rex Angliae est monarcha Imperator in regno suo Cassaneus in catol. glor. mundi Rex Angliae est absolutus Monarcha in regno suo Vide Crompt Juâ—iâ—d 108. Modiâ— tenendi Parliament Page 1. Page 4. Bodin de Reput l. 2. cap. 5. Vide Cambd. Eliz. pa. 118. accord Page 45. Elsmere postnati 99. 33. H. 8. ca. 1. 28. H. 8. c. 19. Davis Rep. 25. Eccles. 8. vâ— 8. Bracton l. 5 tract. 3. c. 3. li. 1. cap. 8. Wâ—sd 6. pag. 45. Arist. Eth. 18. Cap. 10 Plato in Bolitico His Majesties Answer to the 19. propositions Huttons Argument against Ship mony p. 33 page 34. Deâ—lar Maii 27 concerning the Stat. of E. 1.
A VIEW OF A PRINTED BOOK INTITULED OBSERVATIONS UPON HIS MAJESTIES LATE Answers and Expresses OXFORD Printed by Leonard Liechfield Printer to the University 1642. The Printer to the Reader YOu will wonder it may be that this comes forth no sooner and yet comes forth now so long after the publishing of those Observations That it comes forth no sooner is not that it was no sooner ready but having passed the Authors hand long since it waited till now the conveniency of a Presse That it comes forth now wanting not a President is to free and undeceive such who are either entangled or misled by his dangerous Doctrines and to vindicate the Kings just Rights and Priviledges All which you will finde so cleerly done in the ensuing Treatise that I doubt not but it will satisfie every impartiall Reader A VIEW OF A PRINTED BOOK Intituled OBSERVATIONS UPON HIS MAIESTIES LATE Answers and Expresses I Have read of the Citizens of Abdera That one hearing a strange Tragedy full of seditious designes they were all strucken into such a fit of Phrensie That for many dayes after they did nothing but act the same Tragedy with furious gestures in their streets I would it were not too late to wish that licencious Pulpits and seditious Pamphlets might not work a like effect upon our London Citizens Among the many other Libells I have not observed any that hath so much intoxicated the vulgar or intangled the more understanding as thse Observations wherein Treachery is more cunningly mixed with some shew of reason Those other Spiders spun their Web for insnaring only weak and silly Flyes But Prentices and Porters are below our Observator A King and His Answers shall be His Subject and His Discourse shall soar alost uâ—to the head and origen both of regall and Parliamentory Power wherein as in a Laborinth of implicatory and inextricable Errours some Reader may unhappily loose himself I shall not follow him in his maze of incertainties I hope some able pen will undertake to give him a sharp and just Answer mean while to those Animad versions formerly made I shall adde some few Observations And first I would have you observe the boldnesse of his undertaking A Privadâ— interposing himself betwixt a King and His Parliament being in earnest debate of the highest Rights that ever have come in question twixt King and Parliament It hath been the modesty and wisedome of former times with a Veyl of Reverence to reserve from vulgar insolence the Rights of Supreme Majesty And although at this time by unhappy occasions they are fallen into question betwixt a King and His Parliament yet should not any private man presume to meddle What Are not the Parties a King and His Parliament exempt from our Observators Jurisdiction No nor is the Matter above his Cognizance No surely both are subject to his Tribunall and therefore he observes and boldly censures His Majesties late Answers and Expresses His Pamphlet treating matter of so high concernment I was somewhat scrupled whether I might lawfully deal with it But I considered and be pleased likewise to consider That I make not the Messages and Answers either of the King or Houses subject to my Consure or Observation I onely encounter with the Observator Nor do I deal with the Matter it self otherwise then I finde it in his Observations examining his Principles and proposing some Arguments as against him onely upon all which I presume not to make any determinate Conclusion But now although his undertaking were bold yet perhaps his expressions are so full of humility and dutifull regard towards his King and Soveraigne as will make amends for which purpose be pleased to observe these Particulars Pag. 37. As for those absurd unreasonable incredible supposicions c He speaks of the Kings suppositions Pag. 39. He first sets down the Kings Reasons against Parliamentary Election of the great Officers 1. That it would be prejudiciall to the people 2. Dishonourable to Himself upon which the Observator thus replies Man is by nature of restlesse ambition Antoninus Pius was greatly renowned for communicating weighty Affairs and following publike advice What will Nero more dâ—spise then to condescend as Antoninus did yet it were more necessary that Nero were limited then Antoninus Pag. 7. He tells us the King may not think to justifie His Acts by a President of Queen Eliz. For the gracious Acts of soft Princes may more easily invade the Subjects Liberty then the furious proceedings of such as Caligula was Pag. 10. 'T is a wonderfull thing that the Kings Papers so he is pleased every where to term His Majesties Answers being fraughted scarce with any thing else but such Doctrines of Division tending all to the subversion of our ancient Fundamentall Constitutions should finde such applause in the world See Pag. 3. how he checks at the King for using the word Grace Pag. 31. he charges the King to have left the Parliament out of good opinion to Papists and Incendiaries and that His solemn Oathes of cordiall love to them hath wanted integrity and faith See Pag. 38. how he scornfully taunts the King If he spare not the King do you think he will spare the Court Pag. 42. He regards not those fond things Courtiers which cannot see in humane nature what is depraved in it and what not But what if he be bold with the secondary derived Majesty of the King yet he will be more respectfull of that he calls the underived Majesty of the people Pag. 11. We have ever found enmity and antipathy betwixt the Court and Countrey but never any till now betwixt the Representatives and the Body of the Kingdom represented and were we not now those dregs of humane Race c. What the Kingdom represented to whom you say so great a Majesty is due in whom Majesty is underived will you say they are the dregs of humane Race Will you charge them with deserting their Representatives then which you say Pag. 16. there is nothing next to renouncing God more persidious I fear our Observator is some one of the malignant party in saying There is now enmity and antipathy betwixt the Representatives and the Body of the Kingdom represented he would then have us believe they are only Apprentices and some of the courser sort who unjustly assuming the name of whole Counties being hired with publike Moneyes brought up those Petitions extolling and approving their Proceedings when as the Body of the Kingdom represented had as he saith forsaken their Representatives Who sees not the Observator's modesty I will give you but a taste of his sincerity in citing the Kings words Pag. 7. he cites these in a small Character as if they were the Kings formall words When Parliaments are assembled they have no Commission to counsell but in such points as the King pleases to propose And if they make any transition into other matters they are laable to imprisonment at the Kings pleasure witnesse Wentworth's Case
The King onely cites the Writ the Form whereof is ancient whereby they are summoned to counsell the King de quibusdam arduis not in all things but in some things saith the King Is this to say only in such points as the King shall please to propose Did not His Majesty in expresse words at the beginning of this Parliament leave them to their own method Again Doth the King say If they make any transition they are liable to imprisonment at His pleasure Not His pleasure but the Law is the Rule he tyes Himself unto these then are but false Calumnies Pag. 8. 9. 46. he charges the King with this Position The Lords and Commons in Parliament are meerly to councell the King As if without their consent the King might make a Law That they are limitted by the Writ ad consilium onely That if we make the Lords and Commons to be more then Counsellors we make them commanders and controllers and this is not suitable to royalty From hence the Observator takes occasion to argue very sadly That the Lords and Commons are summoned not onely ad câ—nsilium but ad consensum also in the making and altering Laws And in this though in nothing else he brings authority to back his reasons withall citing the close Roll 7. Ed. 1. Quodomnes tangit ab omnibus approbâ—ri dâ—bet or tratâ—ari He did well to corrupt the Record by putting approbari dâ—bet for tractari otherwise it would not have served his turn But surely the Point needed not proof for never did the King nor any body else deny it the King no where sayes They are called ad consilium onely meerly or that to allow them mere then to counsell were to make them Commanders He saith they are called to counsell that 's true not to command that 's true but he doth not deny them power of consenting which the Observator contradicting himself doth afterwards acknowledge Pag. 16. It is lâ—sâ— unqâ—â—sâ—imed saith he That the legislative power is partly in the King partly in the Kingdome and that the King in ordinary cases cannot make a Law or Ordiaâ—nâ—â— without the Parliament Is it left unquestioned why then would you abuse the people as if the King had claimed a legislative power to himself whereto the consent of the Lords and Commons were not requisite Pag. 7. The King saith he deniâ—s the Lords and Commons if hâ— withdraw himselâ— to have any power of any Court Pag. 10. He cites these as the Kings precise words 'T is improbable and impossible that His Cabinet-Councellors or His Bishops or Souldiers who must have so great a share in the misery should take such pains in the procuring thereof Pag. 25. He tells you That the King saith he cannot without renouncing His own conscience and reason preforce the Parliaments counsell before the Courts All which and many more are falsly imposed upon the King to alienate and corrupt the affections of His Majesties Subjects Pag. 25. He saith The King charges the Parliament with these Doctrines as so offensive 1. That the Parliament hath an absolute indisputablâ— power of dâ—â—laring Law 2. That Parliaments are bound to no Presidents And then the Observator justifies these Doctrines as well as he may for they are most true And had the King denied them as the Observator wou'd have it thought he had indeed destroyed the power of Parliaments But the Doctrines the King chargeth them with are That the then major part of the two Houses had indisputable power of declaring Iaw and were not bound to Presidents Had the Observator taken the Charge aright he would not have answered Statutes are not binding to them why then should Presidents For I hope the now major part of the Houses are bound by Statutes and cannot repeal them though the Parliament may What though his Pamphlet be stuffed with such corruptions yet let me speak one word for him He is no more faulty in this kinde then others You see his iâ—genuity I shall now consider the solidity of his Reasons and the goodly Consequences he draws from them Omitting then those loose extravagant Passages which have no connexion with the Body of his Discourse the sum of that part which seemeth rationall is as followeth Quicquid efficit tale est magis tale The efficient cause is ever superiour unto and more excellent then that which it causeth But the people in whom Power is originall and Majestie underived are the efficient cause conveying Regall Power and Majestie unto Princes not God who is no more the author of Regall then Aristocraticall Power The same people being the efficient cause are also the finall cause for whose good and preservation onely that Power is conveyed and their conveyance is fiduciary upon trust and under such Conditions as they please The people being the efficient cause of Kingly Power he hence infâ—rres They are above the King Rex etsi singâ—lis major universis minor est And from thence to bring it on to his purpose it must needs follow as he thinks the people being above the King The Houses being by vertue of representation the same people must likewise be above the King The Houses then being by vertue of representation the efficient cause conveying Regall Power upon Trust and to no other end but to the good and preservation of the people may when they please to say That it is not disposed of by the King to that end and according to that Trust re-assume that Power and make themselves the disposers thereof from all which Grounds he inferres their power of making Ordinances obliging the People in generall The Ordinance of the Militia to be legall and consequently the Commissions of Array illegall The taking and retaining Hull to be justifiable The taking the Magazine and whatsoever else hath been taken from the King That the King hath in nothing appertaining to His Crown an unconditionable Property That whatsoever Acts he hath passed whatsoever he hath done or can do for His subjects is meer Duty That He ought to acknowledge that he can in nothing merit of the whole State That he ought to assent to all Bills that they approve and adjudge fit to passe That His great Officers be such as they shall allow of That without him they may authoritivè declare the Law and consequently make and repeal Laws and Statutes at their pleasure That when they adjudge the Power intrusted with Him for the Kingdoms safety to be turned against them they and all are ipso facto absolved of all Obedience of all Oaths and Tyes of Allegiance whatsoever to His Majesty and bound to seek their preservation by resistance and defence Desperate Conclusions I shall examine his Grounds ordine retrogradâ— beginning with that immediately antecedent to all his Conclusions Whethâ—r the Parliament so he would have you call the major part of the Lords and Commons remaining are above the King by reason of their representing the whole Kingdom How true it is That the
Electors throughout the whole Kingdome may according to this doctrine revoke the trust and authority that all the Members have If so how can my obedience be required to their Votes when as it is doubtful whether the major part of the Free-holders do not disavow their proceedings Most certain it is whether the people were the authors of Regall power or not there neither is nor can be any power remayning in the people above that which is in a Monarch or King for if the supream power remayn in the people it must be a popular State such as Rome sometimes was The Lacedemonians had a King in name but their Estate was truly a popular Estate the supream power being in those 5 worthy Members called the Ephori who figuring patronizing the people had power to controll the doings of their King and their custome was as Plutarch relates every ninth yeere upon some cleer night to gaze upon the Firmament and if they observed the Moon to twincle or any Star to sparkle or shoot they thereupon would commit their King to prison who might not thence be delivered untill the Oracle of Apollo had so declared A happy Government I assure you both for King and people But if you will allow of a true King in power as well as in name the sovereigne power next under God must be in him not controllable with the breath of the fickle multitude Princeps Nec ponit aut sumit secures Arbitrio popularis aurae The Roman Emperour was anciently chosen by the Souldiers but did there remayne in them a power over the Emperour so elected T is recorded that the Souldiers having chosen Valentinian the elder would have added ao lleague unto him in the Imperiall government but the Emperour answered them me ad imperium eligere penes vos erat sed cum jam à vobis electus sim consortem imperii quem postulastis non amplius in vectra sed in mea potestate eligere situm est and with this answer were the Souldiers well contented whereby it appeares there remained no superour power in them Did there remaine a superintendent power in the people over the King it would then be lawfull to appeale from the Kâ—ng to the people as to the more supreame power but such appeales were never heard of at least not till of late nor are they consistant with Monarchy or any government but necessarily tend to Anarchy and destruction Omnis honestae rei malus judex est vulgus there is no Common-wealth wherein there are not more evill then good more simple then wise if then the majority of the people shall determine upon the last Appeale what judgement shall we be ruled by You see whereunto the Observators principles do lead and if you desire to know the fountaine from whence he drew these goodly doctrines that little Treatise entituled Puritano-Iesuitismus will point it out unto you I shall forbeare to consider any further by what authority Kings doe reigne And I heartily wish that this Anti-monarchist had spent his time in praising God for giving us that forme of government which experience teacheth and all the learned in the world do acknowledge to be the best and most convenient rather than by presumptuous enquiry after the cause and origen thereof to have endeavoured to shake and unsettle the same As concerning the finall cause of Regall Authority it must be acknowledged the generall end thereof is no other then the conservation and good of the people and true it is that the King is bound not only by his Oath but also by the very end of his Regall Office to protect us and to endeavour our promotion to all kinde of politicall happinesse even as much as he intends his owne honour and right But I cannot swallow that ingratefull inference the Observator makes from thence daring to tell his King That hee cannot merit of the State that whatsoever hee doth for them is meâ—re duty May not the same act be of duty and yet meritorious or deserving Is it not the duty of a Father to take care for his children and yet your selfe acknowledge the Father doth all his offices meritoriously You suppose though falsly Kingly authority commenceth by pact and agreement with the people is not honour and obedience even by that very pact to be paid him as a due reward and doth not reward presuppose desert although after such pact made his care and protection be of duty yet being free to oblige himselfe by that pact to preserve nourish and defend his people was an act meritorious Omnium domos illius vigilia defendit omnium otium illius labor omnium delitias illius industria omnium vacationem illius occupatio For which the Law doth attribute unto him all Honour Dignity and P cheminence and yet you say he deserveth nay he can deserve nothing The word Grace you tell him sounds not well in his mouth yet surely former Kings have used the word without being checkt for it 28. â— 1. cap. 1. The King â—f his speciall grace for redresse of the grievances of his people sustained by his warres and for the amendment of their estate and to the intent that they may be the more ready to doe him service the more willing to assist and â—yde him in time of need grants c. You see that King tearms it of speciall Grace though for amendment of their estate and for those Articles hee granted them hee expected in retribution that his subjects should bee the more willing to assist and ayde him in time of need And so I hope will all good subjects bee at this time the more willing to ayd his Majesty for those many Acts of greater grace he hath pleased to passe unto us You may see sundry other Acts wherein the King himselfe speaking pronounceth them to be of his speciall grace W. 2. cap. 10 cap. 29. 18. E. 1. Stat. de quo warranto c Statutum de gratia regia diâ—itur quando Rex dignatur cedere de jure suo regio pro quiete comodo populi sui Prâ—m Regall the Observator passeth on to consider Parliamentary power pag. 5. Parliaments have the same efficient cause as Monarchies if not higher for in truth the whole Kingdome is not so properly the author as the essence it selfe of Parliaments and Parliaments have also the same shall cause as Monarchies Well 't is agreed that the good of the Kingdome is the end whereto Parliamentary power should direct it selfe but then as concerning the power of Parliaments and the efficient cause of that power it will be requisite to consider the parts distinctly and then the power of all together The Parliament is a Body consisting of three distinct Estates the King the Lords and the Commons Unto the Commons considered alone it most properly appertaines to present the grievances of the people and in humble manner to pray such redresse as the King with
when not and if the people have power to Iudge of danger and defend themselves without and against their King then may they intrust that power unto some others for that all should assemble â—â— next to impossible and could not be without confusion a few thâ—refore may bee intrusted to judge for all and to direct the manner of their defence well It is admitted they may intrust this power with some few but that they have intrusted it with the Lords and Commons I must deny There is no colour to say it is intrusted with the Lords they judge only for themselves and if the King intended to alter the Government or Religion it is likelie he would create such as should assist his intentions and therefore it will be of little purpose to give the kingdome a power to judge of dangers and save it selfe unlesse they may doe it by the major part of their proxies alone both against King and Lords You put in the Lords only to glosse your actions for the present but by your principles the power must bee in the Commons onely if anywhere Now cleerely there is no such trust imparted to the Commons their trust is limited by the writ to advise with the King not to make Acts and Ordinances in any case against him Nor can I possibly see why the Coroners elected by the body of each Countie according to the Kings writ might not as reasonably claime this trust as the major part of the Commons alone unlesse we must therefore thinke it to bee the Commons right because they now pretend unto it The Observator tells us We may not imagine the Houses should be injurious no age will furnish us with one story of any Parliament freely elected and held that ever did injure a whole kingdome or exercise any Tyranny I 'le charge tirannie on none only I say if the now major part of Lords and Commons against the Kings pleasure and authenticke Proclamations have power to command the subiects in generall and to imprison kill and slay such as withstand their commands and obey his Maiesties Proclamations I would gladly bee instructed how this power is derived unto them either from King or people or whether we must think they above all other men were naturally borne unto it Meane while I like well the Observators note in honour of free Parliaments that never any such iniured a kingdome But yet such as have called themselves free Parliaments have injured King and kingdome this have the Lords and Commons done when they have left the head free in His Royall assent or disassent to such Bills as they had a minde to passe of which take one Example 15. E. 3. The Lords and Commons pressed the King to passe a Law derogatorie to his just prerogative that Parliament being ended and the kingdome representing it selfe againe the same yeare it was enacted Whereas in the last Parliament certaine Articles expressely contrary to the Lawes of England and the Prerogatives and Royall rights were pretended to be granted by manner of a Statute the King considering how that by the bond of his Oath he was bound to the defence of such Lawes and Prerogatives because the King never freely consented to the said pretended Statute It seemed good to the Earles Barons and other wise men that sithence the said statute did not of the Kings free-will proceed the same should be voyd It seemes at this time the King was not bound to passe whatsoever the Lords and Commons Voted to be for the good of the kingdome And his oath did tye him to seeke a restitution of his prerogative against such forced lawes so farre was it from tying him to passe all such lawes as the Houses should judge fit Questionlesse the King is bound by oath and office to passe all good and just lawes yet that part of the oath that hath beene urged doth not prove so much But the question is whether hee bee not free to judge what is a good and just Law and what not But must submit his understanding judgment and Conscience to the votes of Lords and Commons so that the sixe Articles for poperie passe them he is bound to passe it Queene Elizabeth was bounâ— to passe an Act abolishing popery because the Lords and Commons had Voted a Bill againâ—â— Protestancie Queene Mary was bound to passe that likewise So againe the King wishes all good subjects to put the case to themselves If the Papistâ— in Ireland should make themselves the major part of both Houses and pretending their Religion to bee in danger of extirpation by a Malignant party of Protestants and puritans should passe a Bill for setling the Militia in such as they should confide in is not the King bound to assent unto it Not in that case saith the Observator For England and Ireland are one and the same Dominion there is as true and intimate an union betwixt them and England as betwixt England and Wales though they meete not in one Parliament yet to sâ—â—â— purposes their Parliaments are not to be held severall Parliaments and therefore if Papistâ— were stronger and more in Parliament there yet would they want authority to over rule any thing voted and established before in England and they being the minor part of Ireland 〈◊〉 ENGLAND both ought to sit downe for that the major part will probability prevaile against them and in all suffrages the minor part that bloud may not bee shedâ— ought to 〈◊〉 downe Alack alack how doth the good man bestirre himselfe to bedge up a seeming answer unto this objection He supposeth England and Ireland to be one and the same dominion which is certainely false Statutes that are limitted to the Realme and Dominion of England do not extend to Ireland That there is as true and intimate an union betwixt England and Ireland as betwixt England and Wales is conâ—radicted by himselfe acknowledging England and Ireland to be governed by severall Parliaments severall to most if not to all purposes T is true Ireland is united to the Imperiall Crowne of England and so is Scotland yet all three are distinct kingdomes He saith they want authoritie there to over rule any thing established before in England But Ireland will say the English Parliament wants authority to establish a Religion in Ireland Or admit the Irish Parliament hath not authoritie to over rule any thing established before in England yet the point that the King instanteth in that is the Militia of Ireland is not established by Parliamâ—nt in England why ought not the King then to assâ—nt to the disposall of it according as the Irish parliament shall desire or if he will not assent why may not the Irish of themselves dispose of it as now the English doe If we shall admit them to be one Dominion why then if the papists in Ireland the popish partie in England and their adherents the Episcopall party and the misnamed Malignant partie shall joyne in one desire against
our superfine Reformers the Reformers being farre the minor part ought to sit downe and acquiesse otherwise bloud will be shed and the major part in probabilitie prevaile you to lay a Calumny on the King will say they speake all one language and conspire in one end which although no sober man will credit yet this is certaine that they all concurre in some things against new Confounders I should say Reformers In these things then by your owne rule the minor part ought to yeeld and acquiesse If the major part present of Lords and Commons shall desire it the King you will say is bound to passe an Act that no marriage for any of his Children shall be concluded not treated on without the Parliaments assent By the same reason that he is bound to passe this Law to the English hee will bee bound to passe the like to the Irish and againe the like to the kingdome of Scotland because the Lords and Commons in the severall Parliaments desire it and the kingdomes have a like interest and right to warrant that desire If these Lawes bee passed what will become of the Royall line Besides a match may bee mentioned or treated on a Parliament for that 〈◊〉 purpose must bee called in each kingdome and being called is it probable three Nations so different in their constitutions should agree in one The Scots â—â—y approves marriage desired with the French The Irish will rather desire the alliancs of Spaine The English of Denmarke In this case to observe one Law is to breake two yet such a Law being Voted or any thing else the King you say is bound to passe it and you seeme to prove it thus T is acknowledged the King is bound by Oath and Office to passe all just Lawes that are either for preservation or good of the Subjects to grant this say you that hee is bound to passe just â—awes and yet to leave him to his owne free Iudgement what is a just and good Law is to give us a dry right without a remedy So againe you obiect If the King will not call the Parliament For making Lawes when it is expedient that must not conclude the people for theâ— they would have a dry right to Parliaments without a remedy And upon this ground and for that the King hath his power given him as you suppose by the people and that upon trust you will have him accomptable to the Lords and Commons the representatives of the people how he hath discharged his trust and if he shall be found neglectfull or faulty there must bee you say a meanes to inforce otherwise wee are subject to the boundlesse will of the Prince and a gappe is opened to as past and arbitrary power as ever the Grand Seignior had If the King may so assume a share in the Legislative power as that without his concurrence the Lords and Commons may not Judge of dangers and by temporary Ordinances put the kingdome into a posture of defence God hath not then left humane nature any meanes of sufficient preservation Thus the Observator Although he mention God yet I doubt his Argument is grounded in Atheisme because forsooth we have not the remedy in our own hands therefore are we without remedy exposâ—â— to the will of any tirannous Prince that may bee either then hee thinkes there is no God or with Epicurus that hee is otâ—osum inexerâ—itum et neminem iâ—t humanis rebus ad â—â—li cardines oâ—â—â—b lat nulla tangitur mortalium cura For if there be a God with providence why should we be affraid to trust our remedy with him There is a bridle to restraine the licencious will of ambitious Princes and that 's the Law but the reynes must not be layd in the hands of subjects The Heart of the King must be in the hands of the Lord he will direct it towards the subjects good or if a Prince shall incline to Tyranny he will in good time remove him unlesse it be his pleasure by him to chastice the sinns of that people or to try and improve their patience in which case there is a blessing for them that can content themselves with a fiat voluntas Domini God only I have proved is the Author and efficient cause of Kingly power Kings are his annoynted his vicegerents and therefore properly occomptable to him alone Where the word of a King is there is power and who may say unto him what doest then Non potest ei Regi necessitatem aliquis imponere quod injurianâ— sâ—â—m corrigat et emendat nisi velit cum superiorem non habeat nisi Deum et satis erit â—i ad paeâ—â—â— quod dominum expectat ultorem Punishment enough indeed if you consider how much more severe God is in taking an Account of Kings then of other men subject to temporall punishments which you may see sett downe by a King himselfe Heare therefore O ye Kings and understand learne ye that be Iudges of the end of the Earth Give â—are you that rule the people and glory in the multitude of Nations for power is given you of the Lord and sovereignty from the highest who shall try your workes and search out your Councels because being Ministers of his kingdome you have not judged aright nor kept the law nor walked after the councell of God horribly and speedily shall he come upon you for a sharpe Iudgement shall be to them that be in high places for mercy will soone pardon the meanest but mighty men shall be mightily tormented Were there not a God to take this severe accompt from Kings and to straine their ambitious desire from tyrannizing over their subjects yet by what hath been formerly said it will appeare to be more safe for a people to live subject to the inconvenience then to give power to the people upon pretence of saving themselves to riâ—e against Sovereigne authority A supreme indisputable power must be somewhere this the observator acknowledgeth and al must acknowledg that are not in love with Anarchy the question then is only this wheâ— is its most safe resting In the Parliament saith the observator â— agree with him in the King in Parliament is the most safe resting of the supreame indisputable power But the mischeife is the observator by Parliament meanes only the Lords Commons distinguished from the King Now whether it be more safe resting in them or in the King with them thâ—â— is the question which in effect is all one with this whether Democracy be a better forme of Government alwayes followes the disposition of the Sovereigne power If therefore the Sovâ—reigne power rest incontrollably in one alone then is the Government simply Monarchicall If it rest in the cheife Peeres then it is an Optimacy If in the people Democracy If it râ—â—t in one alone and yet to the use of it in the most weighty matters a consent of Peers and people is to be had then it is