their proceedings and to give example to inferiour Courts I shall not mention the Books cited by Mr. Prynne which pertain hither but refer the Reader to his Book But to come nearer t is the Judgement of a whole Parliament in these words viz. It is declared by the Lords and Commons in full Parliament upon demand made of them on the behalf of the King That they could not assent to any thing in Parliament that tended to the disherison of the King and his Crown to which they were sworn And my Lord Cook saith That although it might be done i. e. de facto yet it is against the Law and Custom of Parliament Now the said Act of 17 Caroli according to the Authors Interpretation is expresly against the Prerogative of the Kings Successor to call his own Parliament and hath many other inconveniences which need not to be here again repeated and therefore in the words of the Parliament in Edward the 3d. his time They could not make an Act to bear such an Interpretation to the disherison of the King and his Crown c. Yet I will not deny but that the Kings Majesty might binde up his own hads and suspend his ordinary power from an actual dissolution of the Parliament morally by his promise or legally by an Act made for that purpose For a Parliament may bee dissolved either by an external principle which is accidental viz. the declaration of the Kings pleasure or by an internal principle which is natural viz. the want of entring their Continuances or the Kings death whereby the Kings writ which is the authority they have to convene together is determined Now the King as over his Subjects so he hath a soveraignty over his own Will and being obliged by his Royal assent to that Act he might and ought to stave off the accidental cause of their dissolution But for the aforesaid Reasons I doubt whether the Kings Majesty or his two Houses or altogether could legally change the substance of the Parliament and defend it against the natural Causes of its Dissolution This being understood under the limitations expressed in my first Thesis or Position But that which I will rely upon is this that admitting it be in the power of a Parliament with the Royal assent by their Act to make themselves a Legal Parliament after the Kings death by apt words Yet in the Act of 17. Caroli there are no such words as according to the rules of Law will bear any such construction For the words That this Parliament shall not be dissolved unless it be by Act of Parliament are a general negative which by a proper interpretation cannot extend to all the causes of dissolution but only to that which most often happened and which was the pretended grievance at that time viz. the dissolution by the Kings will and Pleasure For it belongs to the Judges to expound the general Statute Laws according to reason and the best convenience and to mould them to the truest and best use And in all times the Judges have excepted particular cases out of the general negative or affirmitive words of Statutes though such particular cases have come within the comprehension of the general words Where the letter of those Statutes in the largest extent of it doth intrench upon the Kings Prerogative or the nature of the thing or enforces to an inconvenience or an impossibility By the Satute of Magna Carta c. 11. 't is enacted That common pleas shall not follow or be sued in the Kings Court or Bench which is a general negative clause yet notwithstanding because 't is a maxime in Law that the King is present in every Court and cannot for that reason be non-suited It is clear Law and so holden that the King is not within these general words but may sue in his Bench or in any other Court at his pleasure In the Marquess of Winchesters Case though there was an Act of Parliament 28. H. 8. that the Lord Norris should forfeit all his rights c. Yet adjudged that a right of action being an inseparable incident to the person attainted could not by general words be made separable contrary to its nature and therefore were not given to the King by the generality of that Law So in Englefields Case though the Statute 33 H. 8. gives all conditions of persons attainted to the King which being a general word comprehends all sorts of conditions yet a condition of revocation of uses by any writing under the hand of the Duke of Bedford that was attainted being appropriated to his own personal act was not forfeited within that general Statute The Statute of Winchester is a general Statute that the Hundred c. shall make satisfaction for all Robberies and Felonies done within the Hundred Yet Resolved that the Hundreds shall make no satisfaction for the robberies of a house because the house was the Owners Castle and he might have defended himself and so t was inconvenient that the Hundred should be put to take care of him that had ability to preserve himself and his goods Nor for a robbery done in the night because it was the Travellers folly to travel by night and it was impossible that the Hundred who by intendment were in their beds should take notice of such a Robbery The Statutes of Marlebridge cap. 4. Westm. 2d cap. 49. and 25 E. 3. cap. 16. are in the general Negative Yet the Judges have so expounded those Statutes that they extend not to many particular special cases which are within the general Comprehension of those words It were infinite to enumerate all of them Therfore to apply this Seeing it is agreed by the Author and otherwise proved That it is the nature of a Parliament ordinarily to be determined by the Kings death and the contrary is as I have proved against the liberty of the Subjects election and in prejudice of the Kings Successors prerogative of calling his own Parliament and this general Clause may be very fully satisfied by suspension of the Kings prerogative to dissolve them at his will and pleasure 'T is against all reason and president that it should be extended any further to change the essential nature of a Parliament abridge the subjects Liberty and shackle the prerogative royal withouâ— any special and expresse words to manifest certainly that the intention of the Lawmakers was such without any manner of Question For if they had intended to preserve themselves against discontinuance and the Kings death they would have added such special words as these viz. That this Parliament shall not be dissolved by the Kings Majesty nor by neglect of the due entring of Adjournments nor by his Majesties death but onely by Act of Parliament Which would have made their Intention manifest and in such Case they would never have been contented with general words which are uncertain and ambiguous And lastly if
THE Long Parliament TVVICE DEFUNCT OR AN ANSWER TO A SEDITIOUS PAMPHLET INTITULED The Long Parliament Revived WHEREIN The Authors undeniable Arguments are Denied Examined Confuted AND The Authority of this present Parliament Asserted Vindicated By a Zealous yet moderate oppugner of the Enemies of his Prince and Country Christianae perfectionis est pacificum esse etiam cum Pacis inimicis Spe correctionis non consensu Malignitatis Vt si nec Exemplum nec cohortationum Discretionem sequantur causas tamen non habeant quibus odisse nos debeant Aug. London Printed for Henry Brome at the Gun in Ivy-lane 1660. To the Reader T Was not an Ambition to speak in Print nor to lay lime-twigs for any other advantage which encouraged my Pen to this undertaking These are toyes to delude those who understand little of the World and less of their own Merits Wouldst thou know the Occasion T was this About a week since I had the happiness to visit some of my Learned and judicious friends Their discourse was a while various till it was fixt on The Long Parliament Revived And therein having no Learning in the Common Lawes their judgements were fluctuating and uncertain But the Novelty of the question and the confidence of the Author had enclined them though not to an Assent yet to a favourable Censure of his Opinion A stranger among them would needs prove it to be true and produced only that it was the sence of the City for his evidence At length they demanded my judgement I discoursed the question at large answered their objections refuted their Arguments and in the end left them well satisfied that it was but a Parradox One of them whose commands are to Mee more obligeing then the Acts of a Posthumous Parliament enjoyned me to commit my thoughts to paper and hath since condemned them to the Press Whether he were in this my friend or my enemy be thou the judge I have been forced in this Argument to make most use of reason deduced either from its first principles or the common notions of our Law For the question is a transendent and in vain it were to look presidents either in our Law-books or Histories Several Arguments are used but those upon the exposition of the Act it self 17. Car. I conceive to be of themselves a full Answer to the Authors principle objection This question might have been the triumph of a more able Pen But that the Eagles do not quarrey upon flies And if some one of the Sages of the Law had undertook this task the Author might have pleaded Qui bonam tuetur causam dum victus est non vincitur That he was conquered by the man not by the truth But now against any such suggestion the undertaking of the question by one of a lesse Name is a sufficient Counterplea I shall willingly abide the sentence of the judicious But to censure before thou understandest is to condemn a man unheard If I have brought any Light to the Question or benefit to my Countrey by this small Labour my desires herein are in their Haven As for thy favour I shall neither Flatter it nor Refuse it Farewell Anno 17. Caroli Regis An Act to prevent inconveniences which may happen by the untimely adjourning proroguing or dissolving of this present Parliament WHereas great Sums of money must of necessity be speedily advanced and provided for relief of his Majesties Army and people in the Northern parts of this Realm and for preventing the imminent danger this Kingdom is in and for supply of other his Majesties present and urgent occasions which cannot be so timely effected as is requisite without Credit for raising the said moneys Which Credit cannot be obtained until such obstacles be first removed as are occasioned by fears jealosies and apprehensions of divers his Majesties Loyal Subjects that this present Parliament may be adjourned prorogued or dissolved before Iustice shall be duely executed upon Delinquents publick grievances redressed a firm Peace between the two Nations of England and Scotland concluded and before sufficient provision be made for the repayment of the said moneys so to be raised All which the Commons in this present Parliament assembled having duely considered do therefore humbly beseech your most excellent Majesty that it may be declared and Enacted And be it Declared and Enacted by the King our Soveraign Lord with the assent of the Lords and Commons in this present Parliament assembled and by the Authority of the same that this present Parliament now assembled shall not be dissolved unless it be by Act of Parliament to be passed for that purpose Nor shall be at any time or times during the continuance thereof prorogued or adjourned unless it be by Act of Parliament to be likewise passed for that purpose And that the House of Peers shall not at any time or times during this present Parliament be adjourned unless it be by themselves or by their own Order And in like manner that the House of Commons shall not at any time or times during this present Parliament be adjourned unless it be by themselves or by their own Order And that all and every thing and things whatsoever done or to be done for the adjournment proroguing or dissolving of this present Parliament contrary to this Act shall be utterly void and of none effect THE LONG-PARLIAMENT TWICE DEFUNCT Or An ANSWER To a Seditious Pamphlet called The LONG-PARLIAMENT Revived THE Contrivers of evil Designes are not more sollicitous to accomplish their mischievous Ends then they are Crafty to palliate and mask the course of their undue proceedings For deformity and an ill-favoured aspect is entayl'd upon wicked and unhandsome Actions and the soul of Man hath retained so much of its original Righteousness and primitive Light that it starts and feels the effects of Antipathy upon the first discovery of a foul and vicious Object when ever it ventures it self abroad undiscovered and appearing in its own ugly proportions And therefore evil minded Men finde it both the safest and the surest and the easiest way to hide their pernicious purposes under the fair and plausible pretences of Vertue or Religion or the publick good That great Heretick in Religion and Policy Machiavil hath taught them the same Lesson who though he rejects Conscience in the substance as no good Guide yet he perswades his disciples to embrace the empty shew of it as the best Vizard in the World But Truth is Eagle-eyed and can look through all their thin pretences and measure their perverse intentions by the end to which their actions are naturally tending and the effects which they are likely to produce Herein can be no Hypocrisie no Disguises to elude the inquiries of a wise Observation The means they use do certainly point out the Ends they aime at as he that shoots at a mark will be thought to intend to hit it if he could whatsoever he tells us to the contrary The Author of
the late Pamphlet called The Long-Parliament Revived hath rendred himself an example of the truth of this Assertion who being great with Childe of a Paradox destructive to the peace of this Nation could not be satisfied till by the Midwifry of the Press he was delivered of his Chymerical Birth though with the hazard of his Liberty in the production For though the whole scope and designe of his book be only to ferment the Minds of the Vulgar and as he calls them injudicious sort of people and to blow the Trumpet of Sedition to the disturbance of the publick happy peace Yet he hath the Forehead to preface his old rags with plush and to begin with these crafty Insinuations viz. To the End the peace of this Nation may be established upon a firm and lasting foundation and that after one shipwrack hardly escaped we run not again upon a more fatal and irrecoverable Rock of Confusion The Author of this small paper out of tender Compassion to his native Countrey and with all humble respects of allegiance to his Royal Majesty that now is hath thought fit to offer Arguments to the world c. which if timously harkened unto may yet prove a healing Remedy against the sad breaches of this shattered Kingdom and prevent Mischeifs Sure this man was an Apothecary he is so good at gilding of his bitter Pills Let us therefore inquire whether the substance of his discourse do correspond and suite with these fair and plausible pretentions of Loyalty and the publick benefit of these Nations Which will the better appear if we Consider First the rancour of his heart against the present Government expressed in the fourth page of the Pamphlet to this effect viz. That when the subjects of this Nation have seriously considered of his Arguments which as he would have it do prove the being and Legall authority of the Long Parliament visibly existent by vertue of the Act 17. Car. They will doubtless see they have no reason to hold themselves safe in their lives liberty and estates till it have made provision in that behalf and be legally dissolved What is if this be not to sow Sedition and to lay the foundations of a new Warre and to angle for proselytes of Rebellion which the Phantastick baites of the vindication of Laws and the Subjects security We have one would think bought the experience of trusting the pretence of fears and jealousies at too dear a rate to be again involved in the sad consequence of a pernicious Credulity The present age is too wise to thrust themselves into a true and real slavery to avoid a painted one And therefore the Author might have spared that clause which gives the lie to his proemial flourishes and is not likely to serve to the ends he intended it the generality of the people blessed be God being now of true and loyal principles and of a Conformable temper to the government established Secondly the Consequence of the opinion he defends will plainly demonstrate that the Author is no such great friend to the publick good of his native Countrey as is pretended For then he would have it to follow that the present Parliament is of no authority to binde the subjects of this Nation and that their Acts have not the force of Laws and if so then all their Acts are voide and of no force that they have made in order to those excellent ends of restoring his sacred Majesty to his just birth-right and the Laws and liberties of the people to their free exercise and splendor which this present Parliament have to their eternal glory and honor with great prudence and moderation effected How will the Author and the Nation be sure of another Act of Oblivion of so full and comprehensive Mercy as that which is already passed and published If that should not be an Act of Parliament it is only the Kings Declaration which is pleadable in no Court for any mans discharge Besides his Majesties Declaration from Breda referres to this Parliament now sitting and by his letters to them hee obliged himself by his Royal word to passe those Laws which are already Enacted and others now in Agitation for the quiet settlement of the Nation and therefore he is not concerned in Honor or Conscience for otherwise he is not obliged to give his Royal Assent to those Acts when they shall be presented to him by the long-Long-Parliament if they could get a being quasi ex post liminio as the Author hath conceited it And let him be confident the desires of the Nation are utterly against it who will never willingly be brought to seek a plaister from those very men that have broken their heads Thirdly the Authors malevolent nature appears in this That relying upon one distinction only that there is a difference betwixt the nature of a Parliament in its ordinary constitution and a Parliament strengthened by a special Law made to that purpose and some few shreds out of the third Institutes he dares to cross the general opinion of learned men and like a pigmy upon the shoulders of a giant bid defiance to all opposers 't is a curst cow that will be fighting though she hath short horns and he hath a great minde to swimming that will adventure to cross the Seas in a cockboat But not to dwell in the porch it will be agreed to the Author that Parliaments rightly constituted in the general are very instrumental for the safety and happiness of this Kingdome and that the Members of Parliament ought to enjoy their due privileges But his inference will not hold in applying the general rule to every particular Parliament For though the general constitution be good and convenient to the nature of our Government yet some of the particular instances may be defective and erronious in their judgement and proceedings And no wonder seeing the rule in Livy is generally true in consilijs major pars plerumque vincit meliorem We have had insanum Parliamentum of old And the effects of the late Long Parliament caused by the faction and perversness of some predominant parties amongst them even to the dissolution of our Government is a sufficient proof in the judgement of sober and unbiassed persons that the general thesis ought to be understood with several limitations And although the Members of Parliament ought to enjoy their lawfull privileges yet it doth not follow that therefore those men should be permitted to sit whose Authority is determined by the course of Law as shall be hereafter most manifestly proved His particular Arguments are drawn from the body and preamble of the Act of 17 Caroli First from the preamble he endeavours to prove by way of Implication That that Parliament intended to secure themselves against all the causes of dissolution as well by the Kings Death as otherwise and thus he argues in effect That the Parliament being necessitated to borrow money for the publique Service for he waves
the other ends mentioned in that preamble of that Act and therefore I shall take no notice of them in the discourse and seeing no body would trust them because it was hazardous they might be dissolved before repayment therefore was the Act made to establish their continuance till the money being satisfied they did dissolve themselve by Act of Parliament But saith the Author If they had been notwithstanding dissolvable by the Kings Death the Act had been of no effect because their dissolution was still hazardous the Kings life saith he being more uncertain then other mens and so ex absurdo he reasons That the Parliament shall not be intended to omit this cause of their dissolution out of the said Act To this I answer That the principle end of this Act being only to secure the payment of the publique debts which they were then contracting If the security of those debts did not so depend upon the Parliament that they would be necessarily lost if they were unpaid at the time of their dissolution then that Parliament was not absolutely necessitated to secure their sitting till those debts were paid it being sufficient to establish themselves against being dissolved by the Kings will which had most often recurrence and whereof they stood in most danger But those debts which they then contracted were either secured by Act of Parliament actually made and passed at the time of the money borrowed or they were not If they were secured by Act of Parliament that Act was as good a security after the Parliament dissolved as it was while the Parliament continued But if they were not so secured the debts were as likely to be paid and the Creditors had the same security viz. the Honour and Justice of the Kingdom which is all the security or compulsive power Creditors have against Parliaments for the repayment thereof by a subsequent Parliament as by the Parliament then sitting which borrowed the money which is apparent first because the Parliament then sitting by the Authors own confession took no care for repayment of the said money and another Parliament could not possibly be more remisse Secondly because those debts were the publique debts of the Kingdom contracted by their Representatives in Parliament in their publick and not in their individual Quality and therefore every following Parliament comming under the same Representation â—â—ere bound to take the same care for the payment â—hereof being a part of their publique Service or Employment And it is no strange thing for a latter Parliament to pay sums which were drawn on the Kingdom by a precedent Parliament witnesse the paying off the Souldiers by the Honourable Assembly now sitting which Souldiers were the most part of them first set on work by the Long Parliament since which time till now we could never have the happinesse to shake hands with them So that it appears that there was no such great necessity as the Author insinuates to Bulwark themselves against a dissolution by the Kings Death which was a remote possibility But that in case that accident had happened which was unlikely the debts notwithstanding would not have been lost but had been in as much likelihood to have been paid by the next Parliament as if the Parliament in 17 Caroli had not been dissolved by the Kings Death Secondly at the time of this Act made there was no danger of the Kings death nor any suspition that it would happen within so short a time as was sufficient for them to have raised the said monies and therefore they shall not be reasonably intended to have made provision against the Kings death For his late Majesty of ever blessed Memory was sprung of longaevous Parents and was in the Meridian of his age of a strong and healthfull constitution and of great temperance in his diet and recreations which are all symptomes or causes of a long life and therefore 't is unlikely they should mistrust he would die within one or two years which was time more then sufficient for the raising and payment of the sums borrowed Thirdly if the case had been so that his Majesty had been of a languid and valetudinarious habit of body yet the Act had not been fruitless For a Parliament may be dissolved either by the Kings pleasure or by discontinuance or by the Kings death But seeing by this Act they were defended against being dissolved by the Kings pleasure as is agreed by all parties whereof there was most danger I conceive the Author will not deny but that their Session was more established by this Act then it was when it lay open to all the three accidents or causes of dissolution An estate determinable upon the surrender or forfeiture of the particular tenant is a lesse defeasible estate then another estate determinable by his death surrender or forfeiture And now reader you may breath a little and consider the emptiness of the Authors argument conceived upon the preamble of this Act which appears to be like the crackling of Solomons thorns under a pot makes a great blaze and a great noise but contributes little of solid heat to the vessel that hangs over it Yet to be further quit with him before I dismisse the preamble I shall thereupon frame this argument which I think flowes more naturally from it then his deduction That it appears from the preamble the Parliament only intended to suspend the Kings prerogative and the ordinary course of dissolving them till they had cleared their credits and repayed the money borrowed for this they make the principal end and drift of that Act and when the end of an Act of Parliament is satisfied the Act looses its force Aquisito fine cessat operatio which is proved by those temporary Statutes for Assesments c. when the money is paid the Statute is become of no further use or effect And therefore if all the ends for which the Act 17. Caroli was made be satisfied accordingly by the payment of the money therein mentioned to be borrowed upon the security of that Parliament Then is the suspension taken off and the Kings prerogative and the ordinary course of dissolution of Parliaments is revived again as it was before that Act made and by consequence they are dissolved by the Martyrdom of his late Majesty Now the Learned and worthy Patriot Mr Prynne asserts that the ends of this Act are all satisfied and the Author doth not endeavour to prove the contrary But if the moneys by them borrowed be not paid Yet I suppose the authority given them by that Act ceased before the Kings death for not performing the ends of that Act within the time which was limitted them by the construction of Law and Reason And for proof hereof and our more orderly proceeding we will inquire what time was allowed them by a rational interpretation of that Act to performe the ends in that Act designed There is no man I think so irrational as to imagin that by this
Act they are a perpetual Parliament First because it is contrary to the end designed in the preamble Secondly because it is against the fundamental Constitution of the politick government of this Kingdom against all the presidents and books of Law which alwayes mention successive Parliaments Thirdly 't is against the Liberty of the Subject which a Parliament cannot alter in so principal a part especially seeing the Lawmakers may be intended reasonably to do it for their own benefit who in their own cases by the Law of Reason can be no coâ—petent Judges And that for many inconveniences In successive Parliaments the Country have every time power to chuse a new and 't is not often though sometimes seen that one man is chosen in many successive Parliaments which variation is necessary for several Reasons Sometimes because they would ehuse persons aptly qualified in parts or Affections or both to the Matters of State then in agitation Sometimes they elect persons having interests by their own greatnesse or alliance to procure some particular businesse of Consequence effected for the County or Corporation for which they serve So that to endeavour a perpetual Parliament would prejudice the people 's repeated election which is not to be allowed Besides this inconvenience would follow a perpetual Parliament that the persons chosen may be altered in Body Mind or Morals and so unfit for that service yet their authority would be continued For a Knight Citizen or Burgesse can make no proxie and Sicknesse c. is no cause of Removal And further if those persons should grow old in that power they would engrosse the offices of the kingdom into their own hands and by great means and friends and privilges overtop their Countrymen and make them meer Under-woods And if it be proved that this Act doth not establish this Long Parliament in an absolute perpetuity Then it is to be considered what is the time of their duration within the meaning of this Act for if it be construed that they have a continuance till they dissolve themselves without restraining their continuance to the time of the performance of those ends for which the said Act was made This is potentially a perpetuity and cannot be abridged but by 〈◊〉 own wills which would never militate as he phrases it against their own advantages So that then this exposition labours under the same Absurdities and Inconveniences with the former and therefore not to be supposed Therefore I conceive the most natural and genuine interpretation of this Act is to make the drift and purpose of this Act the limits of its continuance and this drift is the payment of the said debts And seeing by the rules of the Common Law which may be confirmed by Reason when an indefinite time is given for the performance of a voluntary Act possible to a third person the Act ought to be done within convenient time hence I infer that if the publique debts which were the end of the making of this Act be not satisfied by the Long Parliament yet because they have had time and power more than sufficient between the making of that Act and the Kings death to have raised and paid them off and did actually levy monies amounting to a far greater sum which were otherwise imployed The Gentlemen of that Parliament ought not to take advantage of their own neglect but having surpassed the time which by Law and Reason was sufficient to accomplish those ends they lost the advantage they gained by that Statute the Kings Prerogative and the ordinary course of Dissolution relapsed into its old Chanel and consequently the said Parliament was by the Kings death actually dissolved And so much is argued by way of Admission That the Act of 17 Car. did provide against all the Causes of Dissolution but not granting it for I doubt not but I shall prove the contrary afterwards in this Discourse But now we must hasten to the body of the Act His second Argument is drawn from the body of the Act the words whereof are these viz. That this Parliament be not dissolved unless by Act of Parliament to be passed for that purpose Whence he concludes that this negative Clause is exclusive of all the causes of Dissolution which I deny But before I give my reasons I shall observe That seeing this Act is derogatory in a matter of the highest nature to the Law and Custome of Parliament but especially to the Kings Prerogative which the Law supports and cherishes as a ballance to the two other Estates to preserve the perfect Crasis and equal Temper of the Politick Government The general words therof shall be expounded strictly in reference to the thing altered and beneficially as to the reviviscency of the Law and Custome of Parliament and of the Kings Prerogative which in obedience to some necessity was for a time laid afleep and suspended for 't is a rule that bonum necessarium extra terminos necessitatis non est bonum This being premised I doubt not but I shall give a full Answer to the Authors second Argument And therefore I make a Question whether an Act of Parliament by express and apposite words which is stronger than our Case can continue their own being after the death of the King in whose life it was summoned First because that after the death of the King if they be a Parliament they are either such by the Common law and custom of Parliament which is a principal and fundamental part of the Common law of the Land or by the special Statute so by both they cannot be a Parliament But they are not be a Parliament by either of those two wayes for the reasons hereafter alledged Not by the Common law and custom of Parliaments because as the learned Mr. Prynne hath proved in his said booke and the Author agreeth it and 't is not doubted by any man that hath any understanding in the Law That Parliament as it was a Parliament by the Common law naturally determined by the demise or death of the King Nor are they a Parliament by the especial Statute because then it would be another thing distinct from that Parliament which was summoned in the Kings life to which the power of Representation which was conferred upon the Members thereof by the people in their Election cannot extend for the Country being enabled to choose them by the Kings writ the persons elected received no power from them but according to the tenour of the Kings writ which determining with the Kings life the power of representing the people wbich they received at their Election was then likewise determined and by consequence they were no longer the peoples Representatives and therefore no Parliament Or to expresse it in plainer terms If they be a Parliament after the Kings death by the force of their own Act as I have proved they must be if they be a Parliament Then it would follow that a Parliament by their
I should admit which can never be evinced That the said negative Clause should fortifie the Parliament against all the causes of dissolution as it stands singly by it self yet upon consideration of the other part of the same Statute it will appear that there are other words which do restrain the generallity of the former negative clause or sentence and shew that the intent of that Parliament was never to continue themselves a Parliament after the Kings death And to prove this It is a good Rule in Law that it is most natural and genuine to expound one part of the meaning of a Statute by an other The first general clause of the Statute 17 Car. respects the Effect viz. That they shall not be dissolved c. and this I call Conservatory And after comes another clause which respects the Cause of their dissolution viz. And that all and every thing and things done or to be done for the Adjournment proroguing or dissolving of this present Parliament contrary to this present Act shall be utterly void and of none Effect Which Clause is prohibitory of the Cause of their dissolution And in this last Clause it appears that the Cause of dissolution which they intended to prevent was something that should consist in Action by the words thing or things done or to be done Which words could be applicable only to an actual dissolution by the Kings Pleasure For the non-entry of continuance upon adjournments is not a Thing but a Defect nor Done but Omitted and the Kings death is not a Thing but a Cessation of his personal Being and of the dependents thereupon Nor is an Action but a Termination or Period So that the last clause which respects the cause of their dissolution extending only to a dissolution by the Kings pleasure the Author cannot with any Reason or Modesty strain or extend the negative words of the former general Sentence which Respects the Effect to any of the other wayes of Dissolution unlesse hee would have the Effect as 't is an Effect to be broader and more capacious than the Cause which is not to be endured So that it is evident that this later Sentence restrains the general words of the former to the particular kind of dissolution by the Kings pleasure and upon the whole that the Long Parliament had no establishment of their continuance against a dissolution by discontinuance or the Kings death which having both happened during their Session they are twice dead instead of being once revived And now let the impartial and understanding Reader judge what reason the Author had to trouble the world with this Paradox which is built by him upon so sandy foundation that it is no glory to demolish and kick it down It is the humor of some Men to make Election rather to doe Mischief than to doe Nothing Though I cannot but speak him ingenuous yet I could wish he had exercis'd his Curiosity in a matter of lesse dangerous consequence to himself and the Peace of these Nations There remain some Little things to be discussed and answered in the Authors discourse of the Existency of the long-Long-Parliament which I shall touch only and dismisse the Question To Mr. Prynnes first Argument he answers That the Kings death legally dissolves a Parliament but not such a Parliament as is established by an Act of the three Estates and requires a president to the contrary This distinction is fully answered before in this Discourse by my arguments upon the body of the Act So that Mr. Prynnes Objection stands in its full force and efficacy And for his president this is iniquum petere to demand an example of that which is without a parallel in any of the former Ages It sufficeth that we have evinced by Reason and a legal interpretation of the Act of 17 Car. that the Long Parliament hath no legal existence To Mr. Prynnes second Objection he furnishes out the same distinction for hee hath no weapons to fight with but a fork and if that break he must despair of Victory But he fortifies his distinction with an Interrogatory upon which he frames a Dilemma which is answered before viz. That a Parliament cannot de jure extend its continuance beyond the Kings life in whole time they were summoned but by the peoples special consent or an invincible necessity And this is not to be such a pedling necessity as the pretence of borrowing of Money in our particular case He sayes That Parliament security was ever looked upon as inviolable viz. as I think he means just and punctual and it hath been alwayes so esteemed before and since that Act and moneyes have been alwayes borrowed in great Sums upon their Security without scrupling their Dissolution Ask any Citizen of London he will give you a president of it which is not beyond the memory of man Yet I confesse that if the Moneys borrowed by the Long Parliament in 17 Car. were not paid by that Parliament although they sate till the Kings death which was many years afterwards 't is most certainly true that the general Rule did fail in that particular instance And till now very few of this Kingdom did ever know or suppose that that Parliament had left the Nation in Debt So that the Author hath no Reason to expect the Thanks of the House at their resitting for making this discovery so publique To Mr. Pryns third Objection he opposes the same magnanimous distinction which surely is not of French extraction for it shrinks not at the 3d. charge But 't is now almost out of breath and therefore to second it he sayes that the King virtually waved the authority of his Writ of Summons and fearing that for all this it may be repulsed he sounds a Barley by another Interrogation which is in effect but his old distinction wheeled off and re-enforced this as I have said is all answered before in this discourse and I would not tire my Reader with repetitions To Mr. Pryns fourth Objection he sayes nothing material only that passage must not escape unanswered viz. That the King is a part of the Parliament in his politick rather then in his natural capacity and therefore when the King dies the Parliament dissolved not because the politick capacity remains after his death To which I answer That the intent and use of a Parliament is to advise that particular King that summons it and all their counsels must be directed to him as he is a Man capable of Advice and assent And when he writes Le Roy le veult it is his personal act though as this act gives the instrument which he signes the validity and efficacy of a Law it is done by his Royal Authority And further every Parliament ought to begin and end by his personal presence or by him in representation which shewes that every Parliament depends upon the person of the King And this is further evident by the ordinary dissolution of the Parliament at
his death And to the Authors application that a Parliament may be such though the Kings person be utterly withdrawn because his politick capacity lives and is present with them This is an out-worn and thredbare Distinction which the common story of the Knights being perjured in his politick and going to Hell in his natural Capacity sufficiently confutes For the politick capacity is a second Notion and cannot subsist but in the natural To which it is so strictly united that it is inseperable otherwise than by our understanding which cannot alter the nature of any thing The Murthering of his late Majesty as it was Treason was an offence against his politick capacity as he was a King though that horrid and shamelesse Butchery was committed against his natural person as he was a Man But that saying that the King is a part of the Parliament must be cautiously understood because a mistake in it hath been a great cause or pretence of all our late Civil Wars For hence some would infer a Coordination of power in the Parliament which cannot I conceive be made good by Reason or the Laws of this Nation For the King hath undoubted power to call and dissolve Parliaments which are properties inconsistent with a coordinate power The Stile of all Acts anciently was by way of Petition that it may be enacted which doth not smell of co-ordinate authority and the Act of 17 Car. was in like form The Members cannot consent upon condition which shewes that the binding power of an Act as it is a Law doth not passe from them for cujus est dare ejus est modificare but only a bare assent which is necessary to perfect the Act of another as in Atturnments The Members during the Continuance of Parliament may be committed and be punished for Treason which could not be if they were in a Coordination with the King And the Writs of Summons under favour notwithstanding my Lord Cooks marginal notes do confirm this assertion I shall conclude with the Testimony of the learned Grotius Jure Belli in these words Multum falluntur qui existimant cum Reges act a sua nolunt esse rata nisi a Senatu aut alio Coetu aliquo probentur partitionem fieri potestatis nam quae acta eum in modum rescinduntur intelligi debent rescindi Regis ipsius imperio qui eo modo sibi cavere voluit ne quid fallaciter impetratum pro vera ipsius voluntate haberetur And yet t is most true that in our Legal Monarchy the King cannot make or alter any Law without the assent of his Peers and Commons in Parliament So that upon the whole it appears That the King is so a part as he is the head of the Parliament and Nation and though it be true that totum est dignius sua parte yet the head must be a part of this totum or else that Maxime is untrue and fallacious To Mr. Pryns fifth Objection he chops in again the distinction of the Kings politick and natural capacity which my former confutation hath rendred toothlesse But he sayes the dissolution of the Parliament by the Kings death might prove dangerous and pernicious to the Kingdom I answer he that intends to be believed must not affirm things in general terms which do nihil ponere and to which no certain answer can be given Again 't is presumption in the Author to think himself wiser then all the ages that liv'd before him who finding no inconvenience have derived the custom down to our times and 't is a known good Rule Oportet neminem esse sapientiorem Legibus To his answer to the sixth Objection affirming That the Parliament was not dissolved by the Act passed lately upon the Admission of the Secluded Members for their dissolution because it was but an Act of the House of Commons only which is no Act of Parliament I answer that it is most true That it was no Act of Parliament according to Law But by the Authors favour those very men that were the greatest part of the Commons of the Long Parliament then living ought not themselves nor their advocate to say that they were no Parliament for they imposed an Assessement upon the Nation and stiled their Instruments Acts of a Parliament so that those men shall never in reason averre any thing in disability of their own Acts though they were otherwise not agreeing with the rules of Parliamentary proceedings Besides that Act at least amounts to a Declaration of their Judgement that they were dissolved and it was true for they were long before dissolved by the Kings death To his answer to the seventh Objection That this Act 17 Car. is not void although the Bishops who were outed before this Act passed did not assent to it I shall say obiter That 't is the hope of the greatest part of the Learned Loyal and Moderate party of this Nation that this present Parliament if the necessity of other more important affairs would permit or some other Parliament will out of their zeal to Common Justice and the honour and safety of the Kingdom take the Case of the Reverend Bishops into consideration and restore unto them their ancient honours and privileges of sitting in the House of Peers Their undoubted and very ancient right and the necessity of their Re-establishment in order to the preservation of the ancient policy of this Nation for the better support of the Royal Authority for the ballancing of the other two Estates for the benefit of the Clergy of this Nation who have no Representatives in Parliament for the preservation of the rights and privileges of the Church and for the better establishment of the integrity of Orthodox Religion being strong and important advocates for their so just Restitution After which short digression I answer That if an Act of Parliament that divests so many Members of the same Parliament of their rightfull and ancient privileges and lawfull inheritance without any crime committed or alleged or without being called to answer in any judicial way of proceeding be good and valid then the Authors position is true and not to be denyed But if such an Act be against natural justice and equity and against the law and custom of Parliament for I shall desire the liberty to be sceptical in this particular then on the otherside it will appear that the Bishops were excluded against their Wills and they being so great a part of the House of Peers that their voices if they had been present might by joyning with other Lords of the same opinion have carried the Act of 17 Caroli in the Negative It follows that the Seclusion of the Bishops rendred that Act and all other Acts made after their Seclusion void and of none effect And this case of the Bishops hath no similitude with the point in Mr. Bagshaws reading lately printed because there the Bishops are supposed voluntarily to absent themselves
or being present to dissent and so an Act passed by the greater number of voices Nor doth the case cited by the Author come up to the case in question For there the Baronies being appropriate to the Abbots as they were Abbots when by Act of Parliament their Abbies were given to the Crown and the Covent or Society of Regulars dissolved the Correlative viz. the Covent being destroyed they ceased to be Abbots and consequently their Baronies which they enjoyed as Abbots the foundation failing were naturally annihilated But the Bishops though they were Barons of the Realm ratione fundi officii Episcopalis Yet the Act which ousted them of their Peerage left them Bishops as they were before the Act and it was the Bishoprick that was the Foundation of their Temporal Dignity And there is a great difference between the taking away of an Estate which by consequence destroys a Dignity that depends upon it and an Act which directly and intentionally strikes at the substance of the Dignity it self which appears by the particular instance that the Abbots were not quarreld at for their Baronies but for the Dissolutenesse and Enormity of their Abbeys And to his project That if the King would please to permit the Long Parliament to sit To prevent their perpetuating themselves which saith he may inslave the King and Kingdom to such a yoak of Bondage as we may never be able to break off our own necks or the necks of our posterity any more his Majesty may Summon them before their sitting and take their personal Promise and Engagement to confirm the Acts of this Parliament and the first thing they do within a certain time to dissolve themselves I would willingly know what colourable ground or pretence there can be for such a proposal For First they are dissolved and of no authority as I have before manifestly proved Secondly the security of their performance is only a Promise or Engagement which are easily broken and if it were an Oath and they should by mischance do contrary to it 't is very probable that the Author would pretend he could Salve up their Credits and their Consciences too again with his usual Distinction of their natural and politick capacity Thirdly if they should break their Promise or Engagement by the Authors own confession for he sayes the Objection is very rational both the King and People are enthrall'd to a perpetual bondage and where there is so little assurance on the one side and so much danger on the other the Prince cannot in common Prudence put his own and his Kingdomes safety and honour upon so great a hazard as to depend upon the Honesty of a certain number of Men who possibly may fail his expectation especially as in this case for their own Advantages To the Postscript HE begins his Postscript with a falshood and t is not likely that he will penetrate farre into the House that stumbles in the Porch For there are not any great nor general dissatisfactions concerning the legality of this present Parliament whose authority he endeavours to shake because First the Lords had no writs of Summons Secondly the Commons were not chosen by the Kings Writ Thirdly That this Parliament began not with the Royal presence To the First I answer that the use of a Summons is but to give notice to the Peers of the certainty of the Time and Place of their Convention and to authorise their Meeting which is the substantial part of the Summons Now the King at his coming into the kingdom found them all met together and therefore the ends of a Summons being already satisfied by their being met at one time and place and this meeting being authorized by the Kings personal presence there was no need of an actual Summons And the writ is but a legal circumstance so that a Failer herein is but a defect in Formality and not in Substance To his Second I answer likewise they are the Authors own words page 10. of his Book that the calling of Parliaments in this or that Kings name to consult or advise with this or that King these are but Circumstantial things and nothing of the essentials of Government and the Kingdoms welfare Which is true if it be rightly applyed And the Substance or end of the Kings writ is to authorise the Country to Elect and to notifie the time and place of their Meeting which was signified by that Writ whereby this Parliament was called And as to the deficiency of that Writ that it ran in the Name of a Commonwealth that fault is but in the point of formality And every one knew that at that time though the writs spoke a Commonwealth yet they meant the Kings Majesty And the Author cannot deny but that all the circumstances of a free and legal Election were pursued in the choyce of those honourable and worthy persons that are now sitting in this present Parliament which shews that herein likewise there is no deficiency in Substance but only in Circmstance Now the Substantial part being well observed the necessity of the then present State of affairs in England was and is a good justification and excuse of the defects alleged only in Circumstance and Ceremony Necessitas Legum irridet vincula For even the divine Lawes do admit a dispensation in the particular instances of an invincible necessity as the Laws of the Shew-bread and that of the Sabbaoth And therefore much more ought it to prevail against the smaller Ceremonies in question enjoyned by the Law of this Nation which is a human Law And this may be proved First because that in the Case in Question it will not be reasonably supposed That they who first laid the foundations of the policy of this Nation did intend that those punctilio's in the writ of Summons should be so strictly observed That in a Case of so great Necessity as ours was the non-observance of them should vitiate their Acts who are not deficient in any of the material and substantial requisites to a Legal Parliament And this is the argument of Grotius in his Jure Belli in a like case Secondly seeing the circumstantial instances which the Author excepts against in this Parliament do only regard convenience for the Kings pleasure is the substance of the power that is given to the Lords to meet and to the Counties and Boroughs to elect Members to serve in Parliament and the end of the Writ of Summons is only for the more convenient and certain manifestation of the Kings pleasure in order to a consultation for the publique good It follows that when by reason of some extraordinary evil or danger which oppresses or threatens the kingdom it appears to be utterly inconvenient to the weal-publique and impossible to use those Circumstances as it was at the Calling of this Parliament That in such a special case those Circumstances ought to be omitted because herein they are useless nay
opposite to the ends to which they were ordained in their first Institution Thirdly 't is common as in all other Laws so by the Laws of England to allow a special priviledge to all those cases which are ushered in by a Necessity not to be resisted as you may read at large in Plowden Fogassas case fo. 9. 13 18 19. Not to trouble my Reader with particular cases in a matter that will brook no Denyal Now who knows not that at the Time of the Calling of this Parliament there was an Armed power in this Kingdom inimical to the restauration of his Sacred Majesty and the ancient and legal Government of this Nation And that to have summoned the Peers at all or the Commons in the Kings name might then have been the occasion of a Civil Warr and have hindred all those excellent Defigns which by a more calm and prudent managery have been since effected and brought to passe And therefore it is plain that there was a necessity of calling the Parliament because nothing but a Parliament could repair the breaches of the Nation and the Parliament could be called in no other Manner then it was without the hazard of a new War and Victory being uncertain of the dissolution of Government But it may be Objected That the Necessity ended with the Kings coming into England and therefore another Parliament ought afterwards to have been legally called To which I answer That the Necessity which occasioned the Calling of this Parliament was not only to invite home his Majesty but to confirm and secure him in the Throne and to do such other things for the Safety and Peace of the Nation as could be only done by them with security to the King and Kingdom And therefore the Necessity of their sitting continued First till they had pass'd the Act of Oblivion because it being offered of the Kings free grace who was not otherwise bound but by his Royal word in his Declaration from Breda which referred to such Exceptions as this present Parliament should make It had been unsafe for the Nation and would have be got fears in a great number of guilty minds which might quickly have broken out into open Commotions if this Parliament had been dissolved before that Act had been pass'd for their Pardon and Indemnity Secondly The King and kingdom were not safe whilst an Army was on foot that was but a reconcil'd Enemy and had not the authority of this Parliament over-awed them till and in their disbanding No man is certain and it had been great Folly to have put a matter of that import into hazard whether they might not have broken their Faithes and Allegiance being spurred on by Despair to have attempted some great Rebellion which might have brought us into a Relapse of all our Miseries before an other Parliament could have been summoned and Convened They who know the History of that Army will not think such an accident impossible And therefore this Parliament was necessitated to sit till they had disbanded the Army and effected all the other businesses that were depending thereupon or in order to that End which are now well nigh but yet not fully perfected Thirdly I conceive that the Kings Majesty is the only and proper Judge when this necessity will be at an end wherein as in all other things there is no doubt but he will govern his Counsels with such care and prudence as will describe him not to be more desirous of the love and affection of his particular Subjects then he shall be tenderly cautious for the establishment of the peace and happinesse of the Nation in general As to the Authors third Exception That the Parliament was not begun with the Kings personal or representative presence what I have already said is a full Answer But I might say further that there is no necessity that I should yield to him that this exception is true For all the Acts of this Parliament which have the effect of Laws were made with the Royal Assent since his Majesty was personally present with them and though they met sometime before yet that doth not hinder but that it might begin to be a Parliament upon his Majesties first access to the two honourable Houses And in the general I affirm that the power and faculty of determining what is a Parliament according to the Laws of this Nation lies not in any Subject as such but in the Kings Majesty or the Parliament or both together or in the Judges of the Land But the King and Parliament have by their Act entituled An Act for removing and preventing all Questions and Disputes concerning the assembling and sitting of this present Parliament with particular mention of all the Authors three Exceptions determined the Question against the Authors rash and inconsiderate opinion And the Judges of the Land do every day impliedly adjudge the same thing by allowing the benefit of the Act of Oblivion to all those that are within the words or meaning of the said Act. So that the Author ought not to have interposed his little opinion seeing it is a certain truth That the judgment of the Judges of the general Courts of Record is the Law of the Land till it be altered by something else of as high or a higher nature and quality Again the principal defects which are alledged in the assembling of this Parliament are the want or defect in the Writs of Summons which is only a legal signification of the Kings command or authority for their Election and Convening And this is supply'd by the Kings confirmation afterwards in the aforesaid Act. It being a rule in Law That Omn-is rati habitio mandato aequiperatur a confirmation afterwards is looked upon in Law as the same thing with a command in the beginning There is no need to cite any Cases to prove this whereof there is no scarcity of Instances if I asserted a long discourse Not to insist upon his unmannerlinesse with the present honourable Houses I shall only wonder at his boldnesse and folly who might have been fore warned by that passage in the 3d Instit. chap. Parliament which he so much Inculcates viz. Arthur Hall a Member of the House of Commons for publishing and discovering the Conferences of the House and writing a Book to the dishonour of the House was adjudged by the House of Commons to be committed to the Tower for 6. months fined at five hundred Marks and expelled the House Yet I know the Authors case is somewhat differing he being t is said no Member of the House of Commons But to conclude 'T is a strange thing that there should be some who cannot be contented either with rain or sun-shine Neque morbos nostros nec Remedia nostra ferre possumus was an old complaint but much more applicable to the dregs of time wherein we are fallen We were before tormented with the anguish of our wounds and now we quarrel with our Plasters
own Act may only create another Parliament to exist after they themselves so constituted are dissolved and the consequence of this would be that the people should be bound by the Laws of that other Parliament to which the people never consented being made by persons that were not chosen by them to be their immediate Representatives which is absurd There is nothing materially to be objected to this in my opinion but that the people are parties by representation to the Act that constituted the second Parlrament and so the second Parliament might sit by their mediate though not by their immediate choyce and election To which I answer That the power that the people gave to their Representatives at their Election was limited and confined to their persons in that quality and is not transferrible either to other persons or to themselves in another quality because all Authorities are confidences in the persons authorized to some certain end and therefore are personally and strictly taken and cannot be communicated to others or themselves in another manner than they were at first given As for ample If I submit my self to the arbitration of a Stranger to stand and fall by his judgement and decree though I am bound to stand to his sentence yet if he transfer over the power I gave him to another I am not obliged by the award of the 3d person So if there be Arbitrators which are limited to make their arbitration during the life of a third man If they award within that time that what award they themselves shall make after the death of the third person shall be good and binding to the parties concerned Such award would be voyd because they are not arbitrators after the death of the third person by the choyce and submission of the parties concerned but by their own award which was beyond the intention of the parties that gave them power and if they could hand over their authority beyond the date of the first limitation of its continuance they might do the same thing infinitely which is absurd and inconvenient and against the nature of an Authoritie Secondly I conceive it will be a hard a matter for the Author to prove that a Parliament hath a legal power ordinarily as a Parliament to alter the Fundamental laws which are so concorporate with the essence of Government that one cannot subsist and be the same without the other unlesse it be in a case of great invincible necessity which dispences with the punctilio's of all Laws or by the peoples consent specially signified and the implyed consent by their ordinary Election shall not be suffiicient And 't is not a general sentence cited by the Author out of the 3d Institutes will evince the contrary Which position I prove First because the Author might have found in his beloved third Institutes That it is the course for the Members of Parliament to desire leave to consult with their Counties before they consent to any new Law of extraordinary and important alteration Secondly it being the Root and foundation of all the Liberties of the Subject not to be bound by any new Law to which they are not parties by their imdiate Representatives and to make successive Elections It will not be reasonably intended That the people did intrust them with their authority to those ends viz. to change the Government or to deprive them of their fundamental privileges as I have before shewed is done by this Act according to the Authors interpretation Thirdly the Lawes of England are of two sorts either they concern the being or the well-being of the Policy of this Nation Those of the last kinde are the proper work and object of Parliamentarie power these may be enacted repealed revived corrected expounded and as to them a Parliament hath unlimited jurisdiction as by the particular examples cited by my Lord Cooke appears But those Lawes that concern the Being of the Kingdom as 't is a Government are inalterable except in the special cases of Necessity or the peoples special Consent Because first those first and fundamental Lawes are the foundation and the Measure of the usefulnesse or disadvantage of all the other Lawes which are collateral to the Essence of Government All Lawes being fitted to the nature of Government as a garment is shaped to the body and therefore those Laws ought to be as Standards to support and regulate all the rest Secondly because an Error in such alteration would be fatal and next door to an Impossibility to be redressed If the Walls or the Roof of a building be altered there is no great danger but to move a stone in the foundatiō threatens the whole structure with a certain downfall I may say of it as my Lord Burleigh to his Son in another case To attempt a change in the essentials of Government is like a Stratagem in War wherein to faile once is to be undone for ever And that the limits of the natural duration of a Parliament is part of the Fundamental Laws of this Nation is so clear and common a Truth that it needs no further proof Fourthly every Statute hath the formality of a Law by the Law and Custom of Parliament because a Constitution agreed on by persons chosen by the people with the Royal Assent without the material Circumstances required by the Law and Custom of Parliament is ordinarily no binding Law which proves that the Law and Custom of Parliament gives the essence formality of every possitive Law as t is a Law and therefore it cannot be altered in the substantial part of it except in the cases before excepted For all the power and force which a Statute hath to command obedience as it is a Law being derived from the Law and Custom of Parliament if this Law might be altered by a Statute it would then follow That the force and effect of one and the same Law could be bent against it self and have an efficiency to its own destruction which is repugnant and unnatural and not to be imagined And for a further proof of the premisses I do affirm That there be several things which a Parliament cannot do by their Act de jure though de facto sometime it be done as to make a Law that a man shall be Judge in his own cause or any other thing which is against natural equity the Act is void quia jura naturae sunt immutabilia So if an Act be made to Condemn and Attaint a man of Treason without hearing him in the way of a legal Tryal although my Lord Cook saith that the attainder standeth of force because there is no higher Court to controul it yet he addeth this clause to shew it is not good de jure viz. Auferat oblivio si potest si non utcunque silentium tegat for saith he the more High and Honourable the Jurisdiction of the Court is the more Just and Honourable ought they to be in