nor any people from free Subjects become more absolute slaves then the Englishmen are and will be And being thus brought into misery that which is still worse our selves and posterity to the end of the world are likely to live under this vassallage without hope of redemption if not by Gods mercy timely remedied For it cannot be imagined that the Members so long as they have power over their Prince and other His good Subjects and whilst their persons estates and Fortunes are thus at their will and pleasure it cannot be imagined I say that by their owne judgement against themselves or sentence we shall be enfranchized Now if I appeale to any rationall man not prejudicated as a person herein particularly concerned whether that Law which declares such Acts of Parliament to binde or that which judgeth them void be the more prudent wholesome and reasonable Law I dare be bold to conclude that sentence herein will be given for the latter And since it followeth that some Acts of Parliament may and ought to be adjudged void that being granted reason dictates to every man of sense that not the Members but some other knowne persons must determine which Statutes bind the people and which are invalid Now that the Judges of the Realme have power not only to determine which Acts of Parliament are binding and which void but to expound the meaning of every Act is no new doctrine it is the knowne Law and the common practice of the Kingdome which is the Law it selfe In the bookes of our Law it is declared for a fundamentall ground That such Statutes as are against Common-right repugnant or impossible are void and that they ought to be so declared by the Judges of the Realme For example by the Statute of Carlile made 35. E. 1. it is ordained that the Seale of the order of the Cistercians and Augustines shall be kept in the custody of the Priour and foure others and that any deed sealed with any other seale shall be void and this Statute is judged to be void in Law and that the Priour notwithstanding this Law and against the expresse words thereof sealing deeds with any other seale those deeds are judged good for the Priour could not seale with that seale in the custody of the other four and therefore that Statute repugnant in it selfe and so void It is likewise declared by the Judges that where a Statute gives power to A. to determine all pleas happening within his mannour in that case A. shall not have power to determine such pleas as concerne himselfe and the same it were if the Statute should in expresse words grant to A. that authority for it is repugnant to reason and common justice that any man shall be judge in his owne case It is resolved by the Judges of the Realme that divers prerogatives are so inseperably annexed to the Crowne as that they cannot be severed by Act of Parliament for example by a Statute made 23 H. 6. c. 10. it is enacted that no man shall continue Sheriffe of a Shire above one year and by that Act declared in these words that all Patents from the King of that office of Sheriffe for yeers for life in taile or in fee shall be void any clause or words of non obstante put into such Patents notwithstanding Now thisStatute as to the Kings power is by the Judges of the Realm declared void and although that Statute was never repealed all Kings since might have granted that office for life in taile or in fee and grants thereof have been made accordingly contrary to the expresse words of that Statute yet resolved to be good And ever since that Act all Kings have most frequently continued Sheriffs in their office for longer time then a year Even common experience sheweth that the power of the old Sheriffe doth not cease or determine untill the King hath made a new Sheriffe and notice thereof given to the old which oftentimes happeneth to be after the year And in Michaelmas Terme 5. and 6. of Queen Eliz. the Sheriffs by reason of the great plague then and of the adjournment of that Terme wholly were made and named by the Queen without the Assembly of the Justices in the Exchequer according to the common usage and though for the most part none were named but one of the two which remained in the bill of the year then last passed yet by all the Justices and Serjeants at Law it was holden that the Queen by Her prerogative might have made a Sheriff without any such election notwithstanding any Statute to the contrary which appears in Dyers Reports The King is fountaine of Justice mercy therefore if it were enacted that he shall not grant Commissions to determine felonies or that from henceforth it shall not be in his power to pardon any Crime or that all such pardons shall be void such Laws would be void and would not bind as being repugnant to Law government and reason to stop that fountaine The King by His Prerogative hath authority to dispense with penall Laws which cannot be taken from Him by Act of Parliament although in expresse termes it be enacted that all such dispensations with a non obstante shall be void which cleerely appears by the foresaid case of the Sheriff for though by that Statute of 23 H. 6. it is inacted that all Patents of the King shall be void as before although with a non obstante yet the Judges at all times have resolved it as a thing without dispute That those Patents although expressely against the words and intent of that Act with a non obstante are good in Law And so the bookes take it for a fundamentall ground that the King may by His Patent with a non obstante dispense with Laws made by Act of Parliament and put the difference between Acts prohibiting what the common-Common-Law prohibits in which case the King cannot by His letters Patents with a non obstante how strong soever it be penned dispence with such Acts or any one point of the Common Law of England which forbids onely that which is malum in se otherwise it is of Acts prohibiting things not before prohibited by the Law which are onely mala quia prohibita the King may dispense with such Acts by His Letters Patents with a non obstante though those very Acts expressely say that such Letters Patents with a non obstante shal be void That Prerogative being inseperable as is shewed before and not to be abolished by Act of Parliament no more then His other prerogatives of as high a nature viz. those of denouncing War and concluding Peace inhaunsing or debasing of Coine or the like which are flowersinseperably annexed to the Crowne and most proper for a King but not sutable with the condition of a Subject therefore the Judges have resolved they cannot be severed by Act of Parliament And the same it is
name of King and Parliament and all such as have acted therein or adhered thereunto are guilty of Treason p. 100. CHAP. X. That the Subjects of this Nation are not only commanded from doing violence to the Kings Person or prejudice to His authority but are obliged with their lives and fortunes to assist and preserve His person and just rights from the fury of His enemies both forraigne and domestick p. 112. CHAP. XI That those persons at Westminster who call themselves The Parliament of England are not the two Houses nor Members of the Parliament p. 113. CHAP. XII Results upon the premises That the people of England under the government of the King according to the Laws of the Realme are a free Subject p. 125. CHAP. XIII That the people of England under the government claimed by the Members of the two Houses are absolute slaves p. 128. CHAP. XIV How the Subjects of England were brought into this slavery p. 132. CHAP. XV. The way how to restore the people unto their former Liberty p. 135. The Preamble or Introduction to the insuing Discourse wherein are contained the Motives which induced the Authour to take up Armes for the KING against the Forces raised by command of the Members of the two Houses of PARLIAMENT WHen the unhappy difference between His Majesty and the two Houses began to appear I endeavoured to satisfie my self of the cause thereof which I found to be thus The Members formed a 〈◊〉 concerning the Militia of the Kingdome to this effect viz. That certain persons by them therein named shall have power to Call together Muster and Arme all the people of the Kingdome and Conduct them into any part of the Realme to suppresse rebellious Insurrections or Invasions in such sort as the Members without the King shal signifie this power to continue so Long and no longer then those Members please and disobedience therein to be punished by the Members and none else This being presented to the King He refused to confirm it with His Royall Assent The Members thereupon stiling it An Ordinance of Parliament without the King declared it a Law By which in words not onely the Militia of the Kingdome and the Government of the Realm was taken from the Crowne and removed to the Members but an Arbitrary power usurped by them to signifie and declare what Facts were Rebellion and what not and accordingly by pretext and colour thereof caused the people to be Arrayed Armed and Mustered And so in effect the Kings Sword and Scepter wrested out of His hands by His owne Subjects And further the Members pretending the King not consenting to that Law was Evil-counselled by like Ordinances raised Armies appointed the Earl of Essex their Generall authorized them by War to Kill and slay their fellow Subjects and to remove from the King those pretended bad Counsellours The King by His Proclamation inhibited all Persons from adhering unto them and required His Subjects obedience unto Him their King Hereupon I seriously bethought my self whether I was obliged herein to obey the King or the Members and resolved the Laws of England ought to be my guide which I found to be thus That this Nation is governed by a known Law that Law expounded by the Judges of the Realme Those Judges appointed and authorized by the King our only Supream Governor unto whom alone all the people of England are obliged in point of Soveraignty and Government to submit themselves Then I considered in whom the power of the Militia was before the making of the aforesaid Ordinances Secondly 〈◊〉 â—â—…teration those Ordinances made For the first I found that the Militia of the Kingdome by the known Law was inherently in the King For the latter that no New Law can be made or the Old changed but by the King with the assent of the two Houses of Parliament And finding the King therein to dis-assent I did without scruple resolve the law was not altered therefore the Militia still in the Crown and consequently that it was my duty herein to obey the Kings Command not the Members Then I considered what was the offence of a Subject to joyne with those Forces raised by the Members which I found to be the crime of High Treason And lastly it being the duty of every Subject not onely to decline opposing his Soveraigne but to assist Him against all disloyall actions I took up Armes for Him and in His defence in this War Since which I have met with some Objections against these my proceedings which with my Answers to them I have set down in this ensuing Discourse And first concerning the grounds of the Law CHAP. I. That the Lawes of England consist in generall customes particular Customes and Acts of Parliament MOst evident it is that from the subduing of this Nation by the Romans which is about 1700 years agoe the people of this Realme have been governed by a Monarchicall power first under the Roman Emperours then under the Saxons awhile under the Danes again under the Saxons and lastly under the Norman Conquerour and his Progeny untill this day yet by what particular Laws those former Kings governed no authentick Author beyond the time of William the Conquerour doth make it appear But certain it is after that Conquerour had in a Battle slaine Harold and vanquished his Army which is neer 600 years since the people of this Nation submitted unto him as King of England who being in possession of the Crown agreed to Govern by known Laws Now whether those were new Laws introduced or the old continued as to this purpose is not materiall But by that very same Law as by severall Acts of Parliament it appeareth divers of his Successours Kings calling unto them for their advice such of their Subjects as they thought fit by Acts of Parliament made new Laws and changed the old but succeeding Kings since that have herein limited themselves insomuch as by the Constitutions of the Realme as now it is setled the Law of England consists in these three particulars 1. Generall Customes as thus the eldest Son to Inherit his Fathers Land the Wife to enjoy a Third part of her Husbands Inheritance for her Dower these and such like are generally Law throughout the Kingdome therefore called the Common Law 2. Particular Customes as thus in some places the yongest Son in other places all Equally Inherit their Fathers Land these and such like are particular Customes being fixed to particular places and by antient constant and frequent use is become Law there although not generally throughout the Kingdome 3. Acts of Parliament made by the King with the assent of the two Houses All which together that is to say The Common Law particular Customes and Acts of Parliament make the Law of England By this Law all men are protected in their Persons and Estates wherein there is no difference between King and People for neither King nor Subject hath or can justly
claime any right interest or authority but such as He is intitled unto by the Common Law by Particular Custome or by Act of Parliament In the next place it is shewed when the two Houses were Instituted and what is a Parliament CHAP. II. What is a Parliament and how and when the two Houses were Instituted AS it is necessary for a Common-wealth to have a Law so every known law must be grounded upon certain rules Therefore be it composed with never so much care the people cannot be well governed unlesse some persons have power in some things to alter the old and make new Laws Emergent occasions are oft such as require raising mony and other things to be done which the prescribed rules of a known Law cannot warrant which persons so authorized to make Laws in this Nation are called the Parliament And that those Persons at this time consist of the King and both Houses joyntly is a thing most obvious to all men but how long it hath been so is uncertaine For although all the Sages of the Law and judicious Historians agree and therwith reason it self concurreth that ever since we have had Lawes some persons have had power in some things to alter and make new Lawes which might properly be called a Parliament yet untill long after the Norman Conquest I doe not finde it cleared what was a Parliament or what Persons had that power But upon perusall of the Statutes themselves which I conceive in this case to be the best proof I confesse I am much inclined to believe that untill the Raigne of King Edward 1. there was not any formed body or known persons whom the King was obliged to summon unto a Parliament for the making of Lawes wherein I shall begin with the first Law of that nature which at this day binds the people And therein we cannot goe beyond the ninth year of the Raigne of King Henry 3. that of Magna Charta being the first upon serious perusall of which Act the Charter of the Forrest and the Statute of Ireland enacted the same year by the words thereof I am induced to believe although doubtlesse with the consent of divers of His Subjects that they were made by the sole power of the King In the Preamble of the Statute of Merton made 20. Hen. 3. are these words viz. It is provided in the Court of our Soveraigne Lord the King holden at Merton before William Arch-bishop of Canterbury and others His Bishops and Suffragans and before the greater part of the Earls and Barons of England there being Assembled for the Coronation of the King and His Queen about which they were all called where it was Treated for the Common-wealth of the Realme And then were made diverse Acts of Parliament By which it clearly seemes to me That the Persons consenting to the Lawes then made were not summoned to a Parliament but to the Kings Court and not called to make Lawes but to solemnize the Coronation of the King and His Queene Those Treated with Bishops Earls and Barons not the Commons nor all the Bishops Earles and Barons only such as the King thought fit to be present at His and His Queenes Coronation And none of them called by Writ Likewise in the Preamble of the Statute of Marlbridge made 52 Hen. 3. are these words viz. For the better Estate of this Realme as it behoveth the Office of a King the more discreet men of the Realme being called together as well on the higher as on the lower estate c. So that to this Parliament it seemes only such Lords and other discreet men of the Common-wealth such as the King thought fit were summoned But in the Preamble of the Statute of Westminster first made 3 Edw. 1. are these words viz. These are the Acts of King Edw. 1. by His Councell and by assent of Arch-bishops Bishops Abbotts Priors Earles Barons and all the Commonalty of the Realme being thither summoned because our Soveraign Lord the King had great desire and zeal to redresse the State of the Realme By which it appears that to the making of Lawes at this time there was a great and generall concurrence for besides Arch-bishops Bishops Abbotts Priors Earles Barons and all the Commonalty the Kings Councell gave their advice therein and consented thereunto But by subsequent Acts of Parliament it seemes to me such a generall Assembly was not necessary For in the Statute of Bigamy made the next year being 4 Edw. 1. are these words viz. In the presence of certaine Reverend Fathers Bishops of England and others of the Kings Councell as well the Justices as others did agree they should be put in writing for a perpetuall memory And 6 Edw. 1. The King and His Justices made an exposition of certaine of the Articles upon the Stat. of Glocester In the Preamble of the Statute of Mortmaine are these words viz. We therefore intending to provide convenient remedy by the advise of our Prelats Earles Barons and other our Sujbects being of our Councell have provided c. In the Preamble of the Statute called Articuli super Chartas it it thus expressed viz. Forasmuch as the Articles of the Great Charter hath not been observed because there was no punishment upon the Offenders c. our Lord the King at the request of His Prelats Earles and Barons Assembled in Parliament hath enacted certaine Articles c. In the Statute of Eschetors made at Lincolne 29 Edw. 1. are these words viz. At the Parliament of our Soveraign Lord the King by His Councell it was agreed and also commanded by the King Himself That from thenceforth it should be observed and done according to the advice of the Reverend Father William Langton Bishop of Coventry and Lichfield and Treasorer to the King John Langton then being Chancellour and other of the Councell then being present before the King c. By these Acts it still seemes to me That both for the Lords and for the Commons as the King pleased sometimes were called more sometimes fewer sometimes part of the Commons sometimes all and somtimes none of them yet the power one and the same for at all the times aforesaid severall Statutes were made which to this day binde the people equall to any Act of Parliament made since Whereupon I conceive that the two Houses of Parliament were not originally composed with the beginning of the Law for as by the aforesaid Acts of Parliament it doth appear in the Raign of King Edw. 1. being the ninth King after the Conquerour and in time above two hundred years from the Conquest all which space we were governed by the same Law we now have there was not any formed Body known Persons or Assembly whose consent was necessary to joyne with the King to make an Act of Parliament but it seems that when the King conceived it fit to make a Law He called to Him such of His Subjects either
of His Councell or others as He thought most proper to be consulted with concerning that present occasion if it concerned matter of Law as in these of the exposition of the Statute of Gloucester and the Statute of Bigamy and other such Acts the Judges and other of His Councell learned were principally consulted with if it concerned the people in generall as that of the Statute of Will 1. and other such like the people of all sorts were called to advise with the King what Laws were to be made And so I conceive it was from that time upward to the Conquest Therefore when any Book or History makes mention of a Parliament in those daies that Assembly as I conceive was no other but as aforesaid And rare it was for any King in those times to consult with any other in making Laws but the Prelats the Peers his Privy Councell the Judges and other persons learned in the profession yet doubtlesse never concluded any matter of moment without consent of such his people as were proper to be advised with therein Nor do I conceive it was in the power of any King after William the Conquerour had consented to govern by a known law to alter the fundamentall grounds thereof But in those daies although we were governed by the same law as now yet it appears to me we had not any formed bodies of the Houses nor could any Subject by the law challenge a particular priviledge to be summoned to Parliament nor claim right to a negative voice But now the law is otherwise there be two formed bodies which must be summoned assembled and their assents had before any new law can be made or the old changed the King at this day hath not a power therein without the joint concurrence of the two Houses which constitution of the two Houses and this power which the Members have to consent unto or refuse laws propounded by the King seems to me to have been attained thus Cleer it is nothing is more plausible to the people then to be preserved from extraordinary Taxes and payments of mony And that might induce King Edw. 1. to make a Law which I find he did 34. of his Reign in these words viz. No Tallage or Aid shall be taken or levied by Vs Our Heires in Our Realm without the good will and assent of Archbishops Bishops Earles Barons Knights Burgesses and other Free-men of the land By this the King excluded himself and his Successours by themselves alone to tax or impose upon the people any payments of mony and from thenceforth no subsidy or other aide could be given him by the Subject without consent of Prelats Peers and Commons This I conceive was the first foundation of the House of Commons and the ground-work for the formed bodies of both Houses For it is obvious that if not the principall one chief end of calling Parliaments was and is to raise mony for the publike affaires so that after the aforesaid Statute of 34 Edw. 1. it had been to little purpose to call a Parliament of Prelats and Peers and not to summon the Commons And upon view of the Statute made after that time it appears that those persons were more frequently called And doubtlesse King Edw. 1. and other succeeding Kings finding that the greater number of the Prelats Peers and Commons consenting thereunto more cheerfully the Laws were obeyed it begat in them a desire to increase their number and to have their assent not only to Subsidies but to every New law And accordingly severall Kings summoned more Towns to return Burgesses created new Corporations and granted to them power to send their Deputies yet was it not reduced to any certainty what number were to be summoned to Parliament the aforesaid Statute of 34 Edw. 1. only declaring That no tax c. shall be levied without assent of Arch-bishops Bishops Earles Barons Knights Burgesses and other Free-men of the Land not mentioning how many or what particular persons so that it was still left to the Kings choice how many to call And so continued for a long time after For to the making of the Satute of Staple 27. E. 3. but one single person was summoned for any one County as by the preamble thereof in these words appears viz. Edw. by the grace of God c. Whereas good deliberation had with the Prelats Dukes Earles Barons and great men of the Counties that is to say for every County one for all the County And of the Commons of Cities and Boroughes of our Realme summoned to our great Councell holden at Westminster c. But afterwards all the Bishops and Peers two Knights for a Shire two Citizens for a City and two Burgesses for a Borough towne were usually called And by a Statute made 7. H. 4. the Writ of summons now used was formed and by one other Act made 1. H. 5. direction is given who shall be chosen that is to say for Knights of the Shire persons resiant in the County and for Cities and Boroughes Citizens and Burgesses dwelling there and free-men of the same Cities and Boroughes and no other And so by frequent calling Parliaments constant summoning the Prelates Peers and Commons as aforesaid the Kings not pressing Laws to passe nor any Law being admitted to bind without such consent the Parliament became a body composed thus viz. of the Lords Spirituall the Lords Temporall and the Commons being three Estates and the King head of all and as the soul adding life And by continuance of time it likewise became in the nature of a fundamentall ground That no new Law can be made or the old altered but by the King with the assent of the two Houses of Parliament And yet the King at this day which is evident by common experience hath power to increase the numbers of either House and that without stint Thus the power of the Kings of England was restrained from making Laws without consent of their Subjects as aforesaid wherein the difference is but thus Former Kings in some things without consent of any knowne Body or Assembly had power to alter the old and make new Lawes our King cannot in any one particular alter the old or make a new Law without the assent of the two Houses Yet Monarchy remaines the people are governed by the same Law under the same power as before which is by the Kings sole Authority And Laws now made by Act of Parliament although they bind not without assent of the two Houses yet they are the Kings Laws and are properly said to be made by Him And the Statutes for the most part are and the best forme of penning an Act is thus viz. Be it enacted by the Kings Majesty with the assent of the Lords Spirituall and Temporall and the Commons c. Besides at this day after a Law is made by Act of Parliament the execution of that Law is by the Kings sole
Authority the power to pardon the transgressours thereof and Authority to dispence with the Law it selfe is totally in Him for example if by Act of Parliament it be made felony or other crime to transport any commodity beyond the Seas the King after the fact committed may pardon the offence and before it be committed by His Letters patents without assent of the Members may by a non abstante dispence with the Law it self and legally Authorize any person notwithstanding that Statute to Transport that prohibited commodity and so in all publike and penall Acts not prohibiting malum in se Thus it appears that originally the Parliament consisted of the King calling to Him for their advice such as He thought fit But now by consent of former Kings as aforesaid no new Law can be made or the old altered or abrogated but by the King with the assent of the two Houses And so the King and the Members of these two Assemblies joyntly concurring at this day are the Parliament Upon which it consequently followeth that the King hath an absolute negative Voice in every Law to be propounded But in regard this is now not onely denied but a power usurped by those Members without the King to make Laws in the next place that point is more fully debated CHAP. III. That the Members of the two Houses have not power in any one particular to make a new Law or to change the old The King of England for the time being having an absolute negative Voice therein AGainst this I have seen a Treatise published by Order of the House of Commons in the name of William Pryn an utter Barrister of Lincolns Inne intituled thus viz. That the King hath no absolute negative Voice in passing Bils of common right and justice for the publike good And to make good his position proceeds to his proof in this manner The King saith he in most proceedings in Parliament as in reversing judgements damning Patents and the like hath no casting Voice 2. That Kings in ancient time have usually consented to Bils for the publicke good else gave such reasons of their deniall as satisfied both Houses 3. That Kingdomes were before Kings and then the people might have made Laws 4. That the King may die without heire and thereby the people may have such power againe 5. That the Lord Protectour in the infancy of a King may confirme Bils and so make Laws 6. That in Countries where Kings are elective and so an interregnum the people in the vacancy of their King may make Laws 7. That the two Houses have frequently denied to grant the King Aide by Subsidies 8. That the Kings of this Realme have been forced to give their Royall assent to Bils as in that of Magna Charta This is the substance of his objections and arguments against the Kings negative Voice in Parliament Answer M. Pryn hath spared no labour to make good his assertion fetching his arguments from a time supposed by him before Monarchy here began secondly upon accidents happening since this Monarchy And then imagineth a time to come that is when the King and all the bloud Royall of England shall be extinct for want of an heire at Law to inherit the Crowne First for his far fetched argument Kingdomes saith he were before Kings These words taken in their literall sense imply a grosse and absurd contradiction and he might as well say that servants were before Masters or the Son before the Father But doubtlesse Mr. Pryns meaning is that Countries and people were before they had Kings over them yet his words being so expounded make nothing to his purpose suppose that before Monarchy began in this Nation the people had been governed by a known Law to conclude thereupon That the Members of the two Houses at this day have power to make Laws without the King or that the King hath not a negative Voice in Parliament is to no more purpose then if he should say The Earth was made before it was peopled Ergo there is neither man woman nor child in the world or thus This Nation was peopled before they were governed by a Law Ergo the people neither had either Law or government The Jews upon the like ground may argue thus viz. our Religion was before Christ Ergo the people at this day ought not to professe Christian Religion But Mr. Pryns argument is more absurd he cannot shew that the people of this Nation before they were governed under Kings had either Literature known Law or Government However cleere it is This Nation hath been Monarchiall above 1200. years before the institution of the two Houses of Parliament And so Mr. Pryns argument that Kingdomes were before Kings is no weight at all to prove That the two Houses have power to make Laws without the King And much like unto it is his argument That the King may die without heire for if that should happen saith Mr. Pryn the people might make what Laws they should thinke fit Now thereupon he concludes thus Ergo the Members at this day have power without the King to make Laws With more reason the King might argue thus All the lands in England mediatly or immediatly are held of the King and if the owners die without heire by the Laws of the Realme Escheats to the Crown and so becomes at the Kings disposall but every man may die without heire Ergo all the lands in England at this present are the proper inheritance of the King No Lawyer can deny major or minor yet the conclution thereupon is absurd But in Mr. Pryns case admit the King should die without heire although it be granted that the people had thereby power to make Laws yet grosse it were to conclude upon it That the Members of the two Houses might so do For if the King and that Stem Royall were extinct without issue the two Houses would be extinct too By the Law of England if the King die during a Parliament ipso facto the Parliament is dissolved because the King who was head to advise with whom and by whose Writ and command the Members were summoned is dead Yet in that case the successour King if he please might call a new Parl. But when the King dies without heire there is no succeding King to summon it And so the constitution of Parliament and the whole Law and Government the fountaine of all which being stopped would be suspended if not ended and the people left without Law Then it might be granted Mr. Pryn That the strongest party concurring in that case would governe yet that is no proof that the Members had thereby power to make Laws And therefore more absurd it is to conclude upon Mr. Pryns reason That the two Houses at this day whilst the King and the blood Royall are in being have that power Then for his objections upon Authority or presidents happening since the beginning of the English Monarchy Kings saith he
have no voice in reversing judgements or damning Patents in Parliament therefore they have not a voice in passing Bils for publike Laws Answer Mr. Pryns words must be understood one of these wayes viz. That these judgements are reversed and Patents damned by Act of Parliament or else in the ordinary way of proceedings of Law as in a Court of Justice if he meane by Act of Parliament he onely beggs the question And false it is to say the King hath not a negative Voice in every Act propounded for a Law If he meane by judiciall proceedings as in a Court of Justice which I conceive he doth then the case truely stated is but thus The Lords House in Parliament time is a Court of Judicature and amongst other things the Members of that Assembly have power the cause being regularly brought before them by writ of errour and by the advice of the Judges and not else to reverse erroneous judgements given in the Kings Bench wherein it is true the King hath no Voice but that nothing disproves His negative Voice in making Laws if so that reason serves as well to exclude the Commons as the King for in reversing judgements in the Lords House the Members of the lower House have no Voice so if this argument of Mr. Pryns be of force the Lords without King or Commons have power to make Laws by Act of Parliament Then for damning Patents neither the Lords nor the Commons nor both Houses joyntly have power judicially or finally to determine the validity of any Patent or grant of the King That properly appertaines to the Judges of the Kings Bench of the Common Pleas and other Courts of Justice before whom as afterwards it is more clearly shewed such cases may be judicially brought to triall wherein neither King Lords or Members of the Commons House hath Voice And for the rest of his arguments they rather prove the contrary then that which Mr. Pryn infers upon them Kings saith he have in former times shewed their reasons why they denied to passe Bils presented unto them by both Houses which proves that those Kings had power to deny them else they could not shew cause of their refusall no more then Mr. Pryn can render reasons of his being at Westmiuster unlesse he have been there But Mr. Pryn knowes all Kings have most frequently rejected Bils passed by both Houses and Bils declared by the Members to concerne the publike good without rendring their reasons for the same And for the power of the Protector to confirme Bils passed by both Houses if that be granted that in some cases of imminent necessity the Protectors consent might make good and perfect such Bils it nothing proves the absolute power of both Houses without the King but rather the contrary and plainly demonstrates the imperfect power of the two Houses who cannot without the consent of a Protector in such cases make any compleat and binding Laws Therefore if not stronger the same it must be when we have a King no infant and Reigning without a Protector But saith Mr. Pryn in Countries where Kings are elective by the death of the Present King untill a new one be chosen the people having no King over them may make binding Laws Here although I beleeve Mr. Pryn cannot for other Countries make his position good yet this admitted to him rather disproves his argument against the Kings negative Voice for of his owne shewing it appears that in those Countries where Kings are elective after such time as the people have chosen a King they cannot make Laws without Him And if so where Kings are elective much more they cannot where Kings are hereditary Therefore by Mr. Pryns owne argument it followeth that in this Nation neither the people nor the two Houses without the King have power to make Laws For we have no interregnum there is not with us any time of vacancy of a King eo instante upon the death of the precedent King the Crowne is vested in the successour And for the two Houses refusall to grant the King Aide by Subsidies and the like That disproves the Kings power of His negative Voice in Parliament as the Kings refusall to confirme Bils passed by both Houses prove that the King at this day may make Lawes without them But saith he if Kings will not passe Laws presented unto them by both Houses they may be compelled thereunto for Kings saith he have been so forced as King H. 3. in that of Magna Charra and other Statutes Answer To admit that a Judge of a Court of Judicature may be forced to declare his opinion or to give judgement against his owne conscience seemes to me to be so absurd as I cannot but suppose that Mr. Pryn himself would grant it to be most unreasonable and even to be destructive of the Law it selfe If the King should assemble powers and by force compell the Lords or Commons to passe Laws by Him propounded it would be judged an act of high Tyranny and I beleeve Mr. Pryn would conceive Laws so obtained bound not And if so in that case if he be not extreame partiall he must upon the same ground agree that the King in the like case ought not to be forced He doubtlesse hath the same authority the same rules and motions to be guided by His Conscience as a Subject hath And methinkes the Law should protect the King from the violence of the people asmuch as it preserves them from the force of their King certainly it is at least reci mony or Oath taken is actually vested in the King succeeding upon which the Law saith that although in hoc individuo Hen. Rex moritur yet the King in His politick capacity never dieth Besides if the King at His Coronation should refuse to take an Oath we have no more Law to compell Him thereunto then we have to force Him to be Crowned And as it is not material to the right power of the King whether he be Crowned or not so it is inconsiderable to the people to have Him sworne for if we had no municipall Law the King unsworne were bound in Conscience to govern the people by naturall equity But we have a knowne Law by which both King and Subjects the one by a directive power the others by both directive and coercive are regulated and every one protected in his just rights and this whether the King be Crowned or not Crowned whether he take an Oath or no Oath Secondly admit Kings obliged to take an Oath at their Coronation yet even by the Members owne shewing they are not bound to take it in the words by themselves mentioned And of all the Kings past they instance but seven who have taken any Oath and but three of those seaven admitting that Oath in French and the other in Latine to be one and the same they name to have taken it And of these three offer proof but for one And themselves shew
s'avisera that is He will advise whether to confirme them or not It seemes to me strange to conclude thereupon Ergo the two Houses may make Laws without Him that is plainely a non sequitur but it doth directly imply that the King hath election to make it a Law or no Law else it were in vaine for Him to advise upon it And the words of King Rich 2. admitting that story to be true saying He conceived Himselfe bound by His Oath to consent unto that Law shewes first that it was in His power to consent or not to consent secondly that the Members could not do it without Him thirdly that it was only an obligation upon His Conscience And that He because He conceived it to be a just Law thought Himself tied in conscience to confirme it Upon the whole matter clear it is admitting the King to have taken an Oath in the words mentioned by the Members it rather proves the Kings power of a negative Voice then disproves it But the Members I am confident know that the King neither did nor was oblieged to take the aforesaid Oath The King pursuing former presidents recorded in the Exchequer tooke the Oath in words and according to the Ceremony as followeth viz. After the Sermon is done the King ariseth and goeth to the Altar and there the Archbishop administreth these questions And the King Answereth Bishop Sir will you grant and keep and by your Oath confirme to the people of England the Laws and Customes to them granted by the Kings of England your Lawful Religious Predecessors And namely the Laws Customes and Franchizes granted to the Clergy by the glorious King S. Edward your Predecessor according to the Laws of God the true profession of the Gospel established in this Kingdom and agreeable to the Prerogative of the Kings thereof and the ancient Customes of the Realme King I grant and promise to keep them Bishop Sir will you keep peace and godly agreement intirely according to your power both to God the holy Church the Clergy and the people King I will keep it Bishop Sir will you to your power cause Law Justice and discretion in mercy and truth to be executed in all your Judgements King I will Bishop Sir will you grant to hold and keep the Laws and rightfull customes which the Commonalty of this your Kingdome have And will you defend and uphold them to the honour of God so much as in you lieth King I grant and promise so to doe Then one of the Bishops reads this admonition to the King before the people with a loud voice Our Lord and King we beseech you to pardon and to grant and to preserve unto us and to the Churches committed to our Charge all Canonicall priviledges and due Law and Justice And that you would protect and defend us as every good King in His Kingdomes ought to be protector and defender of the Bishops and the Churches under their government King With a willing and devoute heart I promise and grant my pardon and that I will preserve and maintaine to you and the Churches committed to your Charge all Canonicall priviledges and due Law and Justice And that I will be your protector and defender to my power by the assistance of God as every good King in His Kingdome in right ought to protect and defend the Bishops and Churches under their government Then the King ariseth and is led to the Communion table where he makes a solemne Oath in sight of all the people to observe the premises And laying His hand upon the Booke saith The things which I have before promised I shall performe and keep so help me God and by the Contents of this Booke Now for the King to oblish Episcopacy to destroy the whole Government of the Church established by Law for the King so far as in Him lies to transfer unto His Subjects that regall power which is inherently in His Person to change the Monarchicall Government into a confusion to reduce his Subjects being a freeborne people unto a perpetuall slavery under their equals and fellow Subjects certainly cannot stand with this Oath All which in the proposals made to Him by the Members nay more and worse then words can expresse is required and by most Barbarous and inhumane cruelties attempted to be forced from Him Now having done with this Oath I shall proceed further to examine the legality of the Members doctrine to exclude the King from His negative Voice It is an undoubted maxime in every Law that no Person Court or Assembly can Act or do any thing concerning the publike affaires of the Kingdome or Common-wealth without Commission which stands with all the reason in the world else it followeth that every one hath equall power to make Laws Act and do what he thinks fit And by the constitutions of this Realme every Person Court or Assembly must derive its authority by one of these wayes viz. by the Kings grant by Act of Parliament or by custome and use if by the Kings grant the Patent it selfe declares the persons authorised if by Act of Parliament the Statute names the men if by custome and use that use and custome is their Commission For example if the King by His Commission authorize twenty persons or any ten of them whereof A. B. or C. to be one to determine a felony if seventeen of the twenty in the absence of A. B. and C. execute that Commission all their proceedings are void as done without Commission seventeen strangers not named in the Commission might as well act therein as they And if the Commission be by Act of Parliament none can execute that Commission but those authorized by the Statute And the like holds when custome and use is the Commission unlesse that custome and use warrant the persons to act it is done without authority and so void Then for the point in question The Members of the two Houses have no grant from the King nor is there any Act of Parliament to enable them to make Laws nor doth custome warrant it For untill this Parliament they never made Law without and against the Kings consent nor claimed power so to do But say the Members in the foresaid Declaration If there be not an agreement between His Majesty and His Parliament either His Majesty must be Judge against His Parliament or the Parliament without His Majesty for say they that question whereupon the safety of the Kingdome depends must not be undetermined And say they if His Majesty against His Parliament why not as well of the necessity in the question of making a Law without and against their consent as of denying a Law against their desire and advise The Judge of the necessity say they in either case by like reason is Judge in both Besides say they if His Majesty in this difference of opinions should be Judge He should be Judge in His owne case But the Parliament should be Judge between His
with the King then they tell us that the question concerning their right thereof having been long and sadly debated both in black and red battles God himselfe hath given the verdict upon their sides meaning if their words have any sense that by their prevailing against the King in that war God hath judged the cause for them and against the King But who sees not this to be a presamptuous blasphemy added to the sin of Rebellion did not this bold hypocrisie as aptly sute with the actions of Ket Cade Wat Tyler and all fore-going Rebels Certainly as long as any Traytor murderer or felon can defend himselfe from the just triall and sentence of the Law it is as easie and upon as just grounds for him to appeale to God for justification of his fact as these Members do now call Him to witnesse for them So that the consequence to the people of England which followeth the excluding the King from His negative Voice in Parliament is no lesse then the losse of that happy condition of a free Subject governed by a knowne Law under a King and in being reduced to the slavery of an arbitrary power under their equals and fellow subjects Therefore all the people of England do generally disclaime the foresaid Members to be their representatives and refuse to submit unto their Orders or Ordinances Upon the whole matter these things appear that the Parliament of England consisteth of the King the Lords House and the Commons House joyntly concurring that every one of them hath a negative Voice in making Laws and consequently all Orders and Ordinances or whatever they may be stiled whereunto the King hath not or shall not voluntarily without compulsion give His Royall Assent are done without Commission warrant or Authority and so not binding King or people In the next Chapter is shewed the power of the Parliament of England CHAP. IV. That the King the Lords House and the Commons House concurring have not an unlimited power to make Laws it being in the brest of the Judges of the Realme to determine which Acts of Parliament are binding and which void and to expound the meaning of every Act. IT may seeme strange to some that the high Court of Parliament should be limited in their power and deny to expound their own Laws But upon consideration had of the use of a Parliament and of the grounds of the Laws of England it appears to be both just and consonant to the Constitutions of this Realme The People of this Nation are not governed by a Parliament Soveraignty is the Kings yet the King Himselfe hath not an absolute or an unlimited power over the people For as the people are governed by and under Him so the Law directs how He is to governe them But in this Nation as in every Common-wealth governed by a setled Law occasions oft happen to do such things as the rules of that Law cannot warrant Therefore necessary it is to have a power to supply those defects and that is the office and true use of a Parliament Which authority rightly considered is of such concernment to the Common-wealth as that the greatest care in the world ought to be had who are trusted therewith It is no lesse then a power to change that Law whereby the people have protection of life and fortune and therefore may require the consent of such persons as are not rightly qualified to judge which Laws are binding and which void or to expound the meaning thereof Upon that ground it is that by the constitution of this Realme no new Law can be made or the old changed but by the King with the assent of the two Houses of Parliament Those persons as before appears are proper to judge when such things have happened as may require the making of a new Law or to alter the old But without derogation from the honour of those persons That body is not of a mould fit to judge which Statutes are binding which void or to expound the meaning of an Act. First cleere it is Acts of Parliament may be so penned and containe such matter as ought not to binde either King or people Suppose it enacted that from henceforth the Members of the two Houses shall be exempt from punishment for Treason Murder Felony and other Crimes Or that the King and the two Houses from time to time shall consent to make such Laws as a close Committee or certaine persons by name shall conclude upon or that every Act of Parliament afterwards made shall be void and the like no man can conceive such Acts would be binding for thereby the true use of Parliaments the Law and government were destroyed Besides all men grant that an arbitrary power is absolutely destructive to the people And it appears in the next precedent Chapter that to give this unlimited authority of making Laws to the King alone or to either or both Houses without the King were no other then to bring upon the people that thraldome Now for this boundlesse power to be in the King and the two Houses joyntly although that were nothing so bad as to have it in the King alone or in either or both Houses without the King yet the people were not thereby so wel secured from the tyranny of an arbitrary power as when the Judges determine which Acts of Parlliament are binding and which void Upon perusall of former Statutes it appears the Members of both Houses have been frequently drawne to consent not onely to things prejudiciall to the Common-wealth but even in matters of greatest waight to alter and contradict what formerly themselves had agreed unto and that even as it happened to please the fancy of the present Prince witnesse that Statute by which it was enacted that the Proclamations of King H. 8. should be equivalent to an Act of Parliament one other Act which declared both Queen Mary and Queen Eliz. to be bastards one other which in words gave power to the same King to dispose of the Crowne of England by his last will and testament And the severall Statutes in the times of King H. 8. Edw. 6. Queen Mary and Queen Eliz. setting up and pulling downe each others Religion every one of them condemning even to death the professour of the contrary Religion And now reflecting upon the proceedings of the present Members we finde they have de facto arrogated unto themselves in the highest straine a power arbitrary It is likewise too evident with what terrors menaces and inhumane cruelties they presse their Soveraigne to passe Acts of Parliament for confirmation thereof Doubtlesse had they not met with a King even beyond humane expectation most magnanimous it had been effected And suppose this Kings consent had been obtained or that He or any other succeeding King shall be drawne by force or fraud to consent thereunto and admit such Acts of Parliament to bind it will follow that no Government can be more arbitrary
when the Law is only declared by Act of Parliament If the King and the two Houses declare that it is not by the Common Law of England Treason to kill or to attempt to kill the King the Queen or Prince or that it is not felony to steale or the like such declarations are of no effect they ought not they do not they cannot conclude the Judges And as every Statute may be judged by them whether it be binding or void so the meaning of the words thereof must be by the Judges expounded too It is the true sense which is the Law not the bare letter and this exposition is likewise the office of the Judges as is said before For example by a Statute made 1 Eliz. it is enacted that all leases made afterwards by any Bishop of his Church-lands exceeding 21. years or three lives shall to all intents and purposes be judged void and yet it hath been adjudged both in the Kings Bench and in the Common Pleas that a lease for an hundred years is not void against that Bishop himselfe who was lessor wherein the Judges expound the meaning of the Law-makers to be thus that their intent was onely for the benefit of the Successours not to releive any man against his owne Act therefore such leases made after the Statute exceeding twenty one years or three lives are voidable only by the successours if they please and adjudged not void against the lessour himselfe contrary to the expresse words of the Statute And in like manner are other infinite Acts of Parliament expounded by the Judges wherein it is a maxime in Law that their exposition of Statutes ought to be according to the rules of the Common Law by which it appears the Members are not the interpreters for they know not the rules of the Law Besides the Parliament cannot be the finall expounders of Statutes for these reasons 1. It appears before that it is not the bare letter but the true sence and meaning of the words which is the Law And the King and the two Houses cannot declare the meaning of those words but by Act of Parliament they cannot saith our Law otherwise speake what ever they Act or doe in any other way is extrajudiciall if the King and both Houses unanimously deliver an opinion without reducing it to an Act of Parliament concerning the meaning of a former Statute it is of no more nor greater force or effect then for the Judges of a Court of judicature to give their opinions in a point of Law in a case not judicially depending before them such an opinion binds not nor is pleadable in a Court of Justice And besides the absurd inconvenience and the impossibility to have an Act of Parliament to determine every question arising upon Statutes it may so happen as that the King and the two Houses can never give an end to one controversie For example suppose an Act be made to explaine the meaning of former Statute ambiguously penned the words of this Act must have a meaning too and may admit of severall interpretations as well as the former Act did and severall persons as they are therein concerned may differ in the exposition thereof and so irreconcileable as not to be ended without the authority of a Judge and this may fall out upon every Act of explanation upon explanation in infinitum and consequently by that way there cannot to the end of the world be a finall determination of the difference 2. The validity of every Statute and the exposition thereof at the will of every person concerned may regularly be brought before the Judges of the Law but cannot judicially depend before the Parliament For example every Statute is binding or void if binding it concerns the Subject in his person or estate and when it is put in execution the ministers or actors therein may at the will of him interrupted thereby be sued in the Court of Common Pleas or in some other Court of Justice by an action of trespasse by which suite what ever the Act of Parliament is both the validity of the Statute and the meaning of the words thereof is submitted to the Judges of that Court and to their judgement As suppose this case to arise upon the foresaid Statute of 23 H. 6. that one who hath continued Sheriff above one year by vertue of a Writ directed to the Sheriff of the same County doth arrest the body of A. who for this brings his action of trespasse in the Common Pleas in which the Sheriff justifies by vertue of the Writ A. replies pleads the Statute and shewes that the year was ended before the arrest upon which the Sheriff demurs in Law by these pleadings the whole fact is confessed on both sides the Sheriff doth acknowledge his year was out before the arrest and A. confesseth the arrest was by vertue of the Kings Writ directed to the Sheriff and so the question being matter of Law it is to be determined by the Judges of that Court wherein the sole doubt is whether that Statute be binding or void for if binding judgement ought to be given for the plaintife A. because the Statute being good the defendant was not Sheriff after his year ended when he made the arrest and so had no authority if void it ought to be given for the Sheriff for then the Law is not by it altered and so he was Sheriff at the time of the arrest although his year was out Now in this case no man can deny but that the Judges must give judgement else the Court of Common Pleas which were absurd to imagine hath not power to determine an action of trespasse and judgement being given as in this case it ought to be for the Sheriff because it is already resolved and received for a knowne truth that the foresaid Statute binds not the King this duty of the Subject to serve the King in person saith the booke being due by the Law of nature cannot be severed by Act of Parliament it is finall And so if it were enacted that a Member of the Commons House or any other subject by name should not be condemned or punished for murder who afterwards commits the fact for which being arraigned at the Kings Bench bar he pleades the Statute the Judges even against the expresse words and intent of that Act ought to give sentence of death And contrariwise if by Act of Parliament it were enacted that all Pardons for felony to be granted by the King should be judged void after which a subject commits felony obtaines the Kings pardon for it is arraigned at the bar and pleads this pardon it ought to be allowed being duely pleaded and the Justices in such case ought not to condemne but to acquit the prisoner And these judgements as to any appeale to the Parliament are finall they cannot be brought before the King and the two Houses by any suite or action at Law They cannot judicially determine any
thing but by Act of Parliament And if they shall in this case make a new Statute that Law must even by the same Judges be expounded too 3. The Parliament is a body so composed as that it is not onely improper but almost impossible for these persons finally to determine any one point of Law A Court of Judicature ought to consist of one entire body and of such a body as at all times hath power not onely to deliver its owne opinion but by that sentence to decide the question depending before them but the Parliament is not so composed The Members of that Assembly are divided into three severall bodies and their proceedings severall and distinct and obvious it is that in one and the same thing they frequently conclude opposite each to other yet untill all three concur it binds not And so though every Member of those bodies hath given his sentence according to his owne conscience yet the question is not decided and that which is worse peradventure never can be brought to a period for it may fall out these three bodies of the King the Lords House and the Commons may in that perpetually differ in opinion These things considered every rationall man must conclude that the Parliament is not of a Composure fit for this worke nor instituted for that purpose Those things as afterwards in its proper place is more fully shewed are the office of the Judges of the Realme By this it appears that when the two Houses have passed a Bill for an Act of Parliament and to it the Kings Royall Assent is had the Parliaments power ends and then begins the authority of the Judges of the Realme whose office is the case being regularly brought before them first to judge whether the Act it selfe be good and if binding then to declare the meaning of the words thereof And so the necessity of having a power upon emergent occasions to make new Laws is supplied and yet the fundamentall grounds of the Law by this limitation of the power of the Law-maker with reference to the Judges to determine which Acts of Parliament are binding and which void is preserved Upon the whole matter cleere it is The Parliament it selfe that is the King the Lords and Commons although unanimously consenting are not boundlesse the Judges of the Realme by the fundamentall Law of England have power to determine which Acts of Parliament are binding and which void and to expound the meaning of every Statute Thus whilst every person Court and Assembly keep within its owne bounds the knowne Law protecteth every man in his just rights the Subject whilst that is observed need not doubt protection of his person and may securely challenge a property in his estate But the Members do now teach or to speake more properly force upon the people another doctrine They without the King not onely assume the power of a Court of Judicature and that without any appeale from it but an authority and power to make and declare the Law and that boundlesse too whereby Law it selfe is totally destroyed It is a Maxime in Law that every disseisor of Land is seised in fee simple and that no man can give a particular estate by wrong for example A. Tenant for years remainder to B. for life remainder to C. in taile remainder to D. in fee E. outs A. from his possession E. doth not hereby get the estate for years but by that entry hath displaced all the remainders and untill re-entry by A. is wrongfully seised to him and his heires Like unto this was that of the Members They injuriously excluded the King from his negative Voice in Parliament They have not by it gained power to make Laws without Him but whilst they continue this usurpation they wrongfully disinherit both King and people of all their birth-rights The knowne Laws of the Land is by this totally subverted untill the King be reinvested herein we have neither common Law particular custome or Statute Law nor can any man challenge protection of his person or property in his Lands or goods for what Law they make how repugnant to sense and reason how barbarous soever it be neither the Judges of the Realme nor any other if we may believe the Members have power to examine controle or oppose it Thus our excellent Laws the Members have so much so often boasted to defend are by the same persons at the same instant and even by the same medicine excluding the King from His negative Voice they pretended to preserve them destroyed So that I confesse the Members were necessitated not onely to deny the King this power but to assume authority without Him to make Laws and that without stint or limitations for by the knowne Law the facts and proceedings of these Members are Treason Therefore they must make new ones else be judged by the old And to make new Laws yet to admit the Judges power to determine whether they binde or not were to fall into the same Predicament of Treason In the next place it is shewed who are the Judges of the Law which power although with as little reason or sense as the former the Members have usurped too CHAP. V. That the Judges of the Kings Bench of the Common Pleas and the Barons of the Exchequer are the Judges of the Realme unto whom the people are bound lastly and finally to submit themselves for matter of Law BUt some give this power to the Parliament others to the two Houses joyntly others to the Lords House singly and some make the House of Commons Judge of the Law All which are meere surmises by faction raised and spread abroad since this Parliament for besides what before is said herein in the next precedent Chapter upon consideration had of the quality of the persons of those Members the Commission required to authorize a Judge of the Law and the composier of that Body It will appear they are so far from having any such power as that the Lords House in some particular things excepted neither the Parliament nor the two Houses joyntly nor either of them singly can judicially or finally determine any one point of Law First for the quality of the persons And to begin with the House of Commons They consist of Knights of Shires Citizens and Burgesses The Knights of the Shire we see by experience although sometimes men of estates are chosen yet not alwaies of the best understanding For the Citizens and Burgesses the Cities and Corporations for which they serve are Instituted onely for advancement of trade and accordingly the bodies of such townes and places consist of Tradesmen whose educations are onely to learne Crafts and occupations and the far greater number of them mecanick handy-crafts Besides the true cause of authorizing Corporations to send Burgesses to Parliament is that they may give information concerning the Trading in those places to the end if need be to make Laws for the increase thereof And
therefore such Citizens and Burgesses should be tradesmen which appears both by the foresaid Statute made 1 H. 5. and the words of the Writs of Election By that Statute it is enacted that none shall be elected Citizens or Burgesses but freemen dwellers and Inhabitants in such Cities and Borough Townes And by a Statute made 23 H. 6. It is enacted that none shall be chosen a Knight of the Shire but Knights or notable Esquires or Gentlemen borne and shall be able to be Knights And no man to be such Knight which standeth in the degree of a Yeoman and under And the words of the Writs of Election are these For the Shire Duos Milites gladiis cinctos c. For a City Duos cives c. For a Borough Duos Burgenses c. And so both by Act of Parliament and by the Writ the Intent of the Law is declared to be that for the Shire Gentlemen for Cities and Boroughs Tradesmen are to be elected And the Members who serve for those Corporations are above four times the number of all the rest So that the Laws of England for electing Citizens and Burgesses being observed as they ought to be the far greater part of that Assembly must consist of Tradesmen and persons very unapt to judge the Law Yet more proper for that service for which they were intended then such as are at this present usually chosen Whilst the Statutes and the Laws of the Realme were therein observed we heard not of any tumultuous or disorderly proceedings in that House But of later times and especially since the beginning of King James His Reigne the Borough Townes by procurement of factious persons have more frequently chosen such who were so far from having knowledge in the Trades and Traffick of those Boroughes or being resident or dwelling there as that they never saw the Towne nor was the Burgesse ever seen of any one of his Electors yet contrary to the expresse negative words of the aforesaid Statute and direction of the Writ the Commons House declare those Elections Legall which shewes that these Members are very uncapable to understand the Law else a company of persons who have illegally without any due election by faction as aforesaid packed themselves into that body and accordingly resolved to observe no other Law but their owne will and so however whether learned or unlearned not fit to be Judges of the Realme or finally to declare the Law 2. All the Members of that House as well Knights as Burgesses are elected by the vulgar multitude and therefore were elections made according to the Laws of the Realme Popular elections sometime produce like unto themselves In somuch that it may happen that not one knowing man in the profession of the Law or one person literate shall be returned Member of that Assembly 3. Experience shewes it is most frequent as well for Knights of the Shire as for Burgesses to elect Infants and Children which are by that Assembly approved on and have equall Voice with the rest although by the Constitution of the Realme as experience sheweth they are so far from being admitted Judges of the Law as that none untill he be of the age of twenty one years is capable to be sworne of a Jury to try the least matter of fact 4. All differences in that House are decided thus First by debate the businesse is reduced to a head Then the Speaker puts the question then the Members Vote and the greater number carrieth it so that if the question be upon a point of Law the quality of the persons of that Assembly considered admitting them as learned as ordinarily they are returned the best which can be expected in such a case is That the major part who is the Judge in every question there may happen to concur in Vote with some few of their fellow Members who they hope understand the businesse And so at the best this Judge decides the controversie by implicite faith For it cannot be imagined that the greater number of that Assembly by any debate there had shall understand many questions of a Law which daily and frequently happen And for the Lords House the Members of that Assembly have no other authority to sit or Vote there but as Peers of the Realme and admit the King never to create a Peere of the Realme but a man of the greatest judgement it cannot be expected understanding should alwayes descend Upon which ground it is that a grant of a place of Judicature to one and his heires as to his heires is voide in Law and although the education of the Lords for the most part are fit for persons of Honour yet they are not qualified to Judge the Law Thus for the quality of the Persons Now for the Commission Admit every Member of each House in knowledge more profound then the most learned Judge that makes them not Judge of the Law If the most learned because so learned be a Judge it is far more difficult to find out the Judge then to know the Law it is like as well the ignorant as the learned would pretend to the greatest knowledge But that is not the rule to know a Judge he is distinguished from other men by his Commission It appears before that no Court Assembly or Person hath authority to determine any matter of Law but by Grant from the King by Act of Parliament or by prescription Even so it is for the power extent and jurisdiction of any such Court person or Assembly For as no man can have any authority but by Commission so none can claime greater or other power then is thereby granted For example If the Court be erected by the Kings grant the Patent declares what authority the Iudges have beyond which they have none If by Act of Parliament the Statute doth expresse what they have Jurisdiction of if by prescription Custome and use informe the Iudges what they have to do and for a prescription to make it good these three things must concur 1. It ought to be time out of mind which is not allowed by our Law If it can appear to have had its commencement since the Reigne of King R. 1. Secondly although it hath been ancient yet unlesse it have constantly and frequently practised without interruption it is not good Thirdly The thing it selfe claimed must in the judgement of the Law be reasonable otherwise be the usage time out of minde and how frequent soever it ought to be disallowed for malus usus abolendus The Chancery the Kings Bench the Common pleas and the Court of Exchequer are Courts of Justice The Iudges thereof have power of Judicature and although in some things their authority may be inlarged and in other things abridged by some particular Acts of Parliament they have their jurisdiction principally by prescription Custome and use is their Commission The said Courts were not erected by Patent nor by Parliament yet every one
is and may be in the Subject Answer Although his whole discourse is either false or impertinent yet his saying that Kings were first elected by the people That the people as he beleeves elected the Judges and bounded them by publike Laws And for proof positively affirming although not naming one Act That all this appears by infinite Acts of Parliament regulating the King and His officers The vulgar may thereby conceive that the Members of the two Houses without the King have made Acts of Parliament That by those Acts it appears That the people elected the first King of England and the Judges and bounded them by publike Laws Although Mr. Pryn himselfe well knowes that never any Act of Parliament was or could be made without the Kings expresse consent And that the people of this Nation have been governed under Kings 1200. years before the first Act of Parliament at this day extant So that if Mr. Pryn had made his Argument according to the truth of the fact it had been but thus After King H. 3. begun his reigne and not before the Kings of England have made some Laws by Act of Parliament whereby in some things they have regulated their owne authority and the power of their officers and Judges Ergo the people although we had Kings 1200. years before that elected the first King the Judges and bounded them by publike Laws Besides admit the people had elected the first King and the Judges That nothing proves that the Members of the two Houses at this day by our Law outgh to nominate the Judges And for the rest of his Arguments they are to this effect A question being asked who ought to elect the Judges Mr. Pryn saith Leiutenant Generals and Sheriffs were anciently elected by the Parliament and people Colonels Majors Aldermen Constables Knights of the Shire and Burgesses are elected by the people Kings cannot elect a Member or exclude him from sitting That the Members are honourable grave and wise That the Judges are the Kingdomes as well as the Kings That although the Kings have usually had the election of them perchance it was by usurpation and Mr. Bodin a great Polititian saith that the election of these officers may be and often are in the Subject Now hereupon to conclude Ergo By the Laws of England the Members of the two Houses ought to elect the Judges I cannot more aptly parallel the Argument then thus How many miles to London Answer a poke full of plums Ergo it is 20. miles to London upon this it might as well have been concluded 40. 100. or 1000. miles to London as 20. and so for electing the Judges upon any of Mr. Pryns reasons or upon all together admitting them all true It might with as much sence and reason have been concluded thus Ergo the Major of Quinborough the great Turke or the man in the Moon ought to elect them Besides the Members of the two Houses cannot have the election of the Judges for these reasons First the Chancery the Kings Bench the Common Pleas and the Court of the Exchequer are Courts of Justice by prescription they were instituted before the time of memory none knows the beginning thereof but certaine it is they were Courts of Iustice before the House of Commons had being Secondly as it is necessary that the Iudges of the Law be knowne persons It is as requisite that such as elect them should be constantly visible But the Members out of Parliament are invisible Thirdly suppose it enacted That none that shall be a Iudge unlesse elected by A. and B. It were no wonder for them irreconcileably to differ in their choice And the two Houses are as distinctly two as A. and B. That difference which is renders the Members more improper for the worke and consequently not of a Composier fit to elect the Iudges And that this is the Kings right is made good thus First It appears before that those Courts have had Judges time out of mind And so long as any may can shew or prove there hath been Judges of those Courts so antiently the Kings of England and none else have elected and authorized them which is the strongest proof in the Law It is the Law it selfe It were absurd for any man to deny that it is felony to steale or that the eldest son is heir to his Fathers land yet there is no other proof to make it good but use and practise And the Kings have as antiently and constantly elected the Iudges as theft hath been punished or that the eldest son hath by discent enjoyed his fathers land Secondly if this King hath not right to elect the Iudges no former King had it and consequently we never had one Judge rightly authorized So that Mr. Pryn hath found out a point in Law which at once makes a nullity of all former proceedings in those Courts as things done coram non Judice But this not all If Mr. Pryns doctrine be true we have had no Parliament for the Kings not having power legally to authorize the Lord-keeper all creations of Peeres are void and so the Writs for electing the Knights and Burgesses were illegall and void too And consequently Mr. Pryns Law admitted there is no Member of either House Lawfully authorized to sit or Vote And for authority of bookes either Law or History I dare be bold to say there is not one man in the World untill the sitting of these Members who hath upon any occasion mentioned these things but hath delivered it as a fundamentall ground and a positive truth That the authority to elect the Iudges is in the King alone So thatsuch as are unsatisfied of the Kings right herein may with as much reason doubt whether we have had a King Law or government Nothing can herein be alledged against the King or on the Members behalfe unlesse a new maxime of Law be started up That no proof be it never so clear is sufficient to entitle the King to any Interest or authority But for the Members although they have neither authority use practise president or reason to make it good have title and interest to what they list But if the two Houses have the finall power to judge the Law and that every one who shall dispute their Votes break the priviledge of Parliament It matters not who hath the election of them nor who are chosen If the man be flexible enough the meanest capacity in one dayes study and with the expence of one single penny may be sufficiently compleat for a States Judge his Library needs not consist of more bookes then a copy of the Houses Votes whereby we are declared breakers of the priviledges of Parliament to deny that to be Law which they declare so to be For by these Votes we have no Law but the Members will And consequently those persons they call Iudges are no other but their Ecchoes But the true Judges authorized by the King have not only the
name but the power of Judges the knowne Law of the Land is their rule to determine every question depending before them which they are sworne to observe notwithstanding any command of the King the Members or any persons whatsoever And consequently every one is thereby preserved in his just Interest but by the Members taking upon them both to nominate the Iudges and to declare the Law the Law it selfe is destroyed and both King and people inslaved Upon the whole matter clear it is That the King and none else hath power to nominate and authorize the aforesaid Iudges and officers And therefore if the Members of the two Houses have or shall either in the Kings name or in their owne de facto appoint any persons for Judges in those Courts or in words by Commission of Oyer and Terminer or generall Gaole delivery give power to any to execute the office of Judicature in Circuits or otherwise such persons have not de Jure the power of Iudges For the Members have no more authority to make a Judge or to give any such power then any other subject in the Kingdome hath therein And consequently all the judgements acts and proceedings of those nominall Iudges or such Commissioners are void as things done coram non Judice Every person by such authority who either in the Kings Bench or at the Assises or elsewhere hath been or shall be condemned and executed for any crime whether guilty or not guilty is murdered And every other judgement or sentence by them given either in Capitall Criminall or Civill affaires is invalid In the next place it is proved that the King is the only Supreame Governour CHAP. VII That the King is the onely Supreame Governour unto whom all the people of this Nation in point of Soveraignty and Government are bound to submit themselves AGainst this undoubted right of the Kings these distractions have produced another Treatise of Mr. Pryns likewise published by authority of the Commons House intituled thus The Parliament and Kingdom are the Soveraigne power Wherein his aime is to perswade the people that the Members of the two Houses are the supream Governours of this Kingdom and begins thus The High Court of Parliament and whole Kingdome which it represents saith he may properly be said to be the highest Soveraigne power and above the King for saith he every Court of Justice whose Just resolutions and every petty Jury whose upright verdicts oblige the King may truly be said to be above the Kings person which it bindes But the Court of Parliament hath lawfull power to question the Kings Commissions Patents and Grants and if illegall against the Kings will to cancell or repeal them Therefore the Parliament hath Soveraign power above the King Answer Here I deny both his Major and Minor First for his Major Although it is true that every Just resolution of any Court of Justice That is when the Judges legally determine such things as regularly depend before them in point of Interest bindes the King as well as a Subject that proves not a Soveraigne power in the Judges If so it followeth that the Judges of the Kings-Bench the Common Pleas and of all other Courts of Justice And by M. Pryns Argument every petty Jury too have in point of Soveraignty a power above the King which is most grosly absurd So that admit the two Houses a Court of Justice which they are not and to have power legally to determine Causes which they have not That is nothing to Soveraignty It is one thing to have power to make Lawes another to expound the Law and to Governe the people is different from both The first appertaines to the King and the two Houses the second to the Judges and the third is the Kings sole right Neither the making declaring or expounding the Law is any part of Soveraignty But regulating the people by commanding the Lawes to be observed and executed pardoning the transgressors thereof and the like are true badges of a Supreme Governour All which are the Kings ☞ sAnd for his Minor take his meaning to be the true Parliament That is the King and the two Houses And it is false that the two Houses without the King have power legally to cancell or make voide any Commission Patent or Grant of the Kings For as before appeareth That united body cannot speak or doe any thing but by Act of Parliament To say the Parliament without the King may make a Law is as grosse a Contradiction as to affirme that the King may make an Act without the King And his meaning being taken to be the two Houses without the King In that sense the Members have herein no power at all for as before appeares they are neither a Parliament nor a Court of Iustice and consequently have not jurisdiction legally to cancell or repeale any Commission Patent or Grant of the Kings But saith Master Prin the King although he be cheif yet he is but one Member of the Parliament and saith he the greatest part of any politicke body is of greater power then any one particular Member As the Common-Councell is a greater power then the Major the Chapter then the Dean the Dean and Chapter then the Bishop and so the whole Parliament then the King for saith he in an Oligarchy Aristocrasie and Democrasie That which seemes good to the major part is ratified although but by one casting voice As in election of the Knights of the shire Burgesses and the Votes in the two Houses And saith he by the Lawes of England The Kings the Lords and Commons make but one intire Corporation and so concludes that the Major part of the Parliament which in Law saith he is the Corporation is above the King Answer There is scarce one word in this discourse but it is false or misapplied It appears before That the Parliament consists of 3 distinct bodies viz. the King the Lords House and the Commons House and in making Lawes which is all they have to doe they have but three Voices yet that which seemes good to the major part of these three is not ratified For as before it appeares they must all concurre else no Parliament It is true where the Government is Aligarchicall Aristocraticall or Democraticall the major part determines the Question But this is mis-applyed to the businesse in dispute concerning the Soveraign power Our Government is Monarchicall The people of England are not Governed by a Parliament The use of a Parliament as before appeares is onely in some things when necessity requires To alter the old or make new Lawes wherein the foresaid three bodies viz. the King the Lords House and the Commons House are joyntly trusted If Mr. Pryn be asked what he meanes by the Major part of that Corporation which he in this place calls the Parliament His Answer must be one of these viz. Any two of the aforesaid three bodies or else That the King the Lords and the Commons
promiscuously put together are to Vote as one Assembly and the greater number of single voices not distinguishing the severall bodies to carry it Grant the first And then the King and either House or both Houses without the King have power to make Lawes Therefore against that I suppose both Mr. Pryn and the Members themselves will conclude But the latter it is he intends for by that the House of Commons shall obtaine the sole power of making Laws That Assembly being in number almost treble to the King and the Lords And so both King and Peer-age excluded And that not all but in effect the Gentry too for the Burgesses are in number farre more then all the rest And as before appears these Burgesses not onely may but by the true intent and meaning of the Law ought to be tradesmen Then for his particular cases cited for his proof viz. the Major and Commonalty the Deane and Chapter the Bishop Deane and Chapter they are all guided by their Charters and foundations which they ought to pursue And none of them have power without their head to make any binding Act. viz. The Commonalty without the Major the Chapter without the Deane or the Deane and Chapter without the Bishop And so it is with the Parliament although both Houses concurre in one opinion It binds not without the Kings consent And for the election of the Knights and Burgesses that is very impertinent to the point in question Then M. Pryn saith That if the King propound a Law it binds not unlesse it be consented unto by the Parliament Ergo the chiefe legislative power is in the Parliament not in the King Answer Here M. Pryn according to his wonted sleight divides the King and Parliament making them two things and ascribing unto the two Houses without the King the name and power of a Parliament Whereas he knowes neither name nor power is due to them And for his Argument it makes more for the King then for the Members For as before it appears Lawes made by Act of Parliament although they binde not without the consent of the two Houses yet they are the Kings Lawes and by himselfe alone he may dispence with them Therefore it might properly be concluded Ergo the Legislative power is more in the King then in the Members But for Master Pryns conclusion it is a meere non sequitur Then saith M. Pryn Bils for Acts of Parliament are usually agreed on before they come to have the Kings assent And such Bils saith he the King cannot alter But if the King send a Bill which he desires to have passed It must be thrice read and assented unto by both Houses who saith he have power to reject alter or enlarge it as they think fit Answer This is a grosse juggle all his words in some sense are true yet as he intends the vulgar shall apprehend his meaning nothing is more false It is true if the King send unto the Houses a Bill for an Act of Parliament they may alter the Bill But that done untill the King assent unto it so altered it is no Law And so when both Houses present a Bill to the King he may alter it but his Royall assent makes it not a Law untill the Houses have consented to it so altered yet unlesse M. Pryn be understood thus that when the King sends a Bill to the Members That they may alter it and make it what they please And that new Bill to bind the King without his further consent he hath said nothing and that being his meaning he hath abused his Reader with a grosse falsity Then M. Pryn observes the penning of the Statutes for Subsidies which he sets down thus Your Commons Assembled humbly present your Majesty with the free gift of two intire Subsidies which we humbly beseech your Majesty to accept Therefore saith he the Commons have the sole power to grant or deny Subsidies And saith he they being the cheif Law-makers in these Acts by like reason they are so in all other publick penall Acts. Answer Here M. Pryn affirms that the Commons House without King or Lords may charge the people with Subsidies And infers thereupon that they have the like power in any publick penall Act. But observing his proof And by the same sleight he may as well maintaine even by the Scripture it self That the Devill not God is to be worshiped It is thus Perusing the Acts themselves by which Subsidies are granted and the words are these viz. We the Commons humbly present your Majesty with two Subsidies Thus farre he recites the Act Then the words follow in this manner viz. And therefore we humbly beseech your Majesty that it may be enacted And be it enacted by the Kings Majesty the Lords Spirituall and Temporall and the Commons in this present Parliament Assembled and by authority of the same that the King shall have two Subsidies These being the words which makes the Law are left out Then saith M. Pryn Acts of Parliament made in the time of usurpers oblige the right Heires of the Crown and the people too Therefore saith he the Legislative power is more in the people then in the King Answer It is most false that all Acts of Parliament made by consent of usurping Kings binde the right Heires to the Crown But true it is that some Acts of Parliament made by consent of Vsurpers have been admitted to binde in time of Kings raigning by Just title which is upon this ground The Competition for the Crown may happen to be upon a question doubtfull And the difference as in that between York and Lancaster may continue long and experience shewes That the King in possession whether by right or wrong wants not meanes to declare his Competiter an Usurper And therefore dangerous it were for the Law to declare all such Acts of Parliament voide But admit that every Statute made by the consent of an Vsurper to be as binding a Law as any other How that proves that the Legislative power is more in the Members then in the King is not intelligible It rather proves the contrary it shewes there must be a Kings consent although an usurper else no Law And if so stronger it is when the King reignes by a just Title Then saith Mr. Pryn The King hath little or no hand in making Laws His is but assenting thereunto As saith he the forme of passing Bils import For saith he Bils being passed both Houses and presented to the King his answer is le Roy le veilt the Kings wils it Answer It is the consent which makes the Law when the Bill is ingrossed and read in the House The question by the Speaker is put to the Members whether it shall be a Law or not and such as are of opinion to passe it are directed to say I and those against it no and being passed both Houses it is presented to the King whose answer if He confirme it is le
debaced Coyne commanded forraigne Coyne to be current here ordered all forraigne negotiations All matters of War either foraigne or domestick And so in all civill affaires The Judges of the Law authorized by Him All legall proceedings in his name and by His authority The Law it selfe called His Law He hath usually dispensed with Acts of Parliament at pleasure pardoned transgressours of the Law To Him appertaines the forfeitures for Treason and other offences In a word He is the sole fountaine of Justice Mercy and Honour And with this constant practise agrees all authorities histories and stories among which that of the Oath of Supremacy if there were no more is sufficient to satisfie all the World the words are these I A. B. do utterly testifie in my conscience that the Kings Highness is the onely Supreame Governour of this Realme and of all other His Highnesse Realmes Dominions and Countries as well in all Spirituall things or causes as Temporall Now if the contents of this Oath be true that is If the King be the onely Supreame Governour all the rest of the people from the highest to the lowest whether Members or not Members are subject unto Him and persons governed And as all persons are hereby included so it extends to all things both Spirituall and Temporall And me thinks it strange an Englishman should make doubt of the truth of this Oath It was composed by the Lords and Commons in Parliament in the time of Queen Elizabeth And at their suite by Act of Parliament made high Treason for a Subject to deny to take it And further enacted that every Judge of the Law and other Officer either Spirituall or Temporall every person of any profession or calling before he be enabled to exercise the same every ward before he be permitted to sue out his Livery every one elected Member of the Commons House before he be permitted to sit or Vote there shall take this Oath Yet the Members of this Parliament would make an evasion out of it Thus. The Kings Supreamacy say they is meant in Curia non in Camera in His Courts not in His private Capacity And to speak properly onely His high Court of Parliament wherein He is absolutely Supream Head and Governour from whence there is no appeal And say they if the Parliament may take an Accompt what is done by His Majesty in His inferiour Courts much more what is done by Him without Authority in any Court. And say they It is preached to the people by the Kings Declarations that by the Supreamacy is meant a power inherent in the Kings Person without above against all His Courts the Parliament not excepted whereby say they the excellent Lawes are turned into an Arbytrary Government Answer That which the Members in this discourse say in effect is but thus The King is Supreame Governour Yet under the Members Government He hath Authority without appeal to determine all things yet hath not power to determine any one thing To blear the eyes of the Vulgar they are contented the King shall be called the onely Supream Governour But the Authority Power and Execution thereof if we may believe the Members is their owne The King and People are herein used as a Father sometimes deals with his child telling his little son the flock of sheep is his yet the Father shears them takes the profits to his own use Even so are King People dealt with They are told bythe Members that the King by the Supreamacy claimes such a power As that the Subjects thereby have lost both their Law and Liberty and would make them believe that they are by those Members thereunto restored againe Whereas all but naturalls may now discerne That whilst the King together with the name enjoyed both the Power and Execution of the Supreamacy The people were a free Subject And that by this usurpation upon the King They are inslaved For the Supreamacy is in the Kings Person But by it He neither hath nor claimes an unlimited power The People are Governed under Him but that Government is directed by a known Law of which Law the King is not Judge nor can He by Himselfe alone alter that Law Now whilst the Supreamacy the Power to Judge the Law and Authority to make new Lawes are kept in severall hands the known Law is preserved but united it is vanished instantly thereupon and Arbytrary and Tyrannicall power is introduced For example the Members condemne a Subject to die they confiscate his estate to their own use and without appeal have power to Judge the Law thereupon This granted clear it is the Will of the Members is the Law they are hereby Judge Party and Witnesse It were fruitlesse for that condemned person although guiltlesse to urge his innocency of the Fact or to dispute the Law upon that Fact with them who have condemned him And as the Members tell us there is none else to appeal unto It is therefore to be feared the greater Estate the Delinquent hath or the more spleen some Members bear to his person the more Capitall is his offence So that it is the Members not the King who claime a power in their owne persons without above against all Courts of Justice The Parliament it self not excepted Our excellent Lawes are by them destroyed and turned into their own Arbitrary power And thus the people are enslaved by a distinction never heard of or thought on before this Parliament the aforesaid two Spencers onely excepted It is true they having committed acts of Treason to colour their proceedings divulged an opinion suitable to this they pretended that the Oath of Allegeance was more in respect of the Crown then the Kings Person That the King might be removed and the people ought to governe But those opinions are condemned as damnable execrable by two Acts of Parliament One called exilium Henrici de Spencer And the other made 1 Ed. 3. But that this of the Members and that of the Spencers are meere fictions and delusions to gull the people is evident both by Authorities of Law and the common practice of the Kingdome It is resolved in Calvins case which therein agrees with the whole current of our Law-bookes that Allegeance is due onely to the King That theKing hath two Capacities one of a natural body descended of the Royal Blood this is subject to death and infirmities The other a politick body and in that immortall invisible not subject to non-age c. That the King having but one person and severall capacities It was resolved Allegeance is due to his naturall Capacity And consequently the Soveraigne power of Government inherently in his person By the common Law of the Land Treason is to kill or endeavour to kill the King His consort the Queen or the Prince Therefore it is the naturall body the Law lookes upon for the politick body cannot die Besides neither the Queen nor the Prince hath a
can be expected Thirdly the Composier of these Members being two distinct bodies considered it is as prepostrous for them to command the Militia as to have the Soveraigne power of Government or to judge the Law It may fall out even in the time of greatest danger that one House shall Vote to fight the other not to fight the enemy And this difference may happen to be unreconciled untill the Nation be conquered or destroyed Thus it appears that the Members have no power over the Militia It now rests to prove that it is the Kings right which is made good by authority and reason First for authority it is proved by constant practise which is not onely the strongest proof in our Law but it is the Law it selfe We have no formall Institution of the Common Law it is no other but common Ancient and frequent use For example it is felony to steale it is not felony of death unlesse the thing stolen exceede the value of twelve pence These are things so certainly knowne and so generally received for Law as that any man to dispute them renders himself ridiculous yet being denied none can shew when the Law began how or by what authority it was made there is no other proof to make it good but custome and use So for the Militia of the Kingdome it was never estated upon the King by Act of Parliament or by any other constitution It is His right by the Common Law of England which is made good by custome and use and authorities of bookes And first for custome and use Any man of what quality or ranke soever he be reflecting upon his owne memory and observation must acknowledge that in all his time no Souldiers were impressed armed arrayed or mustered no Forts strong-holds or â—â—rrisons held or commanded no Commanders Officers or Souldiers Imployed by Land or Sea no Commissions concerning War either Forraigne or Domestick or concerning the administration of Justice but by authority derived from the King alone And such as search the Records in former times will finde the like practise in all ages And with this agrees all Histories and stories from this day upward unto the Roman Conquest Then for authorities and to begin with Acts of Parliament Magna Charta granted about 440. years since not onely being the first Statute but beyond it there is scarce an authentick record of Law at this day to be found In which Act it is thus declared by King Hen. 3. viz. And if We do lead or send him who is by tenure to defend a Castle in an Army he shall be free from Castle-guard from the time that he shall be with us in fee in our Host for the which he hath done service in our Wars Thus even in that Instrument whereby the King confirmed unto the people their Liberties It appears that by the Laws of the Land the power of War was the Kings sole right By an other Statute made 7. of King Ed. 1. being the son and next succeeding King to H. 3. The Prelates the Earles the Barons and the Comonalty of the Realme Assembled in Parliament declared that to the King it belongeth and His part is through His Royall Signiorie straightly to defend force of armour other force against the Kings peace at all times when it shall please Him And to punish them which shall do contrary according to the Laws and usages of the Realme And that they the Subjects are hereunto bound to aid their Soveraigne Lord the King at all seasons when need shall be After this by severall Acts of Parliament viz. 13. of the same King 1 Ed. 3. 25 Ed. 3. 4 H. 4. 5 H. 4. and other Statutes it is declared how and in what manner the Subject shall be charged with armes mustered arraied and forced to serve in War In all which Acts without dispute the whole power and command therein is admitted to be in the King By a Statute made 11 H. 7. The Lords and Commons Assembled in Parliament declare it to be the duty and Allegeance of the Subjects of England not onely to serve their Prince and Soveraigne Lord for the time being in Wars but to enter and abide in service in battaile and that both in defence of the King and the Land against every Rebellion power and might reared against him By a Statute made 2 Edw. 6. in the Raigne of a child King The Lords and Commons Assembled in Parliament declare that it is the bounden duty of the Subjects to serve their Prince in War By a Statute made 4 and 5 P. M. In the Raigne of a Woman the Lords and Commons Assembled in Parliament declare thus viz. That whereas heretofore commandement hath been given by the Queen and her Progenitors Kings of England to diverse persons to muster their Subjects and to levy them for the service of their Majesty and this Realme in their Wars which service saith the Statute hath been hindred by persons absenting themselves from Musters and by being released for rewards And then provides remedy therein when the Queen her Heirs or successors shall authorize any to muster the people And by that late unanimous and voluntary recognition made by the Lords and Commons in Parliament unto King James they declared thus viz. We being bound thereunto both by the Lawes of God and Man doe recognize and acknowledge and thereby expresse our unspeakable Joyes That immediately upon the death of Queen Elizabeth the imperiall Crowne of the Realme of England did by inherent birth-right and lawfull and undoubted succession descend and come to your most Excellent Maj. that by the goodnesse of Almighty God your Maj. is more able to Governe us your Subjects in Peace and plenty then any of your Progenitors And thereunto we most humbly and faithfully submit and oblige our heires and posterities for ever untill the last drop of our blouds be spent Now every man of sense will agree that the opinion of the Members of this Parliament is no more authentique then the opinions of the Lords and Commons Assembled in former Parliaments And that being granted it followeth that any one of the aforementioned Statutes whereby the Lords and Commons declare That by the Law of the Land the power of the Militia is in the King is so much the more weighty and so much more to be relyed upon in this point of the Militia then the opinion of these Members by how much more persons are competent to determine a question concerning another then to judge their own case or when they resolve for or against themselves But these Members setting aside their owne Votes in this their own case for their own advantage cannot make their pretence to the Militia good by any one Authority Opinion Practise or President But this not all These Westminster men themselves even this Parliament have both in their Ordinances as they call them and Petitions acknowledged the Militia to be the
or man although they be the greatest Tyrants in the world the highest persecutors of Christian Religion be it either spirituall or temporall although never so pernicious to foul or body it must be admitted for good Law and true Gospel Thus the people being drawne to recede from their true principle have occasioned their owne confusion Whereas by their observing the Laws of the Realme these distractions have been avoyded For by the constitutions of this Kingdome both King and Subject are regulated by a knowne Law which Law permits neither King nor people to be Judge in their owne case If one Subject wrongfully imprison the person of another seize his Lands or take away his goods the party injured hath his legall remedy but is not permitted to be his owne carver or revenger if he for his owne satisfaction kill his adversary it is murder If he seize his Lands or take his goods it is a trespasse So in the Kings case If by His Command any Subject be imprisoned or his estate taken from him against the rules of the knowne Law that Subject hath his legall remedy against the Kings ministers wherein neither the King nor his officers are Judge Therefore if that Subject thus injured should to revenge himself kill the King or seize His Revenues it were a most barbarous and unjust Law not to condemne this Act unlawfull And that being admitted it must be unlawfull to attempt His death or to leavy War against Him for any such cause And consequently all those facts although committed upon the grounds aforesaid are Treason Now that person who conceives himselfe to be most highly injured being required to set downe the motives of his taking up Armes against the King his pretence can be no other then this That his person hath been imprisoned his Lands seized and his goods taken from him And this in his judgement against Law none but Brutes can conclude these are legall justifications to act and do such things against their King And so consequently the authors and actors of this War are guilty of Treason But saith Mr. Pryn The Parliament is not within the meaning of this Statute of 25 Ed. 3. Therefore not Treason for the Members to seize the Kings Forts Armes Ammunition and Revenues of the Crowne for saith he the King is a Member of the Parliament and therefore if the Parliament could commit Treason the King should commit Treason against himself And saith he the Parliament is a corporation and a Court of Justice and so not capable of the guilt of Treason Answer Most true it is That the King is exempt from the guilt of Treason for all Treasons are committed against Him But every Subject which includes all the rest of the people is capable both to commit the fact and is subject to punishment for the same And herein there is no difference of persons It is no more lawfull for a Peere then for a pezant to commit that crime the place where alters not the nature of that fact nor doth it availe the actors in being Members of any Assembly Corporation body politick or Court of Justice For every one of these Members or persons besides their pollitick capacity hath a naturall capacity too In which capacity he is subject to the frailties of man he may actually breake the Law and passively suffer for it But the Assembly it selfe the Corporation the body politick or the Court of Justice can neither commit a crime nor is capable of punishment For example the Parliament that is the King the Members of the Lords House and the Members of the Commons House their power is onely to make Laws by Act of Parliament Therefore when the Members of the two Houses in a Parliamentary way passe a Bill which the King confirmes with His Royall Assent Absurd it were to thinke this could be an Act of Treason And so it is for the Judges of every Court of Justice keeping themselves within their jurisdiction they cannot in the proceedings of their owne Court commit Treason And the like holds with all Corporations and bodies politick But if a Member in either House assault or strike his fellow Member that is a trespasse and wilfully to kill him is murther And by the same reason to kill the King although within the wals of the House is Treason And that being granted it followeth that to imagine His death or attempt to kill the King or agree to levy War against Him although in that place is Treason in such Members And herein no formall or seeming Parliamentary proceedings will alter the case The putting it to the question voting the businesse and setling it by a Major part or composing it into a formall Law and calling it by the name of an Ordinance of Parliament neither alter the nature of the crime nor takes away the guilt of Treason If one who hath acted in this War be indicted for Treason who at his arraignment shewes an Ordinance of both Houses for his justification The triall being before a just Judge It will no more availe him then Adam was justified saying Eve tempted him to eat the forbidden fruit And the Members who commanded those things to be done being legally questioned have no more to say then Eve had For it was the Serpent who tempted them to commit this treason The rightfull Judge will informe them that the Law cannot be altered but by Act of Parliament The Judges of the Realme understand not the Language of an Ordinance of the two Houses nor is any such thing pleadable in a Court of Justice the Law takes no notice thereof These things are done by the Members not in their politick but in their naturall capacities They are not Acts of Parliament they are unlawfull facts of Parliament-men And such offenders being attainted and executed the Parliament suffers not Besides it is the fact which the Law doth looke upon And in this case the greatnesse of the person offending the number committing the offence and the place where acted is so far from extenuating as that it rather aggravates the crime For a conservator of the peace in his owne person to breake it or a Judge of the Law to be an example of transgressing it is more odious then in other men Then considering the persons acting viz. Members of the House of Parliament the thing acted high Treason the place where in those Houses words cannot expresse the barbarousnesse of it Now to conclude this point I here set downe what facts the knowne Law judgeth Treason the Members Law therein and the proof on both sides What facts the Law judgeth high Treason the foresaid Statute of 25 Ed. 3. makes it manifest in these words viz. Whereas divers opinions have been before this time In what case Treason shall be said and in what not then declares that by the Law of the Land these particular facts following are Treason 1. To compasse or imagine the death of the King the Queen or the
still carry the face of Justice although nothing ever was or can be more pernitious to King and people Ket Cade Wat Tyler and the like in their insurrections pretended reformation To remove bad Councellors from the King To restore the people to their Liberties and to set up the Law they protested were the things they aimed at Now admit their intention had been to reforme yet their proceedings must necessarily destroy both Law and Government Suppose Ket had been asked who should judge what persons had broken the Law who were bad Councellours who should nominate the Officers of State and the like Ket would have answered that he who reformes must judge of the reformation Therefore none but Ket should judge of these things which had been no lesse then to have arrogated an Arbitrary power to enslave the people And if so in Kets case It is the same when any persons what ever their quality or number be for it is the Authority and Commission which the Law lookes upon to justifie the fact not the dignity or number of the persons acting And as those things alter not the nature of the crime so the consequence thereof to the people is all one They are as much and more damnified by an unlawfull act committed by a Lord as by a peasant by a thousand as by one single person Then for the Members proceedings Their assuming power to judge the Law to exclude the King from His Negative voice in Parliament taking upon them Authority to make Laws and the like are in themselves as unlawfull as the foresaid acts of Ket c. The Members have no more Commission for this then Ket had for that And the consequence thereupon to the people is one and the same Suppose a single person to have conquered the Kingdome And thereupon to assume an Arbitrary power The lives estates and fortunes of the people were at his command And so they now be at the will of the Members And thus the Subjects were enslaved CHAP. XV. The way how to restore the people to their former Liberties WHen the Physitian hath discovered the nature of his sick patients disease and not before he knowes what medicine to apply for the cure Which holds with a Common-wealth fallen into disorder And for England the cause of its grief is apparent It is rather out of joynt then sick of a disease Our misery is occasioned as before appears onely by setting aside the King For by that the Soveraign power of Government the Authority to make Lawes and the power to judge the Law are wrested out of their proper places and drawne into one hand The Members by excluding the King have usurped all these so that there is no other power or rule to guide their actions but their own will But whilst the King held His right the power of Government was His the Authority to make Lawes was in Him and the two Houses joyntly and to declare the Law in the Judges whereby every one was limited within His own bounds and so avoid all Arbitrary power Thus for the cause of our grief Then for the cure when any limbe of a man is out of joynt it so much distempers every part as that if not timely prevented the whole body is in danger to perish And as no medecine without putting it into joynt againe will ease the paine so by setting straight that joynt at once it is a perfect cure to the whole body Now by setting aside the King the disorder in our Common-wealth is no lesse then an absolute subversion both of Law and Government The people are thereby totally enslaved this incurable but by restoring the King again For so long as the Members exclude the King so long the aforesaid authorites are usurped by them and so a power Arbitrary For example If the Members condemne an innocent man to death And for a fact if guilty not punishable by Law The Members having power without appeal both to determine the fact and to declare the Law upon that fact And those Members having Judged him to dye and to forfeit his Estate unto themselves This innocent man all the world must confesse is without remedy he is hopelesse without the mercy of those who gaine by his destruction But the King being restored the foresaid Authorities are returned into their proper places and againe divided into severall hands instantly from thence every Court Assembly and person not only enjoyes its own Authority but is limited within its own bounds no man then is permitted to be both Judge and Party he ought not by our Law to give sentence of death if by that Sentence the Judge gave the fortune of the man condemned Thus for the Medicine In the next place it is considerable who shall apply it And for that as the people were the immediate instruments of their own thraldome they ought to be the principall Agents of their own freedome Their motives to returne to their obedience are farre greater then they had to recede from it Was any heretofore hindred to exercise his owne opinions in matters of Religion Was his person imprisoned taxes and impositions laid upon him not warranted by the Law If so his condition is now farre worse First for Religion The sence of those Members we now finde is made the rule of every mans faith he is bound to change his Religion as the Major part of the Houses shall Vote The Ecclesiasticall Judges heretofore were limited in their punishments The Members are boundlesse And as they are not guided either for Doctrine or Discipline but by their owne will So in their punishments they are a large too Shall the Members Vote that no man shall use the word Trinity or call upon our Saviour by the name of Jesus or what else soever it be The punishment upon those breaking that Law may be losse of all his Estate or death if the Members please Then for imprisoments formerly the Judges had power by whose warrant or command soever committed as the cause required to bail or set him at liberty But now once committed by the Members the cause is not examinable unlesse released by them who committed him without redemption or examination in the gaol he must starve and perish And for taxes and impositions it is true we have heard of Loans and Benevolences and we know the businesse of Ship-money But the people are now taxed by Assessements Excize and otherwise at pleasure Peradventure the Excize now laid upon London exceeds not 20000. l. a week but by the same Law that such a summe is imposed it may be multiplyed to a Million a day If one County be assessed at 1000. l. a moneth it may be raised to 10000. l. a weeke And as these are new wayes to tax the people The Members by the same rule every day may devise other new wayes to burthen them And doubtlesse he who hath his Estate taken from him by Assessements or Excize is left as little to feed
He is not Judge in His own case nor hath a power Arbitrary His Authority and interest is regulated by a known Law Thus appears the different condition of the people between that in the worst of times under the Kings Government and what they are now reduced unto under the men at Westminster So that if the people had onely exchanged that Government for this it had been miserable enough Therefore considering the blood which hath been spilt herein most irksome it must be to every honest soule to think thereof But still the peoples case is worse the former grievances under the King was no cause of their defection For before this War began they were reformed Ship-money and all grievances were taken away In a word the people had no other motive to draw their sword against their Soveraigne but thus They were by these incendiaries falsely told that the King meant not what he said nor intended to keep those Laws he had made But now every person thus seduced by his owne wofull experience finds that it was these persons at Westminster who meant contrary to what they pretended If he looke for the Protestant Religion freedome of conscience the Laws of the Realme Liberty of his person or property in his estate due unto 〈◊〉 〈◊〉 subject not one of them is to be found But instead thereof he finds himselfe poore man catched in the Members net His conscience His life His Liberty His estate and fortune is now at their arbitrary power These things considered he that thinkes either of this world or of the world to come upon his soule or body if he love himselfe or his Country if he fear God or honour the King must instantly make one in this worke to restore that King to his Throne Thus for the persons who ought to apply the medicine the next is to know how it shall be done And for that although considering the calamities this Nation hath suffered in being brought to bondage To redeeme it againe may seeme difficult yet upon consideration had thereupon it appears to be a thing easily effected That of the Members in excluding the King opposed the Law Therefore could not be done but by War and force But this of restoring the King pursues the Law and so proclaimes peace And as the Members could not have usurped this power but by War so they cannot hold it but by force Instantly upon the Law having its free passage their Kingdome is at an end And to every War is absolutely necessary the peoples personall assistance and money to pay the Soldiers If either of these faile the War is ended And obvious it is that the persons at Westminster can have neither of them but from those whom by the same persons have been thus brought to thraldome So that to perfect all this worke if every one would do his duty there would be no danger of bloodshed Then there needed no weapons not doing would do the worke Therefore whether thou bee'st in armes or not obey thy King according to the Law make thy payments to whom by Law they are due pay no Excise Loanes Benevolences Assessements Tax Tollage or other new impositions by them laid upon thee And if these Usurpers require these things as due by Law Tell them it is contrary to their owne doctrine Wish them to read the Petition of right whereby the Lords and Commons in Parliament declared That the people ought not to be Taxed with payments of money but by Act of Parliament that is by the King the Lords House and the Commons joyntly concurring Put them in minde of their Declarations this Parliament wherein they call it pernitious â—â—…mpt to goe about to Tax the people by way of Excise That it is against the liberty of the Subject to be charged with payments of money otherwise then the knowne Law doth warrant that nothing is more horrid then to have Soldiers billited to force upon the people voluntary contributions or to have new Oathes put upon them Yet these and thousand more exactions laid upon thee against Magna Charta the Petition of right and the knowne Law thou maist charge them with And needs no other Judge to condemne them but themselves out of their owne mouthes And further for thy incouragement herein be assured that by this restauration of the King not onely the people of England obtaine their freedome but instantly thereupon ensueth peace and unity throughout all the Kings Dominions For by that the Kingdomes of England Scotland and Ireland are againe united The people will then with great joy and acclamation according to the foresaid just recognition of the Lords and Commons unto King James performe their duty unto this our King Charls And acknowledge Him according to the foresaid Oath of Supremacy their onely Supreame Governour Upon the whole matter so long as the people continue in this slavery they are not onely their owne wilfull tormentors but disobeyers of the Laws of God and man And by quitting themselves from bondage which is at every instant in their power to do they performe their duty to both FINIS ERRATA PAg. 8. lin 11. read or our p. 10. l. 20. r. his advice p. 12. l. 14. r. never had p. 15. l. 32. r. motives p. 28. l. 34. r. we having p. 30. l. ult r. without consent p. 32. l. 26. blot the first and. p. 39. l. 28. r. denied p. 48. l. 29. r. the Law and l. 31. r. can gaine p. 53. l. 9. r. have been p. 58. l. 4. r. I conceive p. 67. l. 14. blot out the last that p. 88. l. 11. r. le Roy savisera p. 98. l. 7. r. he could not p. 116. l. 26. r. sterne p. 118. l. 31. r. of this p. 121. l. 34. blot out and. p. 124. l. 12. r. one p. 127. l. 2. r. left 25. Febr. 1641. 27. Maii 1642. Vide Pref. Cok. 8. Report Preface to Cok. 4. Report Coke 9. fol. 75. Plo. 195. 319. Cokes Preface 4. Report Magna Chart. 9 H. 3. The Charter of the Forrest 9 H. 3. Stat. of Ireland 9 H. 3. Stat. of Merton made 20 H. 3. Stat. of Marlebridge made 52 H. 3. Westminst the 1. made 3 E. 1. Stat. of Bygamy made 4 E. 1. 6 E. 1. Stat. of Mortmaime made 7 E. 1. Articuli super Cart. 28 E. 1. Stat. of Escheators made 29 E. 1. Coke Calvins case b. Stat. 33. H. 8. cap. 21. Coke 8. fo 20. b. 12 H. 7. 20 H. 8. Dyer 59. 60. 34 E. 1. c. 1. Statute of Staple made 27 E. 3. 7 H. 4. cap. 15. 1 H. 5. cap. 1. Stat. 33 H. 8. cap. 21. Coke 8. fo 20. 11 H. 7. 27. 7 H. 7. 14. Dyer 59. 60. Co. 4. Inst p. 25. Stat. 24 H. 8. ca. 12. Coke 5. f. 28. Coke 8. fo 20. Coke 7. fo 36 37. 2 H. 7. 6. Co. 7. 14. Plo. 502. 〈◊〉 f. 59. p. 19. Coke 8. fo 20. 12 H. 7. 20 H. 8. Plo. 79 4 H. 7.
that the Oathes taken by the other four viz. King H. 8. King E. 6. King James and King Charles differ in the very words in question and render a quite other sense viz. of that of King H. 8. they set downe the words thus viz. And affirme them which the Nobles and people have made and chosen with my consent And that of King Ed. 6. thus viz. Doe you grant to make no new Laws but such as shall be to the honour of God and the good of the Common-wealth and the same shall be made by consent of your people as hath been acoustomed And for the Oaths of King James and King Charles they say the word choose was left out So that upon the whole matter that which hath been or can be said herein is but thus Some Kings at their Coronation have taken an Oath but that any King is obliged so to doe or being obliged that he ought to pursue the foresaid words it neither doth nor can be made good Thirdly admit that Kings have taken the Oath in the foresaid words and obliged thereunto yet that nothing proves the Members power without him to make Laws William the Conquerour all men must grant might have imposed upon this Nation what Laws he pleased But being resolved to have a setled Government granted to the people such Laws and customes as were just and equall between Him and them And so bound Himself and His successours to Governe by a knowne Law The people being thus freed from the servitude incident to a Conquest nothing could be more acceptable to them then the continuance of that Law And nothing being more safe for a King then to have the love of His Subjects succeeding Kings might be induced at their publike Coronations voluntarily to take an Oath for the preservation of the Laws And in that sense these words quas vulgus elegerit might be aptly used for it is not improperly said the people had chosen those Laws which the Conquerour with their good liking had consented to governe by So that the Coronation Oath admitting it in the words as the Members have expressed cannot in any reasonable sense be rendred otherwise then thus viz. Do you grant to keep and for your self promise to defend and to the honour of God corroborate the just Laws and customs which the people have chosen This imports a settlement of a known Law which the King swears to preserve but to render the words in the future tense and to make the King to swear to confirme such Laws as the people shall choose what ever they be tends to confusion But say the Members if elegerit in this place be Englished have chosen the King is not sworne to keep Laws afterwards made which is utterly mistaken for when a new Law is made it is then part of the Law of England And being sworne in generall words to defend the Law He is sworne to defend all the Law For example the Judges in generall words are sworne to determine controversies according to the Law and frequent it is after the Judges have taken that Oath for the Law to be altered by Act of Parliament yet the former Oath binds those Judges and they are obliged even by that Oath to give sentence as the Law is according to that alteration not as it was when they tooke the Oath And so it is with the King he having taken the Coronation Oath is thereby bound in Conscience to defend and observe every Law afterwards made Fourthly admit the word elegerit in that place to be Englished in the future tense and the King to swear to confirme the just Laws which the people shall propound unto Him That cannot admit of any other interpretation then thus viz. If the people propound Laws to the King which in themselves are just and equall He is by His Oath obliged in conscience to confirme them but He is not thereby bound in conscience to consent to all such Laws as the people shall say are just That were to make one part of the Oath to contradict another part thereof for by the former part of the Oath the King swears to defend the Laws of the Realme And by the same Oath thus expounded He is not onely bereft of power to performe it but swears at the pleasure of the vulgar multitude to destroy it Suppose the King thus sworne be desired by the people to make a Law thereby to exempt persons from punishment for Treason Felony or other crimes or to settle the power of Srveraignty and government upon Subjects in this case the King even by that Oath were obliged to reject such Laws for it is neither a just Law nor doth it stand with reason to exempt any from punishment for such crimes or to exact of the King to quit His Authority nor were it in His power ought He to put His people under the yoake of their fellow Subjects Fiftly but however if the King should in terminis swear to confirme all Laws whether just or unjust to be propounded to Him by the people That doth not enable any to make Laws without Him A King although not sworne is obliged in conscience to consent to such Laws which are in themselves good for the Common-wealth just equall between Him and His Subjects but is not compellable to change either Law or setled Government And if so unsworne it followeth that his being sworne to do it is but a further tie upon His conscience By swearing to confirme such Laws as His people shall propound unto Him that gives not power to them to make Laws without Him such an exposition of an Oath untill this Parliament was never heard of Sixthly if such an absurd exposition of an Oath could be admitted the Members of the two Houses cannot be the people intended by the words of this Oath for Kings have taken Oaths at their Coronations before the institution of the two Houses Secondly the Members of the two Houses do not derive their power from the people but from the King by whose Writs they are summoned And first for the Lords House none can sit there but a Peere of the Realme none can create a Peere but the King not one Member of that House the Prelates excepted but He or His Ancestors from whom he claimes his Peerage derives that honour from this King or from His progenitors Kings of England since the Norman Conquest And for the Prelates And their power as Peeres to sit in that Assembly it was founded by the Kings too It is now and ever was in the sole power of the King of England for the time being by Patent or by Writ of summons to create and call to that House without stint or limitation as many and what persons He thinkes fit which creation and the Kings Writ of summons is their Commission The words whereof follow viz. Carolus c. charissimo c. Comiti Arundell Quia de advisamento assensu Consilii nostri
pro quibusdam arduis urgentibus negotiis c. quoddam Parliamentum nostrum apud civitatem nostram West 1. Die Maii prox futur ' teneri ordinavimus ibidem vobiscum cum Prelatis magnatibus proceribus dicti regni nostri colloquium habere tractatum vobis sub fide ligeantiis quibus nobis tenemini firmiter injungentes mandamus quòd personaliter c. So that to the institution of the Lords House and the power which the Members of that Assembly have to sit and Vote in Parliament the people are not at all consulted with in any particular And for the Commons House the institution thereof and the Commission which the Members of that Assembly have is derived from the King too That which the people act and do therein is only to elect the Knights of the Shires Citizens and Burgesses and therein too their authority is by the Kings Writ the direction whereof they are bound to pursue It is not in the power of the Inhabitants of any County or towne to adde unto or lessen the number of persons to be elected or to inlarge or limit the authority of those chosen But former Kings as before is shewed sometimes called more sometimes fewer and at their pleasure created new Corporations and gave them power to send Burgesses And every King had and at this day hath authority to enable and command every towne in England to send Burgesses to Parliament And when the Knights and Burgesses are elected the peoples power is ended then the persons chosen are to performe their duties wherein they must be guided by their Commission it is that which doth distinguish them from other men else every one in the Kingdome had equall power to sit and Vote in Parliament And they have no other Commission then the Kings Writ of summons which followeth in these words viz. Rex Vicecomiti salut ' Quia de avisamento assensu consilii nostri pro quibusdam arduis urgentibus negotiis nos statum defensionem regni nostri Angliae Ecclesiae Anglicanae concern quoddam Parliamentum nostrum apud Civitatem nostram Westm ' tertio die Novembris prox ' futur ' teneri ordinavimus ibidem cum Praelatis Magnatibus proceribus dicti regni nostri colloquium habere tract ' tibi praecipimus firmiter injungentes quod facta proclam ' in prox Comitatu tuo post receptionem hujus brevis nostri tenend die loco predict ' duos milit ' gladiis cinctos magis idoneos discretos Comit ' praedicti de qualib ' civitate Com' illius duos cives de quolibet Burgo duos Burgenses de discretior ' magis sufficientibus libere indifferenter per illos qui proclam ' hujusmodi interfuer ' juxta formā statutorum inde edit ' provis eligi nomina eorundum milit ' Civium Burgensiū sic electorum in quibusdam Indentur ' inter te illos qui hujusmodi election ' interfuerint inde conficiend ' sive hujusmodi elect ' presentes fuerint vel absentes inter eosque ad dict' diem locum venire facias Ita quod iidem milites plenam sufficientem potestatē pro se cōmunitate Comit ' Civitatū Burgorū praedictorum divisim ab ipsis habeant ad faciendum consentiendum his quae tunc ibid ' de communi consilio dicti regis nostri favente Deo contigerint ordinari super negotiis ante dictis Ita quod pro defectu potestatis hujusmodi seu propter improvidam electionem militum Civium aut Burgensium predictorum dicta negotia infecta non remaneant quovis modo Nolumus autem quod tu nec aliquis alius Vicecomes dicti Regis nostri aliqualiter sit electus electionem illam in pleno Comitatu factam distincte aperte sub Sigillo tuo singulis corum qui electioni illi interfuerint nobis in Cancellar ' nostram ad dictum diem locum Certifices indilate remittens nobis alteram partem Indenturarum predictarum praesentibus consuet ' una cum hoc breve Teste meipso apud Westminster And the returne of the aforesaid Writs in these words viz. Virtute istius Brevis eligi feci duos milites gladiis cinctos magis idoneos discretos de Comitatu meo viz. A. B. qui plenam sufficientem potestatem pro se Communitate Comit ' predict ' habent ad faciendum consentiendum iis quae ad diem locum infra contentos de Communi Consilio regni Angliae ordinari contigerint Et predicti A. B. manucapti sunt per quatuor manucapt ' ad assulendū ad Parliamentū dom ' Regis apud Westminster ad diem infra contentum ad faciendum quod hoc breve in se exigit requirit I have here exactly set downe all those Commissions by authority whereof the Lords House and the Commons House sit and Vote in those Assemblies which is far short of giving them power to make Laws That of the Lords commands them to advise and consult with the King concerning the great affaires of the Realme both in Church and Common-wealth That of the Commons to doe and consent unto such things as the King and the Peeres shall agree upon And as the Members have their authority to sit and Vote in the House from the King so it is at His will to summon a Parliament when and as often as He thinkes fit And the Members being met together are kept there as long as he pleaseth and at every instant time when he seeth cause dissolved againe And whilst they are continued together their office is to enquire and informe themselves of the grievances of the Kingdome to consult how to reforme them and for that purpose if need be to compose Laws and present them to the King But all this is onely by way of advise it binds not untill the King hath taken their Councell and put life into those Laws by His Assent All which is not onely pursuing their Commission but is made good by the constant practise of the Kingdome For there was never any Law Statute Act of Parliament or Ordinance made in this Nation which bound the people whereunto the King did not give His Royall Assent And scarce one Parliament since the Institution of the two Houses but the Members of both those Assemblies have passed Bils for new Laws presented them to the King which He hath rejected whereupon every such Bill was instantly set aside acknowledged by the Members and judged by all men to be invalid neither binding King or people And for these words le Roy s'avisera the opinion of Justice Hutton and the words of King Richard the second nothing can be inferred thereupon against the Kings negative Voice but rather the contrary The Kings answer say they to Bils presented to Him by the two Houses which He rejects is thus le Roy
is none either to umpire or mediate between the Members and the people And so the Members by this have assumed an arbitrary power Nor doth this power of a negative Voice in the King take away or lessen the authority of any Court of Justice Every Court of Judicature pursuing its Commission hath power to determine the interest both of King and people and that without assent either of King or Member The knowne Law is their ground to judge by not the opinion of the King or of either or both Houses Nor can the King in this be said to Judge out of his Courts or against the two Houses of Parliament for the King and the two Houses have herein equall power that is every one of them a negative Voice they are all together joyntly Judge of that high Court of Parliament but no one or two of these bodies is Judge thereof So that by the Kings and either Houses having a negative Voice it cannot be said they Judge each other out of that or any other Court of Justice But some object that if the refusall of the King shall hinder the making of Laws the Common-wealth is in danger to suffer for say they the King may be refractory and deny to passe good Laws Answer No humane Law can preserve a Common-wealth from every mischief That Law which avoideth the most inconveniencies is the best Law It is granted that the will of the King or of either House by refusing to passe a Law propounded may prove mischievous But upon pretence of necessity to give power to the King and either House or both Houses without the King to alter the Law or to make new Laws were more dangerous If that rule serve them to make good Laws it enables them to make bad ones too If they be Judge when to make one Law they are Judge to make as many and what Laws they please they who have this power may declare what they list to concerne the safety of the Kingdome Once breake this rule That no new Law can be made with consent of the King and the two Houses and there is no end of the distraction Upon the same ground that the Lords and Commons in the case of the Militia pretending a necessity and that the King was refractory assumed power to make Laws without Him the Lords House may exclude both King and Commons the Commons House Lords and King or the King both Houses When there ariseth a difference between the King and the two Houses if it be of necessity that the King or the two Houses must so far Judge the businesse as to make a Law without the other by the same reason when a difference happens between the two Houses one of them must be Judge against the other and make a Law without the others consent for such a difference between the two Houses may as well happen to concerne the safety of the Kingdome as when the difference fals out between the King and both Houses And if either House obtaine the sole power to make Laws still there is no period for if reason or reall necessity require it and should be Judge when and what Laws are to be made the lesser number of one of those Assemblies peradventure may be in the right But whether right or wrong the zelots may chance to side with the little flock rise up and in tumults call it Justice And so consequently the good Law of the Land destroyed and club-law introduced and the very being of Parliaments taken away whereas by observing the constitutions of the Realme in submitting this power of making Laws to the Judge thereof that is the King without the assent of the two Houses all these absurdities and inconveniences are avoided Which constitution being rightly understood is grounded upon great reason and is most equall between King and people for the Commons House upon just grounds for any thing to them appears may passe a Bill which the Lords upon as just reasons may reject the Members of that Assembly being persons who for the most part have a greater deeper reach insight in State affaires And both Houses may passe a Bill conceiving it necessary for the preservation of the Kingdome to have it made a Law and thereupon desire the Kings consent which the King may as justly reject And for such reasons they may be matters of that nature as not convenient and most unfit to be imparted and revealed to such a multitude as the seven hundred Members or more of both Houses But when all that is when the King and the two Houses concur the Common-wealth may as safely depend upon it as upon any humane institution Upon these grounds it is that when a dispute happeneth concerning the making of a Law the King being of one opinion the Lords of another and the Commons of a third or when any one of the three bodies dissent from the other two there is no umpire but themselves to end that controversie nor can they decide the question by any other way but by a joint agreement or quitting the dispute for untill a joint concurrence of all three their proceedings are but conferences and their results what they would have to be Lawes but no Laws indeed untill by consent of all three they be reduced to Acts of Parliament No Order Ordinance or what ever it is or shall be called made by consent of any one or two of these bodies alone hath the strength or force of a Law our Law takes no notice thereof like a verdict for life lands or goods in which case the major part of the Jury determineth not the question all twelve must agree else it is no verdict for the question being fact some one of the Jury may have better knowledge thereof then all the rest So in this case by the constitutions of the Realme no new Law can be made or the old altered without a joint concurrence of the King and the two Houses It is that united body which at this day as to the Legislative power represent the whole Kingdome The Members of the Commons House alone do not in that manner represent the Commons of England the Lords the Peers and the King for Himself but all together do represent the whole Kingdom no one or two of these bodies can herein be said to represent only any part every common person doth herein by the Laws of England asmuch depend upon the judgement of the King and the Lords as upon the Members of the Commons House And so do the King and the Lords upon those Members for the King the Lords and Commons as now by consent of former Kings it is setled are herewith joyntly trusted As if three Lords authorize three severall persons to sell their Lands if two of them sell it binds not therefore in judging that sale void no man is injured the Lords are seized of their Lands as before and the persons trusted have the same power that is
joyntly concurring to sell and by that sale the Lords are concluded it is done by the Commission of those Lords and therefore in Judgement of Law their owne Act. So for the Parliament the King the Lords and Commons by the constitutions of this Realme are jointly trusted to consent unto the making new or changing the old Law therefore no lesse then all have Commission for it And so if the King and either House or both Houses without the King passe a Bill or make a Law this ought to be judged invalid none are thereby wronged still the knowne Laws are in force the people as before by the knowne Law are protected in their persons and estates and those trusted that is the King the Lords and Commons joyntly concurring have power to make new Laws which consent concludes the whole Nation it is done by its representative body and so by their Commission Thus it appears that when there is a question and dispute in Parliament between the King and the two Houses it is not necessary to have it affirmatively determined nor needfull that His Majesty in such cases be Judge against the two Houses or the two Houses to Judge it without Him That is but a fiction of the Members devised by them to reduce the Nation unto their Tyranny which as the Members knew they could not effect but by excluding the King from His negative Voice in Parliament so that being done their worke was finished Then they without the King arrogate power to make new Laws and change the old for their owne advantage as they pleased And so both King and people inslaved Therefore herein to beguile the people a case was faigned and stated thus That such a difference between the King and the two Houses as concerned the safety of the Kingdome was happened in Parliament That unlesse this question were instantly determined the Kingdome was in danger to perish Then to draw the people to side with the Members they were told that the Lords and Commons were the representative body of the Kingdome That whatever the Members in those Assemblies do it is so much the Act of every particular person in the Kingdome as if he were within the wals of the House personally consenting And perswaded the vulgar that this dispute between the King and the Members in effect is between Him and all the people of England And then offer it to the consideration of the multitude whether it be not more likely that all the people of the Realme concurring in one opinion should better know what is for their owne good then the King being but one single person and dissenting in judgement from the whole Nation The poor people not being of capacity suddenly to discerne the fallacy hereof And being ravished with a conceipt to be Judge in their owne case in smarmes flocked to this Idoll the Members thinking they had thereby adored themselves as well as that beast and never ceased untill by violence they expelled the King from His negative Voice in Parliament But now by wofull experience they both understand by whom and how they are represented which is thus The Knights of Shires Citizens and Burgesses being elected by the Inhabitants of the severall Counties and Townes do in some sort represent the people who chose them but that is no further then their Cōmission extends And they have no other Commission then the Kings Writ of Summons the returne thereof word by word set downe before which gives them no other authority then to consent unto Laws agreed on by the King His great Councell the Peeres consequently they do represent the people no further then to consent unto such Laws And for the Peeres they have no Commission at all from the people nor can be said to represent them their authority is solely from the Kings said Writ of Summons directed to every particular Lord by which likewise his power is declared and stinted That is to advise with the King concerning the affaires of the Realme So that the Lords and Commons put together they have no Commission to make Laws we are still to seeke that Legislative power nor is it to be found but in the King He alone is properly the Law-maker But the Kings of England as before appears having excluded themselves to make Laws without consent of the two Houses Therefore that united body the King and the Members of those Assemblies is called the Legislative power and the representative body of the Kingdom But that either or both Houses or any Assembly or people in this or any other Nation governed by Monarchy hath or ever claimed to have a Legislative power or sofar to represent the Kingdome as to make new Laws or change the old without the Personall consent of the King is such a ridiculaus Bull as never was heard or thought of untill this frantick Parliament Therefore when either or both Houses without the King take upon them to make Laws they extend beyond the bounds of their Commission they thereby act of their owne head not as representatives For example a Lord by Commission gives power to A. and B. to let and set his Land for tearme of years so long as A. and B. pursue this authority they do represent that Lord but if by colour of that Commssion A. and B. demise for life or sell the Inheritance it is done without authority their Commission reacheth not so far and so not representatives Therefore such lease or sale is void it doth not bind the Lord. Or thus A. having contracted with B. to make A. feoffement unto him and his heirs of the Mannour of D. upon a condition by letter of Atturney gives power to C. to make livery and seisin upon that Condition C. performes it In this case the Land is as firmely setled in B. as if A. had executed it in his owne person because it is done by his representative But if C. omitting to express the Condition make livery and seisin absolutely nothing passeth to B. for saith our Law C. extending the bounds of his Commission he doth not represent A. Therefore his whole act void So here the Lords as before appears have Commission to advise with the King the Commons to do and consent unto things agreed on by the King and them Now those Lords and Commons taking upon them without the Personall assent of the King to make new or change the old Law it is a power usurped without Commission or authority therefore no representatives and consequently all their proceedings void Then for the distinctions in the aforesaid Declarations mentioned 1. That no Law made without the Kings consent binds unless His consent be first required and refused 2. That those Laws be necessary for the preservation of the Kingdome 3. That such Laws shall continue no longer in force then that necessity lasteth these are snares and subtilties only to catch the simple no wise man wil be taken with them Suppose the King upon refusall
and the two Houses that body cannot properly be said a Court of Justice The Office of a Judge is upon a Question depending before him to declare what the Law is but the office of the Parliament is only to make new laws By this it appears that neither the Members of the Lords house nor of the Commons house are qualified to be Judges of the Law nor have they either jointly or severally Commission for that purpose And lastly admit every Member of either house in Learning sufficiently qualified to make a Judge their composure considered they are not capable jointly to perform that Office they being two distinct bodies their proceedings severall and distinct it cannot be expected but they shall frequently differ in Opinion and judgment therefore were they never so learned should the King grant unto them power of judicature or should they have that authority given them by an Act of Parliament the Lawes of England would judge both that Grant and Statute absolutely void as a thing most incongruous against sense and reason Upon which it followeth that if the Lords House or the Commons house or both Houses jointly have or shall condemne any person for Treason Felony or other capitall offence try any title of Land tax the people with payments of money seise or confiscate the Subjects estates or the like be it by Order Ordinance or any other way all such proceedings are void done coram non Judice and consequently both the Members and all persons executing their commands therein are by the Lawes of England punishable as Murderers Felons or other transgressours because done without warrant or authority And how long soever they shall continue this power and how frequently soever it is used that alters not the case the Law is still the same it was Yet herein I doe not abridge the power and authority of the Peers of the Realme It is true when the King hath constituted a Lord high Steward and consented to the triall of a Peere for his life for a fact committed against the known Law such a Peere not only may but ought the Lords observing the rules of law to be tried by the Lords his Peers But there is no colour for the Lords or for the Commons or for both Houses jointly although the King should give way thereunto to try or judge any Commoner Every common person ought to be tried by his Peers too that is by a Jury of the Commons and that Iury by the Lawes of England ought to be of that County and neare that place where the fact is committed It is a Rule in our Law that in capitall offences Vbi quis delinquit ibi punietur persons dwelling near the place are most likely to have cognizance of the fact Besides by our law every free-born Subject of this Nation hath at his arraignment power and liberty to challenge Iurors impannelled for his triall But all such liberties are taken away by this usurpation of the Members Thus it appears that the Judges of every Court of Justice so far as their Commission extends and no other persons are Judges of Law But the Judges of no one Court are those unto whom the people are bound lastly to submit themselves for every Court of Justice in some respect is inferiour to another Court or power unto which appeales lie as in the case of a Writ of error and the like unlesse it be in the Exchequer Chamber when the cause regularly depends before the Judges of the Kings Bench the Common Pleas and the Barons of the Exchequer into which Chamber things of great weight and difficulty concerning matter of Law are usually transmitted And being there judicially determined from that sentence t◠conceive no appeale lies to any other Court by Writ of error That is the sentence and judgement of the Judges of the Realme yet from that judgement some persons are of opinion a Writ of errour lieth before the Lords in the upper House of Parliament But upon consideration had of the reason of the Law concerning the proceedings in Writs of error brought there I conceive it were to little purpose to permit any such appeale unto the Lords upon judgements given in the Exchequer Chamber before all the Judges of the Realme The power of the Lords House to reverse erronious judgements I conceive began thus The Court of the Kings Bench is the highest Court of Judicature wherein any suite of Law can legally and regularly be brought and therefore their proceedings not to be examined by any other ordinary Court of Justice every one of them being inferiour to it But the Judges of the Kings Bench are as subject to erre as the Judges of other Courts Therefore as requisite to have their proceedings examined Now in regard the Judges of the Realme were at all times at least assistant to the Lords House it was proper enough to have the errors of the Kings Bench reversed in that place And having had its beginning thus constant use and custome hath Legally intituled them unto it Therefore although peradventure it may have happened that some few particular Writs of errour have been brought in the Lords House upon judgements given in some other Courts I conceive the prescription which is all the Commission they have lieth only for the Kings Bench. And I am the more confirmed therein because the Law bookes mentioning the authority of the Lords House in reversing judgements do generally instance in the Kings Bench not naming other Courts Besides as the Lords House hath this jurisdiction by prescription the same use and custome requires these circumstances 1. That the Kings consent to prosecute a Writ of error be obtained because every judgement in the Kings Bench doth immediately concerne the King the jurisdiction of that Court being properly Pleas of the Crowne 2. That the Lords after the cause is brought before them proceed by the advice of the Judges which is indeed the essentiall part of the prescription To have a profession of Law Courts of judicature erected persons learned in that profession appointed Judges thereof it were most preposterous to have the proceedings of these Judges even in the most difficult points of the Law examined reversed and controlled by persons ignorant in that profession By the constitutions of England no man is capable to be a Judge unlesse he have understanding in the Law to performe that office Therefore shall the King grant to one who is most learned a Judges place to him and his heires as to his heires it were void and the same it were if such a grant were made by Act of Parliament And so consequently if the Lords should prescribe that time out of mind they and their predecessours Lords of the Parliament in Parliament time have without mentioning it to be with the advise and assistance of the Judges reversed erronious Iudgements given in the Kings Bench or in any other Court of Iustice it 〈◊〉 〈◊〉 be disallowed judged as an evil use
that Suppose it granted that the Iudges in that case of Ship-mony gave Sentence by corruption whereby about 200000. l. per annum was drawn from the people To conclude hereupon that we must from henceforth have no more learned men chosen Iudges is extreame harsh It might as well be argued thus The Members of the two Houses have erred in Iudgement and have been corrupt ergo we ought to have no more Parliaments For as before appeares the Members of former Parliaments have most grosly erred And for these present Members they have not only erred but have been in the highest nature corrupt too First They erred in Iudgement by assuming the Iustice seat the Soveraign power of Government and so in infinite other particulars Then for corruption since these Authorities were by them arrogated twice twenty times 200000. l. per annum illegally and barbarously drawn from the people doth not stint them They have corruptly by one Vote not onely given themselves the wealth of the whole Nation but have likewise enslaved both King and People for their lives and fortunes to their owne will But clear it is no constitution can avoid every mischiefe it is the best Law which prevents the most inconveniencies therefore in this case that which can be done is to have persons who are learned in the profession made Iudges of the Law and all possible care taken that they doe Iustice and for that by our Law no man is capable of a Iudges place unlesse he have ability to execute the same And although he be sufficient for learning yet being advanced for bribes or rewards he is by Law likewise disabled to performe the office They are sworne to do right to all persons and although error in judgement is no crime yet corruption in the Iudge be it for bribes affection malice desire of preferment fear or any other cause is by our Law an offence of an high nature and and most severely punished Now if in stead of exalting themselves the Members had as they made some shew for a while made inquiry how and by whom the Judges were drawne as the Members alleadge to give that corrupt sentence and had presented the same to the King to the end not onely exemplary punishment might have been inflicted upon them but they put out of their places and new Iudges elected the Members had done like Parliament men that had pursued their Commission And so whilst the King the Parliament the Judges every Court and Assembly retaine their owne proper authority without clashing with or encroaching each upon other As by the Laws of England they ought to do both King and Subject are preserved in their just rights And this ought to be exactly observed notwithstanding the superiority or inferiority of any Court power person or Assembly because one Court in some respect is superiour to another that takes not away nor lesseneth the proper jurisdiction of the inferior Court Scarce any inferior Court but it hath some powers which the superior Court hath not For example The Court of CommonPleas hath power between party and party to determine reall actions which the Kings Bench hath not The Assembly of the Commons House cannot give an oath yet the meanest Court of Justice even a Court of Pipowders hath that power So that if it were admitted that the two Houses of Parliament were a Court of Justice as it is not And that it were the highest Court of that nature in this Kingdome that would not at all make good their pretence to be the finall Judge of the Law from whom no appeale should lie But by this Vote and practise of the Members all Courts of justice and rightfull powers in the Kingdome are put downe the Law totally subverted and all things reduced to their arbitrary power Upon the whole matter clear it is that the Judges of the aforesaid three Courts are the Judges of the Realme and the persons unto whom all the people of this Nation are bound lastly and finally to submit themselves for matter of Law But notwithstanding all this the same necessity which made the Members exclude the King from His negative Voice and so to usurpe a boundlesse power to make Laws enforceth them to arrogate the Justice seate too For it were to little purpose for them to declare it Treason for a Subject to speake to His King and infinite such like grosse contradictions both to reason and the knowne Law and yet permit the rightfull Judges to determine the same questions that were both to exalt themselves up and at the same instant to cast themselves downe againe But they tell us they are no such babies So long as the people will be fooled nothing is more certaine but Tyrants they will be to us their slaves In the next place it is shewed who ought to nominate and authorize the Judges of the Realme CHAP. VI. That the Judges of the Realme ought to be elected and authorized by the King of England for the time being and by none else THe legall authorizing of the Judges of the Law is of that importance as upon it depends the preservation of the people for no Law no government no Judge no Law and if authorized by an illegall Commission no Judge It appears before that when the Iudge extends beyond the bounds of his Commission his proceedings are void as done coram non Judice Upon the same grounds be the words of the Commission never so large if the authority be derived from such as have not power to grant it the whole Commission is voide Yet Mr. Pryn by the authority of the Commons House hath published a Treatise intituled thus The Parliaments right to elect Privy Councellors great Officers and Judges Wherein he endeavours to prove the two Houses by the Laws of England ought to elect the Iudges And proceeds thus Kings saith he were first elected by the people and as he beleeves the people at the first elected the Judges and great Officers and bound them by publike Laws which appears saith he by infinite Acts of Parliament regulating both the power of the King and His Officers That in ancient time Lieutenant Generals and Sheriffs were elected by the Parliament and people That the Coroners Majors Aldermen of Corporations Constables and other such like officers at this day are elected by the people Knights of Shires and Burgesses are elected by the Commons of the Realme That the King can neither elect a Commoner nor exclude a Member of either House to sit or Vote That the Parliament consists of Honourable wise grave and discreet persons That although the Kings have usually had the election of great officers and Judges it hath rather been by the Parliaments permission then Concession That the Judges and Officers of State are as well the Kingdomes as the Kings And saith that Mr. Bodin a grave Politician declares That it is not the right of electing great officers which prove the right of Soveraignty because it oft
Roy le veilt So that if any difference be the Kings words are more prevalent for before that it is but a written piece of parchment not valid but by tht Kings words instantly it hath life and is become a Law binding the whole Kingdome and people And this as before is said is the Kings Law Then Mr. Pryn fals to presidents which he cals proofs King Ed. 2. and King R. 2. saith he were deposed by the Parliament Answer The case concerning these two Kings was thus Against King Ed. 2. after many distractions in the Kingdome the Queen His Wife and other of Her adherents increased the faction raised a Rebellion barbarously tooke the King prisoner and during His imprisonment without any lawfull authority or consent of the King in His name summoned a Parliament and by force drew him in words to resigne His Crowne unto His Son afterwards King Ed. 3. and that of King R. 2. was much to the like purpose He was drawne to resigne His Crowne to H. of Bullingbrooke Afterwards King Hen. 4. and these two lawfull Kings being thus injuriously bereft of their Scepters were shortly after most barbarously murdered too The whole proceedings of which Acts all such Pryn excepted as have mentioned them have condemned the same not onely to be illegall but as Acts most wicked and notoriously impious But saith Mr. Pryn Pierce Gaveston and the two Hugh Spencers were by Parliament banished the Spencers violently put to death Humphrey Duke of Gloucester arrested of high Treason at a Parliament at Berry and there murdered That the Earle of Strafford this Parliament lost his head against the Kings will Answer For the banishment of Gaveston and the two Spencers his Argument is but thus The King with the assent of the two Houses made an Act of Parliament to banish them Ergo the two Houses without the King have the Soveraigne power of Government And admit Mr. Pryn hath proved which he endeavours that the Members of the two Houses murdered the Duke of Gloucester and the Spencers still that proves not the Soveraigne power of government to be in the Members That example of the late Bishop of Canterbury I conceive to be a President far more proper to be cited for this purpose then the case of the Duke of Gloucester or the Spencers For all men know that Bishop was put to death by no other authority then by order of the two Houses yet this no more proves the Soveraigne power to be in the Members then that murder acted by Felton upon the person of the Duke of Buckingham proves Felton to be the King of England For the Members of the two Houses had no more authority to condemne to death the Bishop then Felton had to kill the Duke And consequently the murder of the Bishop whatever his offence was or however guilty it â—â—…ing done by pretext and colour of Law was more horrid And for the Earle of Strafford it was thus By the Laws of England no man can or ought to be convict of a crime but by Act of Parliament by utlagare or by triall of his Peeres That is if a Lord of the Parliament by a Jury of Lords if under that degree by a Jury of like quality and being convict the Judge ought to give no other sentence but what the knowne Law doth pronounce for that fact Now that Earle by the Members of the Commons House was accused of high Treason The King thereupon declared His resolution not to protect him from the tryall or just sentence of the Law After this the Members waving the ordinary proceedings of the Law passed a Bill to attaint him of Treason by Act of Parliament This Bill was presented to the King He for some time refused to make it a Law which peradventure He might be induced unto by the Bill it selfe There being a speciall proviso therein that the Judges shall not condemn any other for the like offences which might cause the King to be very tender of passing the Act thereby to condemne a man as a Traytor for facts passed which at the time committed was not Treason This if duely considered is so far from being evill in the King as that the whole Kingdome hath thereby great cause to acknowledge his goodnesse It hereby appears he desired to governe as King not as a Tyrant to proceed against offenders according to the knowne Law not by an arbitrary power And if some particular persons too much thirsting after Straffords blood occasioned such things as might draw the King against His conscience to consent unto that Act woe be unto them But however whether the King passed this Act willingly or against His will or whether the Earle of Strafford were guilty or not guilty of Treason That nothing proves that the Members have Soveraigne power of government above the King Thus for Mr. Pryns objections against the Kings right to Soveraignty And that the Members have no authority therein is further proved thus 1. So long as the people have been governed by a knowne Law there must have been a Supreame Governour but we have had the same Law by which we are now governed long before the Institution of the two Houses 2. It is absolutely necessary that the supreame Governour be a person constantly permanent and visible but the Members out of Parliament are not in being they are invisible 3. It is a contradiction to Soveraignty to be subject to the commands of an other But the Members are called together and dissolved againe at the Kings pleasure 4. The Composier of the Members is such As that to make them supreame Governours tends to the destruction not to the preservation of the Kingdome and people If a woman bring forth a Monster not having the shape of man-kind our Law judgeth it no issue it is lawfull to kill it it ought not to be baptized To have two heads of one body is monstrous so to have two Kings of one Kingdome must be destructive to that Nation But here which is a far more prodigious monster we by the Members usurpation are governed by two severall distinct bodies consisting of multitudes without any head This government is new there yet never was the like upon the face of the earth It is not Monarchicall Alligarchicall Aristocraticall Democraticall nor although the neerest to it Anarchicall it is worse then confusion It can have no proper name unlesse it be called contradiction Thus for the negative part that the two Houses have not the Soveraigne power it now rests to shew in whom it is And for that these two things are considerable first what is the office of the Supreame Governour secondly who hath performed that duty For the first all men grant it is to preserve the people in peace by causing the Laws to be justly distributed and the like which have ever been performed by the King of England for the time being and by none else He hath denounced War proclaimed peace inhaunced and
the Militia unto the Members is the same as to put the Sword into the hands of a mad-man for as the one hath no reason to restrain himself from doing mischief so the Members are not guided by any known Law but having usurped an Arbitrary power over King and Subject we finde by our wofull experience make use of the power of the Sword to compell the people to submit unto their insatiable lusts Witnesse besides the infinite murders and slaughters of the people the vast summes of money these Members since this Parliament by the power of the Sword have unlawfully wrested from the Subject which being justly cast up would amount to more then all the Subsidies grants of that nature given unto all the Kings of England for the space of 500. yeares before that Upon the whole matter clear it is the Militia of the Realme by the known Law of the Land is the sole and onely Right of the King And consequently all Commissions Powers and Authorities granted or given by the Members of the two Houses concerning this Warre are voide in Law and no Justification for those acting thereby But for the nature of that offence it is shewed in the next Chapter CHAP. IX That all persons who have promoted this Warre in the name of King and Parliament and such as have acted therein or adhered thereunto are guilty of Treason THe Office of the King and Duty of the Subject appeares before to be thus The King to Command and Govern according to the Established Lawes of the Realme The Subject to obey those Commands wherein the Law of all things abhors force and enjoynes peace which Peace by the Lawes of England is called the Kings Peace Therefore in every Indictment for Murder Felony or Trespasse done upon the person or estate of a subject These words viz. contra pacem domini Regis nunc Coronam dignitatem suam ought to be expressed for although the fact be done immediately against a Subject yet it trencheth against the Kings Authority His Law is thereby broken And the Lawes of England not onely protects the Kings Person from violence but preserves Him in His Royall Throne and Government Therefore if any persons in this Kingdome without command or assent of the King raise Forces Powers or Armes be it upon what pretence soever it is a Warre levied against the Kings Authority His Crown and Dignity For in that the Subject assumes the Regall power of the King Then for the Authors and Actors of this Warre the Kings Castles Forts His Navy Armes Ammunition and Revenues of His Crown are by force wrested out of His Hands Armes raised conducted into the Field Himself fought with in severall Battailes His Subjects in every part of the Kingdome by the awe of those Armies forced from their Allegeance Therefore a War it is and a War against the King The next Question is what the Law declares this offence to be And that appeares by the Statute of 25 Edw. 3. in these words Whereas divers opinions have been before this time in what case Treason shall be said and in what not The King at the request of the Lords and of the Commons hath made a Declaration in this manner When a man doth compasse or imagine the death of our Soveraigne Lord the King or of my Lady the Queen or of their Eldest Sonne and Heire or if a man do levy War against our Soveraigne Lord the King in this Realme or be adherent to the Kings Enemies in this Realme giving aide or comfort in the Realme or elsewhere and thereof be probably attainted of open deed by people of their condition c. It is to be understood that it ought to be Judged Treason By this clear it is That it is Treason to Levy War against the King to compasse or imagine the death of the King the Queen or Prince to adhere unto or aide the Kings Enemies Of all which the death of the King Queen and Prince excepted the Authors and Actors of this War are guilty But M. Prin hath by Authority of the Commons House of Parliament published a Treatise intituled thus The Parliaments present necessary defensive Warre is Just and Lawfull both in Law and Conscience and no Treason or Rebellion Answer This Title is like his whole discourse totally either impertinent or false This is not the Parliaments War but a War of the Members of the two Houses Nor is it a War on the Members behalf defensive but offensive which omitting to expresse when and by whom the Armies and Forces were first raised that being obvious to all men appeares by considering the Cause of the Warre which was thus The Members having formed a Law to take out of the Crown the power of the Militia and to settle it in themselves the King refused to consent unto it which refusall was the ground of this War wherein the King was onely Passive and the Members Active They pressed upon Him to change the Law He refused It were grosse in this case to conceive the King should make a War But the Members had no way to gain their ends but by force and so began the War Then Master Prin proceeds to prove that this Warre of the Members is not Treason For saith he they intended no violence to the Kings Person His Crown or Dignity onely to rescue Him from His Cavaleers and bring Him backe to His Great Councell Answer It is true sometimes the intent of the party committing the fact alters the case For example A man travelling the passage is stopt by water And finding a horse there makes use thereof to get over the water This is not Felony But it is a Trespaas Suppose this party indicted for felony at his triall it is pertinent for him to confesse the fact That he used the horse and by circumstances to make it appear he intended thereby onely to get over the water and so to quit himself of the fellony But this man being indicted onely for a Trespasse for him to confesse he used the horse to get over the water alledging he could not otherwise have passed thereby to quit himself of the Trespas were foolish So here raising of Armies against the Kings Command conducting them into the field c. is confessed But saith M. Pryn that is not Treason for they intended no harme to the Kings Person His Crown or Dignity Which is a fond contradiction for admitting they intended no harme to the Kings Person the fact confessed is a harme to His Crown and Dignity And that in the highest nature that may be It is a Warre Levied against Him and His Regall Authority which by the Laws of England is High Treason Raviliake who killed the King of France upon M. Pryns ground might have justified the fact Although he had confessed to have willfully killed that King yet he might with as much truth and sense have said he intended not to hurt the Kings Person As M. Pryn
first confessing the foresaid facts of Levying Warre doth deny an intent to harme the King in His Crowne or Dignity Then for rescuing the King from His Cavaleers If M. Pryn reflect upon the case of Robert Earl of Essex in the time of Queen Elizabeth he will finde That that Earl in comparison of Edg-hill Battaile gathered together but a handfull of men nor was that Queen fought with nor her Person in danger All which things the foresaide Earl at his Arraignment alledged for himself And protested his intent was onely to remove from the Queen some evill Councellors about her yet not available The fact by him confessed viz. without warrant from the Queen in a tumultuous manner to raise force was Judged Treason for which that Earl and his Adherents were executed as Traitors Thus for the point of Levying Warre against the King Then for imagining the death of the King Queen and Prince In this case the intent of the party acting is considerable For example suppose the King to be distracted or distempered endeavours to violate himself or assaults a Subject To lay hands upon the King to preserve His or the Subjects life in those cases and such like the facts are lawfull And it may so happen that the King may be slaine and yet no Treason As in case of tilting and such like Now the intent of any man cannot appeare otherwise then by the parties confession or by Proofes Circumstances and Presumptions Then for the Authors and Actors in this War It is true they deny an intention to kill the King the Queen or Prince But the Circumstances are as full and pregnant to prove they intended it as is possible A man seeme to come out of a house with a naked sword bloody none being in the house but the Corps of a dead body newly slaine with a Sword This is so pregnant a presumption as that before a just Judge and an equall Jury the mans deniall will not availe him Suppose one should assault and strike the King the Queen or Prince and with violence pursue the same and for this be indicted to have imagined their death for that man to alleadge he intended not to kill him or them so assaulted were in vaine But certainly the presumptions to prove the Authors and Actors of this War intended to kill the King the Queen and Prince are far more pregnant Suppose the Members and their Souldiers had declared their intent to be to kill them no man can devise how they could have endeavoured to have effected it more then hath been done by this Warre Severall Battailes have been joyned the King and Prince in person And many thousands on the Kings party slaine And for the Queen witnesse the businesse at Burlington The Authors and Actors of the powder-plot were justly condemned for Treason Upon that point of imagining to kill the King the Queen and and Prince But upon this ground of M. Pryns they might have escaped punishment It had been as easie for them to have alledged that they intended not to kill the King the Queene and Prince As for the Actors in this Warre to pretend it But Master Pryn undertakes to make this War against the King to be Lawfull by Authority and presidents Julius Caesar saith he by a Conspiracy of the Senate of Rome was murdered having 23 wounds given him And then shewes the Rebellions in the Raigne of King John Henry 3. Edward 2. Richard 2. and other Kings And some of them it is true were murdred by their Subjects Answer I confesse if presidents and examples of this kinde be Authorities to prove the facts lawfull It is easie enough to justifie this and every Rebellion And M. Pryn having cited that president of Julius Caesar and himself acknowledging that fact to be murder he was overseen to omit citing that of Judas for it was somewhat later in time it excels that fact against Caesar and is very sutable with this of the Members He betrayed his Master and the Saviour of the world with a Kisse these their Soveraigne with an Oath And like unto those Treasons and Murders against Caesar King Edw. 2. and King Rich. 2. they might very aptly have cited the examples of some of their deare brethren the Scots severall King have been Rebelled against and Murdred too by the Subjects of that Nation Yet we see they are not by the people of Scotland made examples or cited for Authorities to prove the lawfulnesse thereof But contrarywise That Nation doth unanimously declare it their duty to relieve and rescue their King from out of the hands of His Rebellious English Subjects And many other examples I confesse there be in forraigne Countries both Christians Turks and Infidells where Kings by their own Subjects have been betrayed and murdered And so the discontented people in any Nation may alledge that King Edw. 2. Rich. 2. of England being lawfull Kings were by their owne Subjects Rebelled against and Murdered And so be the scene in Spaine France or any other Kingdome conclude it is lawfull for them to doe the like Then M. Pryn explaines the meaning of the aforesaid Statute of 25 Edw. 3. by which it is declared to be Treason to Levy Warre against the King to compasse or imagine the death of the King the Queen or Prince But the words of the foresaid Act saith he must be understood with this Limitation viz. so long as Kings execute their Just Royall powers according to the Laws of God and of their Realmes that saith he is the meaning of the holy Ghost And even so saith he are these words of Saint Paul viz. let every Soul be subject to the higher powers to be understood with that limitation yet saith he No private man of his owne authority ought to rise in Armes against them without the generall consent of the whole Kingdome or both Houses of Parliament Answer This was a doctrine aptly divulged for the justification of this Rebellion And a ready way I confesse to draw the multitude to their party who oftentimes are as in this case they were misled upon pretence of Law and Religion to their owne ruine Now admit the Members to have got the Soveraigne power If Mr. Pryn be asked this question How he will have the holy Ghost now to speake If the Members make a Law and declare it Treason for the people to leavy War against them whether that Law shall be understood with the same limitation Mr. Pryns answer will be that the limitation is now ended The Members he will say must expound the meaning of their owne Law and S. Pauls words too For the Members themselves tell the people that they are the Kingdome whatever they do they would have us beleeve to be the act of every person in the whole Nation And so not examinable but by God himselfe in the next world so that the Members having got the power into their owne hands whether they governe by the Laws of God
Prince 2. To violate the Queen the Kings eldest daughter unmarried or his eldest sons wife 3. To leavy War against the King or to adhere unto His enemies giving them aid or comforts in this Realme or elsewhere 4. To counterfeit the Kings Great Seale the Privy Seale or His money 5. To bring false money into this Realme counterfeit to the money of England 6. To slay the Chancellor Treasurer or the Judges of either Bench the Justices of Eyre of Assize and all other Justices assigned to hear and determine in their places doing their office And then it is enacted in the negative that no other thing shall be judged Treason untill it be declared by the King and His Parliament And accordingly by severall Acts of Parliament some other things have been made Treason viz. 7. To deny the King to be our onely Supreame Governour and so in some other particulars The Members Law herein both Affirmatively and Negatively follow thus 1. That it is not Treason to imagine the death of the King the Queen or Prince 2. That it is not Treason to Levy War against the King to adhere unto His Enemies or to give aide or comforts to them in England or elsewhere 3. That it is not Treason to Counterfeit the Kings Great Seal or His Money 4. That it is not Treason to deny the King to be the Supreame Governour Then for their Doctrine in their Affirmative it followeth thus 1. That it is Treason to endeavour the preservation of the Kings Person from violence 2. That it is Treason for a Subject to aide the King against His Rebellious Subjects Levying War against Him 3. That it is Treason to maintain or affirme that the King is the onely Supreame Governour 4. That it is Treason for any Man to deny the Members their fellow Subjects to have the Soveraigne power of Government 5. That it is Treason for a Subject without leave of the Members to recide or dwell in London But it is not possible to instance in all the particulars of the new Treasons therefore in general the people must know that whatever the Members shall say is Treason They must beleeve it to be Treason Now for the poofs The foresaid Statute doth clearly demonstrate what the known Law is And therewith agrees all the Authorities Judgements and Resolutions of the Law But for the Members their Law is so new as that they cannot look beyond the beginning of this Parliament nor produce any one Judgement Resolution or Opinion to make good any one of their Doctrines And consequently their own fictions Let them speak out and all that they can say for themselves is but thus viz. We have gotten possession of the Kings Revenue we have besides that setled unto our selves a yearly Revenue amounting to at least thrice treble the profits of the Crown of England and which is still more sweet we have the dominion over King and People we have a power unlimited to impose taxes and payments upon whom we please and what summes we thinke fit their persons we have in vassalage and can take away their lives when and for what cause we please for the obtaining whereof we did Levy War against the King we did in that Warre attempt to kill the King the Queen and Prince we did adhere unto His Enemies and gave unto them relief and comforts we have counterfeited the Kings Great Seal and His Money we have and yet doe most barbarously imprison the Kings Person we have subverted both Law and Religion Now for us to confesse the known Law and submit our selves thereunto were no other then to put our necks into the halter Therefore we must of necessity deny the old and forge new Lawes These things considered I suppose every one not particeps criminis in this odious Rebellion will judge it more absolutely necessary for him to endeavour his infranchisement from His slavery then it was for the Members to commit this foul Treason and Rebellion whereby the people are brought to this Vassalage Upon the whole matter clear it is that all those Members of either House of Parliament who consented to the making of any Order or Ordinance for the promoting of this War pretended for King and Parliament and all other persons who have acted therein consented or adhered thereunto are guilty of High Treason CHAP. X. That the Subjects of this Nation are not onely commanded from doing violence to the Kings Person or prejudice to His Authority but are obliged with their lives and fortunes to assist and preserve His Person and Just Rights from the fury of His enemies both forraigne and domestick ALL the people of this Nation are divided thus viz. King and Subject which of it self is proof sufficient to make this good The word King as before appears implies a duty in the King to protect His people and the word Subject a duty in them to assist Him By the Laws of England for a servant to kill his Master is an offence of a higher nature and the punishment for it more severe then for the meanest Subject without such relation of service to kill the greatest Peere for besides the Subordination between them a trust is implyed the breach whereof by an act of that nature by the Lawes of England is petty Treason Besides the Law expects from the servant a personall assistance to preserve his Master from violence or hurt and in that regard the Master being assaulted the servant by the Lawes of England may justifie to resist the assailant in defence of his Masters person And between the King and His Subjects the Subordination and Subjection is of a far higher nature The trust reposed in the Subject and his duty to the King is far more transcendent the King being head of the weal publick By violating his person saith our Law every Member of the Common-wealth suffers Therefore in assisting Him we doe defend our selves He is Pater Patriae we are His naturall born Subjects and so by the Law of nature obliged to preserve Him from injury Now the person of my Soveraigne Leige Lord the King by an unnaturall Warre raised and prosecuted by His owne Subjects being assaulted and Warre made against His Crowne and Dignity And the King having by His Proclamations summoned His Loyall Subjects to assist him upon serious consideration thereof I found that nothing was more clear or pregnant both by Authorities of the books of Law and severall Acts of Parliament by which it is abundantly declared to be our bounden duty to serve the King in His Wars both against forrain invasions domestick insurrections and rebellions Then that I was obliged in duty by the Lawes of this Realm by the Law of Nature by the Law of Reason and by the Law of God even by that precept of Saint Paul in these words viz. Let ' every soul be subject to the higher powers to assist Him against these assaults And upon these grounds I took up Armes for Him and
by judiciall proceedings recorded in his life time yet there is another rule in Law too viz. that no man shall take advantage of his owne wrong Therefore if one before he be convict by such proceedings be killed in rebellion and his corps viewed by the chief Justice he forfeits both lands and goods Now suppose 500 ordinary persons not claiming the power or name of a Parliament to have committed the crime of treason murder or felony Then assemble to themselves multitudes out the Judges from their Justice seat place those of their faction therein seize the Kings Great Seale break it in pieces and counterfeit an other Imprison the King and thus stop the course of Justice against themselves Grosse it were in that case because unattainted or unconvicted not to declare them Traytors Should the people in that case omit by all possible endeavours to apprehend and bring them to punishment wherein the Law upon resistance doth warrant the killing of them they were not only disobeyers of the Law but the cause of their owne misery Even so it is with the people at this day There is no difference to be found betwixt those 500 men and them at Westminster but the Westminster-mens pretence of authority which renders them more odious And therefore the people ought to be more zealous to apprehend them Fiftly it is an undoubted truth that whilst the Members are so over-awed as to act and doe what others command them It is no free Parliament and consequently all their proceedings void and null But those Westminster-men are in that manner awed Even as they by tumults expelled their fellow Members and by their tyranny fettered their consciences themselves are now by the power of an Army forced to captivate their owne sence to the will of a few inconsiderable persons some particular Officers of the Army The Members do not they dare not act any thing but in obedience of the results of a Councell of Warre Nay more we see not to alter and change opinion how contradictory soever to former votes how pernicious to King Church or Common-wealth as they receive commands from thence is ground sufficient both of an expulsion from the House and an impeachment of Treason Hence it is That we find such contradictory results sometimes these persons voting themselves a Parliament sometimes no Parliament sometimes much shew of setling a Forme of Religion they unvote that againe and declare upon pretence of satisfying tender Consciences to have none at all They do in effect say and unsay vote one and the same thing lawfull and not law even as the Cudgell hangs over them And so unlesse persons whose Soules and Consciences are so far in vassalage as to say act and doe what ever the present prevailing Party commands make the Houses of Parliament these Westminster men are not they and consequently if nothing but this were against them it proves them no Members of Parliament Sixtly admitting these men not disabled by any or all the foresaid means yet by their late Votes declaring their resolution not to make any addresse or application to the King nor to permit any from him they have by the Law of England dissolved themselves For setting aside the Kings Writs of summons the peoples electing the Knights Citizens and Burgesses and the returns thereof made And the Persons assembled have no more authority to sit or vote in either House then any other men And by those Writs they have nothing else to doe but to treat with the King concerning the affaires of the Realme Therefore by waving that they quit all their imployment They doe by it clearly publish unto the world an absolute deniall to take upon them those things which the King and people intrusted them with and for which they had Commission And consequently what ever they doe is without Commission or Authority But to doe them right they are in these votes more ingenuous then formerly There is now a harmony between their words and actions which heretofore jarred For notwithstanding their often Declarations and high Protestations even with deep execrations upon themselves if not performed to make the King glorious and the people to flourish The world might even from the first beginning of the Parliament see that all their actions tended to the destruction both of King and Kingdome Now suppose a new gang of four Judges set up in the Court of Kings bench by colour of Authority of these Persons at Westminster and three of them by an Order of their own to expell the fourth then two of the three to expel the third then one of the two to assemble multitudes and expell the other And after this the last man by himself alone or calling unto him two or three other persons sutable to himself to judge the Law and thereby to declare the wealth of the Nation to be their owne and both the Members and the rest of the people to be their slaves And having got an Army on foot to support their actions Then to declare that they will have no more relation unto or medling with the Members such Persons would quickly be denounced no Judges of that Court Declared to act without commission or authority To be Subverters of the Law and would be impeached of high Treason against this new State Even so ought all the people to declare these Westminster-men It is their case against the King the people and the old known fundamentall Laws of England Upon the whole matter I cannot more aptly parallel these persons then unto those men our Saviour in the Gospel warns us of They have got within the walls of the Houses of Parliament but entred not in by the dore They came in Sheeps clothing expressing themselves most zealous to advance Religion and to preserve the peoples Liberty But by their fruits we find them inwardly ravening Wolves they are like unto those who our Saviour calls thieves that come to steale kill and destroy they have abolished all Religion they have taken from the people their Liberty and almost to the last drop of bloud have sucked from them their livelihood In a word since they cast off their loyalty and so making themselves masterlesse those Wolves are so filled with pride as that they disdaine all other Creatures They are so gorged with malice as that they snarle and pinch at most men they meet which hath its effects like unto the biting of a mad Dog scarce curable but by a medicine prepared with the heart or liver of that biting Cur. So the world sees when these Westminster men have once fixed their malice whether upon those against them or upon their owne Party whether he have deserved well or ill whether the fact charged upon him be lawfull or unlawfull it is a million to one in fine he perisheth Nor can the wit of man find a cure for this grief but to unkennell these Wolves And to effect it the people of England by the rule of reason
government of the King cannot be forced either in person or estate otherwise then the knowne Law judged by indifferent persons unconcerned as aforesaid doth permit And consequently the people of England a most free subject CHAP. XIII That the people of England under the government claimed by the Members of the two Houses are absolute slaves IT cannot be denied but that where the King or the Supreame Magistrates authority over the people is arbitrary that government is tyrannicall No tyrant ever had or can have a greater power Nor is it possible for people where any Law is admitted to be under a greater servitude For he whose will is a Law as he hath no superiour so by any under his command he cannot be said to erre in judgement be his sentence never so bloody cruell or barbarous the dispute is ended no appeale or Writ of Error lyes so that the wisest man how industrious or conscientious soever cannot for the least instant of time promise to himselfe security of life or challenge property in his estate Therefore if the government in England practised and claimed by the Members be arbitrary it followeth that the people are absolute slaves wherein these things are considerable 1. Who they be that arrogate the government 2. What those persons act de facto 3. What power they claime to have de jure 1. For the first they are the Members of the two Houses being in number the Assemblies admitted full about seven hundred persons They are divided into two severall distinct bodies without any head and every body having equall power Then for their priviledges It is by themselves declared to this effect viz. That none of them although he hath committed Treason Sacriledge Murther Rape Felony or any other crime how execrable soever is to be appehended questioned or prosecuted for the same untill licence be thereunto obtained from that House whereof he is a Member Every offender herein is by their Declarations denounced a breaker of the liberty of the Subject of the priviledge of Parliament and a publike enemy to the Common-wealth And such a licence being obtained and the Malefactor thereupon apprehended he is not say they to be prosecuted by indictment or otherwise but in such manner and before such persons as that Assembly thinks fit to direct their persons are so sacred as that none but themselves must judge their actions Thus for the persons commanding 2. What they act de facto We see by a new Law called an Ordinance made by themselves without the King the late Arch-Bishop of Canterbury was condemned to death and executed They have confiscated his and other mens estates and by the same pretence they have taxed the people to the twentieth and fift part of their fortunes They have laid an imposition upon the Subject heretofore not heard of in England called an Excise They have taxed them with vast impositions and payments of money by way of assessements and otherwise at pleasure They receive and dispose of the confiscations and of all the aforesaid summes of money as themselves thinke fit They assume the power finally to declare and Judge the Law and by colour of their owne authority they have de facto repealed severall Acts of Parliament And have imposed upon the people new Lawes of their devising 3. What they claime to have de Jure if themselves be asked whether by Law they have not power to act the foresaid things If they have not authority without appeale to determine what is Treason murder felony or other capitall offence To put to death who they please To confiscate any mans estate To tax or impose upon the people without stint whether the profits of those confiscations taxes and impositions be not at their owne dispose and all this without any account To these they doe they have already answered affirmatively However all men of judgement may be herein satisfied The Members had lawfull power to put to death the Bishop of Canterbury and to seize his estate else he was murdered and his estate seized against Law now if they had therein lawfull authority it followeth that by the same Law they may whether guilty or not guilty of a crime put to death any other who they shal say deserveth to dye and may confiscate whose estate they please dispose thereof to their own use or otherwise as they thinke fit And accordingly we see they have and are going fast on as theives do their booties to divide and share the wealth of the Kingdome amongst themselves If they did lawfully tax the people to a fifth part by the same Law they may tax them to their full worth And for excise admit them to have power to charge any commodity with one peny and it cannot be denied them to have power to tax every one for every drop of drinke or morsell of mâ—â—t or what he buyes or sels to the full double or treble value thereof If they have power to repeale one Act of Parliament they have authority to repeale all the statutes in England And if they have authority to impose upon the people one Law their power therein is without limitation They may inforce upon the Subject what Laws they please and consequently their power claimed as highly arbitrary and tyrannicall as any have or can claime to have And having made this claime Then for their security therein they tell us that in all matters both for soul and body we have no Judge upon earth but themselves and denounce every one an enemy to this new State who shall deny that to be the Law which they declare Law Yet even now the people are told that they are and shall be governed by the knowne Law because say they Judges are appointed and suites of Law admitted Answer There was never any Tyrant but in some sort permitted a known Law among his vassals else the slaves could not acquire estates and so confiscations to the Tyrant would prove inconsiderable By the Laws of England a villaine hath power to buy and purchase and is therein protected against all persons his Lord excepted But the Lord may seize his estate beate or strike his villaine at his pleasure The Turke who hath been accompted the greatest tyrant his vassals acquire vast fortunes and are by a Law protected therein against their fellow slaves But the Turke at pleasure may not onely seize their whole estates but take their lives too Even so it is at present with the people of England we have liberty to buy and sell and acquire wealth we are as an English villaine or Turkish slave sometimes that is when the Members please else not protected therein against one another But when the Members thinke fit every mans estate his fortune his person his life all is at their will and doome That Law permitted amongst the people reacheth not so high as the Members when they thinke fit their will is the Law so that our slavery for the present is worse