of the Members to have power to make a Law it is all one as to have that authority without asking them the question The Members upon broaching such a doctrin for the King would cal it tyranny they might justly too in that case account themselves but ciphers And the like reason holds via versa if the Kings deniall to make a Law hinder not the force of it the absolute power is in the Members And whether a Law be of necessity to be made for the preservation of the Kingdome or not he who will be sole Judge of that necessity excludes the other if the King be Judge thereof the Houses are excluded if the Houses assume that power the King is excluded And then for the continuance of those Laws it is as easie for the Members to say they have cause to continue them as to pretend necessity to make them The Members judged it necessary for the preservatiō of the Kingdome to take from the Crowne the Militia of the Realme and to settle it upon themselves they desired the King to consent He refused thereupon the Members without the King usurped that power into their owne hands The Members now declare it necessary for the preservation of the Kingdome for them without the King to impose upon the people impositions taxes and payments without stint to make what Laws they thinke fit to exclude the King from His Regall Authority to assume the whole power of Government and that to be Arbitrary the King having been desired to consent hereunto He refuseth Upon this we see the Members without the King assume it witness the imposition of that horrid Tax by Excise Assesments condemning of their fellow Subjucts to death confiscating their Estates and the like so that no man can apprehend that the asking of the Kings consent which in shew they seemed to desire is in their esteeme indeed of any moment And the Members by excluding the King from His negative Voice having got possession of the wealth of the whole Nation and dominion over the people having thereby wrested from the King the Sword His Scepter and Soveraignty it selfe no doubt but the same necessity pretended by them at first to incroach this power will be still alleadged by them to make their usurped authority lasting which accordingly we find the Members have as much as in them lie made their raigne perpetuall They tell us first in generall that in all matters either concerning Church or State we have no Judge upon earth but themselves And so by their doome we are both for soul and body in an everlasting and absolute slavery unto our fellow Subjects Then they proceed to particulars and begin with the Militia of the Realme which they judge usetesse and as a thing lying dead whilst it is in the power of the King of England For say the Members by the constitutions of the Realme the King cannot by himselfe alone without consent of the two Houses raise money by taxing the people Therefore the power of the Militia say they inables Him not to do the Kingdome any effectuall service But those Members having arrogated a power without the King to impose upon the people without stint they do therefore judge the Militia to be their owne And I confesse they are in some sort necessitated thereunto for both we and they see that otherwise then by troopes of Horse and bands of Soldiers it is impossible to leavy upon the Subject those illegall burthens by the Members laid upon them So that it is now come to passe that our greatest happinesse is made the foundation of our greatest misery because the King governs us by a knowne Law these Members tell us we must not be governed by a King the Kings justnesse to His people hath furnished these Tyrants with arguments to dis-throne Him By the government under the King and that authority claimed by Him the people have such protection of their persons and property in their Lands and goods as that otherwise then the known Law declared by the sworne Judges of the Realme doth warrant the King cannot molest them in either therefore say the Members He ought not to have the power of the sword But on the other side the Members having usurped an arbitrary and tyrannicall power over the persons lives estates and fortunes both of King and people therefore the Militia of the Kingdom say they belongs to them so that upon the matter better it had been both for King and people if the King had assumed the Turkish tyranny for then the King even by the Members owne argument had kept His Crown nor had the Subject been in so great a slavery as now we had then been subject only to one tyrant but by this doctrine we are vassals to seven hundred The Members have already besides the whole Revenue of the Crowne which they have barbarously wrested from the King the Queen and the Royall Progeny taxed upon the people by way of Excise Assesments and such like new impositions before this Parliament never known nor heard of in England above 3000000. l. per annum for their owne setled Revenue yet all this serves not the turne of these blessed self-denying reformers Besides all this they force the people to lend to give they confiscate where they please and convert to their own use what summes of money they thinke fit Yet setting aside their owne pompe and glory no visible cause of expence appears saving the Souldiery who are kept for no other end but to awe the people and force those exorbitant and illegall contributions Secondly they have Judged the King whom themselves even this Parliament have sworne to be their onely Supreame Governour to be unfit to Governe And this for refusing to acknowledge it His duty to be governed by them His Subjects and so much as in Him lay perpetually to vassalage unto those Rebels Himselfe His Royall Posterity and all the rest of the people And to compleat the worke they have Judged it Treason for any Subject of England either to make application to His Soveraigne or to receive any Message from Him By which Tyranny the people of this Nation are brought into that sad condition as doubtlesse was never yet parallel'd even from the Creation upon the face of the whole earth For Traytors we are denounced both for doing and not doing one and the same thing By Act of Parliament it is high Treason to refuse to sweare the King to be the only Supreame Governour over all the people of the Realme And these Members against this knowne and declared Law although themselves have taken that Oath murther such Subjects as according to their duty make addresse unto Him And call that their due allegeance Treason And to colour these proceedings the Members have the boldnesse to vouch God himselfe to justifie the legality thereof The power of the Militia say they was the principall cause both of this late War and the quarrell
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
Majesty and the Kingdome as they are in many if not in all cases And say they if His Majesty should be Judge He should be Judge out of His Courts and against His highest Court which He never is But the Parliament should onely Judge without His Personall Assent which as a Court of Judicature it alwayes doth and all other Courts as well as it And say they if the King be for the Kingdome and not the Kingdome for the King and if the Kingdome best knoweth what is for its owne good and preservation and the Parliament be the representative Body of the Kingdome it is say they easie to judge who in this case should be Judge But say they it it not so easie to understand what is the danger of unsetling by this meanes the security of all mens estates Is this danger say they kept of us by His Majesties single Vote And all mens estates without security and exposed to an arbitrary power because in all Courts of Justice and in the Court of Parlialiament and that without any appeale from it mens estates and interests are Judged without His Majesties Personall Assent But say they we do not say this as if the Royall Assent were not requisite in the passing of Laws nor doe nor ever did we say that because His Majesty is bound to give His consent to good Laws presented to Him by His people in Parliament that therefore they shall be Laws without His consent or at all obligatory saving only for the necessary preservation of the Kingdome whilst that necessity lasts and such consent cannot be obtained Answer Here with much art and cunning it is endevoured to misleade the people And for that purpose the true question is declined and other questions raised which at the first sight may to the vulgar seeme plausible When a difference happens say the Members between the King and the Houses and thus in a thing which concerns the safety of the Kingdome it must not rest undetermined therefore say they either the King must be Judge against the Houses or the Houses must be Judge against the King and conclude for themselves But the case being rightly stated and the constitutions of the Realme duly considered every rationall man will conclude that this power being granted the Members all the rest of the people of England are of a free Subject become absolute slaves which is thus This Nation is governed by a knowne Law which hath its prescribed rules therefore as before I said it may be necessary in some things to alter the old and make new Laws And that being so some knowne persons must Judge when necessity requires such a change and consequently untill those persons have so judged it all the people ought to conclude there is no need to alter the Law And by the Laws of England as before is said the King and the two Houses are that Judge no major part it is all joyntly who have that power As if A. seised of Lands upon his marriage is tied not to sell without the consent of B. and C. in this case A. B. or C. may negatively hinder the sale but it were absurd to conclude thereupon that A. B. or C. or any two of them have power to sell but most injurious it were upon that ground to give power to B. and C. to sell the Lands of A. without his personall consent So in this case the Kings of England have debarred themselves from making or changing the Laws without assent of the two Houses whereby the King the Lords House or the Commons House hath power negatively to hinder the making of any new Law or changing the old but it followeth not therefore the King the Lords or Commons or any two of those bodies have power to make a Law The difference is no lesse then between the having and not having a known Law The one imports the settlement of a knowne Law and preserves it and the other introduceth an arbitrary government For example if the King hath power to make what Laws He thinkes fit He may at pleasure bereave the Subject of life and confiscate their estates But now having a knowne Law and thereby protected in our persons and estates the King having a negative Voice to hinder the changing of that Law there ensueth no such evill consequence And the same holds with the members the Lords House and the Commons House having each of them a negative Voice to hinder the changing of the Law or making a new Law doth not lessen the peoples protection of their persons nor alters the property of their estates The knowne and setled Law still preserves both But admit one or both Houses without the King to make what Laws they please it followeth they have power to put to death whom and for what cause they thinke fit and for their owne use to seise and dispose of their estates their will is then the Law So that to give this power to the King alone or to one or both Houses without the King the consequence is equally evill If the King have it both Law and Parliaments are destroyed If the Members Monarchy the Parliament and the Law it selfe are totally abolished And if the King by having this power of a negative Voice be Judge in His owne cause the Members having that authority are so too But that is a meere fiction neither King nor Members by having a negatie Voice in Parliament are Judges in their own cause but all that is to say the King and the Houses are jointly Judges when it is fit to make a new Law or change the old And so long as they extend not beyond the power of a negative Voice the Members of the two Houses are persons indifferent between the King and the people and so is the King indifferent between the Members and the people For example if the King propound a Law to take away the life of His subjects to tax them with payments of money not warranted by the knowne Law or otherwise to inlarge His Prerogative the Members may assent thereunto and so make it a Law or refuse it and herein they are indifferent between King and people for the benefit of those Laws thus propounded accrues not to them And so it is if either or both Houses propound a Law to the King whereby they would assume to themselves the absolute power of Government to put to death whom they please to tax or impose upon the people to confiscate their estates to their own use the King is a person indifferent between the Members and the people to Judge whether to passe it or not But when the Members without the King assume power to make Laws the dispute between the King and the people is ended the businesse is then immediately and totally between the Members and the people Therefore by excluding the King from His negative Voice the Members have made themselves Judges in their owne case By our wofull experience we now find there
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
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
as frequently as the tyde turnes that the faction of that House changeth And accordingly expulsions follow and new elections are made So that admitting this power to expell it would ease the people of much trouble for the Members to indorse upon every Writ the names of such as shall be chosen Or rather by their Speaker after a Vote to that purpose naming the man to summon him to the House and so as they Vote out one Member to Vote in onother Which in effect is exercised at present We see it is not at all considered whether the party chosen be fitly qualified for the service or not If he be of an humor to concur in opinion with the present faction good enough Hence it is that we find the children or kindred of those who for the time being sterve the House of what age or capacity soever and none else are judged fit for the imployment And so admitting this authority in the major part of that Assembly The issuing out of the Writs the peoples electing and the returning of the Members are become but frivolous and uselesse ceremonies Therefore the Members no representatives and consequently no House of Parliament And for the minor It needs not the helpe of a Lawyer to make it good every man of the meanest capacity may judge it For if being named in a Patent of Monopoly or acting therein because to disable a Member of either House to sit or Vote it follows that no man in the Kingdome is qualified for that service Every one in some degree is guilty of the breach both of the Laws of God and of the Realme Suppose another faction in that House happening to be the major part present Order that every Member who in any fort hath broken the Kings peace committed fornication sworne an Oath or transgressed the Law of God or man be forthwith expulsed the House If that Order concerning Monopolies be binding absurd it were to deny this to have the same effect For every one comprized in each Order is a transgressour of the Law and punishable according to the quality of the offence But no one of them more then the other by the knowne Law is disabled to sit or Vote in the Parliament He who hath been an actor in a void Patent of Monopoly is as capable to be a Parliament man as another who hath committed fornication adultery assaulted or beaten his neighbour or the like So that it appears to be the Order of the House and the will of the Members not the Law of the Land which doth now in that Assembly regulate and ballance the businesse Therefore clear it is that those Members were wrongfully injuriously and illegally expulsed the House So that if no more were in the case those persons at Westminster are not the Commons House of Parliament 2. Secondly The Members finding the aforesaid Order of expulsion far too short still appearing in the House many honest English-men It was resolved to cast them out by club-law It was hereupon insinuated unto the giddy multitude that severall Members of each House opposed reformation and Justice The names of such Members as discent in Votes from the sense of the present major part are posted in the streets and injuriously branded with a character of evill affected persons to reformation The people hereupon in great multitudes swarme to the doores of both Houses and there being prepared and instructed accordingly with hideous noise clamor against Bishops Popish Lords and evill affected Members And although most ignorant what it is call for Justice Now this violent medicine was so long and so often applyed that the Houses according as empricks commonly use their patients absolutely confounded their owne bodies for of above two hundred Lords 5. 6. or 7. at this day is a compleat House of Peeres And in matters of greatest moment rare it is to have ten of that Assembly to carry the question And for the Commons House of 500 Members not 100 of those now permitted to sit or vote there were at any time by the Law of the Land Parliament men And so unlesse the whole World hath hitherto been mistaken in attributing the powers of those Assemblies to the Major part of the Members whereas it ought to have been given to the least number And that by the constitution of the Realme it is lawfull for a part of them by force and without lawfull cause to drive from thence their fellow Members We have no House of Parliament at this day Nor is the case of the lower House any thing better by their excrease of number That forgery of the Kings Great Seal doth no more authorize the Inhabitants to elect a Knight Citizen or Burgesse then should the Speaker of the lower House in pursuance of the Votes of both Assemblies counterfeit a deed in the name of the Speaker of the higher House purporting a conveyance to himself of that Lords Estate would legally intitle him thereunto Besides were that no counterfeit Seal The Inhabitants of the County the free men of the Cities and Boroughs being deprived of their freedome of election not daring as before is said to choose other but such as are intimated to them to be nominated by the House or the Souldiers they are not in Law Members of that Assembly Thirdly the Members although reduced to so small a number were not hereby cured of all their griefs The haunting Ghosts and inseperable Companions of every Traytor feares and Jealousies still stick close unto them by driving from the Houses such as visibly opposed this work of destruction gave not sufficient confidence to the rest of their owne perseverance therein The conscience therfore of every one this elect little remnant in the next place must be fettered wherein speciall use is made of that clause concerning priviledges of Parliament contained both in the Protestation and Covenant The words thereof being generall to defend all priviledges the Members declared that by whom and when this priviledge is broken themselves and none else must be Judge And like Judges in their owne case they have determined the question no lesse to their own advantage then by enthralling not only the Consciences of their fellow Members but of every Soule in the Kingdome to their sence In order whereunto as before appears they have voted that every one who shall oppose any result of theirs is an Infringer of Parliament Priviledges Now although the nature of this crime is not yet by them defined it may at every instant time when they think fit even by one blast of winde be made to exceed the highest Treason So that most clear it is after these Votes no man indued with honesty or courage could with safety sit or vote in either House Every one not of the tribe unlesse he run into his own ruine must stand mute untill the design of the present prevalent faction be visible And then however it suites with his heart his tongue must chime with that party
then was the condition of an English villaine at the beginning of this Parliament It is as bad nay worse then that under the Turke they have onely one Tyrant we seven hundred They one head over their whole body we two bodies without a head And as it is with us in Temporall affaires the same it is in Spirituall things too The Members have de facto abolished the Protestant Religion And both in doctrine and discipline force mens consciences how absurd or blasphemous soever it be to submit to their resolutions So that if the question be asked whether the scripture or the Church be Judge or how a man shall be informed of the truth These Tyrants make answer that neither Scripture nor Church is Judge of controversies but the two Houses We must no more search the Scriptures but submit our selves our souls and bodies to the Votes of the Major part of those two Houses and thus are the people slaves CHAP. XIV How the Subjects of England were brought unto this slavery IT is true the people of England for some time before this Parliament were grieved with illegall taxations Monopolizing of Trades and other things not warranted by Law And although there wants not meanes besides a Parliament to redresse any disorder arising in the Common-wealth yet the cause of the distempers may be such as that without a Parliament it would be difficult to reforme them When the Judges are corrupt as the Members alledged they were in that case of Ship-money when the Officers of State or other persons of power neere the King occasioned the mischiefe as it was conceived in the businesse of Monopolies few in the ordinary way of proceedings dare informe or prosecute Therefore in such cases a Parliament is necessary The Members in those things have freedome of speech And the King having called His Parliament at the first meeting thereof expressed Himself most sensible of the disorders of the Kingdome declared His desire to have a perfect reformation His resolution to governe according to the knowne Law such as were authors or actors of the former distractions he left them to legall tryall And to compleat the businesse promised to concur with the two Houses in all things tending to reformation Thus the Parliament had a happy beginning and for a good space of time a progresse sutable For such as looke upon the Statutes made this sitting shall find the worke of reformation even by the King Himselfe perfectly compleated That Judgement for Ship-money the busines of Monopolies and all other visible and Knowne greivances were taken away And to prevent the like danger for after-times the King passed an Act for calling a Parliament every third year So that to the obtaining of the greatest happinesse that any people in the world can desire there wanted nothing but to punish the authors of the former mischiefe and then for the present a dissolution of the Parliament Then might every one by observing a knowne Law have promised to himself security of his person and challenged property in his estate But the sequell shewes that it was not the publick good it was their owne private the government and wealth of the whole Nation the Members aimed at And as a foundation to it the plot was to make this Parliament perpetuall But at the first it not being thought fit to discover their intention therein it was pretended that the affaires of the Kingdome required instant supplies of great summes of money which as they pretended could not be obtained but by Loane And that the people fearing a suddaine dissolution of the Parliament would not lend A Bill therefore is cunningly formed not at all mentioning for what time the Parliament should sit in generall words enacting that it shall not be dissolved nor adjourned but with the assent of the two Houses And the King being informed by the hatchers of that plot that this Act was for no other end but to procure the Loane of money for the publick good passed the Bill The Members having obtained this Act and conceiving that thereby the King could not dissolve the Parliament without their consent then they began their intended worke From thence nothing is heard of in the old Parliamentary way The prosecution of the Judges in that heavy charge of corruption is not onely set aside but some of them formerly accused to be such high malefactors as to have subverted the knowne Law are received into the greatest favour as persons most proper to usher in the arbitrary power of the Members Then are the people amused with feares and jealousies by printed pamphlets they are grosly abused by being told that the King intended to subvert the Law and governe by His arbitrary power To abolish the Protestant Religion and to introduce Popery The Kingdome therefore it was resolved must be put into a posture of defence The Militia must be taken out of the Kings hands and setled in the Members And accordingly by their command the Kings subjects are mustered arrayed and put into a readinesse for War they are instructed and prepared to take upon them any enterprize the Members shall direct The Fortes the Navy the Armes Ammunition and Revenues of the Crowne are taken to the use of the Members Thus having prepared and strengthened themselves the next thing was further to disinable the King to make resistance It is therefore falsely and maliciously declared to the people that it is against the liberty of the Subject for any cause whatsoever unlesse upon an actuall invasion to be forced by the Kings command out of their owne County So that by this doctrine in case of a forraigne Invasion the enemy must be landed he must have footing in the Kingdome before the people may be gathered together by the King to make defence But in case of Rebellion the businesse in hand if the Rebels once get a formed body too strong for any one County the businesse is done They may if this be true doctrine undoubtedly conquer County after County the whole Kingdome These things being done it was then conceived opportunely and safe enough to publish and declare their intent Then without the King they arrogate the name of the Parliament of England take upon them to be the Supreame Court of Justice to make Laws and in a word a power arbitrary So that the Members have as an emprick by killing his patient with improper medicines cures his disease reformed this Common-wealth under pretence to restore the knowne Law The Law it selfe is by them totally subverted And that which is still more grievous the people were made voluntary instruments of this tragedy whilst they conceived they fought in defence of the Law and their owne Liberties they were therein their owne executioners They have embrued their hands in the blood of their fellow Subjects and by their victory have plunged themselves into the debts of slavery But these things being done in the name of a Parliament with some persons they
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
in His defence against the forces raised by command of the foresaid Members of the two Houses of Parliament CHAP. XI That the persons at Westminster who call themselves the Parliament of England are not the two Houses nor Members of the Parliament IN my foresaid Treatise I have by way of admittance granted these men at Westminster to be the two Houses of Parliament The Houses from their first Assembling to have been compleatly full To have unanimously concurred in Votes and every Member to have consented unto all those horrid things acted in the name of the Parliament And in case it had so fallen out still the Law in every particular before mentioned had been the same That concurrence of the Members had nothing altered the case Therefore sure without dishonouring the two Houses of Parliament injuring in a manner the whole Peereage and the far greater number of the Members duly elected of the Commons House I cannot omit First to expresse the cause of these my admittances Secondly to shew that these men at Westminster who now assume the name and power thereof are so far from being the Parliament of England as that they are neither the two Houses of Parliament nor Members of them For the first had I at the beginning fallen upon these questions whether Members or not Members Houses or no Houses I had thereby barred all further progresse in that my Treatise For if no Houses of Parliament then no dispute can arise what votes or proceedings of the Members are valid and which voide Therefore to introduce these questions viz. what is a Parliament the Authority and use thereof The proper office of either House singly and of both Houses joyntly without the King I granted but that I say only by way of admittance the foresaid persons to be the two Houses of Parliament and to have all powers and authorities due unto those Assemblies Then for the second viz. that these men at Westminster are neither the two Houses nor Members of them is proved thus 1. First clear it is that the essency of a House of Parliament doth not consist meerely in the legall assembling of the Members thereof Besides that it is necessarily required that every Member have liberty to repaire unto the place of sitting And there freely according to his conscience to Vote and deliver his opinion in all things agitated For example a Commission is granted to twenty with power to them or any five or more of them to execute the same Here although five if no more appear have full power Yet if all be present and consenting to act no five nor lesse then the whole twenty have authority So that if nineteen of them injuriously exclude one the proceedings of the nineteen are void which stands with great reason for if nineteen may exclude one eighteen may exclude another And in like manner one by one they may expell each other untill reduced to the last man Besides frequent it is in every Assembly consisting of many where the major part determineth the question For the businesse in dispute of what nature or moment soever to be carried on either side by one voice Therefore injuriously to exclude one single person from Voting is as destructive to Justice as to reject Two Three or more Yet herein let not me be mistaken I grant that either House of Parliament frequently doth and may legally proceede although not compleatly full And that each Assembly hath authority in some cases to suspend particular Members from sitting But I say that whilst either House without lawfull cause wrongfully hinders any one of their fellow Members to sit or freely to Vote with them according to his conscience The rest of the Members of that Assembly what number soever have not Parliamentary authority to proceed in any thing Therefore when a competent number of either House is Assembled all those so met and no lesse I meane without expelling them or any of them or forcing any ones conscience have power to performe the office of that House And the same it is if any one legally returned shall by his fellow-Members be hindered to repaire unto the House Those disturbers do thereby disable themselves to act in that Assembly Now for application to these men at Westminster It cannot be forgotten But that within few dayes after the first meeting of the two Houses the election of many Knights and Burgesses knowne to be honest moderate men were questioned Their persons instantly suspended from sitting but unto this day whether rightfully or wrongfully elected notwithstanding all possible endeavours to obtaine it not suffered to be determined Therefore manifest it is that to be rid of those Members out of the House was the onely cause of such questions and suspensions But that more cleerely appears by the progresse of the businesse For not long after those suspensions by Order of the Commons House every Member of that Assembly whose name had been used in any Patent of Monopoly or acted therein was in words disabled to sit or Vote there And by colour of this Order divers Members were expelled and forced to quit the House For no other cause but for that their names were used in some Patents or grants of the King which grants these Members before and without any legall triall judgement or determination thereof Voted to be void Yet which is a remarkable signe of their injustice their owne babes of grace such of them I meane as the faction could confide in although within the expresse words of that Order and at least as guilty of that fact as any other have ever since been and still are principall Voters there Now if these Members expelled by the foresaid Order were wrongfully expulsed it followeth that the whole Assemby did therby suspend it selfe from acting as the House of Commons And that they were wrongfully expulsed and injuriously debarred sitting or voting there is thus proved No person duly elected and returned of the House of Commons can be lawfully expulsed that House but for such cause as by the Law of the Land he is disabled to sit or Vote there But the cause mentioned in that Order by which those Members were expulsed doth not by the Law of the Land disable any man to sit or Vote in the House of Commons Ergo. To deny the major cannot enter into the heart of any honest English-man That is no lesse then to give unto the greater part of that Assembly at all times an arbytrary power without lawfull cause to expell thence although equally trusted and authorized by King and people with themselves their fellow Members which being admitted unto them it followeth that the peoples power of electing is in effect taken away and consequently no representatives in that House For although it be admitted that after such expulsion the inhabitants shall elect againe The people cannot expect an end of choosing untill returne be made of such as the present prevalent faction likes of And we see almost
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