by the law of nature of Nations by the Laws of the Realme and by the Laws of God are obliged to doe their uttermost endeavour For to their dores it is now brought wherein they cannot expect any formall Warrants according to the ordinary proceedings For as before appears the Malefactors themselves have stopped the passage of the Law the people therefore ought not onely to declare these Westminster men no Houses of Parliament and no Members of them but they are obliged to reject all their Orders Ordinances and Commands what name or title soever they have given or shall give them And also to apprehend their persons and bring them to due punishment of Law CHAP. XII Results upon the premises That the people of England under the government of the KING according to the known Laws of the Realme are a free Subject THe use of a Law is to protect every one under it in his just Rights which I grant cannot be done unlesse by that Law the lives and estates of the people be subject to the judgement of some known persons without that neither Malefactor can be punished nor Controversie decided Hence it followeth that the happinesse or misery of the people depends upon the good or the bad constitution of that law under which they are governed For such a law may be as that the people are thereby little altered from that condition they were in when they had no Law at all For example where there is no Law and so the strongest party hath the best interest every one is a Tyrant each to other and where the supream Magistrate hath an arbitrary power the people are no better then legall slaves to that supreame Governour Now this Arbitrary power cannot be avoided but by observing these principles viz. By placing the Soveraigne power of Government in one hand and the absolute determination of that Law by which under the Supreame Magistrate the people are governed in an other hand And for making new Lawes or altering the old That neither the supreame Governour by himself alone nor any other without him have that authority But that such a composed body be therewith trusted as have not the power of government All which is observed by the Laws of England The King by our law is the onely supream Governour but his power is not unlimited for the people under Him are governed by a knowne Law And this Law not declared by the King but by the Judges of the Realme being persons unconcerned and sworne to decide controversies according to the Law To the King is due forfeitures for Treason fines imposed upon offenders transgressing the Law and the like But the King doth neither Judge what is Treason what fact doth breake the Law nor hath power to impose a fine upon any offender And for making Laws the King alone hath not that power nor is it in any other without him It is no Law without the joynt consent of the King and the Members of the two Houses which united Body hath not the government of the people And so every one is limited and kept within his owne bounds But although we have a knowne Law and for the most part in the execution thereof knowne processe which and no other the people are obliged to obey yet sometimes for necessity the Law refers severall things to be acted and done according to the discretion of persons trusted whose Commands although they doe not observe the ordinary rules and knowne processe of the Law the people are bound to submit unto For example It is the office of every Sheriff of his County to preserve the Kings peace within his liberty Therefore upon any suddaine insurrection tumult or other just occasion the Law to enable him to performe that duty gives him authority to raise the power of that County wherein it is best to the discretion of the Sheriff to judge when it is necessary to command the peoples assistance But herein he is not the finall Judge In that case it is at the equall perill of the Sheriff and the inhabitants of the County To the one when to command and to the other when to obey If the Sheriff without just cause force the people to rise himsefe is punishable And if he requires the inhabitants to assist him when it is necessary and they refuse the people are punishable In which case both Sheriffs and Inhabitants being equally concerned therefore neither the one nor the other is Judge to determine whether there was cause to require assistance or not That question the cause being regularly brought before them properly belongs to the Judges of the Law And therein he who findes himselfe agreived hath liberty to commence his action and bring it to tryall And as in that case of the Sheriff for his particular County the like accidents may happen whereby the whole Kingdome may be in such danger as not possible by the ordinary meanes and knowne practise of Law to prevent the destruction of it The Nation may be so suddenly invaded by a forraigne enemy or infested by a domestick insurrection as that without present supplies and assistance of men money and other provisions of War the whole people and Kingdome may perish It were grosse in such a case to be tyed unto the formalities of Law or to want meanes to prevent that danger And this cannot be supplied unlesse some have legall power to command and the people obliged to obey Therefore by our Law the King ex officio as King hath that power He may in such cases by His regall authority compell His subjects in His and His peoples defence to serve in person and contribute with their purses Yet herein the King is not the finall Judge if so the estate and fortune of the subject were at His will He might then upon pretence of necessity draw from the people their whole fortunes and estates which were in effect a power arbitrary Therefore as before in the case of the Sheriff so here as the people are at their extreame perill in case of danger bound to obey the Kings commands So it is at the perill of the Kings Ministers therein imployed that the King hath just cause to make that command For every subject who by the Kings commands or warrants is molested either in person or estate may prosecute suit in a Court of Justice against the Kings officers who interrupted him wherein the Kings Warrants Writs or Commands are no legall justification unlesse it judicially appear to the Judges of that Court where the suite depends that the King had just cause to require that assistance For the King is not the finall Judge in such a case So that our Law in the first place preserves the Kingdome and people from danger by providing remedy against those sudden accidents yet protects the subject from tyranny and arbitrary power And this rule for the liberty of the subject holds in all cases that is to say The Subject of England under the
of them hath its proper and peculiar jurisdiction The Chancery for Equity the Kings Bench for Pleas of the Crowne the Common pleas for reall actions and other matters of the Law The Exchequer for the Kings Revenues And every one of these Courts is circumscribed within its own bounds The Chancery unlesse it be in some particular cases warranted by custome hath not power to determine questions of Law nor the other three Courts matter of Equity The Common pleas not to intermeddle with the Pleas of the Crowne nor the Kings Bench unlesse occasioned by breach of the Kings peace with questions concerning title of Lands And none of them hath authority to extend beyond its bounds in any one particular All which is made good by authority and reason For authority it is resolved in the bookes of the Law that if the Judges of the Common pleas in an Appeale or Indictment for murder felony or other capitall crime condemne any person their proceedings are voide as done coram non Judice That person so condemned although guilty of the fact in the judgement of Law is not attainted nor his blood corrupted he forfeits not his estate and if executed although by the command of the Judges of that Court both Judge and executioner are guilty of felony and punishable as if done without that command If the Lord of a Leete hold his Court or the Sheriff his Turne at other times then custome doth warrant Or the Court of Marshalsey assume jurisdiction not made good by use their proceedings are void In all which cases the Officers or Ministers of those Courts are punishable for executing the commands of the Iudges thereof wherein the Law takes this difference viz. When a Court assumes power to determine that which it hath not Commission to determine and when it hath jurisdiction of the cause yet proceeds inverso ordine in the first as in the cases aforesaid The Minister is not excused or justified by the warrant of the Court In the latter the warrant or processe of the Court is a legall justification as thus If the Court of Common Pleas hold Plea without originall or award processe of Capias against a Peere and the like in these cases although the proceedings be illegall yet in regard the Court hath jurisdiction to determine the cause if it were regularly brought before them the processe or warrant of the Court is a good justification for the Minister thereof And this rule holds with all other Courts Assemblies and persons when they act or doe such things as they have not Commission for their proceedings are void So that the Laws of England admits not of Iudges but persons qualified to performe that office yet ability by it selfe is no Commission to make a Iudge The Judges of the Common Pleas are as learned in the Law and as able for their knowledge to determine Pleas of the Crowne as the Judges of the Kings bench but they have not the same authority The Court of Common Pleas hath not used it and consequently it is out of their Commission And that no Court ought to extend its owne bounds is made good by reason For if any Person Court or Assembly takes upon them in any one thing to execute that which their Commission extends not to by the same reason they may assume it in another and so in infinitum upon which it followeth that the power of that Court Person or Assembly is become boundlesse And if one Court Person or Assembly may inlarge its bounds the like reason holds with every Court Person and Assembly in the Kingdome and so a Parity introduced and consequently the whole Government subverted and destroyed In the next place it is considerable to know what Commission the Parliament the two Houses or either of them hath therein And first for the Commons house That Assembly hath no Commission from the King nor by Act of Parliament to Judge the Law and for Prescription they faile in all the foresaid three particulars for they cannot challenge any thing time out of mind The Assembly it self had its beginning after the Raign of K. Ric. 1. Secondly admit them to have been time out of mind they fail in the use for untill this Parliament they never executed or claimed any such thing Thirdly admit them to have been time out of mind and constantly to have used the power of Judicature yet it ought to be disallowed because not reasonable it is repugnant to the Rules of Law and justice that persons not fitly qualified should have power of Judicature By the constitutions of England controversies are decided thus The Plaintif exhibits his complaint in a Court of Justice and that in the Latin tongue The Defendant answereth in the same Court and Language out of which pleading the case ariseth which sometimes is questio facti and sometimes questio Juris If it be facti it is tried by a Jury sworn by authority of that Court where the suit depends and that cannot be the Members of the Commons house for besides the difficulty of the Language those Members cannot give an Oath and if it be matter of law the sworne Judge is to determine it but they are not sworn to doe justice And for the Lords house it is granted that in some things which custome and use hath made good the Members of that Assembly have power of Judicature for although that House as now it is formed and setled hath not been so auntient as to make a Prescription yet the Prelats the Peers and the Judges time out of mind have been frequently called together by the Kings of England and consulted with concerning making of Laws and other the affaires of the Common-wealth And amongst other things the Lords depending therein on the advice of the Judges have so auntiently as the beginning thereof cannot be made appear by licerse of the King upon Writs of Error reversed erronious Judgements given in the Kings bench But as the Lords have this authority by Prescription so they are excluded from all other power of judicature but that which custome and use doth warrant for Prescription is all the Commission they have Neither Grant from the King nor Act of Parliament they have for a Court of justice Now to give power to the Lords house or to the Commons house to inlarge their Commission or Jurisdiction the same inconveniences would thereupon ensue as by suffering other Courts to doe the like if the Members of the Commons house should at this day take upon them to give an Oath and this legally intitle them to it by the same reason they might as now the present Members of that Assembly in effect doth without King or Lords assume the whole Government And for the two Houses jointly they are not a Court of judicature they have therein no Commission at all neither from the King nor by Act of Parliament nor by Prescription And for the Parliament that is the King
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