doe compleatly provide quod curia non debet deficere conquerentibus in Justitia exhibenda And it is true that those commands and prohibitions may be altered repealed or expounded or other made by the people only that is by their Representatives in Parliament in such manner as might seeme fittest and best for their benefit quiet and safety where alwayes was to be observed that ancient Rule Salus popu'i suprema lex esto Which forme of Government suiteth in all things with that so much applauded by the Philosopher and by him preferred before others And the truth is the Kings and Queenes that sent forth the Commands or Prohibitions heretofore were but Deputies to the Lawes to send or as Conduit pipes to convey the same Commands or Prohibitions that the Lawes directed so that here in this Nation the opinion of Antigonus is verified Regnum nihil aliud est quum nobilis servitus and that other opinion Reges cum jubent socundum leges sunt legis ministri And that is apparently manifested to be true by a familiar example viz. A Master of a Family having divers sonnes and servants directeth his eldest sonne or chiefe servant that whereas one other of the servants oweth to his fellow-servant 10. 1. or hath beaten his fellow-servant that he command that servant so owing the 10. l. or hath beaten his fellow-servant that he pay the 10. l. or make satisfaction to his fellow-servant for the battery upon pain of being turned out of his service which the sonne or chiefe servant doth accordingly In this case the Governor or Comander is the Master of the Family and it is his Command Qui per aliud facit per seipsum facere videtur and the eldest sonne or chiefe fervant but the instrument hee imployeth Verbum sapienti sat est And that they were but Ministers Officers and Servants to the Common-wealth appeareth as well by their admission thereunto at the time of their Coronation by the suffrages of the people as also by the Oath they then used to take for the due performance thereof which is the usual manner of making and constituting all other Officers and Ministers to the Common-wealth Now the Common-wealth Cicero lib. 3. de Republica defineth thus Rempublicam esse rem populi populus autem esse non omnis coetus multitudinis sed coetus juris concensu utilitatis communione consociatus And therefore I conceive the words Kingly Office in the late Act for the abolishing thereof is very proper if they could properly be called Kings for the reasons afore remembred and then if but Officers it will follow by good consequence they are removeable by the people viz. their Representatives who make them at their pleasure or at least upon miscarriage in their Office to the dammage of the Common-wealth so it hath been heretofore put in ure in former ages viz. Edw. 2. Removed and his sonne Edward then appointed Custos Regni And so Richard 2. displaced by the people and Hen. 4. then Duke of Lancaster appointed in his stead And this touching the Government of this Nation of England when there is no Parliament sitting is cleare to all from the constant usage continually from time to time continued and at this time is continued the same But as touching the time when there is a Parliament fitting which is that afore-mentioned by the Philosopher Cum de Rebus Leges Cumulate accurate loqui non possunt is the more difficult question which also upon serious examination will appeare that even the Government then is and ever was or ought to have been solely in the people as touching the altering or abrogating any of the old Lawes or constituting of new which is the prime and principall cause and occasion of convoking a Parliament Scil. circa ardua Regni as the Writ of Summons to Parliament expresseth it And as touching the Government by Kings Lords and Commons scil in time of Parliament it is fitly divided into two questions First whether the King had any interest in the Government in time of Parliament viz. of altering or abrogating former lawes or making of new And that is cleare that he had not which appeareth first by his Office and Oath to performe the same which is that he will grant and consent unto such Lawes Quas populus elegerit which must be construed which the people shall choose or else it is a non-sence the former part of the Oath being that he will governe by and according to the Lawes of the Land And it is also so expounded by 25. E. 3. Statut. de provisoribus the words whereof are these La Ley de dit Roylme est tiel que sur mischeife et dammages que aveignont al Roylme Roy doit et est tenus per son serement de la consent de son people in Parliament ent faire Remedy et ley en oustant les Mischeifes et Dammages And so also is Co. M. C. pag. 586. and then the King could have no negative voice rightfully and by Law it being contrary to the Law and his said Oath And if not the King then a fortiore not the Lords they being not so much as Officers of the Common-wealth and had nothing there to doe as may seeme for the publique but for their private interest to save them And it is agreed in our books that an Act of Parliament may passe and be valid without consent of the late Lords called Spirituall 7. H. 8. Cr. 184. b. Co. Jurisd 25. and yet Co. Jurisd 1.2 calleth them one of the three Estates and saith that they must necessarily be summoned to Parliament aswel as the Lords Temporall And truely the Case cited Co. Jurisd pag. 25.13 H. 4. N. 20. proveth plainly that a Parliament might be without the Lords Temporall also for there he saith I have read of a Restitution in bloud and of Lands of one William de Lasenby by the King by the assent of the Lords Spirituall and Commons omitting the Lords Temporall whereupon he saith This we hold is an Ordinance and no Act of Parliament which under his good favour must be an Act of Parliament or else is of little or no use for an Ordinance indureth and is of force onely sitting that Parliament and that determined the Ordinance is determined and so the restitution void and also a restitution in blood can onely be by Act of Parliament which bindeth all and this restitution is to binde the meane Lords and all others that are any wayes interessed by that corruption of bloud However since all Government is in the people from the people and for the people touching altering or abrogating of Lawes or making of new which none can doe without them and that they are now met by their Representatives in Parliament the place where the cure of such grievances as infest the people is to be had some of which grievances being that pretended Negative Vote both of King and Lords thereby thwarting crossing and
inforced not to obey but serve and the Meane to live so as they might justly say they had nothing The distemper then grew so high that even the Patients themselves practise upon each other not by advice of Physick but by the rage of fury entring into Civill Warre blooding themselves till they almost fainted At last a Physician is thought on a Parliament is called wherein divers wholsome Medicines are provided against divers diseases raging and raigning at that time the King and his Courtiers having endeavoured to enslave all this Physician directs this Recipe of Cha. libertatum to restore all to their former liberties Thus you have the generall disease the cause and cure the particulars follow viz. Churchmen had formerly been oppressed by the Kings Officers by unjust exactions the cure is Quod Ecclesia Anglicana libera sit cap. 1. The Subject was oppressed by the Kings Officers and Ministers under pretence of taking Rationabile Relevium which they hold every taking to be were it never so unreasonable the cure is by putting it in certain as it formerly had been cap. 2. The Possessions of the Archbishops Bishops and other Ecclesiasticall persons of the Kings foundation were by the Kings Officers much wasted during the Kings possessing them in vacancy the cure is cap. 5. The Subjects were oppressed by the Kings Officers in seising possessions of great value for petty debts due to the King when they might have levied it otherwise without much dammage tâ— the Subject or else in taking the Pledge when the Principall was sufficient and this is cured cap. 8. The Subject was oppressed by grievous amerciaments imposed by the Kings Ministers and others this is cured cap. 14. In the Reigne of King Iohn and his elder brother King Richard divers oppressions exactions and injuries were incroached upon the Subject for making Bulwarks Fortresses Bridges and Bancks contrary to I aw which is cured cap. 15. The Kings Officers and Ministers Sheriffe Constable Coroner and other his Bailifs ignorant unlearned men in the Lawes of the Land under pretence of more speedy justice though in truth for lucre of gaine presumed to hold Plea in matters of life whereby oft the innocent suffered and the nocent escaped this is cured cap. 17. A debtor to the King dying possessed of a great personall estate his Officers upon pretence seised all into their hands for a small debt and oftentimes onely upon pretence of a debt where in truth there was none due whereby the Widdow and Orphans were deprived of meanes of living and this under pretence of diligent care to levy the Kings debts and this is cured cap. 18. Purveyance of Carts by the Kings Officers was a great grievance in taking without paying for the same or in taking where they ought not to take and this under pretence of diligence in their Masters service Non amo nimium diligentes and this is cured cap. 21. For the avoiding of the wasting of houses of persons attainted of Felony c. which was due to the King the Common Law gave him the profits of the Lands of the person attainted for one yeare and a day but his Officers being like Harpies having once fastned thereon would not easily bee taken off under pretence of profit to the King though in truth to their owne private whereby much dammage grew to the Lords of whom the Lands were holden and who of right ought to have the same which is cured cap. 22. The unlimited and unbridled pleasure of the Kings Ministers was become the Law or at least was forced to be the Law whereby the people must be governed how cruell how tyrannicall every one may easily think and yet upon a pretence of doing service to their great Master to make him a Monarch to make him seared though not loved then which a greater disservice cannot be to a Prince as the tempests of these times thereupon following manifestly prove and yet this grievous disease not thereby cured it being too sharp but a more gentle Medicine is directed cap. 29. The Kings Agents evill entreating Merchant-strangers in amity both by exacting what they pleased for licence to trade and what customes and other duties for their Master as their covetous and boundlesse humor led them yet upon a pretence to ennich their Master Trade the life of a Kingdome was hereby much hindered and impaired and this is cured cap. 30. The Kings Councell and Ministers making all advantagious exposition for their Master as they pretended though in all likelihood the gaine thereby accruing came to their owne purses would needs hold the Law of the Kingdome to be that whosoever held of the King by Knights Service in what manner soever whether as of Honour Mannour or otherwise yet it must be In capite and thereby the King to have his Prerogative for Wardship of all the Lands held of whomsoever And thus these Mountebanks misapply the wholsome Medicince of the Law to the destruction of the Patient the people mixing it with some ill ingredient of their owne a usuall trick and very frequent it being their maine endeavour under colour of Law to colour their unjust oppressions and this is onely cured by those wise and faithfull Physicians the Parliament by rightly tempering such mis-tempered Medicines which is done by them in this particular case cap. 31. Escuage a duty due to the King and other Lords from their Tenants the Kings Ministers for that it was uncertain would thereof make their advantage and assesse it at what summe they pleased and from their example it is likely other Lords did the like for Regis ad exemplum totus componitur orbis especially when it is for their profit and incertainty in duties is a fit opportunity whereby cruell tyranny may oppresse if referred to the party to whom it is due and yet the poore knoweth not where nor to whom to complaine but for this particular malady there is a proper Medicine cap. 37. Referring the assessing thereof as formerly had been used which was by the Parliament the most equall and indifferent Arbiters in cases doubtfull and fittest to be trusted and the mischiefe of incertainty is so well foreseen by the Common Lawes of England that it is alwayes referred to those that by probability are strangers and indifferent as to Parliament Judges or Jurors The vigilant Physicians now assembled in consultation in Parliament using all their industry they possibly can for procuring and continuing the welfare of this Common-wealth direct the like general Recipe in the conclusion c. 38. as in the beginning that if they had not directed for every particular a convenient Medicine yet this generall might supply so that now it might probably be thought 3. E. 3. c. 9. 25. E. 3. Stat. 5. c. 4. 28. E. 3. c. 3. 37. E. 3. c. 18 42. E. 3. c. 3. 1 R. 3. c. 2. that there would need no new advice or Medicines but such and so many are the redundant and malignant humours in
THE Government of the People of ENGLAND precedent and present the same Ad Subscribentes Confirmandum Dubitantes Informanduus Opponentes Convincendune Multa videntur quae non sunt Multa sunt quae non videntur Ut uniamur Vis unita fortior Concordia parvae res crescunt Discordia dilabuntur London Printed for Iohn Wright at the Kings Head in the Old-Baily 1650. The Government of the people of England precedent and present the same THe Government of the people of England precedent and present is the same and therefore the Subscription now made or required is just and lawfull For the manifesting of which truth it will be necessary to know what Government is Now Imperium est jubendi prohibendique potestas Government is a power to command or prohibit others which command or prohibition they ought to obey or for disobedience to he punished This Government the Civilians divide into Summum liberum merum imperium mixtum the chiefe free and meere command and mixt Now of the chiefe free and meer command there are no bounds for that where that power is it may appoint decree ordain act doe or command above contrary or besides the Lawes it onely and alone maketh abrogateth interpreteth and confirmeth Lawes which from the beginning and of ancient time resideth in the people onely as saith Tholosanus l. 47. c. 20. S. 8. and Daneus l. 1. polit c. 4. saith Populus suo Magistratu prior est tempore natura dignitate quia populus magistratum constituit quia populus sine Magistratu esse potest sed Magistratus sine populo non potest esse i. e. The people are first in time nature and dignity before their Magistrate because the people make the Magistrate and because the people can be without a Magistrate but a Magistrate cannot bee without a people and Stephanus Brutius vindiciae contra Tyrannos quaest 3. saith Reges sunt à populo sunt constituis causa populi Kings or Governours are from the people and are appointed for the peoples sakes And the same Tholosanus lib. 47. c. 20. s 9. setteth downe how the same was transferred from the people where hee saith Regia lex de imperio lata est per quam potestas à populo in principens translata est that is to say the Kingly Law of the Empire viz. the Romane Empire was that by which the power of the people was transferred to the Prince Which Law hee supposeth to have beene made when the people granted all their power to Augustus Caesar and citeth Zonarus to that purpose and saith further Plena fuit illa lex sine aliqua reservatione i. e. That Law was absolute and full without any reservation to the people Which Law never extended it selfe to the Government of England neither was England ever governed by the will and pleasure of any one man let us therefore examine who commandeth and forbiddeth here in England clearly the Lawes which Government Aristotle lib. 3. polit c. 7. preferreth afore all other saying Nihil ita ratum firmum esse ut leges rectae salutares lex sine affectu regit but goeth on penes eum qui praeest sive sit unus sive pluret iis de rebus statuendi arbitrium volo de quibus leges cumulate accurate loqui non possunt Which is the very Government here in England for the power of commanding and forbidding the people of England is in the lawes onely and none other and that appeareth plainely by the daily practise amongst the people as well before these times in the times of those called Kings and Queens as at present All the commands or prohibitions that then came or now do come to the people were and are appointed directed and set downe by the Lawes of England so that if any King or Queen did command or prohibit any thing Co. M. c. p. 186.187.206 or in any other manner then the Laws directed it was void and the people were not bound to obey yea if they did obey it and thereby there were any prejudice damage or offence done to the publike Government or to any private person they were to be punished for that no King or Queen could alter the Lawes without consent of the people and so doe our Law-Books plentifully testifie nay they could not alter the forme and therefore if they varied but from the forme prescribed by Law the command or prohibition did not oblige or binde the people to obey the same a great part of which forme is prescribed and particularly set downe in an ancient Book called The Register of Writs but indeed is the Register of the commands and prohibitions the Lawes of this Nation according to the severall cases causes and complaints of the people Other parts of the Commands not therein comprised given and appointed by the Lawes are by the Common Lawes and Statutes also particularly directed and the King Ex merito Justitae debitae ought to grant award and issue those Commands or Prohibitions to the people for their reliefe Co. Magna Charta 269. And to prevent a defect of Justice for want of a particular command or prohibition according to the peoples varying cases by the Statute of Westm 2 cap. 24. it is provided Et quotiescunque de caetero evenerit in cancellar quod in uno casu reperitur breve in consimili casu cadente sub codem jure simili indigente remedio non reperitur concordent clerici de cancellaria in brevi faciondo vel atterminent querentes in prox Parliamentum scribantur casus in quibus concordari non possunt referant eos ad prox Parliamentum de consensu jurisperitorum fiat breve ne contingat de caetero quod antea Domini Regis deficiat conquerentibus in justitia perquirenda idonea And whensoever from henceforth it shall fortune in the Chancery that in one case a Writ is found and in like case falling under like Law and requiring like remedy is found none the Clerks of the Chancery shall agree in making the Writ or the Plaintifs may adjourne it untill the next Parliament and let the case be written in which they cannot agree and let them referre themselves untill the next Parliament by consent of men learned in the Law a Writ shall be made lest it might happen after that the Court should faile to minister Justice unto Complainants But it must be in the like case for if it be otherwise it must be framed and provided by the people themselves by their Representatives in Parliament whereupon Bracton sayes lib. 1. cap. 2. Si aliqua nova inconsueta emerserit quae nunquam prius evenerunt obscurum difficile sit corum Judicium tunc ponantur Judicia in respectu usque ad magnam curjam ut ibi pet consilium curiae terminet So that these severall supplies of learned Clerkes of Chancery and of the wise and learned men of Parliament