have abused and misled his Majesty whereupon the fourth Question ensueth The Fourth Question 4. What Power or priviledge the High Court of Parliament hath when they are assembled together and are become the Representative Body of the Kingdome IT is Resolved that they with the Kings assent may as cause shall require make new Lawes or abrogate any former Statutes But the maine Common Law and the Ancient Rites Usages and Native Customes of the Land they themselves cannot alter For as the Lawyers phrase is to say it is Oppositum in objecto that they that sit by the Common Lawes and by the ancient Rites Usages and Customes of the Land should alter and change that which gave them their Authority to be a Representative Body Also the two Houses of Peeres and Commons Rege absente non consentiente may declare the Common Law in Cases where doubt is or ambiguity or difficulty but they can make no Law without the King to stand as a Law and Statute Onely they can make temporary Ordinances of Parliament like Orders or Sentences interlocutory sendente Paerliamento and they may censure and punish delinquents But in case the King will not call a Parliament as in Richard the second his time when the urgent occasions of the Common-wealth required it the Peeres called the Parliament Then the Peeres and Commons can doe all things as a compleat Parliament without the King And at this time the Kings Majesty having called a Parliament and so sarre proceeded as he hath done already in making some good and wholesome Lawes for Reformation of the greatest errors and abuses that ever were in this Common-wealth And especially having condescended to a Trienniall Parliament to be for ever hereafter and neither this present Parliament nor any Parliament hereafter assembled to be dissolved without the consent of both Houses Yet now his Majesty being seduced by evill instruments doth dissever himselfe from his Parliament and by his absence doth as they say hinder their proceedings to the making of good and wholesome Lawes for the kingdome and Common-wealth What iâ— this Case may be done is not to be resolved by any wit or judgment but by the absolute Wisedome and Authority of that high Court consisting of both Houses to whom in all humblenesse the Writer hereof leaveth it Neverthelesse with the like humility and awfull feare of offence against the Publique and with a faithfull zeale to the Common-wealth he offereth these considerations scrutative of the matter or cause of the variances betweene his Majesty and his great Councell of Parliament viz. What is the very true cause of his Majesties absence and severance from his Parliament sitting at Westminster whither they were first summoned and which is the most convenient place of their assembly and fitting The King alledgeth that it was the tumultuous riot of the disordered Londoners rash and young Prentices and of furious and fanaticke Brownists Anabaptists and Sectaries of the City and Suburbes pretending to cry out against Bishops but intending and offering affront and disloyalty to his Majesty his Regall authority whereby his royall Person was indangered at Whitehall had he not had a Guard about him and so his Majesty saith they were like to doe againe if he were at London The Parliament saith it was a malignant party of Cavalieres and others not well affected to peace and enemies to the Common-wealth who by flattery and false in sinuations did disswade his Majesty from concurring with the grave advise of his great Councell And the Papists and papall affected Bishops dreading that their plots were discovered and like to be prevented and the delinquents punished by the more scvere Lawes or Orders of the Parliament did incite his Majesty to proceed in that ill advised Course And further that such the malignant party seducing his Majesty endevoured to bring in imperiall power and Arbitrary rule for his Majesty to over-rule the Lawes and ancient Usages and Customes of England and the priviledges of Parliament and abridge the liberty and property of the Subjects The evidence whereof hath beene partly shewne forth by some Declarations divulged and Printed by Order of both Houses of Parliament expressing the precedent attempts of foraine force and domesticke and coercive power of Armes which late before the Parliament was plotted and put in way of constraint upon the Common-wealth And that moved the Parliament to crave and assume to themselves the Militia at home for the securing of the Coasts of the Sea and of guarding and fortifying the Ports and other places at Land That though his Majesty were seduced and misled by the malignant party and their Complices Yet his Royall Person Crowne and Dignity should be preserved in peace and safety and the Common-wealth and people should be defended and kept in peace and prosperity maugre the devillish plots abroad and within the bowels of the Land by Papists Priests papall Bishops bloody and rapinous military men Captaines and Cavaliers whose disposition was and is properly bent to warre and bloodshed and to rapine and spoile and to make their prey on the wealth of the rich Citizens and other the quiet people of the Land The King contrariwise taking high displeasure at that part or point of the Parliaments Demand for and touching the Militia Alledged that the right of Militia or Command of Armes within the Land belongeth properly to his Regality and as a Flower of his Crowne not to be assayed or attempted by any Subject no not the High Court of Parliament though they be the Representative body of the people no more then it could be lawfull for the people themselves to rise and take Armes against their Soveraigne King Wherein as by some Written and Printed discourse or Declaration It hath beene already avowed and maintained that the Militia was not improperly desired of and from his Majesty nor unlawfully assumed by them for a certaine convenient time They perceiving more then the King or people doe know of the imminent danger both of his Royall Person Crowne and dignity and to the priviledges of Parliament and to the Lawes of the Land and Liberties of the People like to beene subverted and most especially the whole honour and true worship of God and true Protestant Religion to be overthrowne may and will by and through Gods grace and assistance prevent and pervert or quell and subdue the evill and wicked attempts of all the malignant opposites It is therefore by all true and sound reason of all Lawes Divine Lawes of Nature and Nations Civill policy and the Provinciall Rites Usages and Custome which are the Lawes of his Land resolved that the Militiai to be distinguisht of and the point defined and determined thus viz The King of this Land no lesse but as much and as amply as any other Foraine Christian King hath in himselfe and pertaining to his Regalty Crowne and Dignity the Jus Militiae at all times to use and to lead and to command by his Lieutenant the
Generall and Captaines for the safety and peace of his Land and people against any foraine foes or domesticke trayterous enemies But this is to be understood when his Majesty with his owne prospective eye and watchfulnesse or by the advice of his Privy Councell before Parliament or great Councell in Parliament hath or doth discover the Plots or purposes of foraine enemies intending mischiefe assault or ruine by Invasion foraine or of domesticke traytors by Insurrection and Rebellion at home For in truth it is a Flower of the Kings Crowne and an incident of his Regality as he is a King to have Liberam absolutam potestatem or Jus Bellum indicendi gerendi to or against any Foraine Prince or Potentate and againe Jus potestatem pacis contrahendae paciscendae with any of them and thus all the learned Authours writing of Law and Policy by the Titles of their Bookes de lege Regia have averred and maintained and it is not to be denyed because the King is the head of the body politique which compared to the naturall body wherein the five senses are operative and doe their Offices by their Organa rite disposita yet the naturalists doe affirme that the Communis sensus is in the braine or in Occipite and that per discursum practicum it judgeth and resolveth of the other senses their pleasing or being usefull and profitable to the whole body or offending and annoying it And so the King hath the Jus militiae or power and command of Armes at home throughout his kingdome for he hath Potestatem vitae necis as the Civilians terme it And in our Law the death of any is to be accounted for to the King and the taking away of any Liege Subjects life is in the Indictment said to be Contra Coronam dignitatem Regis But all this notwithstanding the generall position of the Jus Principis or Lex Regia placing the power of Armes and Militia in the Crowne yet his Majesty cannot otherwise levy the Militia but by lawfull meanes and not by Commission of Array as lately hath beene for that is an undue charge not warranted by Law And in case of particular accidents that the King the Head be mis-informed of his and the Common-wealths enemies conceiving them to be friends which are secret and desperate adversaries complotting clandestine Ruine and destruction to the body and refuse to afford ayde for the prevention of imminent danger will any judicious man doubt but the eyes of the body being the great Councell of Common-wealth discerning the mischiefe and danger doe well and providently if they call the Armes and Hands to strike and fight the Loynes to joyne in strength and Legges and Feet to goe and runne to helpe to defend the Totall that so the Head being disquieted with ache and paines may be preserved in rest and quiet repose Wherefore in such case as now it is here in England the Representative body hath and in all Reason Prosalute Regis Populi ought to have and to use and command the Militia throughout the Land untill such time as the King be better informed and the Common-wealth and Body be setled againe in peace and safety and that then some provident Law concerning the Mi itia be made for time to come to prevent such like accidents as this hath beene And hereupon it may be considered whether the two Houses of Peeres and Commons had not cause to demand the approbation of some Officers of State The Militia not consisting meerely in the having of Armes but also in the power of force to defend against Invasion or the fiercenesse of an Enemy wherein if such Officers as should be intrusted with the power and force of the Armes and with the custody of the Forts and other places of strength within the kingdome should not be well and truely affected to the government of this Land How easily may it be perceived those strong holds which already are or at least are intended by the wisedome of the Parliament shortly to be fortifyed for the greatest defence will or may become the greatest offence and those Bands of Military Forces which are supposed to be for the safeguard of the kingdome turne to the Ruine and Destruction of the Common-wealth These then being the true and genuine causes or motives of the wofull severances betweene the King and Parliament whereat all true hearts have grieved What presumption shall it be deemed in a true English heart bleeding with compassionate sorrow for the head and body Politique so miserably indangered of utter perdition by unnaturall and civill broyles which Lucan writing of lamenteth and describeth in these words and lines Bella per Ematheos plusquam Civilia Campos Jusque datum sceleri canimus populumque potentem In sua victrici conversum viscera dextra Cognatasque acies c. If I say such a true hearted English man doe propose these Soveraigne Salves for so deadly a sore and these present Remedies for so desperate a sicknesse to prevent the instant death and desolation of this famous and renowned kingdome and Nation whose people were of old time surnamed Angli quasi Angeli or ab Angulo dicti as being in an angle or corner of the world and severed from the rest according to that of the Poet Et penitus toto divisos orbe Britannos And which some Divines terme one of the beloved Isles of the Gentiles wherein the Gospell of Christ was soonely Preached after his Ascension 1. First then may it please his most Excellent Majestie piously and religiously to turne his Royall Heart and gracious affection toward his great Councell of Parliament who doe represent all his deare people and be advised by them no more to respect or give eare to those Syrene hallucinations of flattering seducers the Papists and Jesuite Priests the Papally inclined Bishops who stand so much for their Hierarchy as that they with Demas have forsaken the purity of the Gospell and neglect the Preaching of the holy Word of God and have imbraced this present World making themselves Lords over Gods Heritage not true Shepherds to feed his flocke as they ought to doe in Season and out of Season and to waite upon the All-seeing eye of Gods providence for his beloved Spouse the Church to be purged and cleansed of her late inbred and inbrought corruptions 2. Secondly that his Majesty will abandon and quite put away the thought or imagination of any Tyrannicall or Imperiall Government over this Land which the Papall Bishops and Hierarchicall Prelates and Priests and other Lay Flatterers did presume to use daily and insinuate and inculcate to his Sacred Eares under the pretence of telling his Majesty that he is an absolute Imperiall Monarch free and above and without all Lawes to Rule his people ad Arbitrium Principis and that he being Gods Anoynted is responsall onely to God if he doe tyrannize or grieve his Subjects Whereas they are or make themselves utterly
called Jus Statutorium they are not Indicta or promulgata but Enacted Statuta facta or Constituta by the King and both Houses of Parliament In which the chiefest consideration and ponderation of the reasons of making of them are most in the debate and voting of both Houses and the Royall assent is only left to the King with a le Rey le veult or his diâ—assent stayeth them yet not peremptorily but with a modest answer Il Rey se advisera Neither is the abrogation or remission of any penall Law received left to the King though it be onely malum prohibitum not malum in se But his Majestie may dispence with or remit the penalty of a Statute and that not meerely and perpetually but onely Ad tempus and that not de Jure but by his prerogative Royall upon collaterall or accidental event happening ex post facto after the making of the Statute yet not without cause or consideration and for experience of some further or more weighty cause or consideration of benefit or conveniency to the Commonwealth which being discovered to be prejudiciall to the Commonwealth then the Letters Patents of the dispensation becommeth voyd in Law and frustrate and vanisheth againe or is made utterly voyd and condemned for ever at the next Parliament The third Question 3. What power or prerogative the King hath Supra legem praeter legem or contra legem terrae ALthough it was anciently said by a King of this Land H. 3. Nolumus praerogativam nostram disputari yet that was answered againe by the Peeres and Barons in Parliament with another Nolumus Nolumus leges Angliae mutari So that with favour and good manners and duty the Kings prerogative may bee talked of in respect of the Law of the Land and of the naturall right and Liberty and property of the Subject And thus it is resolved That the King hath in some Cases a regall power or prerogative supra legem and in some Cases praeter or ultra legem But in no Case hath his Majestie power or prerogative contra legem Terrae or Statuta Regni The Cases of example wherein his Majesty may by his great Seale do something supra legem are diverse but especially those of his mercy and Grace extended to delinquent Subjects that fall into some offences and danger of Law by trespasses or felonies Although the Law be positive and penall condemning the offenders yet his Majesty may pardon them the trespasse or felony and the punishment fine or forfeiture thereupon Quoad interesse suum but therein also the Law doth stay or restraine the Kings power that he cannot by his pardon remit or give away Interesse partis But that the party grieved or wronged may and ought to have his action And the sonne or wife may have and prosecute the Appeale de morte patris or viri and the King by no power Imperiall can take it from them The Cases praeter legem are some dispensative Proclamations or grants of experience whether something be pro bono publico or not as for importation or exportation of some or other forreine or native Commodity or the exercise or practise of some new invented Art Science or Mystery among the people which having most commonly the specious shew of good yet no sooner that it be discovered to be hurtfull to the Commonwealth or derogatory to the liberty or property of the Subject or that it bring on any burden taxe or charge or doe secretly exhaust or diminish the rightfull profits of any Trade Mystery or Science before lawfully used or belonging to any of the Kings Liege people or Subjects then the same is to be abhorred condemned and suppressed as an odious project monopoly or unwarrantable thing And the Rule and reason of Common Law which is that In omnibus salus populi suprema Lex esto hindereth that no Regall or Prerogative power can uphold or maintaine it though the case be praeter Legem and not provided for by any Statute Or if it be provided for and the King hath dispensed by a Non obstante The Cases of example Contra Legem are either when the King doth grant Authorize or permit any thing whatsoever against the Common Law of the Land or the rule or reason thereof such his Majesties grant by Letters Patents Proclamations or other Commands or such licence or permission cannot be nor is of any force or can or ought to stand or be used practised or suffered in this Land And this is first to be understood of the Common Law of this Land in point of Commutative Justice that concerneth the right and interest of every Subject viz. Jus personarum rerum actionum of every man whereof the first is expressely preserved by the great Charter of England Nullus liber homo capietur imprisonetur c. The second is secured to every man by the Law of property wherein it is said Quod nostrum est sine furte aut assensu nostro a nobis tolli non potest upon which no Regall power or Prerogative can trench And the third both by the words of the great Charter Nulli negabimus c. justitiam and by the Statute Ordaining that every man should enjoy the benefit of Law and Courts of Justice for his Freehold Lands Goods or Chattels And that neither the great Seale nor Privy Seale should hinder the due course of Law Secondly in point of distributive Justice either in paena or praemio for good or evill behaviour in the publique conversation or actions of one towards another And in this part of Common Law of the Land Malum in se is most concerned that vice should be punished and ought not to be spared by any Regall power leave or licence in any case whatsoever for it were improper that the King being Gods Vicegerent might or ever should connive at or leave unpunished any crime or offence contrary to the Commandements of God or the Law of Nature For his Majesty is said to be like God Dixi Dii estis and the Schoolemen say Deus non potest ma um agere quia non vult non vult quod non potest according to which the Lawyers say Id possumus quod de jure possumus and that Le Rey ne poit faire tort And for the malum prohibitum by Statutes or Ordinances of Parliament his Majesty cannot nor will goe against them but in Tutiorem partem to pardon where there is hope of amendment Otherwise see the Statute of Northampton wherein some odious crimes are denyed the King to pardon Wherefore so it is that if the King through that naturall propensity of Kings spoken of by God himself doe more then he should doe toward the people or that by his omission some enormities are crept in then it behoveth him to call together his great Councell in Parliament to advise with them for his owne better direction and for Reformation of abuses and Corrections of such as