the the same let him Discendere in arenam I heartily desire that by the same rules of Law and Justice the folly of this worke may be convinced and that with meeknesse and moderation by the touch-stone of truth viz. the positive Lawes that those that sit in darknesse may be enlightned let no man goe about to hew it in pieces with the sword of violence and injustice R. 2. for then heare what the blessed Apostle saith By breaking the Lawes dishonourest thou God Thinkest thou that the humane Lawes are not the Lawes of God when thy obedience unto them is so often in the holy Writ injoyned yea canst thou imagine that if thou shalt transgresse this Law that thou shalt escape the righteous Judgement of God Rich Legacies viz. the positive lawes Are the rich Legacies of thy forefathers bought at so deare a price with so much bloud and treasure trampled under thy feet as despicable things I will say no more Remember the wise man let not mercy and truth forsake thee binde them about thy neck and I beseech the Almighty God to give unto us all a right understanding in all things What I intended is now finished wherein I have squared my course altogether by the positive Lawes because of exception of the adverse part not touching upon the legislative or supreme power of Parliaments Master Plynne it being done already by the Pen of a learned Gentleman whose abilities are sufficiently knowne If I have satisfied any man in what is written it is my desire Epilogue I call Heaven and Earth to witnesse that according to my knowledge in the Lawes of this Kingdome I have delivered the truth and I wish every man to lay his hand upon his heart and rightly to weigh and consider the premisses and for passion sinister ends or respects to deviate neither to the right hand not to the left but with a sincere and cleere minde to implore the Divine assistance that in so weighty a matter he may act resolve and doe that which shall be agreeable to the holy will and pleasure of God and consonant unto the Honourable Lawes and Government of this flourishing State and Kingdome Soli Deo Gloria The Table ABsence of the King from Parliament how farre justifiable Page 19. as it hath been many yeares by no Law warrant used only page 21. Vi. tit Statute 38 H. 8. ca. 21. vi tit use Of any Member from Parliament how and in what manner justifiable and where and in what manner punishable p. 15 16 17 18 c. Vi. tit Statut. 5 R. 2. 6 H. 8. ca. 16. Acception legall priviledge of Parliament Pag. 6 7. Act Judiciall Ministeriall in what Cases not incident to the Kings Person pag. 32 Vi. tit presence Allegiance the Etymology thereof p. 18. triplex naturall locall legall p. 57 58 59 c. Vi. tit Statute 11. H. 7. ca. 1. to what capacity of the King due p. 62 Armes who permitted to beare who not Vi. tit Statute 2. E. 3. ca. 3. by the Parliament defensive justified in them â—s a Court of justice p. 70 71 72. Aâ—â—â—ne Royall in what cases requisite in what not p. 38. C. CApacity of the King naturall politick Vi. titl Allegiance devant naturall how secured by Law p. 66. Causes of Parliament efficient materiall formall finall differ c. p. 117 118 119. c. Commission of Array disproved Vi. alarge p. totum 52. 53. usque 59. Corone All Administration of Justice at first in the Crowne how meant p. 32 33. Court Parliament a Court of Justice without the Kings personall presence 32 33 34. severall Courts of Justice ibid. c. Vi. p. 72. Their 〈◊〉 to coâ—â—â—â—dâ—â—â— posse comiâ—â—â—â— posse 〈…〉 proved p. 37 72. Court in what Cases fall in Jâ—dgement oâ— Law in what not p. 39 40 D. DIspensation Regall against a Statute â—here of forcâ— wherenot Viâ—tul Non obstante E. Escuage The service explained not penal but by Parliament p. 46 47 Exception legall privil edge of Parliament p. â—6 7. Exception where it relates to the body of the Act 〈◊〉 â—re not p. 45. in some Cases unnecessary ibid. I. Innuendo in Acts of Parliament where rejected p. 4â— Judgement Against the King by the Law positive and compulsary p. 2â— â—6 Judgement or proceedings of Parliament not subject to debate elsewhere p. 2â— 24 â—â— Judgement definitive in what Cases pertaining to Parliament or other Courts of justice p. 39 4â— Judiciall Acts trans-acted in what cases by part of the Court representative by all p. 35 40. differed from ministeriall ibid Judge Who shall he of the danger of the Realme or of the â—ecessity of raising Armies p. 64 65. paralel'd with the power of judgement in inferiour Courts ibid K. King WHat capacity intended by Law and what meant hereby Vi. titl Capacity Vi. a large titl Stat. 5. R. 2 â—â— E. 3. p. 16 17 18 97. Considered in both capacities naturall politick p. 65. 66. L. LAw of Parliament Vi. titl priviledge inconsistent with the positive Law yet just p. 13 122 Common Law touching the Militia p. 43 44 45. usque 52 per totum Vi. titl Statut. 1 E. 3. 5 â— H. 4. 13. The onely positive Law now in force concerning the Militia Lawes and Statutes how to be expounded Vi. p. 50. 77. M. Militia A Right of Parliament p. 43. Duplex generall absolute or extraordinary ordinary or liâ—â—ted by the positive Lawes p. â— The Militia positive extendeth onely to Tenures or Contracts not to be forced out of their Shires unlesse in case of sudden invasion p. 45 46 47 c. Militia positive vestâ—d in the Sheriffe as an instrument or Officer by Statute in the Law or Courts of Justice in the power or right Vi. a large p. 82 83. usque 88. Vi. tiâ—l statut 9. E. 2. 28 E. 1. cap. 28. The generall or absolute power of the Militia in Parliament De jure not in the King the reasons why at large p. 78 79 80. Militia Of the Navie or the Seas in Parliament not in the King at large debated p. 90 91. c. not divisible ibid. Militia The Adjuncts and Attendants of the Militia viz. the Fortâ— Castles and Magazines to whom they belong ibid Different from houses or palaces ibid N. NEgative voice in Parliament to what it extends p. 23 24 c. examined in inferiour Courts p. 25 Non obstaâ—â—te in the Kings pardon where availeable where not p. 62 63 105 109. O. OAth of the King at his Coronation explained p. 27 28. Observations touching the discourse p. 122 123 c. Offence in presence of a Court of justice and in presence of the King differ Ordinance the Etymology of it how Regall power the Oâ—dinance of God p. 100 101 102 Ordinance and the force thereof in Parliaments in inferiour Courts debated p. 38 39 Offices publike or the great Offices of the Kingdome to whom the disposition of them pertaines p. 93 94. P.
Members of either Houses sweepes them all away from the service of the Common Wealth makes that renowned Assembly a meere desolate structure Formall causes of Parliaments The Kings negative voice in the next place as one blow takes away the formall cause of Parliaments that is to say the Laws and Government he is by this Doctrine become the Legislator onely the Members the Lords and Commons are but inconsiderable persons they fill up roomes like Pageants for shew onely they out of whose mouthes did flow the Oracles of wisedome are not now so to be reputed the Kings voice now is a Law at least if he so please no law shall be enacted the concurrence of the Prince in establishing any Law be it never so necessary is now but a politicke mercy or a mercifull policy as some write not without great perill to be altered but simply to binde the Prince to ratifie or confirme any Law is repugnant to Monarchy Me thinkes I see this great Body Politick being desperately wounded with illegall pressures ready to expire call for her Phisitians to minister wholsome Medicines unto her Alas they cannot come they are slaire with the Sword they are imprisoned they stand at the Seat of Judgement if not capitall The Phisick that should be given unto her Nota. those Cordiall and Medicinall laws for â—he restitution of health see what is likewâ—se become of them This little worme at the root of Government a negative voice devoures all this sweet smelling and amiable Rose hath at the root a Worme which consumeth all whatsoever affordeth delight or comfort Quid delubra juvant est mollis flama medullas What doe the high towred conceits of Parliaments availe this soft fire consumeth by degrees Quod non violento synus Aestu ex'unt That which the great combustions the rage of fire and sword could not accomplish it wasteth thy very marrow and spirits I meane the foule enlivening Lawes but this onely by way of supposition Thus you see the Tree by its fruit The efficient and finall causes of Parliaments we will joyne together Efficient cause of Parliaments the efficient cause of calling Parliaments is the urgent affaires of the Kingdome as the words of the Writ are for the calling of Parliaments not the issuing of the Writ by the King that is onely instrumentall and you may see by the ancient Law of this Land Parliaments are to be called so often as need shall require 4 E. 3. 14. 36. E. 3. 10. by two Statutes in the Raigne of Edw. 3. Parliaments are to be holden once in every yeare and oftner if need shall be Statutes for ought that I know yet in force With what face then can these stupid ignorant Advocates on the other part proclaime to the world the passing of this Bill for Trienniall Parliaments an Act of transcendent grace and favour when you see it is an Act of right and justice to call them once every yeare yea oftner if need shall require Object But me thinkes I heare it whispered Thâ— this Act for Trienniall-Parliaments is an Act of speciall grace and favour notwithstanding any thing yet spoken as appeares by the very words of the Act for by this Statute it is provided That in case the King shall not issue forth Writs for the calling of Parliaments within the time prefixed by the Act that then every County and Barrough shall have power to proceed to election of their Knights and Burgessâ—s in such manner as the Act hath appointed Also it appeareth further that this Sâ—ssion of Parliament so to be called shall continue for the space of fifty daies without any power in the King to dissolve it Not calling Parliaments or when called the power of dissolution no Prerogative because against these statutes Vi. Devant in le prerogative Parliaments to be called without the King yea when called not to be dissolved by him for such a time Sure Regall Prerogatives conferred on the Subject I answer Even as the Sunne disperseth the mists of the night so in the presence of truth all these foggy vapours of errour will suddainely vanish Sol. for as to the first the calling of Parliaments doth it not appeare that they are to be holden once every yeare yea oftner if need shall be by two ancient Statutes yet in force Nota. Which Statutes amongst other good Lawes the King at his Coronation sweareth to observe and keepe How can Parliament be holden if not called therefore the King is bound of right to call them For the second That they shall not be dissolved for fifty daies by the King I answer Parols font plea as the Lawyers say Are not the words Parliaments shall be holden once in every yeare Holding of Parliaments implies continuance of them Is the dissolution of Parliaments a holding of them within the letter or sence of either of these Lawes Nay further I say Nota. They shall be holden that is to say By the ancient law of Edward the Confessor the Parliament ought not to be determined before every bill put in to be discussed 〈◊〉 for difficulty adjourned otherwise c. Finall cause of Parliament continued not for fifty daies but for fifty yeares for ought that I know within the very words of either of these Lawes if the affaires of the Kingdome shall so require for otherwise they are not holden Cum effectu as these Statutes intend plainly to any mans judgement that is rationall Thus you see an end a dissolution of these malignant Objections but no dissolution of Parliaments I hasten the finall cause of Parliaments is to make good lawes to redresse grievances to procure peace but alas the Dove brings not to us the Olive branch of Peace the voice af the Tirtle is not heard in our Land but the waters and inundations are increased so high that they have even drowned the Arke of God the Peace of God both in Church and Common Wealth the urgent affaires of the Kingdome are laid aside Me thinks the answer of Jehu in the Scripture is very pertinent to our purpose No peace so long as sinne aboundeth What hast thou to doe with peace turne thee behind me What peace so long as thy abhominations continue and are so many The bloud of so many of the Saints shed and spilt upon the ground doth cry for vengeance and the wrath of God is incensed against us Note these particulars Observe judicious Reader from this precedent discourse these few particulars apparent and unanswerable and as the very minde of the Author of this worke reflect and contemplate thereupon The first is That the root and originall of all these troubles was the Kings disserting the Houses of Parliament under pretence of Tumult and in security of his Person but the truth is evident enough it was because he could not prevaile in that evill Counsell which then was given him upon suggestion of I know not what crimes to take
I answer Sol. The opposite power or faction hath been for many Ages prevalent and where the regall Power hath gained from the the Subject it is hard and with much difficulty to be reduced notwithstanding there havâ— not wanted in all Ages Champions and Assertors of these truths Tempore R. 2. H. 4 Therninge chiefe Justice nostrâ— tempore Crooke Hâ—tton Weston c. Illustre Parliamentum nunc apud Westminist yea even in our owne times there have been Propugnatores acerrimi Witnesse the Case of Mr. Hampden formerly remembred in the damning of which Judgement I thinke all these illegalities appeare which had it stood in force property in Estates had been a meere nullity yea the Axe was laid to the very root the subversion of Justice and Government Nota. yea your high Court of Parliament had been of no use for the Subject since upon the Kings owne personall judgement and opinion Viz. by thae judgement for ought that appeares otherwise for he that was the sole Judge of the danger of the Kingdome might have imposed what Taxes he pleased upon his People and upon refusall have inforced the paiment thereof a slavish and barbarous judgement nullifying upon the point all the positive Lawes of this Kingdome and making the Government it selfe meerely Arbitrary Preâ—ogative I should likewise here give you a touch of the Kings Prerogatives here as pertinent to this former Discourse for some may say The Liberties of the Subject are much insisted upon here but where are the Kings Rights and Prerogatives hath he none at all Therefore to omit the numerous Prerogatives of the King partly mentioned in that ancient Statute of Prerogativa Regis or dispersed in the legall Records or Annals which to present unto you would be too great a labour and needlesse 17 E. 2. Devant Ante diem clauso componet vesper Olympâ— Wardships Liveries Primer-seisin Marriages reliefe fines Pâ—â—â—aliener Customes Mines Wrecks Treasure trove Escheates Forfeitures cum multis aliis c rights and prerogatives done al Roy pur defend soy mesme son Realme of great benefit to the Crowne and the respect of these the subject to be free from Taxes and Impositions Definition of the Prerogative Rules restrictive of the Prerogative I will onely in a way compendiary shadow them unto you by their rules and restrictions which like the skilfull Pilot steere the course of this great Ship the Royall Prerogatives in the turbulent seas of humane affaires therefore in the first place note that the Kings Rights and Prerogatives are differenced in Law his Prerogatives are onely incident to the Crowne his Prerogatives are his rights but not â—onvâ—â—so The definition of a Prerogative is a power preheminence or priviledge which the King hath over and above other persons and above the ordinary course of Law in the Subjects case in right of his Crowne his Prerogatives are either personall or by reason of his possessions or having relation to both All of them have these restrictions they hold not in any thing injurious to the Subject they must be by prescription oâ— usage beyond all memory to the contrary no Prerogative can Commence at this day without authority of Parliament To give you some instances Basketviles case sâ—venth report The King hath title by Laps to present to a Church he suffereth a Presentation the Clerke is inducted and dyes now the Patron shall present not the King and although the Prerogative be that no laches or negligence shall be impured to the King Nullum tempus occurrit Regi faith the Statute yet laches here shall be imputed or otherwise the subject should be injured in his right the King had but onely the first or next presentation given him by Law therefore he shall not have the second Viz. By Writ certif otherwise Perpaâ—â—ll or letters act of force The King may take a man into his protection by his Prerogative to free him from Suit and molestation if he be imployed in the Kings service and so legally certified but he cannot protect him that is in â—aâ—â—â—tion or against whom an Execution is to be granted at the Suit of the Subject because that would be tortious to the Subject and dispossesse him of that interest which the Law hath vested in him Royall Proclamation a Prerogative He hath a great Prerogative indeed viz. to make Proclamations Sub pena which no Subject can doe but this Proclamation must be in supplement or Declaration of a Law already in being not in derogation of any Law established nay I conceive he cannot command any thing by Proclamation at least Sub pena it there be no Law in force to warrant it although in this particular his Proclamation be in nature of a Law remediall preventing some great mischiefe at present by no positive Law redressed What shall we then thinke of those frequent Proclamations of late times denouncing men Traitors before the Law hath so adjudged them contrary to the knowne rules of Justice yea men the Members of Parliament which cannot be legally judged Traitors but by the Justice of that high Court as formerly you have heard yea divers others also no waies sentenced I assure my selfe in any legall way so to be To the second rule or restriction of the Prerogative I need say little authorities are so plentifull If Lands come unto the King by Purchase in these he hath no Prerogative as in those he holdeth Jure coronae by great antiqui y. The King hath no Prerogative in the Militia Nota. These concerning the Militia the negative voyce in Parliament cannot be Prerogative they are not within these rules or limitations for if the Prerogative should be of force for the Militia it would be injurious to the Subject it should also commence by usage within memory contrary to the Statute of 28 E. 1. 25 E. 3. 4. H. 4. 13. c. Vid. ante yea to other more moderne Lawes So likewise the negative voice in Parliament it would not onely be injurious to the Subject but even to the Lawes and Government it selfe Mag. Char. ca. 29. making them all meerely Arbitrary yea contrary to Statute Law as some good opinion hath been Thus you have a briefe view of the Prerogatives rather shewing you what they are not then what they are which I was moved unto for the satisfaction of those who have not so deep insight into the Lawes Perpaucos arbusta juvant humilesque myricae And now I have passed through the enemies Quarters that is to say the strength of their Positions and Assertions by which they have misled a great party of this Kingdome I will a little breath and deliver unto you the summe of all and run over the heads of their Principles Their first The materiall cause of Parliament as you may see in the beginning of this Treatise strikes at the root and branch of Parliaments the materiall cause thereof that is the