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
s'avisera that is He will advise whether to confirme them or not It seemes to me strange to conclude thereupon Ergo the two Houses may make Laws without Him that is plainely a non sequitur but it doth directly imply that the King hath election to make it a Law or no Law else it were in vaine for Him to advise upon it And the words of King Rich 2. admitting that story to be true saying He conceived Himselfe bound by His Oath to consent unto that Law shewes first that it was in His power to consent or not to consent secondly that the Members could not do it without Him thirdly that it was only an obligation upon His Conscience And that He because He conceived it to be a just Law thought Himself tied in conscience to confirme it Upon the whole matter clear it is admitting the King to have taken an Oath in the words mentioned by the Members it rather proves the Kings power of a negative Voice then disproves it But the Members I am confident know that the King neither did nor was oblieged to take the aforesaid Oath The King pursuing former presidents recorded in the Exchequer tooke the Oath in words and according to the Ceremony as followeth viz. After the Sermon is done the King ariseth and goeth to the Altar and there the Archbishop administreth these questions And the King Answereth Bishop Sir will you grant and keep and by your Oath confirme to the people of England the Laws and Customes to them granted by the Kings of England your Lawful Religious Predecessors And namely the Laws Customes and Franchizes granted to the Clergy by the glorious King S. Edward your Predecessor according to the Laws of God the true profession of the Gospel established in this Kingdom and agreeable to the Prerogative of the Kings thereof and the ancient Customes of the Realme King I grant and promise to keep them Bishop Sir will you keep peace and godly agreement intirely according to your power both to God the holy Church the Clergy and the people King I will keep it Bishop Sir will you to your power cause Law Justice and discretion in mercy and truth to be executed in all your Judgements King I will Bishop Sir will you grant to hold and keep the Laws and rightfull customes which the Commonalty of this your Kingdome have And will you defend and uphold them to the honour of God so much as in you lieth King I grant and promise so to doe Then one of the Bishops reads this admonition to the King before the people with a loud voice Our Lord and King we beseech you to pardon and to grant and to preserve unto us and to the Churches committed to our Charge all Canonicall priviledges and due Law and Justice And that you would protect and defend us as every good King in His Kingdomes ought to be protector and defender of the Bishops and the Churches under their government King With a willing and devoute heart I promise and grant my pardon and that I will preserve and maintaine to you and the Churches committed to your Charge all Canonicall priviledges and due Law and Justice And that I will be your protector and defender to my power by the assistance of God as every good King in His Kingdome in right ought to protect and defend the Bishops and Churches under their government Then the King ariseth and is led to the Communion table where he makes a solemne Oath in sight of all the people to observe the premises And laying His hand upon the Booke saith The things which I have before promised I shall performe and keep so help me God and by the Contents of this Booke Now for the King to oblish Episcopacy to destroy the whole Government of the Church established by Law for the King so far as in Him lies to transfer unto His Subjects that regall power which is inherently in His Person to change the Monarchicall Government into a confusion to reduce his Subjects being a freeborne people unto a perpetuall slavery under their equals and fellow Subjects certainly cannot stand with this Oath All which in the proposals made to Him by the Members nay more and worse then words can expresse is required and by most Barbarous and inhumane cruelties attempted to be forced from Him Now having done with this Oath I shall proceed further to examine the legality of the Members doctrine to exclude the King from His negative Voice It is an undoubted maxime in every Law that no Person Court or Assembly can Act or do any thing concerning the publike affaires of the Kingdome or Common-wealth without Commission which stands with all the reason in the world else it followeth that every one hath equall power to make Laws Act and do what he thinks fit And by the constitutions of this Realme every Person Court or Assembly must derive its authority by one of these wayes viz. by the Kings grant by Act of Parliament or by custome and use if by the Kings grant the Patent it selfe declares the persons authorised if by Act of Parliament the Statute names the men if by custome and use that use and custome is their Commission For example if the King by His Commission authorize twenty persons or any ten of them whereof A. B. or C. to be one to determine a felony if seventeen of the twenty in the absence of A. B. and C. execute that Commission all their proceedings are void as done without Commission seventeen strangers not named in the Commission might as well act therein as they And if the Commission be by Act of Parliament none can execute that Commission but those authorized by the Statute And the like holds when custome and use is the Commission unlesse that custome and use warrant the persons to act it is done without authority and so void Then for the point in question The Members of the two Houses have no grant from the King nor is there any Act of Parliament to enable them to make Laws nor doth custome warrant it For untill this Parliament they never made Law without and against the Kings consent nor claimed power so to do But say the Members in the foresaid Declaration If there be not an agreement between His Majesty and His Parliament either His Majesty must be Judge against His Parliament or the Parliament without His Majesty for say they that question whereupon the safety of the Kingdome depends must not be undetermined And say they if His Majesty against His Parliament why not as well of the necessity in the question of making a Law without and against their consent as of denying a Law against their desire and advise The Judge of the necessity say they in either case by like reason is Judge in both Besides say they if His Majesty in this difference of opinions should be Judge He should be Judge in His owne case But the Parliament should be Judge between His
and the two Houses that body cannot properly be said a Court of Justice The Office of a Judge is upon a Question depending before him to declare what the Law is but the office of the Parliament is only to make new laws By this it appears that neither the Members of the Lords house nor of the Commons house are qualified to be Judges of the Law nor have they either jointly or severally Commission for that purpose And lastly admit every Member of either house in Learning sufficiently qualified to make a Judge their composure considered they are not capable jointly to perform that Office they being two distinct bodies their proceedings severall and distinct it cannot be expected but they shall frequently differ in Opinion and judgment therefore were they never so learned should the King grant unto them power of judicature or should they have that authority given them by an Act of Parliament the Lawes of England would judge both that Grant and Statute absolutely void as a thing most incongruous against sense and reason Upon which it followeth that if the Lords House or the Commons house or both Houses jointly have or shall condemne any person for Treason Felony or other capitall offence try any title of Land tax the people with payments of money seise or confiscate the Subjects estates or the like be it by Order Ordinance or any other way all such proceedings are void done coram non Judice and consequently both the Members and all persons executing their commands therein are by the Lawes of England punishable as Murderers Felons or other transgressours because done without warrant or authority And how long soever they shall continue this power and how frequently soever it is used that alters not the case the Law is still the same it was Yet herein I doe not abridge the power and authority of the Peers of the Realme It is true when the King hath constituted a Lord high Steward and consented to the triall of a Peere for his life for a fact committed against the known Law such a Peere not only may but ought the Lords observing the rules of law to be tried by the Lords his Peers But there is no colour for the Lords or for the Commons or for both Houses jointly although the King should give way thereunto to try or judge any Commoner Every common person ought to be tried by his Peers too that is by a Jury of the Commons and that Iury by the Lawes of England ought to be of that County and neare that place where the fact is committed It is a Rule in our Law that in capitall offences Vbi quis delinquit ibi punietur persons dwelling near the place are most likely to have cognizance of the fact Besides by our law every free-born Subject of this Nation hath at his arraignment power and liberty to challenge Iurors impannelled for his triall But all such liberties are taken away by this usurpation of the Members Thus it appears that the Judges of every Court of Justice so far as their Commission extends and no other persons are Judges of Law But the Judges of no one Court are those unto whom the people are bound lastly to submit themselves for every Court of Justice in some respect is inferiour to another Court or power unto which appeales lie as in the case of a Writ of error and the like unlesse it be in the Exchequer Chamber when the cause regularly depends before the Judges of the Kings Bench the Common Pleas and the Barons of the Exchequer into which Chamber things of great weight and difficulty concerning matter of Law are usually transmitted And being there judicially determined from that sentence t◠conceive no appeale lies to any other Court by Writ of error That is the sentence and judgement of the Judges of the Realme yet from that judgement some persons are of opinion a Writ of errour lieth before the Lords in the upper House of Parliament But upon consideration had of the reason of the Law concerning the proceedings in Writs of error brought there I conceive it were to little purpose to permit any such appeale unto the Lords upon judgements given in the Exchequer Chamber before all the Judges of the Realme The power of the Lords House to reverse erronious judgements I conceive began thus The Court of the Kings Bench is the highest Court of Judicature wherein any suite of Law can legally and regularly be brought and therefore their proceedings not to be examined by any other ordinary Court of Justice every one of them being inferiour to it But the Judges of the Kings Bench are as subject to erre as the Judges of other Courts Therefore as requisite to have their proceedings examined Now in regard the Judges of the Realme were at all times at least assistant to the Lords House it was proper enough to have the errors of the Kings Bench reversed in that place And having had its beginning thus constant use and custome hath Legally intituled them unto it Therefore although peradventure it may have happened that some few particular Writs of errour have been brought in the Lords House upon judgements given in some other Courts I conceive the prescription which is all the Commission they have lieth only for the Kings Bench. And I am the more confirmed therein because the Law bookes mentioning the authority of the Lords House in reversing judgements do generally instance in the Kings Bench not naming other Courts Besides as the Lords House hath this jurisdiction by prescription the same use and custome requires these circumstances 1. That the Kings consent to prosecute a Writ of error be obtained because every judgement in the Kings Bench doth immediately concerne the King the jurisdiction of that Court being properly Pleas of the Crowne 2. That the Lords after the cause is brought before them proceed by the advice of the Judges which is indeed the essentiall part of the prescription To have a profession of Law Courts of judicature erected persons learned in that profession appointed Judges thereof it were most preposterous to have the proceedings of these Judges even in the most difficult points of the Law examined reversed and controlled by persons ignorant in that profession By the constitutions of England no man is capable to be a Judge unlesse he have understanding in the Law to performe that office Therefore shall the King grant to one who is most learned a Judges place to him and his heires as to his heires it were void and the same it were if such a grant were made by Act of Parliament And so consequently if the Lords should prescribe that time out of mind they and their predecessours Lords of the Parliament in Parliament time have without mentioning it to be with the advise and assistance of the Judges reversed erronious Iudgements given in the Kings Bench or in any other Court of Iustice it 〈◊〉 〈◊〉 be disallowed judged as an evil use
name but the power of Judges the knowne Law of the Land is their rule to determine every question depending before them which they are sworne to observe notwithstanding any command of the King the Members or any persons whatsoever And consequently every one is thereby preserved in his just Interest but by the Members taking upon them both to nominate the Iudges and to declare the Law the Law it selfe is destroyed and both King and people inslaved Upon the whole matter clear it is That the King and none else hath power to nominate and authorize the aforesaid Iudges and officers And therefore if the Members of the two Houses have or shall either in the Kings name or in their owne de facto appoint any persons for Judges in those Courts or in words by Commission of Oyer and Terminer or generall Gaole delivery give power to any to execute the office of Judicature in Circuits or otherwise such persons have not de Jure the power of Iudges For the Members have no more authority to make a Judge or to give any such power then any other subject in the Kingdome hath therein And consequently all the judgements acts and proceedings of those nominall Iudges or such Commissioners are void as things done coram non Judice Every person by such authority who either in the Kings Bench or at the Assises or elsewhere hath been or shall be condemned and executed for any crime whether guilty or not guilty is murdered And every other judgement or sentence by them given either in Capitall Criminall or Civill affaires is invalid In the next place it is proved that the King is the only Supreame Governour CHAP. VII That the King is the onely Supreame Governour unto whom all the people of this Nation in point of Soveraignty and Government are bound to submit themselves AGainst this undoubted right of the Kings these distractions have produced another Treatise of Mr. Pryns likewise published by authority of the Commons House intituled thus The Parliament and Kingdom are the Soveraigne power Wherein his aime is to perswade the people that the Members of the two Houses are the supream Governours of this Kingdom and begins thus The High Court of Parliament and whole Kingdome which it represents saith he may properly be said to be the highest Soveraigne power and above the King for saith he every Court of Justice whose Just resolutions and every petty Jury whose upright verdicts oblige the King may truly be said to be above the Kings person which it bindes But the Court of Parliament hath lawfull power to question the Kings Commissions Patents and Grants and if illegall against the Kings will to cancell or repeal them Therefore the Parliament hath Soveraign power above the King Answer Here I deny both his Major and Minor First for his Major Although it is true that every Just resolution of any Court of Justice That is when the Judges legally determine such things as regularly depend before them in point of Interest bindes the King as well as a Subject that proves not a Soveraigne power in the Judges If so it followeth that the Judges of the Kings-Bench the Common Pleas and of all other Courts of Justice And by M. Pryns Argument every petty Jury too have in point of Soveraignty a power above the King which is most grosly absurd So that admit the two Houses a Court of Justice which they are not and to have power legally to determine Causes which they have not That is nothing to Soveraignty It is one thing to have power to make Lawes another to expound the Law and to Governe the people is different from both The first appertaines to the King and the two Houses the second to the Judges and the third is the Kings sole right Neither the making declaring or expounding the Law is any part of Soveraignty But regulating the people by commanding the Lawes to be observed and executed pardoning the transgressors thereof and the like are true badges of a Supreme Governour All which are the Kings ☞ sAnd for his Minor take his meaning to be the true Parliament That is the King and the two Houses And it is false that the two Houses without the King have power legally to cancell or make voide any Commission Patent or Grant of the Kings For as before appeareth That united body cannot speak or doe any thing but by Act of Parliament To say the Parliament without the King may make a Law is as grosse a Contradiction as to affirme that the King may make an Act without the King And his meaning being taken to be the two Houses without the King In that sense the Members have herein no power at all for as before appeares they are neither a Parliament nor a Court of Iustice and consequently have not jurisdiction legally to cancell or repeale any Commission Patent or Grant of the Kings But saith Master Prin the King although he be cheif yet he is but one Member of the Parliament and saith he the greatest part of any politicke body is of greater power then any one particular Member As the Common-Councell is a greater power then the Major the Chapter then the Dean the Dean and Chapter then the Bishop and so the whole Parliament then the King for saith he in an Oligarchy Aristocrasie and Democrasie That which seemes good to the major part is ratified although but by one casting voice As in election of the Knights of the shire Burgesses and the Votes in the two Houses And saith he by the Lawes of England The Kings the Lords and Commons make but one intire Corporation and so concludes that the Major part of the Parliament which in Law saith he is the Corporation is above the King Answer There is scarce one word in this discourse but it is false or misapplied It appears before That the Parliament consists of 3 distinct bodies viz. the King the Lords House and the Commons House and in making Lawes which is all they have to doe they have but three Voices yet that which seemes good to the major part of these three is not ratified For as before it appeares they must all concurre else no Parliament It is true where the Government is Aligarchicall Aristocraticall or Democraticall the major part determines the Question But this is mis-applyed to the businesse in dispute concerning the Soveraign power Our Government is Monarchicall The people of England are not Governed by a Parliament The use of a Parliament as before appeares is onely in some things when necessity requires To alter the old or make new Lawes wherein the foresaid three bodies viz. the King the Lords House and the Commons House are joyntly trusted If Mr. Pryn be asked what he meanes by the Major part of that Corporation which he in this place calls the Parliament His Answer must be one of these viz. Any two of the aforesaid three bodies or else That the King the Lords and the Commons
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
pro quibusdam arduis urgentibus negotiis c. quoddam Parliamentum nostrum apud civitatem nostram West 1. Die Maii prox futur ' teneri ordinavimus ibidem vobiscum cum Prelatis magnatibus proceribus dicti regni nostri colloquium habere tractatum vobis sub fide ligeantiis quibus nobis tenemini firmiter injungentes mandamus quòd personaliter c. So that to the institution of the Lords House and the power which the Members of that Assembly have to sit and Vote in Parliament the people are not at all consulted with in any particular And for the Commons House the institution thereof and the Commission which the Members of that Assembly have is derived from the King too That which the people act and do therein is only to elect the Knights of the Shires Citizens and Burgesses and therein too their authority is by the Kings Writ the direction whereof they are bound to pursue It is not in the power of the Inhabitants of any County or towne to adde unto or lessen the number of persons to be elected or to inlarge or limit the authority of those chosen But former Kings as before is shewed sometimes called more sometimes fewer and at their pleasure created new Corporations and gave them power to send Burgesses And every King had and at this day hath authority to enable and command every towne in England to send Burgesses to Parliament And when the Knights and Burgesses are elected the peoples power is ended then the persons chosen are to performe their duties wherein they must be guided by their Commission it is that which doth distinguish them from other men else every one in the Kingdome had equall power to sit and Vote in Parliament And they have no other Commission then the Kings Writ of summons which followeth in these words viz. Rex Vicecomiti salut ' Quia de avisamento assensu consilii nostri pro quibusdam arduis urgentibus negotiis nos statum defensionem regni nostri Angliae Ecclesiae Anglicanae concern quoddam Parliamentum nostrum apud Civitatem nostram Westm ' tertio die Novembris prox ' futur ' teneri ordinavimus ibidem cum Praelatis Magnatibus proceribus dicti regni nostri colloquium habere tract ' tibi praecipimus firmiter injungentes quod facta proclam ' in prox Comitatu tuo post receptionem hujus brevis nostri tenend die loco predict ' duos milit ' gladiis cinctos magis idoneos discretos Comit ' praedicti de qualib ' civitate Com' illius duos cives de quolibet Burgo duos Burgenses de discretior ' magis sufficientibus libere indifferenter per illos qui proclam ' hujusmodi interfuer ' juxta formā statutorum inde edit ' provis eligi nomina eorundum milit ' Civium Burgensiū sic electorum in quibusdam Indentur ' inter te illos qui hujusmodi election ' interfuerint inde conficiend ' sive hujusmodi elect ' presentes fuerint vel absentes inter eosque ad dict' diem locum venire facias Ita quod iidem milites plenam sufficientem potestatē pro se cōmunitate Comit ' Civitatū Burgorū praedictorum divisim ab ipsis habeant ad faciendum consentiendum his quae tunc ibid ' de communi consilio dicti regis nostri favente Deo contigerint ordinari super negotiis ante dictis Ita quod pro defectu potestatis hujusmodi seu propter improvidam electionem militum Civium aut Burgensium predictorum dicta negotia infecta non remaneant quovis modo Nolumus autem quod tu nec aliquis alius Vicecomes dicti Regis nostri aliqualiter sit electus electionem illam in pleno Comitatu factam distincte aperte sub Sigillo tuo singulis corum qui electioni illi interfuerint nobis in Cancellar ' nostram ad dictum diem locum Certifices indilate remittens nobis alteram partem Indenturarum predictarum praesentibus consuet ' una cum hoc breve Teste meipso apud Westminster And the returne of the aforesaid Writs in these words viz. Virtute istius Brevis eligi feci duos milites gladiis cinctos magis idoneos discretos de Comitatu meo viz. A. B. qui plenam sufficientem potestatem pro se Communitate Comit ' predict ' habent ad faciendum consentiendum iis quae ad diem locum infra contentos de Communi Consilio regni Angliae ordinari contigerint Et predicti A. B. manucapti sunt per quatuor manucapt ' ad assulendū ad Parliamentū dom ' Regis apud Westminster ad diem infra contentum ad faciendum quod hoc breve in se exigit requirit I have here exactly set downe all those Commissions by authority whereof the Lords House and the Commons House sit and Vote in those Assemblies which is far short of giving them power to make Laws That of the Lords commands them to advise and consult with the King concerning the great affaires of the Realme both in Church and Common-wealth That of the Commons to doe and consent unto such things as the King and the Peeres shall agree upon And as the Members have their authority to sit and Vote in the House from the King so it is at His will to summon a Parliament when and as often as He thinkes fit And the Members being met together are kept there as long as he pleaseth and at every instant time when he seeth cause dissolved againe And whilst they are continued together their office is to enquire and informe themselves of the grievances of the Kingdome to consult how to reforme them and for that purpose if need be to compose Laws and present them to the King But all this is onely by way of advise it binds not untill the King hath taken their Councell and put life into those Laws by His Assent All which is not onely pursuing their Commission but is made good by the constant practise of the Kingdome For there was never any Law Statute Act of Parliament or Ordinance made in this Nation which bound the people whereunto the King did not give His Royall Assent And scarce one Parliament since the Institution of the two Houses but the Members of both those Assemblies have passed Bils for new Laws presented them to the King which He hath rejected whereupon every such Bill was instantly set aside acknowledged by the Members and judged by all men to be invalid neither binding King or people And for these words le Roy s'avisera the opinion of Justice Hutton and the words of King Richard the second nothing can be inferred thereupon against the Kings negative Voice but rather the contrary The Kings answer say they to Bils presented to Him by the two Houses which He rejects is thus le Roy
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
debaced Coyne commanded forraigne Coyne to be current here ordered all forraigne negotiations All matters of War either foraigne or domestick And so in all civill affaires The Judges of the Law authorized by Him All legall proceedings in his name and by His authority The Law it selfe called His Law He hath usually dispensed with Acts of Parliament at pleasure pardoned transgressours of the Law To Him appertaines the forfeitures for Treason and other offences In a word He is the sole fountaine of Justice Mercy and Honour And with this constant practise agrees all authorities histories and stories among which that of the Oath of Supremacy if there were no more is sufficient to satisfie all the World the words are these I A. B. do utterly testifie in my conscience that the Kings Highness is the onely Supreame Governour of this Realme and of all other His Highnesse Realmes Dominions and Countries as well in all Spirituall things or causes as Temporall Now if the contents of this Oath be true that is If the King be the onely Supreame Governour all the rest of the people from the highest to the lowest whether Members or not Members are subject unto Him and persons governed And as all persons are hereby included so it extends to all things both Spirituall and Temporall And me thinks it strange an Englishman should make doubt of the truth of this Oath It was composed by the Lords and Commons in Parliament in the time of Queen Elizabeth And at their suite by Act of Parliament made high Treason for a Subject to deny to take it And further enacted that every Judge of the Law and other Officer either Spirituall or Temporall every person of any profession or calling before he be enabled to exercise the same every ward before he be permitted to sue out his Livery every one elected Member of the Commons House before he be permitted to sit or Vote there shall take this Oath Yet the Members of this Parliament would make an evasion out of it Thus. The Kings Supreamacy say they is meant in Curia non in Camera in His Courts not in His private Capacity And to speak properly onely His high Court of Parliament wherein He is absolutely Supream Head and Governour from whence there is no appeal And say they if the Parliament may take an Accompt what is done by His Majesty in His inferiour Courts much more what is done by Him without Authority in any Court. And say they It is preached to the people by the Kings Declarations that by the Supreamacy is meant a power inherent in the Kings Person without above against all His Courts the Parliament not excepted whereby say they the excellent Lawes are turned into an Arbytrary Government Answer That which the Members in this discourse say in effect is but thus The King is Supreame Governour Yet under the Members Government He hath Authority without appeal to determine all things yet hath not power to determine any one thing To blear the eyes of the Vulgar they are contented the King shall be called the onely Supream Governour But the Authority Power and Execution thereof if we may believe the Members is their owne The King and People are herein used as a Father sometimes deals with his child telling his little son the flock of sheep is his yet the Father shears them takes the profits to his own use Even so are King People dealt with They are told bythe Members that the King by the Supreamacy claimes such a power As that the Subjects thereby have lost both their Law and Liberty and would make them believe that they are by those Members thereunto restored againe Whereas all but naturalls may now discerne That whilst the King together with the name enjoyed both the Power and Execution of the Supreamacy The people were a free Subject And that by this usurpation upon the King They are inslaved For the Supreamacy is in the Kings Person But by it He neither hath nor claimes an unlimited power The People are Governed under Him but that Government is directed by a known Law of which Law the King is not Judge nor can He by Himselfe alone alter that Law Now whilst the Supreamacy the Power to Judge the Law and Authority to make new Lawes are kept in severall hands the known Law is preserved but united it is vanished instantly thereupon and Arbytrary and Tyrannicall power is introduced For example the Members condemne a Subject to die they confiscate his estate to their own use and without appeal have power to Judge the Law thereupon This granted clear it is the Will of the Members is the Law they are hereby Judge Party and Witnesse It were fruitlesse for that condemned person although guiltlesse to urge his innocency of the Fact or to dispute the Law upon that Fact with them who have condemned him And as the Members tell us there is none else to appeal unto It is therefore to be feared the greater Estate the Delinquent hath or the more spleen some Members bear to his person the more Capitall is his offence So that it is the Members not the King who claime a power in their owne persons without above against all Courts of Justice The Parliament it self not excepted Our excellent Lawes are by them destroyed and turned into their own Arbitrary power And thus the people are enslaved by a distinction never heard of or thought on before this Parliament the aforesaid two Spencers onely excepted It is true they having committed acts of Treason to colour their proceedings divulged an opinion suitable to this they pretended that the Oath of Allegeance was more in respect of the Crown then the Kings Person That the King might be removed and the people ought to governe But those opinions are condemned as damnable execrable by two Acts of Parliament One called exilium Henrici de Spencer And the other made 1 Ed. 3. But that this of the Members and that of the Spencers are meere fictions and delusions to gull the people is evident both by Authorities of Law and the common practice of the Kingdome It is resolved in Calvins case which therein agrees with the whole current of our Law-bookes that Allegeance is due onely to the King That theKing hath two Capacities one of a natural body descended of the Royal Blood this is subject to death and infirmities The other a politick body and in that immortall invisible not subject to non-age c. That the King having but one person and severall capacities It was resolved Allegeance is due to his naturall Capacity And consequently the Soveraigne power of Government inherently in his person By the common Law of the Land Treason is to kill or endeavour to kill the King His consort the Queen or the Prince Therefore it is the naturall body the Law lookes upon for the politick body cannot die Besides neither the Queen nor the Prince hath a
the Militia unto the Members is the same as to put the Sword into the hands of a mad-man for as the one hath no reason to restrain himself from doing mischief so the Members are not guided by any known Law but having usurped an Arbitrary power over King and Subject we finde by our wofull experience make use of the power of the Sword to compell the people to submit unto their insatiable lusts Witnesse besides the infinite murders and slaughters of the people the vast summes of money these Members since this Parliament by the power of the Sword have unlawfully wrested from the Subject which being justly cast up would amount to more then all the Subsidies grants of that nature given unto all the Kings of England for the space of 500. yeares before that Upon the whole matter clear it is the Militia of the Realme by the known Law of the Land is the sole and onely Right of the King And consequently all Commissions Powers and Authorities granted or given by the Members of the two Houses concerning this Warre are voide in Law and no Justification for those acting thereby But for the nature of that offence it is shewed in the next Chapter CHAP. IX That all persons who have promoted this Warre in the name of King and Parliament and such as have acted therein or adhered thereunto are guilty of Treason THe Office of the King and Duty of the Subject appeares before to be thus The King to Command and Govern according to the Established Lawes of the Realme The Subject to obey those Commands wherein the Law of all things abhors force and enjoynes peace which Peace by the Lawes of England is called the Kings Peace Therefore in every Indictment for Murder Felony or Trespasse done upon the person or estate of a subject These words viz. contra pacem domini Regis nunc Coronam dignitatem suam ought to be expressed for although the fact be done immediately against a Subject yet it trencheth against the Kings Authority His Law is thereby broken And the Lawes of England not onely protects the Kings Person from violence but preserves Him in His Royall Throne and Government Therefore if any persons in this Kingdome without command or assent of the King raise Forces Powers or Armes be it upon what pretence soever it is a Warre levied against the Kings Authority His Crown and Dignity For in that the Subject assumes the Regall power of the King Then for the Authors and Actors of this Warre the Kings Castles Forts His Navy Armes Ammunition and Revenues of His Crown are by force wrested out of His Hands Armes raised conducted into the Field Himself fought with in severall Battailes His Subjects in every part of the Kingdome by the awe of those Armies forced from their Allegeance Therefore a War it is and a War against the King The next Question is what the Law declares this offence to be And that appeares by the Statute of 25 Edw. 3. in these words Whereas divers opinions have been before this time in what case Treason shall be said and in what not The King at the request of the Lords and of the Commons hath made a Declaration in this manner When a man doth compasse or imagine the death of our Soveraigne Lord the King or of my Lady the Queen or of their Eldest Sonne and Heire or if a man do levy War against our Soveraigne Lord the King in this Realme or be adherent to the Kings Enemies in this Realme giving aide or comfort in the Realme or elsewhere and thereof be probably attainted of open deed by people of their condition c. It is to be understood that it ought to be Judged Treason By this clear it is That it is Treason to Levy War against the King to compasse or imagine the death of the King the Queen or Prince to adhere unto or aide the Kings Enemies Of all which the death of the King Queen and Prince excepted the Authors and Actors of this War are guilty But M. Prin hath by Authority of the Commons House of Parliament published a Treatise intituled thus The Parliaments present necessary defensive Warre is Just and Lawfull both in Law and Conscience and no Treason or Rebellion Answer This Title is like his whole discourse totally either impertinent or false This is not the Parliaments War but a War of the Members of the two Houses Nor is it a War on the Members behalf defensive but offensive which omitting to expresse when and by whom the Armies and Forces were first raised that being obvious to all men appeares by considering the Cause of the Warre which was thus The Members having formed a Law to take out of the Crown the power of the Militia and to settle it in themselves the King refused to consent unto it which refusall was the ground of this War wherein the King was onely Passive and the Members Active They pressed upon Him to change the Law He refused It were grosse in this case to conceive the King should make a War But the Members had no way to gain their ends but by force and so began the War Then Master Prin proceeds to prove that this Warre of the Members is not Treason For saith he they intended no violence to the Kings Person His Crown or Dignity onely to rescue Him from His Cavaleers and bring Him backe to His Great Councell Answer It is true sometimes the intent of the party committing the fact alters the case For example A man travelling the passage is stopt by water And finding a horse there makes use thereof to get over the water This is not Felony But it is a Trespaas Suppose this party indicted for felony at his triall it is pertinent for him to confesse the fact That he used the horse and by circumstances to make it appear he intended thereby onely to get over the water and so to quit himself of the fellony But this man being indicted onely for a Trespasse for him to confesse he used the horse to get over the water alledging he could not otherwise have passed thereby to quit himself of the Trespas were foolish So here raising of Armies against the Kings Command conducting them into the field c. is confessed But saith M. Pryn that is not Treason for they intended no harme to the Kings Person His Crown or Dignity Which is a fond contradiction for admitting they intended no harme to the Kings Person the fact confessed is a harme to His Crown and Dignity And that in the highest nature that may be It is a Warre Levied against Him and His Regall Authority which by the Laws of England is High Treason Raviliake who killed the King of France upon M. Pryns ground might have justified the fact Although he had confessed to have willfully killed that King yet he might with as much truth and sense have said he intended not to hurt the Kings Person As M. Pryn
still carry the face of Justice although nothing ever was or can be more pernitious to King and people Ket Cade Wat Tyler and the like in their insurrections pretended reformation To remove bad Councellors from the King To restore the people to their Liberties and to set up the Law they protested were the things they aimed at Now admit their intention had been to reforme yet their proceedings must necessarily destroy both Law and Government Suppose Ket had been asked who should judge what persons had broken the Law who were bad Councellours who should nominate the Officers of State and the like Ket would have answered that he who reformes must judge of the reformation Therefore none but Ket should judge of these things which had been no lesse then to have arrogated an Arbitrary power to enslave the people And if so in Kets case It is the same when any persons what ever their quality or number be for it is the Authority and Commission which the Law lookes upon to justifie the fact not the dignity or number of the persons acting And as those things alter not the nature of the crime so the consequence thereof to the people is all one They are as much and more damnified by an unlawfull act committed by a Lord as by a peasant by a thousand as by one single person Then for the Members proceedings Their assuming power to judge the Law to exclude the King from His Negative voice in Parliament taking upon them Authority to make Laws and the like are in themselves as unlawfull as the foresaid acts of Ket c. The Members have no more Commission for this then Ket had for that And the consequence thereupon to the people is one and the same Suppose a single person to have conquered the Kingdome And thereupon to assume an Arbitrary power The lives estates and fortunes of the people were at his command And so they now be at the will of the Members And thus the Subjects were enslaved CHAP. XV. The way how to restore the people to their former Liberties WHen the Physitian hath discovered the nature of his sick patients disease and not before he knowes what medicine to apply for the cure Which holds with a Common-wealth fallen into disorder And for England the cause of its grief is apparent It is rather out of joynt then sick of a disease Our misery is occasioned as before appears onely by setting aside the King For by that the Soveraign power of Government the Authority to make Lawes and the power to judge the Law are wrested out of their proper places and drawne into one hand The Members by excluding the King have usurped all these so that there is no other power or rule to guide their actions but their own will But whilst the King held His right the power of Government was His the Authority to make Lawes was in Him and the two Houses joyntly and to declare the Law in the Judges whereby every one was limited within His own bounds and so avoid all Arbitrary power Thus for the cause of our grief Then for the cure when any limbe of a man is out of joynt it so much distempers every part as that if not timely prevented the whole body is in danger to perish And as no medecine without putting it into joynt againe will ease the paine so by setting straight that joynt at once it is a perfect cure to the whole body Now by setting aside the King the disorder in our Common-wealth is no lesse then an absolute subversion both of Law and Government The people are thereby totally enslaved this incurable but by restoring the King again For so long as the Members exclude the King so long the aforesaid authorites are usurped by them and so a power Arbitrary For example If the Members condemne an innocent man to death And for a fact if guilty not punishable by Law The Members having power without appeal both to determine the fact and to declare the Law upon that fact And those Members having Judged him to dye and to forfeit his Estate unto themselves This innocent man all the world must confesse is without remedy he is hopelesse without the mercy of those who gaine by his destruction But the King being restored the foresaid Authorities are returned into their proper places and againe divided into severall hands instantly from thence every Court Assembly and person not only enjoyes its own Authority but is limited within its own bounds no man then is permitted to be both Judge and Party he ought not by our Law to give sentence of death if by that Sentence the Judge gave the fortune of the man condemned Thus for the Medicine In the next place it is considerable who shall apply it And for that as the people were the immediate instruments of their own thraldome they ought to be the principall Agents of their own freedome Their motives to returne to their obedience are farre greater then they had to recede from it Was any heretofore hindred to exercise his owne opinions in matters of Religion Was his person imprisoned taxes and impositions laid upon him not warranted by the Law If so his condition is now farre worse First for Religion The sence of those Members we now finde is made the rule of every mans faith he is bound to change his Religion as the Major part of the Houses shall Vote The Ecclesiasticall Judges heretofore were limited in their punishments The Members are boundlesse And as they are not guided either for Doctrine or Discipline but by their owne will So in their punishments they are a large too Shall the Members Vote that no man shall use the word Trinity or call upon our Saviour by the name of Jesus or what else soever it be The punishment upon those breaking that Law may be losse of all his Estate or death if the Members please Then for imprisoments formerly the Judges had power by whose warrant or command soever committed as the cause required to bail or set him at liberty But now once committed by the Members the cause is not examinable unlesse released by them who committed him without redemption or examination in the gaol he must starve and perish And for taxes and impositions it is true we have heard of Loans and Benevolences and we know the businesse of Ship-money But the people are now taxed by Assessements Excize and otherwise at pleasure Peradventure the Excize now laid upon London exceeds not 20000. l. a week but by the same Law that such a summe is imposed it may be multiplyed to a Million a day If one County be assessed at 1000. l. a moneth it may be raised to 10000. l. a weeke And as these are new wayes to tax the people The Members by the same rule every day may devise other new wayes to burthen them And doubtlesse he who hath his Estate taken from him by Assessements or Excize is left as little to feed
THE ROYALISTS DEFENCE VINDICATING THE KING'S PROCEEDINGS IN THE LATE WARRE MADE AGAINST HIM Clearly discovering How and by what Impostures the Incendiaries of these Distractions have subverted the knowne Law of the Land the Protestant Religion and reduced the people to an unparallel'd Slavery Veritas emerget Victrix Printed in the Yeare 1648. To all the People of ENGLAND IN every Common-wealth where the tyranny of an Arbitrary power prevailes not some known persons are assigned unto whom for matter of law both the Governours and the Persons governed do submit For example where a King hath the Soveraignty if it be likewise in his power to judge the Law his authority is Arbitrary He may then take the life or confiscate the estate of whom he pleaseth and for what cause he thinks fit And the same it is when the soveraigne power is in severall persons whatever their number be and however composed if they have also authority to judge the Law by which they govern the rest of the People are inslaved to their will But herein the Subjects of England are a most happy people By the constitutions of this Realm our King hath inherently in His Person the soveraigne power of government but He hath not authority to judge the Law The Judges of the Realme declare by what law the King governs and so both King and people regulated by a known law giddy multitude out goes Presidents found in the Old Testament shewing that Subjects so anciently sometimes resisted lawfull Authority and have rebelled against their King Nor be the Lawyers herein excusable too many of them declining the authority of the Iudges of the Realme make their own expositions of the Books and Records their rule to know the Law Now amongst those he who hath once got the reputation of an Antiquary and hath accustomed himself to discourse of things out of the common roade ipso facto is Master of this Art It is then but making use of some dull expressions found in an old worm-eaten Record selecting the mistaken opinions of some particular Iudges obiter delivered in Arguments or some dark Sentences taken out of a rotten Manuscript And if any printed Book be daigned the mentioning it must not be the known authentique Authours reporting the resolutions of the Court of Justice nor such as shew the common and constant practice of the Kingdome which is the Law it self but some antiquated thing whose Authour is unknowne and his meaning as obscure These rules being observed his work is done the people observing this Cynicks discourse to be different from other men presently conclude him to be far more learned in his profession then his fellow Lawyers and gaze upon him as an infallible guide Those sorts of people both Divines and Lawyers thus prepared are equally armed to assault either King or Subject and ever looking upon their particular interest as they find Instruments to work upon make their applications sometimes by the assistance of a greedy Sycophant-Courtier the KING is abused being by those persons drawn to act things not warranted by the constitutions of the Realme Other times by the aide of discontented Spirits whoever affect popularity the people are incited to disobey the Kings just commands And so misunderstanding oftentimes is occasioned between the King and His Subjects whereupon ariseth feares and jealousies on both sides This in some sort was our condition before this Parliament which was the ground-work whereupon these men at Westminster even by a totall destruction of the whole Nation have compleated the business At the first meeting of this Parliament the confusion began visibly to appear The Incendiaries of that Faction not only cherished the old but by casting false calumnies upon the King fomented new jealousies whereby the people were put into such a pannick fear as that they believed a present destruction inevitably must befall them if not preserved by the Members of the two Houses of Parliament And the King on the other side with wonderfull expressions of loyalty even by the same Serpent was told He should be made more Glorious then any of His Ancestors or Predecessours But the Members having thus encreased the flame between the King and the Subject and having by these false surmises and cunning dissemblings gulled the people into a belief That whatever the Members declared be it in things either Spirituall or Temporall the one was good Law and the other true Gospel which the Members perceiving they instantly made use thereof and upon that score Voted it a high Breach of the Priviledge of Parlialiament for any the Iudges the Courts of Iustice nor the King himself excepted either to oppose their Commands or to deny that to be Law which they declared so to be By which sleight their whole work was finished for by this the known Law was absolutely subverted and both King and people for their Consciences their Lives Estates and Fortunes inslaved to their will and doome But this Arbitrary power thus by the Members usurped rested not long there Shortly after that a Faction in the City of London who were the mony'd men and so interessed in buying the Church Lands and those who were possessed of beneficiall places in gathering that cursed tax of Excise and the like gave the law unto these Members And now we see it is a Councell of War although acted in the name of the Westminster men called the Parliament and none else who dare declare the Law And so for the present six or eight empty soules and untill inriched by theft and plunder indigent persons are our Legislators And in this condition the people must be It cannot be otherwise until the King be restored to His just Rights for till then although we have as many new Governours as new Moons it is but so often changing the Theif It is not at all considerable to the people whether this or that Faction or which opinion in Religion prevailes in the Houses be it the true Protestant Religion established Popery Presbytery Independency or what else soever it is whilst the King is kept from his just Rights of His Negative Voice in Parliament and his Soveraigne power of Government every predominant Party makes his Will the Law and consequently the people for their Consciences their Lives Estates and Fortunes inslaved to that Faction Therefore whether thou beest a Royalist or against thy King what Religion soever Sect or opinion thou doest professe If thou hast not lost thy wits thou must be sensible of thy present sad condition Doest thou enjoy a competent estate doest thou find comfort in having freedome of thy conscience in matters of Religion In the society of thy wife family kindred or friends if thou doest consider what hopes thou hast to enjoy them to thinke thereof will rather adde grief unto thy soul then increase thy consolation for being defeated of thy Protector the knowne Law which is banished thou canst not for the least instant of time promise to thy self continuance of
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
that Suppose it granted that the Iudges in that case of Ship-mony gave Sentence by corruption whereby about 200000. l. per annum was drawn from the people To conclude hereupon that we must from henceforth have no more learned men chosen Iudges is extreame harsh It might as well be argued thus The Members of the two Houses have erred in Iudgement and have been corrupt ergo we ought to have no more Parliaments For as before appeares the Members of former Parliaments have most grosly erred And for these present Members they have not only erred but have been in the highest nature corrupt too First They erred in Iudgement by assuming the Iustice seat the Soveraign power of Government and so in infinite other particulars Then for corruption since these Authorities were by them arrogated twice twenty times 200000. l. per annum illegally and barbarously drawn from the people doth not stint them They have corruptly by one Vote not onely given themselves the wealth of the whole Nation but have likewise enslaved both King and People for their lives and fortunes to their owne will But clear it is no constitution can avoid every mischiefe it is the best Law which prevents the most inconveniencies therefore in this case that which can be done is to have persons who are learned in the profession made Iudges of the Law and all possible care taken that they doe Iustice and for that by our Law no man is capable of a Iudges place unlesse he have ability to execute the same And although he be sufficient for learning yet being advanced for bribes or rewards he is by Law likewise disabled to performe the office They are sworne to do right to all persons and although error in judgement is no crime yet corruption in the Iudge be it for bribes affection malice desire of preferment fear or any other cause is by our Law an offence of an high nature and and most severely punished Now if in stead of exalting themselves the Members had as they made some shew for a while made inquiry how and by whom the Judges were drawne as the Members alleadge to give that corrupt sentence and had presented the same to the King to the end not onely exemplary punishment might have been inflicted upon them but they put out of their places and new Iudges elected the Members had done like Parliament men that had pursued their Commission And so whilst the King the Parliament the Judges every Court and Assembly retaine their owne proper authority without clashing with or encroaching each upon other As by the Laws of England they ought to do both King and Subject are preserved in their just rights And this ought to be exactly observed notwithstanding the superiority or inferiority of any Court power person or Assembly because one Court in some respect is superiour to another that takes not away nor lesseneth the proper jurisdiction of the inferior Court Scarce any inferior Court but it hath some powers which the superior Court hath not For example The Court of CommonPleas hath power between party and party to determine reall actions which the Kings Bench hath not The Assembly of the Commons House cannot give an oath yet the meanest Court of Justice even a Court of Pipowders hath that power So that if it were admitted that the two Houses of Parliament were a Court of Justice as it is not And that it were the highest Court of that nature in this Kingdome that would not at all make good their pretence to be the finall Judge of the Law from whom no appeale should lie But by this Vote and practise of the Members all Courts of justice and rightfull powers in the Kingdome are put downe the Law totally subverted and all things reduced to their arbitrary power Upon the whole matter clear it is that the Judges of the aforesaid three Courts are the Judges of the Realme and the persons unto whom all the people of this Nation are bound lastly and finally to submit themselves for matter of Law But notwithstanding all this the same necessity which made the Members exclude the King from His negative Voice and so to usurpe a boundlesse power to make Laws enforceth them to arrogate the Justice seate too For it were to little purpose for them to declare it Treason for a Subject to speake to His King and infinite such like grosse contradictions both to reason and the knowne Law and yet permit the rightfull Judges to determine the same questions that were both to exalt themselves up and at the same instant to cast themselves downe againe But they tell us they are no such babies So long as the people will be fooled nothing is more certaine but Tyrants they will be to us their slaves In the next place it is shewed who ought to nominate and authorize the Judges of the Realme CHAP. VI. That the Judges of the Realme ought to be elected and authorized by the King of England for the time being and by none else THe legall authorizing of the Judges of the Law is of that importance as upon it depends the preservation of the people for no Law no government no Judge no Law and if authorized by an illegall Commission no Judge It appears before that when the Iudge extends beyond the bounds of his Commission his proceedings are void as done coram non Judice Upon the same grounds be the words of the Commission never so large if the authority be derived from such as have not power to grant it the whole Commission is voide Yet Mr. Pryn by the authority of the Commons House hath published a Treatise intituled thus The Parliaments right to elect Privy Councellors great Officers and Judges Wherein he endeavours to prove the two Houses by the Laws of England ought to elect the Iudges And proceeds thus Kings saith he were first elected by the people and as he beleeves the people at the first elected the Judges and great Officers and bound them by publike Laws which appears saith he by infinite Acts of Parliament regulating both the power of the King and His Officers That in ancient time Lieutenant Generals and Sheriffs were elected by the Parliament and people That the Coroners Majors Aldermen of Corporations Constables and other such like officers at this day are elected by the people Knights of Shires and Burgesses are elected by the Commons of the Realme That the King can neither elect a Commoner nor exclude a Member of either House to sit or Vote That the Parliament consists of Honourable wise grave and discreet persons That although the Kings have usually had the election of great officers and Judges it hath rather been by the Parliaments permission then Concession That the Judges and Officers of State are as well the Kingdomes as the Kings And saith that Mr. Bodin a grave Politician declares That it is not the right of electing great officers which prove the right of Soveraignty because it oft
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