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
name of King and Parliament and all such as have acted therein or adhered thereunto are guilty of Treason p. 100. CHAP. X. That the Subjects of this Nation are not only commanded from doing violence to the Kings Person or prejudice to His authority but are obliged with their lives and fortunes to assist and preserve His person and just rights from the fury of His enemies both forraigne and domestick p. 112. CHAP. XI That those persons at Westminster who call themselves The Parliament of England are not the two Houses nor Members of the Parliament p. 113. CHAP. XII Results upon the premises That the people of England under the government of the King according to the Laws of the Realme are a free Subject p. 125. CHAP. XIII That the people of England under the government claimed by the Members of the two Houses are absolute slaves p. 128. CHAP. XIV How the Subjects of England were brought into this slavery p. 132. CHAP. XV. The way how to restore the people unto their former Liberty p. 135. The Preamble or Introduction to the insuing Discourse wherein are contained the Motives which induced the Authour to take up Armes for the KING against the Forces raised by command of the Members of the two Houses of PARLIAMENT WHen the unhappy difference between His Majesty and the two Houses began to appear I endeavoured to satisfie my self of the cause thereof which I found to be thus The Members formed a 〈◊〉 concerning the Militia of the Kingdome to this effect viz. That certain persons by them therein named shall have power to Call together Muster and Arme all the people of the Kingdome and Conduct them into any part of the Realme to suppresse rebellious Insurrections or Invasions in such sort as the Members without the King shal signifie this power to continue so Long and no longer then those Members please and disobedience therein to be punished by the Members and none else This being presented to the King He refused to confirm it with His Royall Assent The Members thereupon stiling it An Ordinance of Parliament without the King declared it a Law By which in words not onely the Militia of the Kingdome and the Government of the Realm was taken from the Crowne and removed to the Members but an Arbitrary power usurped by them to signifie and declare what Facts were Rebellion and what not and accordingly by pretext and colour thereof caused the people to be Arrayed Armed and Mustered And so in effect the Kings Sword and Scepter wrested out of His hands by His owne Subjects And further the Members pretending the King not consenting to that Law was Evil-counselled by like Ordinances raised Armies appointed the Earl of Essex their Generall authorized them by War to Kill and slay their fellow Subjects and to remove from the King those pretended bad Counsellours The King by His Proclamation inhibited all Persons from adhering unto them and required His Subjects obedience unto Him their King Hereupon I seriously bethought my self whether I was obliged herein to obey the King or the Members and resolved the Laws of England ought to be my guide which I found to be thus That this Nation is governed by a known Law that Law expounded by the Judges of the Realme Those Judges appointed and authorized by the King our only Supream Governor unto whom alone all the people of England are obliged in point of Soveraignty and Government to submit themselves Then I considered in whom the power of the Militia was before the making of the aforesaid Ordinances Secondly 〈◊〉 â—â—…teration those Ordinances made For the first I found that the Militia of the Kingdome by the known Law was inherently in the King For the latter that no New Law can be made or the Old changed but by the King with the assent of the two Houses of Parliament And finding the King therein to dis-assent I did without scruple resolve the law was not altered therefore the Militia still in the Crown and consequently that it was my duty herein to obey the Kings Command not the Members Then I considered what was the offence of a Subject to joyne with those Forces raised by the Members which I found to be the crime of High Treason And lastly it being the duty of every Subject not onely to decline opposing his Soveraigne but to assist Him against all disloyall actions I took up Armes for Him and in His defence in this War Since which I have met with some Objections against these my proceedings which with my Answers to them I have set down in this ensuing Discourse And first concerning the grounds of the Law CHAP. I. That the Lawes of England consist in generall customes particular Customes and Acts of Parliament MOst evident it is that from the subduing of this Nation by the Romans which is about 1700 years agoe the people of this Realme have been governed by a Monarchicall power first under the Roman Emperours then under the Saxons awhile under the Danes again under the Saxons and lastly under the Norman Conquerour and his Progeny untill this day yet by what particular Laws those former Kings governed no authentick Author beyond the time of William the Conquerour doth make it appear But certain it is after that Conquerour had in a Battle slaine Harold and vanquished his Army which is neer 600 years since the people of this Nation submitted unto him as King of England who being in possession of the Crown agreed to Govern by known Laws Now whether those were new Laws introduced or the old continued as to this purpose is not materiall But by that very same Law as by severall Acts of Parliament it appeareth divers of his Successours Kings calling unto them for their advice such of their Subjects as they thought fit by Acts of Parliament made new Laws and changed the old but succeeding Kings since that have herein limited themselves insomuch as by the Constitutions of the Realme as now it is setled the Law of England consists in these three particulars 1. Generall Customes as thus the eldest Son to Inherit his Fathers Land the Wife to enjoy a Third part of her Husbands Inheritance for her Dower these and such like are generally Law throughout the Kingdome therefore called the Common Law 2. Particular Customes as thus in some places the yongest Son in other places all Equally Inherit their Fathers Land these and such like are particular Customes being fixed to particular places and by antient constant and frequent use is become Law there although not generally throughout the Kingdome 3. Acts of Parliament made by the King with the assent of the two Houses All which together that is to say The Common Law particular Customes and Acts of Parliament make the Law of England By this Law all men are protected in their Persons and Estates wherein there is no difference between King and People for neither King nor Subject hath or can justly
claime any right interest or authority but such as He is intitled unto by the Common Law by Particular Custome or by Act of Parliament In the next place it is shewed when the two Houses were Instituted and what is a Parliament CHAP. II. What is a Parliament and how and when the two Houses were Instituted AS it is necessary for a Common-wealth to have a Law so every known law must be grounded upon certain rules Therefore be it composed with never so much care the people cannot be well governed unlesse some persons have power in some things to alter the old and make new Laws Emergent occasions are oft such as require raising mony and other things to be done which the prescribed rules of a known Law cannot warrant which persons so authorized to make Laws in this Nation are called the Parliament And that those Persons at this time consist of the King and both Houses joyntly is a thing most obvious to all men but how long it hath been so is uncertaine For although all the Sages of the Law and judicious Historians agree and therwith reason it self concurreth that ever since we have had Lawes some persons have had power in some things to alter and make new Lawes which might properly be called a Parliament yet untill long after the Norman Conquest I doe not finde it cleared what was a Parliament or what Persons had that power But upon perusall of the Statutes themselves which I conceive in this case to be the best proof I confesse I am much inclined to believe that untill the Raigne of King Edward 1. there was not any formed body or known persons whom the King was obliged to summon unto a Parliament for the making of Lawes wherein I shall begin with the first Law of that nature which at this day binds the people And therein we cannot goe beyond the ninth year of the Raigne of King Henry 3. that of Magna Charta being the first upon serious perusall of which Act the Charter of the Forrest and the Statute of Ireland enacted the same year by the words thereof I am induced to believe although doubtlesse with the consent of divers of His Subjects that they were made by the sole power of the King In the Preamble of the Statute of Merton made 20. Hen. 3. are these words viz. It is provided in the Court of our Soveraigne Lord the King holden at Merton before William Arch-bishop of Canterbury and others His Bishops and Suffragans and before the greater part of the Earls and Barons of England there being Assembled for the Coronation of the King and His Queen about which they were all called where it was Treated for the Common-wealth of the Realme And then were made diverse Acts of Parliament By which it clearly seemes to me That the Persons consenting to the Lawes then made were not summoned to a Parliament but to the Kings Court and not called to make Lawes but to solemnize the Coronation of the King and His Queene Those Treated with Bishops Earls and Barons not the Commons nor all the Bishops Earles and Barons only such as the King thought fit to be present at His and His Queenes Coronation And none of them called by Writ Likewise in the Preamble of the Statute of Marlbridge made 52 Hen. 3. are these words viz. For the better Estate of this Realme as it behoveth the Office of a King the more discreet men of the Realme being called together as well on the higher as on the lower estate c. So that to this Parliament it seemes only such Lords and other discreet men of the Common-wealth such as the King thought fit were summoned But in the Preamble of the Statute of Westminster first made 3 Edw. 1. are these words viz. These are the Acts of King Edw. 1. by His Councell and by assent of Arch-bishops Bishops Abbotts Priors Earles Barons and all the Commonalty of the Realme being thither summoned because our Soveraign Lord the King had great desire and zeal to redresse the State of the Realme By which it appears that to the making of Lawes at this time there was a great and generall concurrence for besides Arch-bishops Bishops Abbotts Priors Earles Barons and all the Commonalty the Kings Councell gave their advice therein and consented thereunto But by subsequent Acts of Parliament it seemes to me such a generall Assembly was not necessary For in the Statute of Bigamy made the next year being 4 Edw. 1. are these words viz. In the presence of certaine Reverend Fathers Bishops of England and others of the Kings Councell as well the Justices as others did agree they should be put in writing for a perpetuall memory And 6 Edw. 1. The King and His Justices made an exposition of certaine of the Articles upon the Stat. of Glocester In the Preamble of the Statute of Mortmaine are these words viz. We therefore intending to provide convenient remedy by the advise of our Prelats Earles Barons and other our Sujbects being of our Councell have provided c. In the Preamble of the Statute called Articuli super Chartas it it thus expressed viz. Forasmuch as the Articles of the Great Charter hath not been observed because there was no punishment upon the Offenders c. our Lord the King at the request of His Prelats Earles and Barons Assembled in Parliament hath enacted certaine Articles c. In the Statute of Eschetors made at Lincolne 29 Edw. 1. are these words viz. At the Parliament of our Soveraign Lord the King by His Councell it was agreed and also commanded by the King Himself That from thenceforth it should be observed and done according to the advice of the Reverend Father William Langton Bishop of Coventry and Lichfield and Treasorer to the King John Langton then being Chancellour and other of the Councell then being present before the King c. By these Acts it still seemes to me That both for the Lords and for the Commons as the King pleased sometimes were called more sometimes fewer sometimes part of the Commons sometimes all and somtimes none of them yet the power one and the same for at all the times aforesaid severall Statutes were made which to this day binde the people equall to any Act of Parliament made since Whereupon I conceive that the two Houses of Parliament were not originally composed with the beginning of the Law for as by the aforesaid Acts of Parliament it doth appear in the Raign of King Edw. 1. being the ninth King after the Conquerour and in time above two hundred years from the Conquest all which space we were governed by the same Law we now have there was not any formed Body known Persons or Assembly whose consent was necessary to joyne with the King to make an Act of Parliament but it seems that when the King conceived it fit to make a Law He called to Him such of His Subjects either
with the King then they tell us that the question concerning their right thereof having been long and sadly debated both in black and red battles God himselfe hath given the verdict upon their sides meaning if their words have any sense that by their prevailing against the King in that war God hath judged the cause for them and against the King But who sees not this to be a presamptuous blasphemy added to the sin of Rebellion did not this bold hypocrisie as aptly sute with the actions of Ket Cade Wat Tyler and all fore-going Rebels Certainly as long as any Traytor murderer or felon can defend himselfe from the just triall and sentence of the Law it is as easie and upon as just grounds for him to appeale to God for justification of his fact as these Members do now call Him to witnesse for them So that the consequence to the people of England which followeth the excluding the King from His negative Voice in Parliament is no lesse then the losse of that happy condition of a free Subject governed by a knowne Law under a King and in being reduced to the slavery of an arbitrary power under their equals and fellow subjects Therefore all the people of England do generally disclaime the foresaid Members to be their representatives and refuse to submit unto their Orders or Ordinances Upon the whole matter these things appear that the Parliament of England consisteth of the King the Lords House and the Commons House joyntly concurring that every one of them hath a negative Voice in making Laws and consequently all Orders and Ordinances or whatever they may be stiled whereunto the King hath not or shall not voluntarily without compulsion give His Royall Assent are done without Commission warrant or Authority and so not binding King or people In the next Chapter is shewed the power of the Parliament of England CHAP. IV. That the King the Lords House and the Commons House concurring have not an unlimited power to make Laws it being in the brest of the Judges of the Realme to determine which Acts of Parliament are binding and which void and to expound the meaning of every Act. IT may seeme strange to some that the high Court of Parliament should be limited in their power and deny to expound their own Laws But upon consideration had of the use of a Parliament and of the grounds of the Laws of England it appears to be both just and consonant to the Constitutions of this Realme The People of this Nation are not governed by a Parliament Soveraignty is the Kings yet the King Himselfe hath not an absolute or an unlimited power over the people For as the people are governed by and under Him so the Law directs how He is to governe them But in this Nation as in every Common-wealth governed by a setled Law occasions oft happen to do such things as the rules of that Law cannot warrant Therefore necessary it is to have a power to supply those defects and that is the office and true use of a Parliament Which authority rightly considered is of such concernment to the Common-wealth as that the greatest care in the world ought to be had who are trusted therewith It is no lesse then a power to change that Law whereby the people have protection of life and fortune and therefore may require the consent of such persons as are not rightly qualified to judge which Laws are binding and which void or to expound the meaning thereof Upon that ground it is that by the constitution of this Realme no new Law can be made or the old changed but by the King with the assent of the two Houses of Parliament Those persons as before appears are proper to judge when such things have happened as may require the making of a new Law or to alter the old But without derogation from the honour of those persons That body is not of a mould fit to judge which Statutes are binding which void or to expound the meaning of an Act. First cleere it is Acts of Parliament may be so penned and containe such matter as ought not to binde either King or people Suppose it enacted that from henceforth the Members of the two Houses shall be exempt from punishment for Treason Murder Felony and other Crimes Or that the King and the two Houses from time to time shall consent to make such Laws as a close Committee or certaine persons by name shall conclude upon or that every Act of Parliament afterwards made shall be void and the like no man can conceive such Acts would be binding for thereby the true use of Parliaments the Law and government were destroyed Besides all men grant that an arbitrary power is absolutely destructive to the people And it appears in the next precedent Chapter that to give this unlimited authority of making Laws to the King alone or to either or both Houses without the King were no other then to bring upon the people that thraldome Now for this boundlesse power to be in the King and the two Houses joyntly although that were nothing so bad as to have it in the King alone or in either or both Houses without the King yet the people were not thereby so wel secured from the tyranny of an arbitrary power as when the Judges determine which Acts of Parlliament are binding and which void Upon perusall of former Statutes it appears the Members of both Houses have been frequently drawne to consent not onely to things prejudiciall to the Common-wealth but even in matters of greatest waight to alter and contradict what formerly themselves had agreed unto and that even as it happened to please the fancy of the present Prince witnesse that Statute by which it was enacted that the Proclamations of King H. 8. should be equivalent to an Act of Parliament one other Act which declared both Queen Mary and Queen Eliz. to be bastards one other which in words gave power to the same King to dispose of the Crowne of England by his last will and testament And the severall Statutes in the times of King H. 8. Edw. 6. Queen Mary and Queen Eliz. setting up and pulling downe each others Religion every one of them condemning even to death the professour of the contrary Religion And now reflecting upon the proceedings of the present Members we finde they have de facto arrogated unto themselves in the highest straine a power arbitrary It is likewise too evident with what terrors menaces and inhumane cruelties they presse their Soveraigne to passe Acts of Parliament for confirmation thereof Doubtlesse had they not met with a King even beyond humane expectation most magnanimous it had been effected And suppose this Kings consent had been obtained or that He or any other succeeding King shall be drawne by force or fraud to consent thereunto and admit such Acts of Parliament to bind it will follow that no Government can be more arbitrary
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
is and may be in the Subject Answer Although his whole discourse is either false or impertinent yet his saying that Kings were first elected by the people That the people as he beleeves elected the Judges and bounded them by publike Laws And for proof positively affirming although not naming one Act That all this appears by infinite Acts of Parliament regulating the King and His officers The vulgar may thereby conceive that the Members of the two Houses without the King have made Acts of Parliament That by those Acts it appears That the people elected the first King of England and the Judges and bounded them by publike Laws Although Mr. Pryn himselfe well knowes that never any Act of Parliament was or could be made without the Kings expresse consent And that the people of this Nation have been governed under Kings 1200. years before the first Act of Parliament at this day extant So that if Mr. Pryn had made his Argument according to the truth of the fact it had been but thus After King H. 3. begun his reigne and not before the Kings of England have made some Laws by Act of Parliament whereby in some things they have regulated their owne authority and the power of their officers and Judges Ergo the people although we had Kings 1200. years before that elected the first King the Judges and bounded them by publike Laws Besides admit the people had elected the first King and the Judges That nothing proves that the Members of the two Houses at this day by our Law outgh to nominate the Judges And for the rest of his Arguments they are to this effect A question being asked who ought to elect the Judges Mr. Pryn saith Leiutenant Generals and Sheriffs were anciently elected by the Parliament and people Colonels Majors Aldermen Constables Knights of the Shire and Burgesses are elected by the people Kings cannot elect a Member or exclude him from sitting That the Members are honourable grave and wise That the Judges are the Kingdomes as well as the Kings That although the Kings have usually had the election of them perchance it was by usurpation and Mr. Bodin a great Polititian saith that the election of these officers may be and often are in the Subject Now hereupon to conclude Ergo By the Laws of England the Members of the two Houses ought to elect the Judges I cannot more aptly parallel the Argument then thus How many miles to London Answer a poke full of plums Ergo it is 20. miles to London upon this it might as well have been concluded 40. 100. or 1000. miles to London as 20. and so for electing the Judges upon any of Mr. Pryns reasons or upon all together admitting them all true It might with as much sence and reason have been concluded thus Ergo the Major of Quinborough the great Turke or the man in the Moon ought to elect them Besides the Members of the two Houses cannot have the election of the Judges for these reasons First the Chancery the Kings Bench the Common Pleas and the Court of the Exchequer are Courts of Justice by prescription they were instituted before the time of memory none knows the beginning thereof but certaine it is they were Courts of Iustice before the House of Commons had being Secondly as it is necessary that the Iudges of the Law be knowne persons It is as requisite that such as elect them should be constantly visible But the Members out of Parliament are invisible Thirdly suppose it enacted That none that shall be a Iudge unlesse elected by A. and B. It were no wonder for them irreconcileably to differ in their choice And the two Houses are as distinctly two as A. and B. That difference which is renders the Members more improper for the worke and consequently not of a Composier fit to elect the Iudges And that this is the Kings right is made good thus First It appears before that those Courts have had Judges time out of mind And so long as any may can shew or prove there hath been Judges of those Courts so antiently the Kings of England and none else have elected and authorized them which is the strongest proof in the Law It is the Law it selfe It were absurd for any man to deny that it is felony to steale or that the eldest son is heir to his Fathers land yet there is no other proof to make it good but use and practise And the Kings have as antiently and constantly elected the Iudges as theft hath been punished or that the eldest son hath by discent enjoyed his fathers land Secondly if this King hath not right to elect the Iudges no former King had it and consequently we never had one Judge rightly authorized So that Mr. Pryn hath found out a point in Law which at once makes a nullity of all former proceedings in those Courts as things done coram non Judice But this not all If Mr. Pryns doctrine be true we have had no Parliament for the Kings not having power legally to authorize the Lord-keeper all creations of Peeres are void and so the Writs for electing the Knights and Burgesses were illegall and void too And consequently Mr. Pryns Law admitted there is no Member of either House Lawfully authorized to sit or Vote And for authority of bookes either Law or History I dare be bold to say there is not one man in the World untill the sitting of these Members who hath upon any occasion mentioned these things but hath delivered it as a fundamentall ground and a positive truth That the authority to elect the Iudges is in the King alone So thatsuch as are unsatisfied of the Kings right herein may with as much reason doubt whether we have had a King Law or government Nothing can herein be alledged against the King or on the Members behalfe unlesse a new maxime of Law be started up That no proof be it never so clear is sufficient to entitle the King to any Interest or authority But for the Members although they have neither authority use practise president or reason to make it good have title and interest to what they list But if the two Houses have the finall power to judge the Law and that every one who shall dispute their Votes break the priviledge of Parliament It matters not who hath the election of them nor who are chosen If the man be flexible enough the meanest capacity in one dayes study and with the expence of one single penny may be sufficiently compleat for a States Judge his Library needs not consist of more bookes then a copy of the Houses Votes whereby we are declared breakers of the priviledges of Parliament to deny that to be Law which they declare so to be For by these Votes we have no Law but the Members will And consequently those persons they call Iudges are no other but their Ecchoes But the true Judges authorized by the King have not only the
they did to be virtually in themselves And if so it only differs in words from that Vote whereby they resolved to have no King In substance it is one and the same And if the Members mean as the words seeme to import that the power of Government shall be in the King Lords and Commons joyntly and that this Vote be so far binding as to settle that government for ever which is in it selfe inconsistent with that arbitrary power they now even by this very Vote assume it is likewise in it selfe most absurd It is true that we having a knowne Law whereby we are protected in our persons lives and estates to have this Law unalterable otherwise then by the joynt concurrence of the King and two Houses is a constitution beneficiall for the Kingdome but in point of Government it is a Composier not onely improper but destructive to the whole Nation In every Common-wealth accidents frequently happen which of necessity require things to be done yet if not acted with secrecy hazards the ruine of the people For example The King hath intelligence that a forraigne Nation is prepared and resolved to invade this Kingdome Hereupon with great care and secrecy a designe is laid to surprize the enemy In this case for the King at the same time to proclaime his plot not onely frustrates his designe but endangers the destruction of the whole Kingdome Now admit the King Lords and Commons jointly to have the power of Government and it is impossible whatever the designe be although the publishing thereof unavoidably destroy both Nation and people to keep it secret First for the Lords The Members sit and Vote in that House of what capacity or disposition soever by descent and experience shewes that wise men although Lords too sometimes beget fooles Honest men knaves and Loyall men Traytors And for the Commons House he who examines his owne Country be it in any part of the Realme I am confident will find the greater number of those elected Knights and Burgesses unfit for Statesmen or Privy Councellors Nor is it possible that the multitude if they had authority to make such elections which they have not should make choice of apt persons to governe the Kingdome Then adding hereunto the number of those Members amounting unto seven hundred or more and doubtlesse in point of secrecy to proclaime it at the market Crosse and to advise with them is one and the same thing But admit every Member a perfect Statesman the composier of that Body consisting of the King Lords and Commons is such as not onely renders them incapable to governe the Realme but is in it selfe so pernitious to the Common-wealth as that it is impossible for the Divel himselfe to invent unlesse it be that the two Houses without the King a plat-forme more apt to introduce confusion both to Church and State When a Capitall or Criminall offender is convict the knowne Law in point of punishment doth not distinguish of persons The Judge whether the offender be capable of pardon or not must give sentence according to the nature and quality of the offence upon every one alike He hath not power either to pardon or mitigate the punishment That is the office of the Supreame Magistrate Then what a Tyrannicall constitution it were that the King shall not have power to distribute mercy untill the major part of the two Houses have Voted it common experience makes it easie to judge And on the other side if the King without that joynt consent hath not authority to punish offenders It will be very difficult to bring the most horrid malefactors to triall be the offence Treason Murder Sacriledge or any other crime how execrable soever whilst either House doth omit or refuse to Vote it so no punishment An infallible way I confesse it is to embolden themselves and all others their adherents to perpetrate all wickednesse under the Sun If a dispute happen whether to make War or to proclaime Peace to fight or not to fight an enemy and the like it cannot be expected but that those three bodies shall even to the ruine of the Nation irreconcileably differ in opinion But it were endlesse to insist upon particulars of this nature the calamities which have befallen us by the Members arrogating the Soveraigne power of Government and which daily must ensue whilst they either continue that usurpation or shall be suffered in point of Government to share with the King words cannot expresse Suppose three single persons had jointly the Soveraigne power of government no man can imagine but that they would even in matters of greatest weight and perill sterne severall wayes But in point of Government to adde unto the King the Members of the two Houses make it a composier far more preposterous and absurd And consequently to submit to that Vote to be governed by King Lords and Commons although it be admitted the Members intend it a joynt power were no other then to introduce contradictions distractions and confusion Besides by setling the government in King Lords and Commons ipso facto the knowne Law is subverted and an arbitrary power introduced for as before appears they who have the Government and also power to make new and change the old Law cannot be guided but by their owne will Whereas by observing the constitutions of the Realme in submitting to the King alone for matter of Government unto the King and the two Houses joyntlie for making new Laws or altering the old and unto the lawfull Judges of the Realme to expound and declare the Law all arbitrary power is avoided And the King for his assistance in matters of Government hath by the Laws of England three sorts of Councellors viz. His Great Councell His Privy Councell and His Learned Councell The first is properly the Prelates and Peeres of the Realme which besides infinite other testimonies is proved by the Writ of Summons to every Parliament The words are these viz. Rex Vicecomiti c. Quia de advisamento assensu Concilii nostri c. quoddam Parliamentum nostrum apud c. 1. die c. teneri ordinavimus ibidem cum Prelatis Magnatibus Proceribus dicti Regni nostri colloquium habere tract Tibi precipimus c. duos Milites c. venire facias ita quod iidem Milites plenam sufficientem potestatem proâ—se CoÌ„munitate Commitat predict ' c. habeant ad faciendum consentiendum his quae tunc ibidem de communâ— concilio dicti Regni nostri favente Deo contigerint ordinari suantedictis And the Sheriffs returne is thus viz. Virtute istius brevis eligi feci duos Milites viz. A. B. qui plenam sufficientem potestatem c. habent ad faciendum consentiendum iis quae c. de communi concilio Regni Angliae ordinari contigerint Thus it is manifest that it is the Prelates and Peeres who have assistants unto them the Judges and others
this day by the Laws of England the Members of the two Houses have right thereunto which is most absurd But Mr. Pryn affirming that these things were granted to the Kings Ancestors and the truth being that the King and His Ancestors time out of minde have enjoyed them It is a good argument to prove the King hath title to them And for Parliaments as before appeares The first Act we have is Magna Charta made 9 H. 3. but the Kings Auncestors and predecessors enjoyed the Militia the Forts the Navy Ammunition and Revenues of the Crowne many hundred of yeares before that time therefore could not be granted by the Parliament or by its consent And for the Kingdomes consent Master Pryn must explaine his meaning what he intends thereby before it be Intelligible Then saith M. Pryn the King hath no power to array arme or muster His Subjects but in such manner as the Parliament by speciall Acts hath prescribed Answer This being granted makes directly against Master Pryn it disproves the Members pretended power to the Militia and makes good the Kings interest therein The Argument is thus The King cannot muster His Subjects but in such sort as is prescribed by Act of Parliament To conclude thereupon that the Members of the two Houses have the power of the Militia nothing can be more absurd But it directly implies that none but the King can muster the people And consequently the Militia is in the King And for Acts of Parliament prescribing how or in what manner the people shall be mustered or arrayed we have none of that nature untill the Raign of King Ed. 1. But the Militia of the Kingdome was executed and commanded by the Kings of England 1200. yeares before that time And by every Act of Parliament which doth in any sort order or appoint the mustering or arraying of the Subject It appeares that the Power and Authority it self before that Law was in the King And by none of them is taken out of him And so this Argument of Master Pryns is to no purpose But saith M. Pryn The King hath these things and the Revenues of His Crown in His politick Capacity as saith he a Major and Commonalty a Dean and Chapter and the like are seized of their Lands And therefore saith he the King neither by His Will nor by His Letters Patents can devise alien or sell the same Answer If it be admitted that the King cannot alien such Lands and Revenues as He is seized of in His politick Capacity which is in it selfe most absurd how this disproves his title to the Militia the Forts the Navie Ammunition and Revenues of the Crowne is not intelligible The Argument in effect is but thus The King hath the Militia c. in his politick capacity Ergo he hath it not Or thus The King cannot sell the Revenues of his Crowne Ergo the Members have the Interest therein and may seize them But saith Master Pryn the Ships Armes and Ammunition seized of by the Members were bought with the Kingdomes Money And therefore the Members may seize them Answer Suppose it understood what is the Kingdomes Money and that with such Money Ships Armes and Ammunition are bought It seemes a good Argument for the King to Seize them For He as King ex Officio is obliged to preserve His people in Peace Besides that money or other things which no particular Subject can challenge property in by the Lawes of the Kingdome is the Kings But by the Lawes of England we have no person or pollitick body by the name of the Kingdome which is capable to have property either in Lands or Goods And for the Members of the two Houses as Parliament men they have not any politick Capacity they are not a body to sue or to be sued nor are capable to buy or sell nor have property in any estate And consequently Master Pryn by his own Argument hath as much title to seize the foresaid Ships Armes and Aummunition as they Then saith M. Pryn the Members seized the Ships and Revenues of the Crown to prevent the arrivall of forraign forces and a Civill Warre which they foresaw As saith he Queene Elizabeth in time of War with Spaine granting letters of Mart to seize all materialls for Warre transported through the narrow Seas Answer By this discourse we are told what moved the Members to seize the Kings Navy and the Revenues of his Crown which in effect is thus viz. The Members having usurped an Arbitrary power over King and people and thereby having destroyed the Monarchy of England had just cause not only to expect opposition from their own Soveraign but in his relief arrivall of forraigne forces from all the Kings in Christendome For upon the same grounds as the Members made this seizure the Subjects of any King may doe the like It is as easie for the people of Spaine France or any other Nation in the world to say they foresee a War as these Members pretend it And I am certaine it is as unlawfull and directly against the constitutions of England for the Subjects here to assume this power as for the people of any other Country to doe the like to their King Therefore I grant it was an act of Pollicy for the Members to seize the Kings Ships and the Revenues of His Crown It was a great and principle means to prevent the suppression of this their Rebellion But all that proves the legality of their proceedings no more then a high-way man having taken a purse murders the party robbed to prevent his own discovery makes the robbery lawfull And so M. Pryns Argument in effect is but thus The Members de facto have seized the Kings Ships and Revenues of his Crown ergo they have done it lawfully Thus in Answer to Master Pryns Arguments whereby he endeavours to prove that the Members have power over the Militia c. But that they have no colour to claime any Authority therein further appeares thus First all men must grant That so long as the people have been governed by a Law so long the power of the Militia must have been in some But the people of England as before appears have been governed by a Monarchicall power above 1200 yeares before the institution of the two Houses And all that while the Kings of England for the time being and none else have executed that Authority Therefore not in the Members Secondly it is absolutely necessary that the power of the Militâ—â— be in such hands as may at all times provide against approaching dangers to the Common-wealth But that cannot be the Members they are not in esse out of Parliament Suppose this Nation in the vacancy of a Parliament be suddenly invaded by a Forraigne enemy or infested by a domestick insurrection If none have power to command the people to assemble and make resistance untill the summoning of the two Houses of Parliament nothing but distraction to King and people
Prince 2. To violate the Queen the Kings eldest daughter unmarried or his eldest sons wife 3. To leavy War against the King or to adhere unto His enemies giving them aid or comforts in this Realme or elsewhere 4. To counterfeit the Kings Great Seale the Privy Seale or His money 5. To bring false money into this Realme counterfeit to the money of England 6. To slay the Chancellor Treasurer or the Judges of either Bench the Justices of Eyre of Assize and all other Justices assigned to hear and determine in their places doing their office And then it is enacted in the negative that no other thing shall be judged Treason untill it be declared by the King and His Parliament And accordingly by severall Acts of Parliament some other things have been made Treason viz. 7. To deny the King to be our onely Supreame Governour and so in some other particulars The Members Law herein both Affirmatively and Negatively follow thus 1. That it is not Treason to imagine the death of the King the Queen or Prince 2. That it is not Treason to Levy War against the King to adhere unto His Enemies or to give aide or comforts to them in England or elsewhere 3. That it is not Treason to Counterfeit the Kings Great Seal or His Money 4. That it is not Treason to deny the King to be the Supreame Governour Then for their Doctrine in their Affirmative it followeth thus 1. That it is Treason to endeavour the preservation of the Kings Person from violence 2. That it is Treason for a Subject to aide the King against His Rebellious Subjects Levying War against Him 3. That it is Treason to maintain or affirme that the King is the onely Supreame Governour 4. That it is Treason for any Man to deny the Members their fellow Subjects to have the Soveraigne power of Government 5. That it is Treason for a Subject without leave of the Members to recide or dwell in London But it is not possible to instance in all the particulars of the new Treasons therefore in general the people must know that whatever the Members shall say is Treason They must beleeve it to be Treason Now for the poofs The foresaid Statute doth clearly demonstrate what the known Law is And therewith agrees all the Authorities Judgements and Resolutions of the Law But for the Members their Law is so new as that they cannot look beyond the beginning of this Parliament nor produce any one Judgement Resolution or Opinion to make good any one of their Doctrines And consequently their own fictions Let them speak out and all that they can say for themselves is but thus viz. We have gotten possession of the Kings Revenue we have besides that setled unto our selves a yearly Revenue amounting to at least thrice treble the profits of the Crown of England and which is still more sweet we have the dominion over King and People we have a power unlimited to impose taxes and payments upon whom we please and what summes we thinke fit their persons we have in vassalage and can take away their lives when and for what cause we please for the obtaining whereof we did Levy War against the King we did in that Warre attempt to kill the King the Queen and Prince we did adhere unto His Enemies and gave unto them relief and comforts we have counterfeited the Kings Great Seal and His Money we have and yet doe most barbarously imprison the Kings Person we have subverted both Law and Religion Now for us to confesse the known Law and submit our selves thereunto were no other then to put our necks into the halter Therefore we must of necessity deny the old and forge new Lawes These things considered I suppose every one not particeps criminis in this odious Rebellion will judge it more absolutely necessary for him to endeavour his infranchisement from His slavery then it was for the Members to commit this foul Treason and Rebellion whereby the people are brought to this Vassalage Upon the whole matter clear it is that all those Members of either House of Parliament who consented to the making of any Order or Ordinance for the promoting of this War pretended for King and Parliament and all other persons who have acted therein consented or adhered thereunto are guilty of High Treason CHAP. X. That the Subjects of this Nation are not onely commanded from doing violence to the Kings Person or prejudice to His Authority but are obliged with their lives and fortunes to assist and preserve His Person and Just Rights from the fury of His enemies both forraigne and domestick ALL the people of this Nation are divided thus viz. King and Subject which of it self is proof sufficient to make this good The word King as before appears implies a duty in the King to protect His people and the word Subject a duty in them to assist Him By the Laws of England for a servant to kill his Master is an offence of a higher nature and the punishment for it more severe then for the meanest Subject without such relation of service to kill the greatest Peere for besides the Subordination between them a trust is implyed the breach whereof by an act of that nature by the Lawes of England is petty Treason Besides the Law expects from the servant a personall assistance to preserve his Master from violence or hurt and in that regard the Master being assaulted the servant by the Lawes of England may justifie to resist the assailant in defence of his Masters person And between the King and His Subjects the Subordination and Subjection is of a far higher nature The trust reposed in the Subject and his duty to the King is far more transcendent the King being head of the weal publick By violating his person saith our Law every Member of the Common-wealth suffers Therefore in assisting Him we doe defend our selves He is Pater Patriae we are His naturall born Subjects and so by the Law of nature obliged to preserve Him from injury Now the person of my Soveraigne Leige Lord the King by an unnaturall Warre raised and prosecuted by His owne Subjects being assaulted and Warre made against His Crowne and Dignity And the King having by His Proclamations summoned His Loyall Subjects to assist him upon serious consideration thereof I found that nothing was more clear or pregnant both by Authorities of the books of Law and severall Acts of Parliament by which it is abundantly declared to be our bounden duty to serve the King in His Wars both against forrain invasions domestick insurrections and rebellions Then that I was obliged in duty by the Lawes of this Realm by the Law of Nature by the Law of Reason and by the Law of God even by that precept of Saint Paul in these words viz. Let ' every soul be subject to the higher powers to assist Him against these assaults And upon these grounds I took up Armes for Him and
Authority the power to pardon the transgressours thereof and Authority to dispence with the Law it selfe is totally in Him for example if by Act of Parliament it be made felony or other crime to transport any commodity beyond the Seas the King after the fact committed may pardon the offence and before it be committed by His Letters patents without assent of the Members may by a non abstante dispence with the Law it self and legally Authorize any person notwithstanding that Statute to Transport that prohibited commodity and so in all publike and penall Acts not prohibiting malum in se Thus it appears that originally the Parliament consisted of the King calling to Him for their advice such as He thought fit But now by consent of former Kings as aforesaid no new Law can be made or the old altered or abrogated but by the King with the assent of the two Houses And so the King and the Members of these two Assemblies joyntly concurring at this day are the Parliament Upon which it consequently followeth that the King hath an absolute negative Voice in every Law to be propounded But in regard this is now not onely denied but a power usurped by those Members without the King to make Laws in the next place that point is more fully debated CHAP. III. That the Members of the two Houses have not power in any one particular to make a new Law or to change the old The King of England for the time being having an absolute negative Voice therein AGainst this I have seen a Treatise published by Order of the House of Commons in the name of William Pryn an utter Barrister of Lincolns Inne intituled thus viz. That the King hath no absolute negative Voice in passing Bils of common right and justice for the publike good And to make good his position proceeds to his proof in this manner The King saith he in most proceedings in Parliament as in reversing judgements damning Patents and the like hath no casting Voice 2. That Kings in ancient time have usually consented to Bils for the publicke good else gave such reasons of their deniall as satisfied both Houses 3. That Kingdomes were before Kings and then the people might have made Laws 4. That the King may die without heire and thereby the people may have such power againe 5. That the Lord Protectour in the infancy of a King may confirme Bils and so make Laws 6. That in Countries where Kings are elective and so an interregnum the people in the vacancy of their King may make Laws 7. That the two Houses have frequently denied to grant the King Aide by Subsidies 8. That the Kings of this Realme have been forced to give their Royall assent to Bils as in that of Magna Charta This is the substance of his objections and arguments against the Kings negative Voice in Parliament Answer M. Pryn hath spared no labour to make good his assertion fetching his arguments from a time supposed by him before Monarchy here began secondly upon accidents happening since this Monarchy And then imagineth a time to come that is when the King and all the bloud Royall of England shall be extinct for want of an heire at Law to inherit the Crowne First for his far fetched argument Kingdomes saith he were before Kings These words taken in their literall sense imply a grosse and absurd contradiction and he might as well say that servants were before Masters or the Son before the Father But doubtlesse Mr. Pryns meaning is that Countries and people were before they had Kings over them yet his words being so expounded make nothing to his purpose suppose that before Monarchy began in this Nation the people had been governed by a known Law to conclude thereupon That the Members of the two Houses at this day have power to make Laws without the King or that the King hath not a negative Voice in Parliament is to no more purpose then if he should say The Earth was made before it was peopled Ergo there is neither man woman nor child in the world or thus This Nation was peopled before they were governed by a Law Ergo the people neither had either Law or government The Jews upon the like ground may argue thus viz. our Religion was before Christ Ergo the people at this day ought not to professe Christian Religion But Mr. Pryns argument is more absurd he cannot shew that the people of this Nation before they were governed under Kings had either Literature known Law or Government However cleere it is This Nation hath been Monarchiall above 1200. years before the institution of the two Houses of Parliament And so Mr. Pryns argument that Kingdomes were before Kings is no weight at all to prove That the two Houses have power to make Laws without the King And much like unto it is his argument That the King may die without heire for if that should happen saith Mr. Pryn the people might make what Laws they should thinke fit Now thereupon he concludes thus Ergo the Members at this day have power without the King to make Laws With more reason the King might argue thus All the lands in England mediatly or immediatly are held of the King and if the owners die without heire by the Laws of the Realme Escheats to the Crown and so becomes at the Kings disposall but every man may die without heire Ergo all the lands in England at this present are the proper inheritance of the King No Lawyer can deny major or minor yet the conclution thereupon is absurd But in Mr. Pryns case admit the King should die without heire although it be granted that the people had thereby power to make Laws yet grosse it were to conclude upon it That the Members of the two Houses might so do For if the King and that Stem Royall were extinct without issue the two Houses would be extinct too By the Law of England if the King die during a Parliament ipso facto the Parliament is dissolved because the King who was head to advise with whom and by whose Writ and command the Members were summoned is dead Yet in that case the successour King if he please might call a new Parl. But when the King dies without heire there is no succeding King to summon it And so the constitution of Parliament and the whole Law and Government the fountaine of all which being stopped would be suspended if not ended and the people left without Law Then it might be granted Mr. Pryn That the strongest party concurring in that case would governe yet that is no proof that the Members had thereby power to make Laws And therefore more absurd it is to conclude upon Mr. Pryns reason That the two Houses at this day whilst the King and the blood Royall are in being have that power Then for his objections upon Authority or presidents happening since the beginning of the English Monarchy Kings saith he
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
joyntly concurring to sell and by that sale the Lords are concluded it is done by the Commission of those Lords and therefore in Judgement of Law their owne Act. So for the Parliament the King the Lords and Commons by the constitutions of this Realme are jointly trusted to consent unto the making new or changing the old Law therefore no lesse then all have Commission for it And so if the King and either House or both Houses without the King passe a Bill or make a Law this ought to be judged invalid none are thereby wronged still the knowne Laws are in force the people as before by the knowne Law are protected in their persons and estates and those trusted that is the King the Lords and Commons joyntly concurring have power to make new Laws which consent concludes the whole Nation it is done by its representative body and so by their Commission Thus it appears that when there is a question and dispute in Parliament between the King and the two Houses it is not necessary to have it affirmatively determined nor needfull that His Majesty in such cases be Judge against the two Houses or the two Houses to Judge it without Him That is but a fiction of the Members devised by them to reduce the Nation unto their Tyranny which as the Members knew they could not effect but by excluding the King from His negative Voice in Parliament so that being done their worke was finished Then they without the King arrogate power to make new Laws and change the old for their owne advantage as they pleased And so both King and people inslaved Therefore herein to beguile the people a case was faigned and stated thus That such a difference between the King and the two Houses as concerned the safety of the Kingdome was happened in Parliament That unlesse this question were instantly determined the Kingdome was in danger to perish Then to draw the people to side with the Members they were told that the Lords and Commons were the representative body of the Kingdome That whatever the Members in those Assemblies do it is so much the Act of every particular person in the Kingdome as if he were within the wals of the House personally consenting And perswaded the vulgar that this dispute between the King and the Members in effect is between Him and all the people of England And then offer it to the consideration of the multitude whether it be not more likely that all the people of the Realme concurring in one opinion should better know what is for their owne good then the King being but one single person and dissenting in judgement from the whole Nation The poor people not being of capacity suddenly to discerne the fallacy hereof And being ravished with a conceipt to be Judge in their owne case in smarmes flocked to this Idoll the Members thinking they had thereby adored themselves as well as that beast and never ceased untill by violence they expelled the King from His negative Voice in Parliament But now by wofull experience they both understand by whom and how they are represented which is thus The Knights of Shires Citizens and Burgesses being elected by the Inhabitants of the severall Counties and Townes do in some sort represent the people who chose them but that is no further then their Cōmission extends And they have no other Commission then the Kings Writ of Summons the returne thereof word by word set downe before which gives them no other authority then to consent unto Laws agreed on by the King His great Councell the Peeres consequently they do represent the people no further then to consent unto such Laws And for the Peeres they have no Commission at all from the people nor can be said to represent them their authority is solely from the Kings said Writ of Summons directed to every particular Lord by which likewise his power is declared and stinted That is to advise with the King concerning the affaires of the Realme So that the Lords and Commons put together they have no Commission to make Laws we are still to seeke that Legislative power nor is it to be found but in the King He alone is properly the Law-maker But the Kings of England as before appears having excluded themselves to make Laws without consent of the two Houses Therefore that united body the King and the Members of those Assemblies is called the Legislative power and the representative body of the Kingdom But that either or both Houses or any Assembly or people in this or any other Nation governed by Monarchy hath or ever claimed to have a Legislative power or sofar to represent the Kingdome as to make new Laws or change the old without the Personall consent of the King is such a ridiculaus Bull as never was heard or thought of untill this frantick Parliament Therefore when either or both Houses without the King take upon them to make Laws they extend beyond the bounds of their Commission they thereby act of their owne head not as representatives For example a Lord by Commission gives power to A. and B. to let and set his Land for tearme of years so long as A. and B. pursue this authority they do represent that Lord but if by colour of that Commssion A. and B. demise for life or sell the Inheritance it is done without authority their Commission reacheth not so far and so not representatives Therefore such lease or sale is void it doth not bind the Lord. Or thus A. having contracted with B. to make A. feoffement unto him and his heirs of the Mannour of D. upon a condition by letter of Atturney gives power to C. to make livery and seisin upon that Condition C. performes it In this case the Land is as firmely setled in B. as if A. had executed it in his owne person because it is done by his representative But if C. omitting to express the Condition make livery and seisin absolutely nothing passeth to B. for saith our Law C. extending the bounds of his Commission he doth not represent A. Therefore his whole act void So here the Lords as before appears have Commission to advise with the King the Commons to do and consent unto things agreed on by the King and them Now those Lords and Commons taking upon them without the Personall assent of the King to make new or change the old Law it is a power usurped without Commission or authority therefore no representatives and consequently all their proceedings void Then for the distinctions in the aforesaid Declarations mentioned 1. That no Law made without the Kings consent binds unless His consent be first required and refused 2. That those Laws be necessary for the preservation of the Kingdome 3. That such Laws shall continue no longer in force then that necessity lasteth these are snares and subtilties only to catch the simple no wise man wil be taken with them Suppose the King upon refusall
nor any people from free Subjects become more absolute slaves then the Englishmen are and will be And being thus brought into misery that which is still worse our selves and posterity to the end of the world are likely to live under this vassallage without hope of redemption if not by Gods mercy timely remedied For it cannot be imagined that the Members so long as they have power over their Prince and other His good Subjects and whilst their persons estates and Fortunes are thus at their will and pleasure it cannot be imagined I say that by their owne judgement against themselves or sentence we shall be enfranchized Now if I appeale to any rationall man not prejudicated as a person herein particularly concerned whether that Law which declares such Acts of Parliament to binde or that which judgeth them void be the more prudent wholesome and reasonable Law I dare be bold to conclude that sentence herein will be given for the latter And since it followeth that some Acts of Parliament may and ought to be adjudged void that being granted reason dictates to every man of sense that not the Members but some other knowne persons must determine which Statutes bind the people and which are invalid Now that the Judges of the Realme have power not only to determine which Acts of Parliament are binding and which void but to expound the meaning of every Act is no new doctrine it is the knowne Law and the common practice of the Kingdome which is the Law it selfe In the bookes of our Law it is declared for a fundamentall ground That such Statutes as are against Common-right repugnant or impossible are void and that they ought to be so declared by the Judges of the Realme For example by the Statute of Carlile made 35. E. 1. it is ordained that the Seale of the order of the Cistercians and Augustines shall be kept in the custody of the Priour and foure others and that any deed sealed with any other seale shall be void and this Statute is judged to be void in Law and that the Priour notwithstanding this Law and against the expresse words thereof sealing deeds with any other seale those deeds are judged good for the Priour could not seale with that seale in the custody of the other four and therefore that Statute repugnant in it selfe and so void It is likewise declared by the Judges that where a Statute gives power to A. to determine all pleas happening within his mannour in that case A. shall not have power to determine such pleas as concerne himselfe and the same it were if the Statute should in expresse words grant to A. that authority for it is repugnant to reason and common justice that any man shall be judge in his owne case It is resolved by the Judges of the Realme that divers prerogatives are so inseperably annexed to the Crowne as that they cannot be severed by Act of Parliament for example by a Statute made 23 H. 6. c. 10. it is enacted that no man shall continue Sheriffe of a Shire above one year and by that Act declared in these words that all Patents from the King of that office of Sheriffe for yeers for life in taile or in fee shall be void any clause or words of non obstante put into such Patents notwithstanding Now thisStatute as to the Kings power is by the Judges of the Realm declared void and although that Statute was never repealed all Kings since might have granted that office for life in taile or in fee and grants thereof have been made accordingly contrary to the expresse words of that Statute yet resolved to be good And ever since that Act all Kings have most frequently continued Sheriffs in their office for longer time then a year Even common experience sheweth that the power of the old Sheriffe doth not cease or determine untill the King hath made a new Sheriffe and notice thereof given to the old which oftentimes happeneth to be after the year And in Michaelmas Terme 5. and 6. of Queen Eliz. the Sheriffs by reason of the great plague then and of the adjournment of that Terme wholly were made and named by the Queen without the Assembly of the Justices in the Exchequer according to the common usage and though for the most part none were named but one of the two which remained in the bill of the year then last passed yet by all the Justices and Serjeants at Law it was holden that the Queen by Her prerogative might have made a Sheriff without any such election notwithstanding any Statute to the contrary which appears in Dyers Reports The King is fountaine of Justice mercy therefore if it were enacted that he shall not grant Commissions to determine felonies or that from henceforth it shall not be in his power to pardon any Crime or that all such pardons shall be void such Laws would be void and would not bind as being repugnant to Law government and reason to stop that fountaine The King by His Prerogative hath authority to dispense with penall Laws which cannot be taken from Him by Act of Parliament although in expresse termes it be enacted that all such dispensations with a non obstante shall be void which cleerely appears by the foresaid case of the Sheriff for though by that Statute of 23 H. 6. it is inacted that all Patents of the King shall be void as before although with a non obstante yet the Judges at all times have resolved it as a thing without dispute That those Patents although expressely against the words and intent of that Act with a non obstante are good in Law And so the bookes take it for a fundamentall ground that the King may by His Patent with a non obstante dispense with Laws made by Act of Parliament and put the difference between Acts prohibiting what the Common-Law prohibits in which case the King cannot by His letters Patents with a non obstante how strong soever it be penned dispence with such Acts or any one point of the Common Law of England which forbids onely that which is malum in se otherwise it is of Acts prohibiting things not before prohibited by the Law which are onely mala quia prohibita the King may dispense with such Acts by His Letters Patents with a non obstante though those very Acts expressely say that such Letters Patents with a non obstante shal be void That Prerogative being inseperable as is shewed before and not to be abolished by Act of Parliament no more then His other prerogatives of as high a nature viz. those of denouncing War and concluding Peace inhaunsing or debasing of Coine or the like which are flowersinseperably annexed to the Crowne and most proper for a King but not sutable with the condition of a Subject therefore the Judges have resolved they cannot be severed by Act of Parliament And the same it is
when the Law is only declared by Act of Parliament If the King and the two Houses declare that it is not by the Common Law of England Treason to kill or to attempt to kill the King the Queen or Prince or that it is not felony to steale or the like such declarations are of no effect they ought not they do not they cannot conclude the Judges And as every Statute may be judged by them whether it be binding or void so the meaning of the words thereof must be by the Judges expounded too It is the true sense which is the Law not the bare letter and this exposition is likewise the office of the Judges as is said before For example by a Statute made 1 Eliz. it is enacted that all leases made afterwards by any Bishop of his Church-lands exceeding 21. years or three lives shall to all intents and purposes be judged void and yet it hath been adjudged both in the Kings Bench and in the Common Pleas that a lease for an hundred years is not void against that Bishop himselfe who was lessor wherein the Judges expound the meaning of the Law-makers to be thus that their intent was onely for the benefit of the Successours not to releive any man against his owne Act therefore such leases made after the Statute exceeding twenty one years or three lives are voidable only by the successours if they please and adjudged not void against the lessour himselfe contrary to the expresse words of the Statute And in like manner are other infinite Acts of Parliament expounded by the Judges wherein it is a maxime in Law that their exposition of Statutes ought to be according to the rules of the Common Law by which it appears the Members are not the interpreters for they know not the rules of the Law Besides the Parliament cannot be the finall expounders of Statutes for these reasons 1. It appears before that it is not the bare letter but the true sence and meaning of the words which is the Law And the King and the two Houses cannot declare the meaning of those words but by Act of Parliament they cannot saith our Law otherwise speake what ever they Act or doe in any other way is extrajudiciall if the King and both Houses unanimously deliver an opinion without reducing it to an Act of Parliament concerning the meaning of a former Statute it is of no more nor greater force or effect then for the Judges of a Court of judicature to give their opinions in a point of Law in a case not judicially depending before them such an opinion binds not nor is pleadable in a Court of Justice And besides the absurd inconvenience and the impossibility to have an Act of Parliament to determine every question arising upon Statutes it may so happen as that the King and the two Houses can never give an end to one controversie For example suppose an Act be made to explaine the meaning of former Statute ambiguously penned the words of this Act must have a meaning too and may admit of severall interpretations as well as the former Act did and severall persons as they are therein concerned may differ in the exposition thereof and so irreconcileable as not to be ended without the authority of a Judge and this may fall out upon every Act of explanation upon explanation in infinitum and consequently by that way there cannot to the end of the world be a finall determination of the difference 2. The validity of every Statute and the exposition thereof at the will of every person concerned may regularly be brought before the Judges of the Law but cannot judicially depend before the Parliament For example every Statute is binding or void if binding it concerns the Subject in his person or estate and when it is put in execution the ministers or actors therein may at the will of him interrupted thereby be sued in the Court of Common Pleas or in some other Court of Justice by an action of trespasse by which suite what ever the Act of Parliament is both the validity of the Statute and the meaning of the words thereof is submitted to the Judges of that Court and to their judgement As suppose this case to arise upon the foresaid Statute of 23 H. 6. that one who hath continued Sheriff above one year by vertue of a Writ directed to the Sheriff of the same County doth arrest the body of A. who for this brings his action of trespasse in the Common Pleas in which the Sheriff justifies by vertue of the Writ A. replies pleads the Statute and shewes that the year was ended before the arrest upon which the Sheriff demurs in Law by these pleadings the whole fact is confessed on both sides the Sheriff doth acknowledge his year was out before the arrest and A. confesseth the arrest was by vertue of the Kings Writ directed to the Sheriff and so the question being matter of Law it is to be determined by the Judges of that Court wherein the sole doubt is whether that Statute be binding or void for if binding judgement ought to be given for the plaintife A. because the Statute being good the defendant was not Sheriff after his year ended when he made the arrest and so had no authority if void it ought to be given for the Sheriff for then the Law is not by it altered and so he was Sheriff at the time of the arrest although his year was out Now in this case no man can deny but that the Judges must give judgement else the Court of Common Pleas which were absurd to imagine hath not power to determine an action of trespasse and judgement being given as in this case it ought to be for the Sheriff because it is already resolved and received for a knowne truth that the foresaid Statute binds not the King this duty of the Subject to serve the King in person saith the booke being due by the Law of nature cannot be severed by Act of Parliament it is finall And so if it were enacted that a Member of the Commons House or any other subject by name should not be condemned or punished for murder who afterwards commits the fact for which being arraigned at the Kings Bench bar he pleades the Statute the Judges even against the expresse words and intent of that Act ought to give sentence of death And contrariwise if by Act of Parliament it were enacted that all Pardons for felony to be granted by the King should be judged void after which a subject commits felony obtaines the Kings pardon for it is arraigned at the bar and pleads this pardon it ought to be allowed being duely pleaded and the Justices in such case ought not to condemne but to acquit the prisoner And these judgements as to any appeale to the Parliament are finall they cannot be brought before the King and the two Houses by any suite or action at Law They cannot judicially determine any
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
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
can be expected Thirdly the Composier of these Members being two distinct bodies considered it is as prepostrous for them to command the Militia as to have the Soveraigne power of Government or to judge the Law It may fall out even in the time of greatest danger that one House shall Vote to fight the other not to fight the enemy And this difference may happen to be unreconciled untill the Nation be conquered or destroyed Thus it appears that the Members have no power over the Militia It now rests to prove that it is the Kings right which is made good by authority and reason First for authority it is proved by constant practise which is not onely the strongest proof in our Law but it is the Law it selfe We have no formall Institution of the Common Law it is no other but common Ancient and frequent use For example it is felony to steale it is not felony of death unlesse the thing stolen exceede the value of twelve pence These are things so certainly knowne and so generally received for Law as that any man to dispute them renders himself ridiculous yet being denied none can shew when the Law began how or by what authority it was made there is no other proof to make it good but custome and use So for the Militia of the Kingdome it was never estated upon the King by Act of Parliament or by any other constitution It is His right by the Common Law of England which is made good by custome and use and authorities of bookes And first for custome and use Any man of what quality or ranke soever he be reflecting upon his owne memory and observation must acknowledge that in all his time no Souldiers were impressed armed arrayed or mustered no Forts strong-holds or â—â—rrisons held or commanded no Commanders Officers or Souldiers Imployed by Land or Sea no Commissions concerning War either Forraigne or Domestick or concerning the administration of Justice but by authority derived from the King alone And such as search the Records in former times will finde the like practise in all ages And with this agrees all Histories and stories from this day upward unto the Roman Conquest Then for authorities and to begin with Acts of Parliament Magna Charta granted about 440. years since not onely being the first Statute but beyond it there is scarce an authentick record of Law at this day to be found In which Act it is thus declared by King Hen. 3. viz. And if We do lead or send him who is by tenure to defend a Castle in an Army he shall be free from Castle-guard from the time that he shall be with us in fee in our Host for the which he hath done service in our Wars Thus even in that Instrument whereby the King confirmed unto the people their Liberties It appears that by the Laws of the Land the power of War was the Kings sole right By an other Statute made 7. of King Ed. 1. being the son and next succeeding King to H. 3. The Prelates the Earles the Barons and the Comonalty of the Realme Assembled in Parliament declared that to the King it belongeth and His part is through His Royall Signiorie straightly to defend force of armour other force against the Kings peace at all times when it shall please Him And to punish them which shall do contrary according to the Laws and usages of the Realme And that they the Subjects are hereunto bound to aid their Soveraigne Lord the King at all seasons when need shall be After this by severall Acts of Parliament viz. 13. of the same King 1 Ed. 3. 25 Ed. 3. 4 H. 4. 5 H. 4. and other Statutes it is declared how and in what manner the Subject shall be charged with armes mustered arraied and forced to serve in War In all which Acts without dispute the whole power and command therein is admitted to be in the King By a Statute made 11 H. 7. The Lords and Commons Assembled in Parliament declare it to be the duty and Allegeance of the Subjects of England not onely to serve their Prince and Soveraigne Lord for the time being in Wars but to enter and abide in service in battaile and that both in defence of the King and the Land against every Rebellion power and might reared against him By a Statute made 2 Edw. 6. in the Raigne of a child King The Lords and Commons Assembled in Parliament declare that it is the bounden duty of the Subjects to serve their Prince in War By a Statute made 4 and 5 P. M. In the Raigne of a Woman the Lords and Commons Assembled in Parliament declare thus viz. That whereas heretofore commandement hath been given by the Queen and her Progenitors Kings of England to diverse persons to muster their Subjects and to levy them for the service of their Majesty and this Realme in their Wars which service saith the Statute hath been hindred by persons absenting themselves from Musters and by being released for rewards And then provides remedy therein when the Queen her Heirs or successors shall authorize any to muster the people And by that late unanimous and voluntary recognition made by the Lords and Commons in Parliament unto King James they declared thus viz. We being bound thereunto both by the Lawes of God and Man doe recognize and acknowledge and thereby expresse our unspeakable Joyes That immediately upon the death of Queen Elizabeth the imperiall Crowne of the Realme of England did by inherent birth-right and lawfull and undoubted succession descend and come to your most Excellent Maj. that by the goodnesse of Almighty God your Maj. is more able to Governe us your Subjects in Peace and plenty then any of your Progenitors And thereunto we most humbly and faithfully submit and oblige our heires and posterities for ever untill the last drop of our blouds be spent Now every man of sense will agree that the opinion of the Members of this Parliament is no more authentique then the opinions of the Lords and Commons Assembled in former Parliaments And that being granted it followeth that any one of the aforementioned Statutes whereby the Lords and Commons declare That by the Law of the Land the power of the Militia is in the King is so much the more weighty and so much more to be relyed upon in this point of the Militia then the opinion of these Members by how much more persons are competent to determine a question concerning another then to judge their own case or when they resolve for or against themselves But these Members setting aside their owne Votes in this their own case for their own advantage cannot make their pretence to the Militia good by any one Authority Opinion Practise or President But this not all These Westminster men themselves even this Parliament have both in their Ordinances as they call them and Petitions acknowledged the Militia to be the
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
by judiciall proceedings recorded in his life time yet there is another rule in Law too viz. that no man shall take advantage of his owne wrong Therefore if one before he be convict by such proceedings be killed in rebellion and his corps viewed by the chief Justice he forfeits both lands and goods Now suppose 500 ordinary persons not claiming the power or name of a Parliament to have committed the crime of treason murder or felony Then assemble to themselves multitudes out the Judges from their Justice seat place those of their faction therein seize the Kings Great Seale break it in pieces and counterfeit an other Imprison the King and thus stop the course of Justice against themselves Grosse it were in that case because unattainted or unconvicted not to declare them Traytors Should the people in that case omit by all possible endeavours to apprehend and bring them to punishment wherein the Law upon resistance doth warrant the killing of them they were not only disobeyers of the Law but the cause of their owne misery Even so it is with the people at this day There is no difference to be found betwixt those 500 men and them at Westminster but the Westminster-mens pretence of authority which renders them more odious And therefore the people ought to be more zealous to apprehend them Fiftly it is an undoubted truth that whilst the Members are so over-awed as to act and doe what others command them It is no free Parliament and consequently all their proceedings void and null But those Westminster-men are in that manner awed Even as they by tumults expelled their fellow Members and by their tyranny fettered their consciences themselves are now by the power of an Army forced to captivate their owne sence to the will of a few inconsiderable persons some particular Officers of the Army The Members do not they dare not act any thing but in obedience of the results of a Councell of Warre Nay more we see not to alter and change opinion how contradictory soever to former votes how pernicious to King Church or Common-wealth as they receive commands from thence is ground sufficient both of an expulsion from the House and an impeachment of Treason Hence it is That we find such contradictory results sometimes these persons voting themselves a Parliament sometimes no Parliament sometimes much shew of setling a Forme of Religion they unvote that againe and declare upon pretence of satisfying tender Consciences to have none at all They do in effect say and unsay vote one and the same thing lawfull and not law even as the Cudgell hangs over them And so unlesse persons whose Soules and Consciences are so far in vassalage as to say act and doe what ever the present prevailing Party commands make the Houses of Parliament these Westminster men are not they and consequently if nothing but this were against them it proves them no Members of Parliament Sixtly admitting these men not disabled by any or all the foresaid means yet by their late Votes declaring their resolution not to make any addresse or application to the King nor to permit any from him they have by the Law of England dissolved themselves For setting aside the Kings Writs of summons the peoples electing the Knights Citizens and Burgesses and the returns thereof made And the Persons assembled have no more authority to sit or vote in either House then any other men And by those Writs they have nothing else to doe but to treat with the King concerning the affaires of the Realme Therefore by waving that they quit all their imployment They doe by it clearly publish unto the world an absolute deniall to take upon them those things which the King and people intrusted them with and for which they had Commission And consequently what ever they doe is without Commission or Authority But to doe them right they are in these votes more ingenuous then formerly There is now a harmony between their words and actions which heretofore jarred For notwithstanding their often Declarations and high Protestations even with deep execrations upon themselves if not performed to make the King glorious and the people to flourish The world might even from the first beginning of the Parliament see that all their actions tended to the destruction both of King and Kingdome Now suppose a new gang of four Judges set up in the Court of Kings bench by colour of Authority of these Persons at Westminster and three of them by an Order of their own to expell the fourth then two of the three to expel the third then one of the two to assemble multitudes and expell the other And after this the last man by himself alone or calling unto him two or three other persons sutable to himself to judge the Law and thereby to declare the wealth of the Nation to be their owne and both the Members and the rest of the people to be their slaves And having got an Army on foot to support their actions Then to declare that they will have no more relation unto or medling with the Members such Persons would quickly be denounced no Judges of that Court Declared to act without commission or authority To be Subverters of the Law and would be impeached of high Treason against this new State Even so ought all the people to declare these Westminster-men It is their case against the King the people and the old known fundamentall Laws of England Upon the whole matter I cannot more aptly parallel these persons then unto those men our Saviour in the Gospel warns us of They have got within the walls of the Houses of Parliament but entred not in by the dore They came in Sheeps clothing expressing themselves most zealous to advance Religion and to preserve the peoples Liberty But by their fruits we find them inwardly ravening Wolves they are like unto those who our Saviour calls thieves that come to steale kill and destroy they have abolished all Religion they have taken from the people their Liberty and almost to the last drop of bloud have sucked from them their livelihood In a word since they cast off their loyalty and so making themselves masterlesse those Wolves are so filled with pride as that they disdaine all other Creatures They are so gorged with malice as that they snarle and pinch at most men they meet which hath its effects like unto the biting of a mad Dog scarce curable but by a medicine prepared with the heart or liver of that biting Cur. So the world sees when these Westminster men have once fixed their malice whether upon those against them or upon their owne Party whether he have deserved well or ill whether the fact charged upon him be lawfull or unlawfull it is a million to one in fine he perisheth Nor can the wit of man find a cure for this grief but to unkennell these Wolves And to effect it the people of England by the rule of reason
government of the King cannot be forced either in person or estate otherwise then the knowne Law judged by indifferent persons unconcerned as aforesaid doth permit And consequently the people of England a most free subject CHAP. XIII That the people of England under the government claimed by the Members of the two Houses are absolute slaves IT cannot be denied but that where the King or the Supreame Magistrates authority over the people is arbitrary that government is tyrannicall No tyrant ever had or can have a greater power Nor is it possible for people where any Law is admitted to be under a greater servitude For he whose will is a Law as he hath no superiour so by any under his command he cannot be said to erre in judgement be his sentence never so bloody cruell or barbarous the dispute is ended no appeale or Writ of Error lyes so that the wisest man how industrious or conscientious soever cannot for the least instant of time promise to himselfe security of life or challenge property in his estate Therefore if the government in England practised and claimed by the Members be arbitrary it followeth that the people are absolute slaves wherein these things are considerable 1. Who they be that arrogate the government 2. What those persons act de facto 3. What power they claime to have de jure 1. For the first they are the Members of the two Houses being in number the Assemblies admitted full about seven hundred persons They are divided into two severall distinct bodies without any head and every body having equall power Then for their priviledges It is by themselves declared to this effect viz. That none of them although he hath committed Treason Sacriledge Murther Rape Felony or any other crime how execrable soever is to be appehended questioned or prosecuted for the same untill licence be thereunto obtained from that House whereof he is a Member Every offender herein is by their Declarations denounced a breaker of the liberty of the Subject of the priviledge of Parliament and a publike enemy to the Common-wealth And such a licence being obtained and the Malefactor thereupon apprehended he is not say they to be prosecuted by indictment or otherwise but in such manner and before such persons as that Assembly thinks fit to direct their persons are so sacred as that none but themselves must judge their actions Thus for the persons commanding 2. What they act de facto We see by a new Law called an Ordinance made by themselves without the King the late Arch-Bishop of Canterbury was condemned to death and executed They have confiscated his and other mens estates and by the same pretence they have taxed the people to the twentieth and fift part of their fortunes They have laid an imposition upon the Subject heretofore not heard of in England called an Excise They have taxed them with vast impositions and payments of money by way of assessements and otherwise at pleasure They receive and dispose of the confiscations and of all the aforesaid summes of money as themselves thinke fit They assume the power finally to declare and Judge the Law and by colour of their owne authority they have de facto repealed severall Acts of Parliament And have imposed upon the people new Lawes of their devising 3. What they claime to have de Jure if themselves be asked whether by Law they have not power to act the foresaid things If they have not authority without appeale to determine what is Treason murder felony or other capitall offence To put to death who they please To confiscate any mans estate To tax or impose upon the people without stint whether the profits of those confiscations taxes and impositions be not at their owne dispose and all this without any account To these they doe they have already answered affirmatively However all men of judgement may be herein satisfied The Members had lawfull power to put to death the Bishop of Canterbury and to seize his estate else he was murdered and his estate seized against Law now if they had therein lawfull authority it followeth that by the same Law they may whether guilty or not guilty of a crime put to death any other who they shal say deserveth to dye and may confiscate whose estate they please dispose thereof to their own use or otherwise as they thinke fit And accordingly we see they have and are going fast on as theives do their booties to divide and share the wealth of the Kingdome amongst themselves If they did lawfully tax the people to a fifth part by the same Law they may tax them to their full worth And for excise admit them to have power to charge any commodity with one peny and it cannot be denied them to have power to tax every one for every drop of drinke or morsell of mâ—â—t or what he buyes or sels to the full double or treble value thereof If they have power to repeale one Act of Parliament they have authority to repeale all the statutes in England And if they have authority to impose upon the people one Law their power therein is without limitation They may inforce upon the Subject what Laws they please and consequently their power claimed as highly arbitrary and tyrannicall as any have or can claime to have And having made this claime Then for their security therein they tell us that in all matters both for soul and body we have no Judge upon earth but themselves and denounce every one an enemy to this new State who shall deny that to be the Law which they declare Law Yet even now the people are told that they are and shall be governed by the knowne Law because say they Judges are appointed and suites of Law admitted Answer There was never any Tyrant but in some sort permitted a known Law among his vassals else the slaves could not acquire estates and so confiscations to the Tyrant would prove inconsiderable By the Laws of England a villaine hath power to buy and purchase and is therein protected against all persons his Lord excepted But the Lord may seize his estate beate or strike his villaine at his pleasure The Turke who hath been accompted the greatest tyrant his vassals acquire vast fortunes and are by a Law protected therein against their fellow slaves But the Turke at pleasure may not onely seize their whole estates but take their lives too Even so it is at present with the people of England we have liberty to buy and sell and acquire wealth we are as an English villaine or Turkish slave sometimes that is when the Members please else not protected therein against one another But when the Members thinke fit every mans estate his fortune his person his life all is at their will and doome That Law permitted amongst the people reacheth not so high as the Members when they thinke fit their will is the Law so that our slavery for the present is worse
then was the condition of an English villaine at the beginning of this Parliament It is as bad nay worse then that under the Turke they have onely one Tyrant we seven hundred They one head over their whole body we two bodies without a head And as it is with us in Temporall affaires the same it is in Spirituall things too The Members have de facto abolished the Protestant Religion And both in doctrine and discipline force mens consciences how absurd or blasphemous soever it be to submit to their resolutions So that if the question be asked whether the scripture or the Church be Judge or how a man shall be informed of the truth These Tyrants make answer that neither Scripture nor Church is Judge of controversies but the two Houses We must no more search the Scriptures but submit our selves our souls and bodies to the Votes of the Major part of those two Houses and thus are the people slaves CHAP. XIV How the Subjects of England were brought unto this slavery IT is true the people of England for some time before this Parliament were grieved with illegall taxations Monopolizing of Trades and other things not warranted by Law And although there wants not meanes besides a Parliament to redresse any disorder arising in the Common-wealth yet the cause of the distempers may be such as that without a Parliament it would be difficult to reforme them When the Judges are corrupt as the Members alledged they were in that case of Ship-money when the Officers of State or other persons of power neere the King occasioned the mischiefe as it was conceived in the businesse of Monopolies few in the ordinary way of proceedings dare informe or prosecute Therefore in such cases a Parliament is necessary The Members in those things have freedome of speech And the King having called His Parliament at the first meeting thereof expressed Himself most sensible of the disorders of the Kingdome declared His desire to have a perfect reformation His resolution to governe according to the knowne Law such as were authors or actors of the former distractions he left them to legall tryall And to compleat the businesse promised to concur with the two Houses in all things tending to reformation Thus the Parliament had a happy beginning and for a good space of time a progresse sutable For such as looke upon the Statutes made this sitting shall find the worke of reformation even by the King Himselfe perfectly compleated That Judgement for Ship-money the busines of Monopolies and all other visible and Knowne greivances were taken away And to prevent the like danger for after-times the King passed an Act for calling a Parliament every third year So that to the obtaining of the greatest happinesse that any people in the world can desire there wanted nothing but to punish the authors of the former mischiefe and then for the present a dissolution of the Parliament Then might every one by observing a knowne Law have promised to himself security of his person and challenged property in his estate But the sequell shewes that it was not the publick good it was their owne private the government and wealth of the whole Nation the Members aimed at And as a foundation to it the plot was to make this Parliament perpetuall But at the first it not being thought fit to discover their intention therein it was pretended that the affaires of the Kingdome required instant supplies of great summes of money which as they pretended could not be obtained but by Loane And that the people fearing a suddaine dissolution of the Parliament would not lend A Bill therefore is cunningly formed not at all mentioning for what time the Parliament should sit in generall words enacting that it shall not be dissolved nor adjourned but with the assent of the two Houses And the King being informed by the hatchers of that plot that this Act was for no other end but to procure the Loane of money for the publick good passed the Bill The Members having obtained this Act and conceiving that thereby the King could not dissolve the Parliament without their consent then they began their intended worke From thence nothing is heard of in the old Parliamentary way The prosecution of the Judges in that heavy charge of corruption is not onely set aside but some of them formerly accused to be such high malefactors as to have subverted the knowne Law are received into the greatest favour as persons most proper to usher in the arbitrary power of the Members Then are the people amused with feares and jealousies by printed pamphlets they are grosly abused by being told that the King intended to subvert the Law and governe by His arbitrary power To abolish the Protestant Religion and to introduce Popery The Kingdome therefore it was resolved must be put into a posture of defence The Militia must be taken out of the Kings hands and setled in the Members And accordingly by their command the Kings subjects are mustered arrayed and put into a readinesse for War they are instructed and prepared to take upon them any enterprize the Members shall direct The Fortes the Navy the Armes Ammunition and Revenues of the Crowne are taken to the use of the Members Thus having prepared and strengthened themselves the next thing was further to disinable the King to make resistance It is therefore falsely and maliciously declared to the people that it is against the liberty of the Subject for any cause whatsoever unlesse upon an actuall invasion to be forced by the Kings command out of their owne County So that by this doctrine in case of a forraigne Invasion the enemy must be landed he must have footing in the Kingdome before the people may be gathered together by the King to make defence But in case of Rebellion the businesse in hand if the Rebels once get a formed body too strong for any one County the businesse is done They may if this be true doctrine undoubtedly conquer County after County the whole Kingdome These things being done it was then conceived opportunely and safe enough to publish and declare their intent Then without the King they arrogate the name of the Parliament of England take upon them to be the Supreame Court of Justice to make Laws and in a word a power arbitrary So that the Members have as an emprick by killing his patient with improper medicines cures his disease reformed this Common-wealth under pretence to restore the knowne Law The Law it selfe is by them totally subverted And that which is still more grievous the people were made voluntary instruments of this tragedy whilst they conceived they fought in defence of the Law and their owne Liberties they were therein their owne executioners They have embrued their hands in the blood of their fellow Subjects and by their victory have plunged themselves into the debts of slavery But these things being done in the name of a Parliament with some persons they