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A91303 The treachery and disloyalty of papists to their soveraignes, in doctrine and practise. Together with an exact parallel of the jurisdiction, power, and priviledges claimed and exercised by our popish Parliaments, prelates, Lords and Commons in former times, with those now claimed and practised by the present Parliament, Lords and Commons, which are here manifested to be farre more loyall, dutifull, moderate; more consistent with, lesse invasive on, and destructive to the Kings pretended soveraigne power and prerogative, then those of popish parliaments, and subjects. Wherein likewise the traiterous, antimonarchicall doctrines, practises and attempts of papists upon their soveraignes prerogatives, crownes, persons, with the dangerous consequences, effects, and designes, of their present illegall arming, and accesse to the Kings Army, and person by meanes of evill counsellours, are briefely discovered; ... It is ordered by the Committee for Printing that this treatise be forthwith printed and published, by Michael Sparke, senior. Januar. 13. 1642. John White.; Soveraigne power of parliaments and kingdomes. Part 1 Prynne, William, 1600-1669.; England and Wales. Parliament. 1643 (1643) Wing P4108; Thomason E248_1; ESTC R203188 101,087 43

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their mutuall assents alone and as these private By-●awes oblig● all those who consent to them by reason of their owne free assents onely so doe all publike Acts of Parliaments obli●ge all Subjects onely because of their generall assents to them in their Knights Citizen● and Burgesses elected by and d See ● ●ac c. 1. representing their persons Thirdly all e 33. H. 6. 17. Br. Parli 4. M. Hackwell of Pas●●ng Bills Cromp. Iuris ● 8. Chron. of Ireland f. 127. ●●● 30. Acts of Parliament are usually made framed altered thrice read engrossed voted and fully agreed upon in both Houses without the Kings personall knowledge or privity for the most part before they come to have his royall assent And when they are thus agreed on by both Houses the king cannot alter any one word or letter in them as the Houses may doe but must either absolutely assent to or consider further of them as the Houses tender them And if the king send any Bill he desires to have passe it must be thrice read and assented to in both houses which have power to reject a●ter enlarge or limit it as they thinke meete else it can be no Act at all A● cleare demonstration that the chiefe power of enacting and making Lawes is onely in the people Commons and Peeres not the king who by his Writ doth purposely sommon them to meete an● enact Lawes as the chiefe Legislators witnesse this notable clause in the y Cromp. Iuris of Courts f. 1. 2. and at the end of the Manner of ●olding Parliaments in England Writ for the Election of Knights Burgesses Ita quod iidem Milites plenam safficientem ●ote●●atem pro S E COMMVNITATE Comitatus praedicti dicti Cives Burgenses pr● se COMMVNITAT● Civitatum Burgorum praedictorum divisim ab i●sis babeant AD FACIENDVM E● CONSENTIENDVM HIS quae ●●ne ibidem DE COMMVNI CONSILIO DICTI REGN● not Regis nostri contigerint ORDINARI super negot●●s antedictis Ita quod PRO DEFECT● POTEST AT●S HV●VSMODI c. dicta negotia INFECTA NON REMANEANT quov● modo answerable to which is that clause in * Pope Elutherius his Epistle to our first Christian king Lucius about An. 185. Exillis Deigratia PER CONSILIVM REGNI VESTRI SVME LEGEM● per illam D●i potentia vestrum reges Britaniae regnum Fourthly all publicke Acts are the whole Kingdomes Lawes made principally and solely fo● the subjects benefit if good their prejudice if ill therefore the whole kingdome represented i● and by both Houses not the king knowing much better what is good or bad for themselves the● the king alone it is z See ●●tv before just and reasonable that they and not the king should be the principal● Law-makers to binde or bu●then themselves with any new Lawes penalties or restraints Fifthly it is cleare that all Acts which give any Subsidie Tax Penalties or forfaitures to the king are made onely by the people in Parliament and not principally by the king since the king canno● be sayd in any propriety to give any thing to himselfe This is undeniable by the forme of penning all subsidie Bills granted by the Commons or Clergie Your Commons assembled in your Hig● Court of Parliament c. humbly present your Majestie with the free and cheerefull gift of two intire s●bsidies which we humbly beseech your Majest●e graciously to accept c. Your Majesties faithfull subjects the Prelats and Clergie c. with one agreement and uniforme consent have given and granted and by these presents doe give and grant to your Highnesse c. foure intire Subsidies in manner and forme as followeth And by the kings assent to these Bills a Hackw●ls passing of Bi●s sect 8 p. 78 Le Roy remercy ses Loaulz subjects accept LOVR BENEVOLENCE c. the Commons having the sole power to grant or deny b See Rostal Taxes and Tenthes The Acts of Subsi●ies 21. Iac ●●is present Parliament Speed p. 745. Subsidies and Ta●es when they see cause and to limit the proportion of them the manner and time of paying them and to order how and by whom they shall be received and imployed a● all Acts of this Nature ●anifest If then they be the chiefe Law-makers in these Acts which lay● any imposition ●pon the Subjects goods or restraint on his person then by like ●eason in all other penall publik Lawes Six●ly All Acts of Pa●liaments made in the raignes of ●surpers who have no Title to the ●rown nor right to assent to Lawes are c See 1. E. 4. c 6. 4. E. 4. 10 9. E 4. 1. 2. ●r Charters d●●ardon 22. 13. Eli● c. ● firme and good in Law and shall binde the right heires to the Crowne as i● evident by the Lawes made by king John Henry the 4. 5. 6. reputed usurpe●s by Edward the 4. and Richard the third acknowledged an usurper whose Lawes are yet in force The reason is as is cleare by 1. E. 4. c 6. because the Lawes and all other Iudiciall Acts in Court● of Iustice are the Acts of the Parliament and Courts themselves which are lawfull not of the king who is unlawfull Therefore certainely the Legislative power is more in the Parliament thenin the king if not wholly in it there being Lawes and Kingdomes before kings were Seventhly admit the king should dye without heire no doubt the kingdome and Parliament have a just right either to alter the government or dispose of the Crowne to what familie they please as ●he constant practise of all kingdomes in such cases manifests and d The tr●e difference c. part 3. p 416. Bishop Bilson himselfe assureth us that all Nations once members of the Roman Empire when the right heires failed were suffered to elect their Governours where they pleased as the Romans themselves might doe and no doubt they might make binding publike Lawes during the Inter-reg●um yea if the king be an infant as Henry the 3. Henry the 6. Edward 3. 5. and Richard 2. with other ou● kings were when the Crowne ●escended to them or non Compos Mentis or taken with a dead palsie or Apoplexie or an Ideot by ●irth or Age or a Monkeprofessed as e Fox Act● Monument vol. 1. p. 173. Speeds Hist p. 244. some kings have beene or absent in a Pilgrimage to Rome or ●● voyage to the Holy Land or other remote forraigne Parts by reason of warres as f See Nubrigenfis Speed Holinshead Mat. Westm● and others in the lives of R. 1. H. 1. 2. 3● 4. 5. 6. 8. Ed. 1. 2. 3. 4. divers of our Kings heretofore have beene and so unable personally to consent to lawes no doubt in all such ●ases the right of creating a Protector to execut● regall power sommon Parliaments assent to Lawes is ●nely in the g Walsingh Hist Angl. A. 1422. p. 458. Speed p. 1108. Grafton p. 496. 447. 648. Fabian p.
Kings eldest sonne was created Duke of Cornwall by Parliament which then also entailed the Dutchy of Cornwall upon the eldest sonnes of the Kings of England See 21 R. 2. c. 9. * 7. H. 4. c. 2. Hals Chronicle 1. H. 4. f. 10. 15. Fabian par● 7. p. 376. Speed p. 763. King Henry the fourth the ●et●er to assure the inheritance of the Crownes and Realmes of England and France to him and his posterity caused them by a speciall Act of Parliament in the first yeare o● his raigne to be entailed and setled on himselfe and the heires of his body begotten and Prince Henry hi● eldest sonne to be established pronounced ordained and decreed heire apparant to him and to succeed hi● in the said Crownes and Realmes to have them with their appurtenances after the Kings death to him an● the heires of his body begotten And if he should die without heire of his body begotten then to remaine to th● Lord Thomas the Kings second sonne with successive remainders to Lord John the third and Lor● Humfry the Kings fourth sonne and the heires of their bodies begotten After which Act passed for t●● avoyding for all claimes titles and ambiguities to be made unto the Crowne he thought never by any of his Subjects to be molested or troubled the rather because in this Parliament it was first concluded that deposed King Richard should continue in a large prison and ●e plenteously served of all things necess●ry both for viande and apparell and if any persons should presume to reare warre or congregate a multitude ●o deliver him out of prison that then he should be the first that should die ●or that sedi●ious comm●tion Which King Richard as * Fabian part 7. p. 373. Sir John B●got by his Bill exhibited to this Parliament averred h●● divers times at sundry Parliaments in his time holden said that he would have his intent and pleasur● concerning his owne matters whatsoever betide of the residue and if any withstood his will or minde b● would by one meanes or other bring him out of his life And further said to him at Lichfield in the one ●● twentieth yeare of his raigne that he desired no longer for to live then to see his Lords and Commons ha●● him in ●s great awe and dread as ever they had of any his Progenitors so that it might be chronicled of him that none passed him of honour and dignity with condition that he were deposed and put ●●rom his said dignity the next morrow after So wilfull was he as to preferre his will before his Crowne or safety n Hall An. 38. 39. H. 6. f. 176. to 183. Fabian An●o 1441. p. 470. Grafton p. 643. to 648. Holins Stow Howes An. 1440 144● In the yeares 1440. and 1441. Edward Duke of Yorke came into the Parliament House an● there in a large Oration laid claime and set forth his Title to the Crowne of England which King He●ry the sixth had long enjoyed desiring the Parliament to determine the right of the Title betweene the● both ●ides submitting to their resolution as the proper Judges of this weighty royall controversie After lon● debate and consideration of the case among the Peers Prelates and Commons of the Realme it w●● finally agreed and resolved by them That in as much as Henry the sixth had beene taken as King for 38. yea●● and more that he sh●uld enjoy the name and title of King and ●ave p●ssessi●n of the Realme during his n●turall life And if he either died or resigned or FOR FAITED THE SAME for breaking ●● part of this concord then t●e said Crowne and authority royall should immediately descend to the Duke ●● Yorke King Edward the 4. his Father if he then live● ●r else to the next heire of his line And that the s● Duke from thenceforth should be Protector and Regent of the Kingdome Provided alway that if the Ki●● did closely or apertly study or goe about to breake or alter this agreement or to compasse or imagine the de●● of the said Duke or his bloud then he TO FORFEIT THE CROWNE and the Duke T● TAKE IT These Articles made by the Parliament betweene them they both subscribed sealed ● swore to and then caused them to be enacted Loe here we have these two Kings submiting their Titles ● the Crowne and Kingdome it selfe to the Resolution of both houses of Parliament as the Soveraig● Judge betwene them who settled the Crowne in this order under paine of ●orfeiting it by Ki●● Henry if he violated their Decree herein and appointing a Lord Protector over the Kingdome in ●● full age as o Historia Angliae p. 458. Parliamentum fuit c●nv●catum in qu● Parliamento ex assensu omnium Statuum idem Dux Defensor seu Protector Angliae fuera● nomina●us ordina●us omniaque Regni off●cia beneficia ejus dispositioni sunt commissa Walsing●am informes us a Parliament c●nstituted Duke Humsry to be protector of hi● and h●s Kingdome of England and the Duke of Bedford to ●e Regent of France during his minority wh● exercised all regall power by vertue of that authority which the Parliament derived to them A●● this in these two Kings reignes p See Grafton p. 691. 692. Speed p. 869. 878. 859. 886. 1. E. 4. c. 1. 17. E. 4. c. 7. the Crown and its descent were variously setled by Parliament as I ha●● formerly manifested yet so as that which one Parliament setled in this kinde continued firme till it ●● akered or reversed by another Parliament King q Speeds Hist p. 928. 931 Richard the third comming to the Crown by usurp●tion to strengthen his Title procured the Lords and Commons to passe an Act of Parliament where in th● declare him to be their lawfull King both by election and fuccession entaile the Crowne upon him and the hei●● ●f his body lawfully begotten create his Sonne Edward Prince of Wales and declare him heire to succeed him in ●he royall Crowne and dignity after his decease In which Act of Parliament recited at large by Speed there is this memorable passage That the Court of Parliament is of such Authority and the people of this land of such a nature and disposition as experience teach●th that manifestation or declaration of any Truth or Right made by the three Estates of this Realme Assembled ●n Parliament and by the Authority of the ●ame makes before all other things most faith and certainty and ●uieting of mens mindes removeth the occasion of all doubts and seditious language r Halls Chro. 1 H. 7. f. 855. Henry the seventh af●erwards slaying this usurping Richard at Boswell-field to avoyd all ambiguities and questions of his Title to the Crowne in his first Parliament procured the Lords and Commons by a speciall Act to set●le the inheritance of ●he Crownes of England and France on him and the heires of his body lawfully begotten perpetually by the grace ●f God so to endure and on none
which these Acts disable the King who is so farre inferior to the Law that he cannot so much as delay the smallest proceedings of it in any Court or Session by his supreame power by any meanes whatsoever to effect in his meanest Courts much lesse then in the greatest from whence the subvertion of Lawes Libertie Iustice and the whole Realme would ensue If any therefore cavill at the All for the continuance of this Parliament till both houses shall agree to adjourne or dissolve it or at the Bill for Trienniall Parliaments which when they meete shall not be dissolved without their consents for 40. dayes space next after their first meeting Let them now learne that this is no Innovation nor encroachment on the Crowne but an ancient Priviledge of Parliament both claimed practised and resolved in times of Popery in an higher degree then now it is And thus you see how in these particulars the Popish Parliaments Prelates Lords and Commons in former times have claimed and exercised far greater Priviledges and Iurisdictions then this or any other P●orestant Parliament hath hitherto claimed or practised which I hope will for ever silence the clamourous tongues of all ill Counsellors Courtiers Royalists Malignants Papists and Cavaliers against the present Parliament of whose highest ye● moderate proceed●ngs themselves alone have beene the occasions and therefore of all others have least cause to complaine against them But to returne againe to the first grand Objection Thirdly I answer that the High Court of Parliament and whole kingdome which it represents may in divers respects be truely and properly 3. The Parliament and kingdome proved to be above the king sayd to be the Highest Soveraigne power of all others and above the King himselfe which because it may ●eeme a dangerous paradox and tends much to the vindication both of the Priviledges Honour and ●urisdictions of our High Court of Parliament now so much undervalued because not really knowne to most and to the justification of the proceedings in this present Parliament which many out of ignorance and malice so much declaime against both by Word and writing in a most licentious manner I shall take a little liberty to demonstrate the truth of it by such convincing reasons of Authorities as no rationall man I hope shall be able to contradict but must necessarily submit to First it is undeniable that See Cromptons jurisdiction of Courts Title Parliament Brooke Title Parliament Holinsh Description of England c. 8. p. 173. Chron. of Ireland p. 120 to 130. Sir Th. Smiths Cōmon-wealth of England l. 2. c. 1. 2. 3. Cowel and Minshew Tit. Parliament Camdens Brit. p. 177. the Court of Parliament hath a lawfull power to question all the Kings Pa●ents Charters Commissions Proclamations Grants Warrants Writs and Commitments whatsoever whether they be Legall yea to cancell or repeale them in case they be illegall mischeivous or onerous to the Subject not onely without but against the Kings consent and mandate to the contrary as appeares by infinite presidents in this and all former Parliaments the scourges of Monopolists Patentees and Projectors the Pests of the Commonwealth The like power have all other Courts of Iustice within the Kingdome in some degree when such Charters and Writs of the King are brought judicially before them because they are Courts of the Law to which the King and all his Actions are and must be subject Now that which can thus question cancell disanull revoke the Kings owne royall Charters Writs Commissions Patents c. though ratified with the great seale and regall power even against his will must certainely be a Soveraigne power and Authority which in point of Law and Iustice is fu●eriour to the King This is Bractons resolution l. 2. c. 16. f 34 a and Fletaes l. 1. c. 17. Where ●hey affirme the Law and Parliament to be above the King because they may censure judge and rescinde the Kings Acts and Charters legally and judicially even against his personall though not legall Will which ●s the Law Secondly It is unquestionably true that in all cases of difference betweene the King and all or any of his Subjects though they concerne the Kings Prerogative and the highest branches thereof the Parliament is the supremest and most proper judge and its resolution from which there is no appeale ●o any higher tribunall shall finally binde not onely all the subjects but the King himselfe notwithstanding his owne personall disassent This is manifest by the many late resolutions given in Parliament against sundry Patents Commissions Writs Charters Impositions Loanes Shipmoney i See 21. Iacob c. 3. Co. l. 8. f. 125. to 130. l. 10. f. 113. l. 11. f. 84. to 89. Fitz Brooke and Ash Tit. Charters Grant le Roy Comissions Habeas Corpus Bayle and the Iudges arguments against Ship-money Forrest-Bounds Marshall Law Pressing and ●illetting souldiers Imprisonment by speciall Command of the King or his Privie Counsell Tonnage and Poundage Knighthood and Taxes The Commission of Array and ●he like which obliege both King and Subject the King in receiving justice in such cases being subject ●o the Law as well as the meanest of his subjects as k Rex in justitia re● pienda minimo de ●egno suo comparatur minimus esse debet vel qua●i in judicio suscipiendo Bracton l. 1. c. 8. f. 5. b. l. 3 c 9. f. 107. Bracton truely avers against all Royalists mistakes Now that which can thus finally conclude and binde the King himselfe even volens nolens ●n cases of highest concernment entrenching farthest upon his Prerogative Royall must doubtlesse ●e the most Soveraigne power Superiour to the Kings And in this sence every Court of Justice whose just resolutions and every petty Jury whose upright verdicts obliege the King because war●anted by the Law which is paramont the King as Bracton m Lib. 1. c. 5. 17. Fleta n Cap. 9. to 15. Fortescus o Speech in Parliament 1609 King Iames p In his ●awes in Fox Acts Mon. Edit vol 1. p. 214. Edward the Conf●ssor yea and q Aristotle resolve may be truely sayd to be above the Kings ●erson which they binde but not above the Parliament which by its suparlative power may examine ●ll ſ 1 H. 7. 1. Br. parliament 92. Ash tab 65. 67. judgements and verdicts in other Courts by way of error or appeale and reverse them if there be ●●use when as the King in person cannot by law examine or reverse them but onely in his Courts ●f Iustice by his Iudges Thirdly Parliaments oft times doe and may as they see cause enlarge the Kings Prerogative and Royall ●ower in sundry particulars in which the King had no such jurisdiction before these Acts witnesse the ●tatute de Praerogativa Regis 25. H. 8. c. 19. 20 21. 26. H. 8. c. 1. 3. 31. H. 8. c. 8. 9. 34. 35. H. ● c. 23. 27 H. 8. c. 15. 28. H. 8. c.
2. c. 16. f. 24. That a King is created and elected by whom but by his kingdome to this purpose to doe justice unto all That a king cannot doe any thing else in earth seeing be is Gods Minister and Vicar ni●●id solum quod de jure a Luk. 2. 22. 23. 24. ●otest but that onely which he can doe by Law That God the Law and his Court to wit the Earles ●nd Barons in Parliament are above the King and ought to bridle him and are thence called c Comites vi● quia a Comitatu ●ive a societate nomen sumpserunt qui etiam dic● possunt Consules a consulendo Reges enim tales si●● associant ad consulendum regendum populum Dei. ordina●tes eos in magna potestate honore nomine c. Idem l. ● c. 8. f. 5. 6. Co●ites because they are the Kings Companions Fleta an Ancient Law-booke written in King Edward ●he third his raigne lib. 3. c. 3. and 17. useth the selfe same words that Bracton doth and concludes ●hat the King hath a Superior to wit God and the Law by which be is made a Ki●g and his Court of Earles ●nd Barons to wit the Parliament d De Laudibus Legum Argliae c. 9. to 15. Fortescue a great Lawyer Chauncellor to King Henry the 6. ●roves at large That the King is not above but under the Law that be cannot alter the Law of Ergland ●or ●ay any Taxes at all on his Subiects but by Parliament That all lawfull Kings and Kingdomes were at ●●rst created and erected onely by the unanimous free assent of the people that the kingdome of England is a Po●cie or Aristocraticall mixt Government not an absolute royall Soveraignety That the e Hanc potestatem â pop●lo effluxam ipse habet c. p. 25. King hath his ●●yall power DERIVED TO HIM FROM THE PEOPLE whereby it is unlawfull for him to ●le his people by any other power which he prosecutes in sundry chapters too tedious to transcribe ●nd in one word f Chap. 8. vol. ● pag. 173. Raphael Holinshed Iohn Vowell and others in their Description of England ●rinted Cum Privilegio resolve thus of the Parliaments power This House hath the most high and ●bsolute power of the Realme for thereby kings and mighty Princes have from time to time beene ●eposed from their thrones and Lawes are enacted and abrogated Offenders of all sorts punished and cor●pted Religion either disanulled or reformed It is THE HEAD AND BODY OF ALL THE ●EALME and the place where every particular man is intended to be present if not by himselfe yet by ●s Advocate and Attorney For this cause any thing that is there enacted is not to be withstood but obeyed ●● all men without contradiction or grudge and to be short all that ever the people of Rome might doe ei●●er Centuriatis Comitiis or Tribunitiis the same is and may be done by the Authority of Parliament Now the Romans in their assemblies had power to enact binding Lawes to create and elect ●●eir Kings and Emperours and likewise to judge censure and depose them to create and elect all kindes ●● Officers and to * See Bodine l. 2. c 5. l. ● c. 10 Eutropius and Grimston in the life of Nero Maximinius Heliogabalits and others Livy Rom. Hist l. 1. ●● change the very forme of their State and Government as I shall hereafter manifest Therefore by these Authors resolution the Parliament hath an absolute power to doe the like when ●hey see just cause Sir Thomas Smith one of the Principall Secretaries of State to King Edward the 6. ●nd Queene Elizabeth and a Doctor of Law in his Common-wealth of England l. 2. c. 1. in the old but ●● in the last Edition hath the same words in effect with Holinshead and addes that the Parliament gi●eth forme of Succession to the Crowne c. Our kings royall power being then originally derived to ●hem conferred on them by the peoples and kingdomes common consents in Parliament and all their ●ew additionall Prerogatives too as the premises evidence it cannot be denied but that the whole ●ingdome and Parliament are really in this sence above him and the most Soveraigne prime power ●●om whence all other powers were and are derived See Fortescue c. 9. to 15. Fourthly This is undeniable because the whole kingdome in Parliament may not onely aug●ent but likewise * abridge allay abolish and resume some branches of the Kings royall power and ●●erogative if there be just cause as when it becomes onorous mischievous and dangerous to the Sub●ects inconvenient to or inconsistent with the kingdomes peoples welfare peace safety Liberty or ●he Lawes this is most apparant by Magna Charta Charta de Forresta Statutum de Prerogativa Regis De Tall●gio non-concedendo 1. E. 3. c. 6 7. 2. E. 3. c. 2. 8. 3. E. 1. c. 35. 9. E. 3. c. 12. 5. E 3. c. ● 10. E. 3. c. 2. 3 14. E 3. c. 1. 14. 18. E. 3. c. 8. 25 E. 3. c. 4. Stat. 3. c. 1 2. Stat. 5. c. 8. 11. 36. E. 3 c. 10. ● 7. E. 3. c. 18. 42. E. 3. c. 3. 10. R. 2. c. ● 11. R. 2. c. 1. to 7. 1. R. 3. c. 2. 4. H. 4. c 13. 21. Jac. c. 2. 3. 24. 7. H. 8 c. 3 ●he Petition of Right 3. Caroli most Statuts against Purveyens Pardons Protections the Acts made this Parliament against Ship-money Knight-hood Forrest-bounds Pressing of Souldiers the Star-Chamber High-Commission the Trienniall Parliament the Continuance of this Parliament whiles they please with g See the Arguments against Ship-money and Impositions and the Declarations against the Commission of Aray sun●ry other Acts which restraine abridge repeale and resume divers reall and pretended branches of the ●ings royall Prerogative because they proved grievous and mischievous to the people and dangeous and pernicious to the kingdome This then answers that irrationall groundlesse position of Doctor Ferne That h Resolving of Conscience Sect 4. 5. the Subjects neither lawfully may nor ought in any case to resume al or any part of that Regall power wherewith they have once invested their Kings by common consent Which as it is contrary ●o that received principle of nature and reason Eodem modo quo quid constituitur dissolvitur That ●ll Governments created by mens consents may be altered diminished or repealed by their consents ●● i See Ioshua Iudges Samuel Kings Chron. Daniel throughout ●saiah Ieremy Ezickiel in sundry chap. sundry Presidents and Prophesies in Scripture concerning the alterations the Subversions and Dimi●utions of kings and kingdomes to the constant practise of k See Sleidan de 4. or Imperiis Mat. West Livy Iustin Opmerus Purchas Chronicon ●hronicorum and all generall Histories all Realmes and States whatsoever from ●dam till this instant who have undergone many strange alteratians eclipses diminutions yea Pe●●ods of Government to the Resolution of l Polit. l.
houses license under paine a Major Pars est totum Brookes Corporations 34. Smiths Common-wealth of England l. 2. c. 3. ●f inditement imprisonment or fine as appeares by the Bishop of Winchesters case 3. E. 3. 19. Fitz. ●orone 161. and Stamford l. 3 c. 1. f. 153 compleatly answers that fond cavill of the Malignants ●nd Royalists against this Parliament that the king and many of the other members have wilfully ●bsented themselves from the House of purpose to dissolve it if they could notwithstanding the late ●peciall Act made by their joyntconsents for its continuance Ergo this unlawfull Action of theirs to effect this pernicious designe must nullifie or at least invalid in their new non-sence Law and ●ogicke the lawfull proceedings of those worthy faithfull members who continue in it to preserve ●oth Parliament Kingdome Religion Lawes Liberties from ruine and dissolution If these ab●ent members be the greater number why doe they not come and over-vote the rest in the House in peaceable legall usuall Parliamentary way rather then challenge them into the field in a military ●legall unusuall bloody manner unheard of in former ages If the lesser party then present or ab●ent the Major part must over-rule them volensnolens as it hath ever used unlesse they will be wil●●ller I cannot say wiser then all their predecessors put together As for his Majesties absence from Parliament by the pernicious advise of Evill Counsellors so Object ●uch insisted on by Malignants I answer 1. That it was without any just cause given by the Parliament Secondly It was much Answ ●gainst their wills who have a See their Messages and petitions to the king to this purpose oft importuned petitioned and used all possible meanes to procure ●is returne 3. His absence was procured and is yet continued by those alone who most unjustly ●axe the Parliament for it and would take advantage of this their owne wrong Fourthly though ●e be personally absent as a man yet he is still Legally present in Parliament called the kings pre●ence as he is a king as he is in al other his Courts of Iustice where all proceedings are entred b See Camdens Brit. p. 163. which stiles the Parliament the kings presence The Register of Writs Old New Natura Brevium old and new book of Entries Cookes Institures on Littleton f. 71. 6 Co●am Rege though the king never yet sate personally in either of them as he hath oft times done in his Parliament for the continuance whereof he hath passed such an Act as will inseperably tye his ●oyall presence to it though his Cavaliers about him should by force withdraw his person from it ●ot onely as farre as Yorke but the remotest Indies yea he must first cease to be king of England ere ●e can be legally absent from his Parliament of England This his wilfull personall absence from ●is greatest Counsell which desires and needes it is as many conceive an Act of the highest in justice ●hat ever any Prince could offer to his Parliament worse then a ● King 12. 2 Chron. 18. Reh●boams forsaking the counsell ●f his ancient Sages to follow the hare braind advise of his young Cavaleers for though he follow●d not their ancient prudent counsell yet he withdrew not himselfe from them as his Majestie ●oth now sever himselfe from his Parliament not onely without but against all prefidents of his ●oyall predecessors except king b Richard the second who once absented himselfe from his Parlia●ent above 40. dayes yet then returned to it upon better advise and the very common custome and ●aw of the Land which he is obliged by his Coronation oath and many late protestations added ●o it constantly to maintaine This appeares most clearely by the ancient Treatise of the man●er of holding of Parliaments in England both before and since the conquest * See Minshes Dictionary Title Parliament f. 526. tende●ed to and ap●roved by the Conquerone himselfe newly printed 1641 which in the Section touching the kings ●bsence from Parliament resolves thus The king is BOVND by all meanes possible TO BE PRESENT AT THE PARLIAMENT unlesse he be detained or let therefrom by bodily ●icknesse and then he may keepe his chamber yet so as he lye not without the Manour or Towne ●t the least where the Parliament is held and then he ought to send for 12. persons of the grea●est t Grafton p. 348. 349. 350. and best of them that are sommoned to the Parliament that is 2. Bishops 2. Earles 2 Ba●ons 2. Knights of the shire 2 Burgesses and 2. Citizens to looke upon his person to testifie and ●itnesse his estate and give A uthority to the Arch-bishop of the place the Steward of England ●nd chiefe justice that they joyntly and severally should begin the Parliament and continue the same ●● his name expresse mention being made in that commission of the * Note this cause of his absence there ●hich ought to suffice The reason is because there was wont to be a cry and murmure in the Par●iament for the kings absence because his absence is hurtfull and dangerous to the whole commo●alty of the Parliament neither indeede OVGHT OR MAY HE BE ABSENT BUT ONE●Y IN THE CASE AFORESAYD And whereas Malignants clamour that most of the ●ords are absent as well as the king and therefore this can be no lawfull Parliament The same ●uthor will in forme them that if the Lords be once sommoned to Parliament and then appeare ●ot or absent themselves the king may hold the Parliament with the commonalty and commons ●f the kingdome every of which hath a greater voyce in Parliament then the greatest Earle in Eng●●nd because he represents a whole county towne or city the other himselfe alone without Bishops ●arles or Barons because in times past before there was either Bishop Earle or Baron yet even ●hen kings kept their Parliaments but on the contrary no Parliament can be kept by the king and ●eeres if all the Commons for the kings misgovernment or such like cause should absent them●●lves This is the judgement of r In Holinsheads Chronicle of Ireland f. 127. 128. Master John Vowel too who writes in this manner Yet ne●●rthelesse if the king in due order have sommones all his Lords and Barons and they will not come or if they come they will not yet appeare or if they come and appeare yet will not doe or yeeld ●● any thing then the king with the consent of his Commons may ordain establish any acts or Lawe● which are as good sufficient and effectuall as if the Lords had given their consents But on th● contrary if the Commons be sommoned and will not come or comming will not appeare or appe●ring will not consent to doe any thing alleaging some just weighty and great cause the King in thes● cases d Cromptons Iurisdiction of Courts f. 8. 4. H. 7. 18. 7. H. 7. 14. 11. H. 7. 27. Parliament
1. c. 2. 19. H. 6. 63 a. 64. b. 31. H. 8. c. 10. Dyer 60 a. Cookes Institutes on Littleton f. 109. 110. Writers resolve is the most high and ab●olute power the supreamest and most ancient Court of the Realme of England and hath the power of the whole Realme both Head and Body and amorg other Priviledges this is the highest that it is above the Law ●t selfe having power upon just grounds to alter the very common Law of England to abrogate and repeale old Lawes to enact new Lawes of all sorts to impose taxes upon the people yea it hath power to declare the meaning of any doubtfull Lawes and to repeale all Patents Charters Grants and ●udgements whatsoever of the King or any other Courts of Iustice if they be erronious or illegall not onely without but against the Kings personall consent so far as finally to obliege both King and Subjects Now it is cleare on the contrary side that the King hath not the power of the whole Realm ●ested in his person that he t Fortescue c. 10. to 1● Bracton l. 1. c. 8. l 3. c 9. Fleta l 1 c. 5. 17. Brooke Patents 25. 41. 12. 51. 53. 69 73. 100 Prerogative 15. 103. Commissions 15. 16. See Iudge Crooks and Iudge Huttons Arguments against Ship-money Petition of Right 3. Carol. Br. Parliament 42. and his Prerogative are not above but subordinate to the Lawes of the Realme that he cannot by his absolute regall power altar the Common Law of the Realme in any particular point whatsoever that he cannot repeale any old nor enact any new Law whatsoever norimpose the least taxe or common charge upon his people nor imprison their persons distraine s Sir Thoma● Smith of the Common-wealth of England l. ● c. 1. 2. Holinshed Description of England c. 8. p. 173. Cambdens Brittania p. 173. Iohn Vowels Order and usage how to keepe a Parliament in Holinsheads Chronicles of Ireland p. 101. to 120. Minshewes Dictionary Tit. Parliament their goods declare any Law or reverse any judgement in the meanest of his Courts without or against his peoples joynt consents in Parliament For Potestas sua Juris est non Injuriae Nihil ●liud potest Rexin terris ni●i ID SOLVM QVOD DE JVRE POTEST Bracton l. 3. c. 9. f. 107. Therefore without any peradventure the Parliament in this regard is the most Soveraigne Authority and greater in jurisdiction than the King v Of the Common-wealth l. 2. c. 10. p. 159. Iohn Bodin that great Lawyer and Polititian resolves That the chiefe marke of an absolute and Soveraigne Prince is to give Lawes ●o all his Subjects in generall and to every of them in particular without consent of any other greater equall or lesse than himselfe For if a Prince be bound not to make any Lawes without the consent of a greater than himselfe he is then a very Subject if not without his equall he then hath a Companion as x l. 2. c. 16. f. 34. a. l. 1. c. 8. f. 5. b. Fleta l. 1. c. 17. Walfingham Hist p. 36 37. 40. Bracton and others forecited say our English King hath namely his Earles and Lords thence-stiled Comites if not without the consent of his inferiours whether it be of his Subjects or of the Senate or of the people he is then no Soveraigne Whence it followes that the Kings of England who cannot make any Law to obliege either all or any of their Subjects nor impose any * Taxes nor repeale any Common or Statute Law but in and by their Parliaments are no absolute Soveraigne Princes as some Royalists and Court Divines most falsly averre them to be but meere mixt Soveraignes inferiour to their Lawes and Parliaments the ●ole Law-makers and Law-alterers though not against but with the Kings assents considered not abstractively as Kings but copulative as a branch and member of the Parliament And indeede to speake impartially though the kings Royall assent y See Sir Thomas Smiths Common wealth of England l. z. c. 1. 2. 3. Holinshed Description of England c. 8. p. 173. Chronicles of Ireland p. 101. 102. M. Hackwels manner of passing B 〈…〉 Sect. 8. p. 74. Brooke Parliament 4. 107. 33. H. 6. 33. 33 H. 8. c. 21. Cromptons Iurisdiction f. 7. b. Br. Parliament 26. 39. 40 41. be generally requisite to passe and ratifie Lawes yet I humbly conceive that the originall prime Legislative power of making Lawes to binde the Subjects and their Posteritie rests not in the kings owne royall person but in the Kingdome and Parliament which represents it For first admit the king should propound any Lawes to his people as kings and Lawgivers usually did at first yet these Lawes would no wayes obliege them unlesse they voluntarily consented and submitted to them in Parliament and the sole reason why our Acts of Parliament binde the Subjects in former times and at this day is not because the king willed them z 4. H. 7. 18. 7. H. 7 14. 11. H. 7. 27. 33. H 6. 17. Bro. Parliament 4. 40. 76. 107. Cromptons Iurisdiction f. 8. but because the people gave their a Bro. Ancient Demesne 2● 10. H. 7. 20. a. 33. H. 8. c. 17. generall consents unto them in Parliament as Sir Thomas Smith in his Common-wealth of England Holinshed the Prologues to most Ancient Statutes the King by the advise and assent of the Lords Spirituall and Temporall and Commons and at the speciall request of the Commons in Parliament assembled and by THE * See 2. 7. 8. 12. 14. 17. 4. H. 7. AUTHORITY OF THE SAME PARLIAMENT doth grant and ordaine c and all our Law-bookes resolve and that upon this received Maxi ne of Law Quod tangit omnes ab omnibus debet approbari The king doth but like the Minister in Marriage declare it to be a Law but t is the parties consents which makes the marriage and the people onely that makes it ● Law to binde them whence those in a Cook 7. ●●luins case 7. H. 6. 35. b. Dyer 373. Br. Parliament 98. Scotland Ireland Man Garnsey ●●● Jer●●e are not bound by our English Statutes nor we by theirs nor tenants in Ancient demesne because they consented not to them Therefore the chiefe Legislative power is in the people and both Houses o● Parliament not in the king as it was in the Roman State Where the b Livy Hist ● 1. 2. Bodin Common-wealth ● 1 c. 10. people had the So●eraigne Iurisdiction of making and confirming Lawes to binde them not their Kings Emperours o● Senate as I shall hereafter manifest Secondly this appeares by the case of c Fiz Assise 413. Avowry 74. Praescri●●ion 67. Broo Custome 31. Co. 5. Rep. f. 63. 64. 67. 68 Kit●chin 45. 73 ●0 Customes and By-Lawes in Corporations and Mano●●s which binde all the Corporation and Tenants if they be reasonable without the Kings or Lords consents by reason of
doe both ● point of Law Divinity conscience resist the highest powers because they resist the Parliament and ● shall receive damnation to themselves for it either here or hereafter if they repent not which I seriously ●sire all those Delinquents Papists Malignants ill Counsellers and Cavaliers to consider who con●ary to severall Orders and Declarations of Parliament yea contrary to the Law of God of Nature of the ●ealme have like unnaturall Vipers taken up offensive Armes against the Parliament and Kingdome to ●ine them with our Religion Lawes and Liberties at once Thirdly Hence it followes that the Resolutions and Declarations of the Lords and Commons in Parlia●ent the supremest Court against the Commission of Array Arming of Papists raising of Forces impo●g Taxes to maintaine Warre against the Parliament plundering and the like ought to be obeyed and sub●itted to as lawfull and binding both by the King himselfe the Kingdome and every private Subject ●hatsoever and that the Kings extrajudiciall and illegall Declarations out of Parliament in direct oppo●ion and contradiction to the resolutions and Votes of both Houses in Parliament ought not to be obeyed ●e King himselfe as our Law Bookes resolve being no t 8 H. 4. 13. b. 24 H. 8. c. 12. 52 H. 3. c. 1. 25 H. 8. c. 21. Cookes 1 Institutes on Mag. Charta f. 103. See here p. 14. 34. competent Judge especially out of his Courts ●hat is Law or what not in those Cases but the Parliament onely Which extrajudiciall new device of con●olling affronting the Resolutions and Declarations of both Houses by opposite Proclamations and ●●clarations published in his Majesties name is such a transcendent violation of and contempt against ●e knowne priviledge the sacred venerable Authority and power of Parliaments as I am confident ●● age can parallell and if not severely vindicated by exemplary punishments of the highest nature up●● those ill Counsellors and corrupt Lawyers who contrive and pen them will bring this Highest grea●st and most honorable Court wherein the u 31 H. 8. c. 1 1 Jac. c. 1. Dr. Student 44. a. whole Kingdome and every member of it are represented into ●eater contempt and lesse estimation with all men whether Natives or Forainers then the basest Court ●● Pipouders is No King nor Subject ever yet attempted such affronts against the Resolutions of any Jud●s in inferiour Courts Let no person whatsoever then presume by pen or tongue any longer to a●●igne or traduce the Resolutions and Ordinances of this highest Tribunall If Kings or Counsellors of ●ate willinstruct or excite the Subjects perempto●ily to disobey and contemne the Ordinances the ●udgements of the Parliament let them never expect the least obedience or submission to any of their ●wn commands which are of lesser credit and Authority Fourthly That the Parliament and whole Kingdome being the highest power or any Member of ●●e Parliament cannot by any publicke Acts or Votes of theirs consented to in Parliament become Tray●●s or guilty of high Treason against the King either by the Common Law o● the S●atute of 25. Ed. 3. b page 4 5. ● 2 of Treasons which running in the singular number If A MAN c. that is any private man ● men by their owne private authority shall levy warre against the King c. it ought to be judged high ●reason extends not to the whole Kingdome or Court of Parliament representing it of which no trea●n was ever yet presumed and by this very act is made the Judge of all Treasons that are doubtfull being ●ver yet included within the words or meaning of any Law concerning Treasons and therefore cannot be ●ilty of it Hence the depositions of a Graf par● 6. p. 62 63. Galfredus Mo●●● Fabia● Polychr others Archigallo and Emcrianus two ancient British Kings by the unani●ous assent of the Lords and Commons for their rapines oppressions and Tyranny with other forenamed Sax● Kings and of Edward the second Richard the second Henry the sixth Edward the fourth by Acts ●● Parliament the creating of Richard the third King and the frequent translations of the Crowne from ●e right heire at Common Law to others who had no good title by the whole Kingdome or Parliament ●o lesse then c Bracton l. 2 Glan l. 2. f. 112 Myrror c. 1 sect 4. Britton c. 8. f. 16. c. 22. f. 39 25. E. 3. ● 2. See Rastal ●rote Sta●●f Crompt Dalton in their Titles Chapters of Treason high Treason in private persons was never yet reputed much lesse questioned or adjudged ●igh Treason in the whole Kingdome or Parliament or any chiefe active Members in these Parliaments which being above the King are uncapable of Treason for any their judiciall actions and resolutions in such cases being onely Tortious and Erroneous reversible by other Acts in Parliament not Trayterous and Rebellious as appeares by all the forequoted Statutes and by 13 Eliz. c. ● which makes it high Treason d page for any person to affirme That the Queene by Authority of the Parliament of England is not able to make Lawes e Walsingham Holin Graf Sto. Speed Martyn Fab. Polychro in 21 R. 2. 11 R. 2. c. 3 4. 21 R. 2. c. 12. and Statutes of sufficient force to alter limit and binde the Crowne of this Realme and the descent limitation inheritance and government thereof And for direct Authorities in this very point Robert Tresylian and Belknap then chiefe Justices Holt Fulthorpe and Burgh Judges Locton Kings Sergeant and Blake the Kings Counsell in the Parliament o● 1● Rich. 2. were condemned executed and banished the Realme as guilty of high Treason onely for affirming under their hands and seales f See the particulars more at large in 21 R. 2 c. 12. That the Duke of Glocester the Earles of Arundell aad Warwicke were and that other Lords and Commons might be guilty of high Treason for procuring a Commission and other proceedings in Parliament and be punished for it as Traytors Which opinion of theirs being afterwards affirmed for Law in a packed Parliament 21 Rich. 2. was the very next Parliament in 1 Hen. 4. c. 2 3 4. repealed and the judgement given against those Judges for this Trayterous opinion tending to the utter subversion of Parliaments resolved and enacted to be just This g See 1 H. 4. c. 3. and here p. 13. Judge h Spee p. 747 Belknap foresaw and therefore was unwilling to put his Seale to this opinion Saying There wanted but a hurdle a horse and hal●●● to carry him where he might suffer the death HE HAD DESERVED for if I had not done this ● should have dyed for it and because I have done it I DESERVE DEATH for betraying the Lords Which makes me wonder at a passage in i Hist p. 675 Speed who records it now frequent in Malignants mouthe● That the very shop where the Barons originall Treasons were forged was THE PARLIAMENT HOUSE wherein from time to time they
in their Controversies of the Popes Supremacy of general Councels Generall Councell above the Pope the Pope above the Archbishop the Archbishop above the Ordinary because men may Appeale from the Ordinary to the Archbishop from him to the Pope but now with us to the Kings Delegates If there be any difference betweene c See Grafton p. 512 513. 161. Matthew Paris p. 954. Fox old Edition p. 508. King or Subject touching any inheritances Priviledges or Prerogatives belonging to the Crowne it selfe or any points of misgovernment yea which is more if there be any suite quarrell or difference betweene our Kings in Act and any other their Competitors d See Hoveden p. 724 725 for the Crowne it selfe which of them hath best title to it who of them shall enjoy it and how or in what manner it shall be setled the Lords and Commons in Parliament are and ought to be the sole and finall Judges of it Not to give you a●y instances of this kinde betweene King and Subjects which I have formerly touched nor to relate how our e Walsingham Hist p. 514. Speed p. 647 648. Kings Edward the first King John f Matthew Paris p. 273. 274 275. condemned to death by a Parliament in France by French Peeres for slaying his Nephew Arthur trecherously with his owne hands and likewise to lose the Crowne of England Henry the third and other our Kings have Appealed to the Parliaments of France and England upon differences betweene the Peeres and Kings of France and them concerning their Lands and Honours in France Or how King Edward the third and Philip of France submitted both their Titles to the Kingdome of France to the determination in a French Parliament where they were both personally present which adjudged the Crowne to Philip Nor yet to repeate the i pag. 5. forementioned precedents how the Lords and Commons when the Title to the Crowne hath beene in dispute have transferred it from the rightfull Heires to others I shall give you some other pregnant evidences where the Parliament hath finally determined the Title to the Crowne when it hath beene in competition and setled it in a legall manner to avoid debates by way of Appeale to them by compe●itors or reference from the Kings themselves as the onely proper Judges of such a superlative controversie Not to mention any stories of our British Kings to this purpose where the * See Matthew Westm Fabian Grafton Holin Kingdom Lords and Commons then disposed of the Crowne in cases of minority want of He●res misgovernment and c●ntroversies ab●ut the Title to the Crowne * Polichron l. 6. c. 18. Speed p. 399. See Grafton and Holinshed accordingly Canutus after the death of King Edmond Anno 1017. claiming the whole Realme against Edmonds Brethren Sons referred his Title upon the agreement made between Edmond and him fo● this purpose to the Parliament who resolved for Canutus Title and thereupon tooke an Oath of feal●y to him Offering to defend his right with their swords against all others claimes After his decease the * Matthew Westminster and Malmes●wy Anno 1036. Holinshed l. 17. c. 13. p. 398. Speed p. 404. 406. Huntingdon Walsingham Anno 1036. 10●0 Title to the Crowne being controverted betweene Hardicanute the right Heire and Harold his elder but base Brother it was referred to a Parliament at Oxfo●d who gave their voyces to Harold there present and presently proclaimed and consecrated him King Anno 1036. After whose death the States of England sent and adjudged the Crowne to Hardicanute then in Denmarke He dying * Huntindon l. 6. Polychron l. 6. c. 18. Speed p. 410. Matthew West●n An. 1042. p. 415. Edward the Confessor by a generall consent of the Nobles Clergy and People who presently upon Harolds death enacted by Par●iament g Matthew Paris p. 893. 925. 930. 948. 954 655. Grafton p. 188 189 Speed p. 687 688 785 786. That none o● the Danish blood should any more Reigne over them was elected King and declared ●ight Heire to the Crowne Anno 1126. k Hoveden Hun●ingdon Matthew Westminster Matthew Paris Walsingham Polychronic●n Fabian Anno 1126. Speed p. 477. See Ho●inshed Grafton Stow Anno 1126. King Henry the first having no issue male but onely one Daughter Maude to fucceed him summoned a Parliament in the presence of himselfe and David King of Scotland wherein the Crowne was setled upon Maude after his decease being of the ancient Royall English Blood whereupon Stephen his Sisters Sonne and all the Nobles presently swore fealty to ●er As much as in them lay after King Henries death if ●e dyed without issue male to establish ●er Queene ●f the Monarchy of great Britaine But Stephen after his decease usurped the Crowne against his Oath h Polyd. Virgil l. 19. Claudius Seyse●●us his French Monarchy By the unanimous consent and election of the Lords and Commons And after seventeene yeares civill warres ●o the devastation of the Realme l Walsingham Ypod An. 1113 Matthew Westm An. 1153 p. 42. Matthew Paris ● 82 83. Speed p. 497. Hoveden p. 490. Hun●indon Hist l. 8 p. 598. Fox Vol. 1. p. 261. King Stephen and Henry the Sonne of Maude came to a Treaty ● Wal●ingford where by the advise of the Lords they made this accord That Stephen if he would should ●eaceably hold the kingdome during his life and that Hen●y should be his adopted Sonne and Successor enjoy ●he Crowne as right Heire to it after his death and that the King and all the Bishops and Nobles should ●weare that Henry after the Kings death if he su●vived him should P●ssesse the Kingdome without any conradiction Which done the civill warres ceased and a blessed peace ensued and then comming to Oxford in a Parl●ament all the Nobles did fealty to Henry who was made chiefe Justiciar of England and determined all the affaires of the Kingdome In the 8. and 25. E. 3. there was a m 25. E. 3. Parl 2. in the Statuts at large doubt moved in Parliament whether the children of the King or others borne beyond the Seas within his Allegiance should in●erit lands in England The King to cleare all doubts and ambiguities in this case and to have the La● herein reduced to ce●tainty charged the Prelates Earles Barons and other wise men of his Councell assembled in Parliam●nt in the 25. yeare of his Raigne to delibera●● of this point who with one assent resolved That the Law of the Realme of England is and alwayes hath beene such that the children of the Kings ●● England in whatsoever parts they be borne in England or elsewhere be able and owe to beare inheritance after the death of their Ancestors Which when they had declared the King Lords and Commons by a special Act did approve and affirme this Law for ever the onely Act passed in that Parliament And in a * Cooke l. 7. The Princes case Parliament 11. E. 3. this