Houses without the King represent the Universall Realm shall be considered anon passing that by I conceive that the Parliament truely so called is above the King taken solely for that it doth involve the King without whom they are not truely a Parliament The Parliament then thus considered is a whole compared with some part and the King but a part though the most excellent part of the whole Now every whole is greater then any part the Head though more excellent then all the other Members yet not more excellent then the whole Man whereof the Head is but a part But the King solely compared with the Parliament or rather the Houses of Parliament excluding or not involving the King is superiour and above them whether you consider them scorsim or conjunctim for taken conjunctim they make but a Body which though it be greater then then the Head in Bulk yet doth the Head excell in Vertue Excellence and Authority And although by vertue of representation they are the Body of the whole Kingdom yet is the King the Head of that Body and the Representative of God himself who I am sure is above the Body they represent It is a Principall undeniable Pax in parem non habet imperium multo minus in superiorâ—â—â— If then the Houses be above nay if but equall with the King He can have no Command over them But it is evident He hath Command over them He calls and commands them to assemble being assembled or united together He may command them to prorogue or adjourn for time or place upon which Command it is then their Duty to rise and remove and again at His pleasure He can dissolve them Although for this time His Majesty hath been graciously pleased to restrain Himself from the exercise of that Power yet the Power it self is still in Him as an Inheritance inseparable from His Crown The Representatives of the Kingdom either are Subjects or not That they are not Subjects by reason that they are assembled is absurd and so would not the Kings Protection due unto Subjects belong unto them If they are Subjects then doth the King remain their Soveraign and Superiour And indeed so far is their uniting and assembling in Parliament from diminishing the Kingly Soveraignty to which they were before all and every one Subject as that the Regall Majesty is thereby much more encreased and augmented Cromp. Jurisâ— 10. We are informed by Our Judges saith King H. 8. to His Parliament That We at no time stand so highly in Our Estate Royall as in the time of Parliament wherein We as Head and you as Members are conâ—oyned and knit together in one Body Politique If the Houses as representing the Universall Realm are above the King then they may judge Him punish or depose Him But they cannot judge Him 22 Edw. 3. 3. Le Roy per cux ne doit estre ajuge 3 Edw. 3. 19. Scrope Those which are Judges of Parliament are Judges of their Pâ—â—rs but the King hath no Peer within His Own Kingdom and therefore ought not to be judgedly them And for deposing a King or depriving Him of His Right and Authority or any necessary part thereof no Act of Parliament can prevail much lesse the Lords and Commons An Attainder by Parliament could not barre the title to the Crowne from descending on King H. 7. nor was an act of Parliament disabling King H. 6. to reassume the Government of his people of any force but without any repeale in it selfe frustrate and voyd 7. Rep. 14. Calvins case an act of Parliament cannot take away the Kings protection or the Subjects service which is due by the Law of nature 11. Rep. Sur de la wares Case William de la ware although disabled by act of Parliament was neverthelesse called by Q. Eliz. to sit as a Peere in Parliament for that it seemes the Queene could not be barred of the service and Counsell of any of her Subjects 2. H. 7. 6. A statute that the King by no non obstante shall dispence with it is void because it would take a necessary part of Governement out of the King If then no act of Parliament be of force to take away the government or any necessary part thereof from the King then surely is not any Ordinance of the Lord and Commons of force to doe it And consequently the Lords and Commons as representing the vniversall Realme cannot be above the King but inferior to him Before the King commanded them to assemble each particular and all of them were his Subjects and inferior to him If by assembling into one body and the vertue of representation they cease to be his Subjects and inferiors why doe they then in all their petitions and declarations or Answers proceeding from them not as particular men but as houses of Parliament united stile him Their gracious Soveraigne and themselves His Majesties most humble Subjects the Lords and Commons in Parliament Let our Observator judge whether these representatives have not ill discharged their duty to the Kingdome by debasing thus the underived Majestie so he calls it of the people by petitioning in so low and humble a forme him that is but their creature and in whom there is no Majestie but what is from them derived downe unto him for so the Obseruator conceives it But now to answer the Observators Argument which is thus There is nothing saith he more known or assented to then this that although the King be singulis major yet universis minor being below the people then in universali he must likewise be below the representatives of that universalitie I will not stand to question what necessary connexion these propositions have The people are above the King therefore their representatives are so The King of England is above the King of Spain doth the English Embassadour therefore take place of the King of Spain But admitting a necessary Connexion The people are above the King ergo the houses representing them Why then è converso The houses representing are not above the King ergo the people represented are not and so having proved the houses below the King I have already proved the King above the people yet a word more 'T is true as the Observator saith nothing is more known or assented to then this that the King solely is Minor universis the universalitie including the King For no part be it the head can exceed or be greater then the whole But againe if the King and universalitie bee contradistinguished nothing is more known or assented to then this That the King I speake of the King of England a Soveraign King not a Duke of Venice is not onely singulis major but major universis Nay most properly is the King above the people considered as an entire Congregation For chiefly as he is King he is above all others Now King relates to kingdome Rex to Regnum and Kingdome or Regnum denotes an
Conventions will appeare by these ensuing proofes Com. 79. Although the Lords and Commons agree to a thing it is but as an Embrio or issue in the belly and yet unborne It were to bee wished these Embrio's â—id not at present too much trouble this part of the world Lamberts Archeion 271. The necessitie of the assent of all the three Estates in Parliament is such as without any one of them the rest doe but lose their labour 11. H. 7. 27. per Davers Le Roy est assentus ceo fait un Act de Parliament Polidore 185. Nihil ratum habetur nisi quod major pars utriusque concessus senserit idque rex comprobarit Cowell â—nter verbo prorog. The King may quash any Law 8. Rep. 20. b. Cromptons Iurisd. 8. 6. Institut 1 part 90. b. Institut 2. part 158. accord ' Sir Tho. Smyth at Republica Anglicana lib. 2. cap. 3. No Bill is an Act of Parliament Ordiâ—inaâ—ce or Edict of Law untill both the Houses severally have agreed unto it No nor then neither but the last day of that Parliament or Session the Prince commeth in person and declares his pleasure concerning their proceedings whereby the same may have perfect life and accomplishment by princely authority and so have the whole consent of the Realm those that the Prince doth â—â—ow be taken as perfect Lawes and Ordinances of the Realm of England and none other to those which the Prince liketh not he answereth Le Roy advisera and thâ—se be accounted utterly dashed and of none effect Bodin de Republica lib. 1. cap. 8. Albeit that in the Parliaments of England which have commonly been holden every third yeare there the Estates seeme to have every great libertie as the Northern people almost all breath thereafter yet so it is that in effect they proceed not but by way of supplications and requests unto the King As in the Parliament of England holden in October 1566. When the Estates by a common consent had resolved as they gave the Queene to understand not to entreat of any thing untill they had first appointed who should succeed her in the Crowâ— shee gave them no other answer but that they were not to make her grave before she were dead All those resolutions were to no purpose without her good liking neither did she in that any thing that they required Now also the Estaies of England are never otherwise assembled no more then they are in this Realm of France or Spaine then by Parliament Writs and expresse commandments proceeding from the King which sheweth very well that the Estates have no power of themselves to determine command or decreâ— any thing seeing that they cannot so much as assemble themselves neither being assembled depart without expresse commandment from the King Yet this may seeme one speciall thing that the Lawes made by the King of England at the request of the States cannot be againe repealed but by calling again of the States which is much used and ordinarily done as I understood by Master Dale the English Embassadour an honourable Gentleman and a man of good understanding who yet assured me that the King received or rejected the Law as seemed best unto himselfe and stuck not to dispose thereof at his pleasure and contrary to the will of the Estats I might adde many more but that by understanding men I should be laught at as holding a Candle to the Sun Let the Observator tell me which of all these doth not say fully as much as that which he saith at one blow confounds all Parliaments and subiects us to as unbounded a regiment of the Kings meere will as ever any Nation under Heaven suffered under Let him against all these and such others as I might adde alledge but one single opinion from the beginning of the world till 1640. that in publike Cases the Lords and Commons have any vertue and power without nay maugre the King to oblige the subiect in generall by any Law or Ordinance they shall make and I promise him upon that to turn Reformado Meane while I must think not the King but the Observator with one blow confounds all Parliaments for it doth not only cut off the head with which the vertue life and soule of that body expires but by the same reason it cuts off likewise the Lords from being any necessary part of the Parliament For if the Commons shall adiudge that the Militia for repelling danger ought to be put into such a way as dislikes the King and maior part of the Lords that 's in truth now the Case yet ought the House of Commons being virtually the whole kingdom to be obeyed by the people against the will and command of King and Lords and against the desire of the minor part perhaps by two Votes in the House of Commons If the maior part of the Lords shall be bâ—uited to bee Popishly affected or Malignant and thereupon their names shall be required that so the Rabble-rout may take a course with them by meanes whereof they are necessitated to absent themselves and by like seditious courses a considerable part if not the maior of the Commons shall be driven from Parliament if after this by the cunning practise of some few the Major part of Lords and Commons that shall be remaining shall adjudge such Assemblies not to have bin riotus and seditious and that therefore themselves have power as a free Parliament to provide for the safety of the Realme and shall therupon by or dinante require a Levy of Subsidies to be presently made throughout the Kingdome you will say the Subjects are bound in such case to lay along their necks and pay and is not this to subject us to as unbounded a regiment of meere will as any Nation under heaven ever suffered under This is more then ever the King pretended to he never claimed a power â—o make Lawes and lay taxes without the consent of Parliament he onely layes claime to a negative voice that they without him may not make any Lawes or charge his Subjects but that all be done by the joynt consent of him and his people and otherwise their proceedings without him to be vertulesse and of no force Against which so well knowne right let us see what worthy argument the Observator brings forth By the same reason saith he that Parliaments are thus vertulesse and void Courts upon the Kings desertion of them other Courts must needs be the like and then what remaines but that all our Laws rights and liberties be either no where at all determinable or else onely in the Kings brest He is very wary not to fall under the Kings determinations though as appeares before the â—nd why a King was set over Nations was to judge them and Bracton tels us That the King by his oath is obliged if he were able in person to judge his people And t is a known principle in the Lawes of England Rex presumitur habere
when not and if the people have power to Iudge of danger and defend themselves without and against their King then may they intrust that power unto some others for that all should assemble â—â— next to impossible and could not be without confusion a few thâ—refore may bee intrusted to judge for all and to direct the manner of their defence well It is admitted they may intrust this power with some few but that they have intrusted it with the Lords and Commons I must deny There is no colour to say it is intrusted with the Lords they judge only for themselves and if the King intended to alter the Government or Religion it is likelie he would create such as should assist his intentions and therefore it will be of little purpose to give the kingdome a power to judge of dangers and save it selfe unlesse they may doe it by the major part of their proxies alone both against King and Lords You put in the Lords only to glosse your actions for the present but by your principles the power must bee in the Commons onely if anywhere Now cleerely there is no such trust imparted to the Commons their trust is limited by the writ to advise with the King not to make Acts and Ordinances in any case against him Nor can I possibly see why the Coroners elected by the body of each Countie according to the Kings writ might not as reasonably claime this trust as the major part of the Commons alone unlesse we must therefore thinke it to bee the Commons right because they now pretend unto it The Observator tells us We may not imagine the Houses should be injurious no age will furnish us with one story of any Parliament freely elected and held that ever did injure a whole kingdome or exercise any Tyranny I 'le charge tirannie on none only I say if the now major part of Lords and Commons against the Kings pleasure and authenticke Proclamations have power to command the subiects in generall and to imprison kill and slay such as withstand their commands and obey his Maiesties Proclamations I would gladly bee instructed how this power is derived unto them either from King or people or whether we must think they above all other men were naturally borne unto it Meane while I like well the Observators note in honour of free Parliaments that never any such iniured a kingdome But yet such as have called themselves free Parliaments have injured King and kingdome this have the Lords and Commons done when they have left the head free in His Royall assent or disassent to such Bills as they had a minde to passe of which take one Example 15. E. 3. The Lords and Commons pressed the King to passe a Law derogatorie to his just prerogative that Parliament being ended and the kingdome representing it selfe againe the same yeare it was enacted Whereas in the last Parliament certaine Articles expressely contrary to the Lawes of England and the Prerogatives and Royall rights were pretended to be granted by manner of a Statute the King considering how that by the bond of his Oath he was bound to the defence of such Lawes and Prerogatives because the King never freely consented to the said pretended Statute It seemed good to the Earles Barons and other wise men that sithence the said statute did not of the Kings free-will proceed the same should be voyd It seemes at this time the King was not bound to passe whatsoever the Lords and Commons Voted to be for the good of the kingdome And his oath did tye him to seeke a restitution of his prerogative against such forced lawes so farre was it from tying him to passe all such lawes as the Houses should judge fit Questionlesse the King is bound by oath and office to passe all good and just lawes yet that part of the oath that hath beene urged doth not prove so much But the question is whether hee bee not free to judge what is a good and just Law and what not But must submit his understanding judgment and Conscience to the votes of Lords and Commons so that the sixe Articles for poperie passe them he is bound to passe it Queene Elizabeth was bounâ— to passe an Act abolishing popery because the Lords and Commons had Voted a Bill againâ—â— Protestancie Queene Mary was bound to passe that likewise So againe the King wishes all good subjects to put the case to themselves If the Papistâ— in Ireland should make themselves the major part of both Houses and pretending their Religion to bee in danger of extirpation by a Malignant party of Protestants and puritans should passe a Bill for setling the Militia in such as they should confide in is not the King bound to assent unto it Not in that case saith the Observator For England and Ireland are one and the same Dominion there is as true and intimate an union betwixt them and England as betwixt England and Wales though they meete not in one Parliament yet to sâ—â—â— purposes their Parliaments are not to be held severall Parliaments and therefore if Papistâ— were stronger and more in Parliament there yet would they want authority to over rule any thing voted and established before in England and they being the minor part of Ireland 〈◊〉 ENGLAND both ought to sit downe for that the major part will probability prevaile against them and in all suffrages the minor part that bloud may not bee shedâ— ought to 〈◊〉 downe Alack alack how doth the good man bestirre himselfe to bedge up a seeming answer unto this objection He supposeth England and Ireland to be one and the same dominion which is certainely false Statutes that are limitted to the Realme and Dominion of England do not extend to Ireland That there is as true and intimate an union betwixt England and Ireland as betwixt England and Wales is conâ—radicted by himselfe acknowledging England and Ireland to be governed by severall Parliaments severall to most if not to all purposes T is true Ireland is united to the Imperiall Crowne of England and so is Scotland yet all three are distinct kingdomes He saith they want authoritie there to over rule any thing established before in England But Ireland will say the English Parliament wants authority to establish a Religion in Ireland Or admit the Irish Parliament hath not authoritie to over rule any thing established before in England yet the point that the King instanteth in that is the Militia of Ireland is not established by Parliamâ—nt in England why ought not the King then to assâ—nt to the disposall of it according as the Irish parliament shall desire or if he will not assent why may not the Irish of themselves dispose of it as now the English doe If we shall admit them to be one Dominion why then if the papists in Ireland the popish partie in England and their adherents the Episcopall party and the misnamed Malignant partie shall joyne in one desire against
universalitie or body collected As he is head so is he in place power and dignitie above the body politique or universalitie and not otherwise the head of any particular but as he is a part of that universalitie As out of the Embrion saith Fortescue ariseth a body naturall ruled by one head even so of a multitude of people ariseth a kingdome which is a body mysticall governed by one man as by its head As then in the naturall body the head is improperly said to be the head of the arme or of the leg but the head of the body so in truth must the King be made the head of the misticall body not of the particular members The King is but one head and therefore but of one body not then of the particulars which are many bodyes but of the universall one body There is a politique body wich is the Vniversalitas Angliâ— hath this body politique no head or is the head inferiour to its body and yet no Monster The Observator will object that the politicall head must be sâ—bservient to its body for that it received its first being and subsistence from the body we shall hereafter prove that the Regal power hath alwayes its being from God though it be sometimes with the peoples approbation And as the politicall head hath its subsistence with the body and must be destroyed by its dissolution so if you destroy the head or kingly power you destroy the kingdome and dissolve it into a Chaos and confused multitude Nec populus Acephatus saith Fortescue corpus vocari meretur quiaut in naturalibus capite detruâ—cato residuum non corpus sed truncum appellamus Sic in politicis sine capite communit as nullatenus corporatur But admitting that in the body politique the head hath its power authority derived meerly and solely out of the politique provision that radically and habitually was in the people to provide for its own safety and weale yet I cannot see how it will follow that therefore the Regall power must be subservient and subject unto the people for as in the naturall body the heart being primum vivens distributeth blood and spirit unto all the members and giveth life and vertue unto the head it selfe yet must that and the whole body be subject unto the head which as Supreame governeth and directeth the whole man A second kingly Attribute is this that he is Sponsâ—s regni and at his Coronation wedded with a Ring unto the kingdom The Observator saith this must be applyed to subjects taken devisim not conjunctim Otherwise as the wife is inferiour to the husband so would the people be in politiques to the King But in sadnesse is the King wedded to the particular men and women within this kingdome with beards and without I pray how many wives will he so have The Observator foresaw the Arguments which might be drawne from these and other attributes whereby Princes are 〈◊〉 Gods Lords Fathers c. and that therefore subjects must stand by the same relation as Creatures Servants Children c. all Which he would shift off by his misapplyed distinction of Kings are such singulis but not universis But indeed a King is said to be a Father or Pater patriae that is of the universalitie not of particular persons And elsewhere the King is termed an Oeconomus or Paâ—eâ—familuis which with no congruity can be said in respect of particulars Nor can the Observator satisfie any man considering that Domesticall government is the very Image and modell of Soveraignty in a Common-weale why children and servants might not as wel use this distinction against their Parents and Masters as subjects against their Soveraign for may it not be objected though the Father in relation to his Children or a Master of a Family in relation to his servants be singulis major yet Vniversis minor and therefore if all the sons or servants hold together they may command their Father or Master or turn him out of doores which was wisely foreseen by Agesilaus when he returned this answer to a Citizen of Sparta that desired an alteration of the Government That kind of Rule which a man would disdain in his own house were very unfit to governe great Regions by But the Observator will object that the relation holds not alike betwixt King and Subjects as between Master and servants For that the Master saith he is more worthy then his servants and above them all but this holds not in relation betwixt a King and his Subjects Why that 's the question For proofe whereof although he neither doth or can alleadge any one authority yet to prove the contrary that the people neither conjunctim nor divisim and much lesse then representatives are more worthy or above the King amongst many peruse these few Bracton l. 1. cap. 8. Omnis quidem sub eo rege ipse sub nullo nisi tantum sub Deo parem non habet in regno suo quia sic amitteret praeceptum nam par in parem non habet imperium item nec multò fortiùs superiorem nec potentiorem habere debet quia sic esset inferior sibi subditis If he be tantum sub deo then not under the people or their representatives 19. E. 4. 6. If all the people in England would make a warre yet if the King will not assent it cannot be said a warre but the King alone may make a warre or league Is not the King in this above all the people in England 24. H. 8. cap. 12. Where by divers sundry old authentique histories and Chronicles it is manifestly declared and expressed that this Realme of England is an Empire and so hath been accepted in the world governed by one Supreame head and King having the Dignity and royall estate of the Imperiall Crowne of the same unto whom a body politique compact of all sorts and degrees of people been bounden and owen to beare next to God a naturall and humble obedience c. Note the King the supreame head true saith the Observator singulis not universis unto whom a body politique compact of all sorts been bounden and owen next to God Then no mediate underived Majestie 'twixt God and him a naturall obedience that is due by the law of nature or the Divine Law not onely by the pactions and agreement of politique Nations 25. â—â— 8. 25. H. 8. This your Graces Realme recognizing no Superiour under God but only your Grace By Realme is meant either Subjects divisim or conjunctiâ— If divisim then no particular is subject to Judges and Justice nor to the Lords and Commons in Parliament but onely to the King which is absurd If conjunctim then is the King in the act recognized Major universis Camb. Eliz. pag. 39. The Queene explaines the Oath of Supremacie that she claymes nothing thereby Quam quod ad coronam Angliae jam olim jure spectavit scilicet se sub Deo
c. Dan. 4. Cuicunque voluerit det illud Prov. 8. By mee Kings reigne by mee Princes rule By these places it is manifest I thinke that although the peoples election may sometimes operate in the specifying of power and designing the person yet never is it a cause of that power God onely is the authour and efficient cause thereof See Kitchin fol. 10. Le Roy est ordaine de Dieu And therefore was that ever renowned Elizabeth acknowledged by her Parliament to be the lawfull Queen of England Iure Divino so saith Cambden pag. 25. And the Parliament thought it just that King H. 8. Having his Kingly and Regall power given by God saith the Act should in case of necessity that would not abide the calling of a Parliament by his Proclamation or Edicts provide for the safety of the Realme Regall power in specie if it were conveyed or given by the people then must it first have been in the people for Nihil dat quod non habet Now that Regall power could be in the people is impossible for 't is against the nature of Regality to be in more then one Rex unicus esto If the people had Regall power I would know over whom Multitudo Deorum nullitas est Deorum Were supream power radically and originally in the people and by them delegated to some particular person that should governe as a King the King as their instrument would but propound Laws but the people must enact them As in Rome while it was a popular State and that Magistracy was but beneficium populi Leges saith Livy à Magistratu proponuntur tantum sed â populo jubentur But now in the government of this Realme 't is cleere contrary Leges tantum proponuntur à populo jubentur à Rege By which it is manifest that Regall power with us cannot be beneficium populi But again the Observator must not take it for granted that the determination of power to Regall rather then Aristocraticall c. or the placing of it in such particular person was always with the peoples election for surely Regall power and the persons that should governe without any choice of the people hath been determined by God himselfe I shall not insist on the particular institution of Monarchicall Government amongst the Angels good and bad nor on that which Bees and other sensitive Creatures doe observe by that instinct of nature that the Divine Goodnesse hath implanted Nor on that Monarchicall Government amongst the Iews which was often particularly determined by speciall ordinance sent from Heaven by the Ministery of Angels or Prophets though this were sufficient to disprove what the Observator affirmeth That God is no more the Authour of Regall then Aristocraticall power I shall only observe that even in Adam and after among the Patriarchs Noah Abraham Iacob and others the common Fathers of Mankind Regall Government was instituted by GOD himselfe without any Election of the people GOD created Mankinde ex uno ut esset inter homines non Democratia sed Regnum after which the Elders or Fathers of Families successively had by their Eldership not only paternall but Regall power as appears by their making war and execoting sentence of death upon offendors And from these originall Stock-fathers Kingdoms and Monarchies I suppose for the most part have had their beginning without popular Election in their first commencement and therefore I would have our Kings style continued Carolus Dei gratia rather then Carolus electione populi This is excellently declared by Sir Thomas Smith in his Commonwealth lib. 1. cap. 12 to have bin the naturall source or beginning of that Government which is termed legitimum regnum to difference it from Tyranny and absolute Dominion Such as Nimrod and others first gained by usurpation and after held by violence over the people And which is not otherwise from God then as the Divine providence pleaseth to direct it to the punishment of a sinfull people or to such other purpose as to his divine wisdom seems best But with such absolute Dominion England hath nought to dâ—e 't is legitimum regnum that takes place with us where the royall power saith Fortescue is restrained by power politique that the King can neither change the law without the consent of the subjects nor charg them with any strange impositions against their will And hee there cites Aquinas to prove that by this Rule and kind of Regiment should all Mankind have been governed if in Paradise they had not transgressed By which iâ— appears that God in the Law of nature instituted this forme of Government And whether we call it Paternall or Regall it refers to that institution and is from thence derived True it is that violence of war and vulgar Commotions may in most places have interrupted and altered the course of succession according to this Divine institution upon which occasion popular Elections may have interposed But the King once Elected and seated in his Throne is thenceforth dâ—â—mâ—d to reigne by that Paramount right unto which the peoples election is but a restitution or as that learned Historian Kings are made by God and Laws divine and by humane Laws only declared to be Kings and thereupon he observes that David thought himself accountable onely to God Tibi soli peccavi Psal. 51. But againe if it were admitted that the people originally were the Authours of that Regall power by which they are governed I cannot see how it doth necessarily follow that therefore there remayns in them a power above the King I acknowledge that Maxime with its just limitations holds truly in naturall causes Quicquid efficit tale est magis tale but surely it is mightily misapplyed by the Observator who would have us imagine if the people made a King they are themselves more King then he I should rather think if Regall power were originally conveyed from the people they by conveying it over have devested themselves of it If it were conveyed with conditions then under those conditions may it be held against them if absolutely then may it be held absolutely over them It was necessary by the Law of nature that they should convey over a power unto some for will they nill they a people cannot be without a Government Or were their conveyance voluntary have they therefore a power over it at pleasure to revoke it although it were often ratified by Oaths of Allegiance and Supremacy Doth not this doctrine destroy not one y Monarchy but all Government whatsoever The people you say are the Authors and efficient cause of that power that the Parliament Members have by Conveyance from them may the people therefore conclude themselves to be above the Parliament and at pleasure revoke and controll their power May Newcastle or any other particular Borough or County disauthorize those they have impowred Or if a particular Borough or County cannot remove their proxies yet the major part of the
list to unsettle principles power being you say nothing else but that might and vigour which a society of men containes in it selfe why should the might and vigour of these being farre the major part be over mastred and concluded by the Votes of those that are deputed by a miner number of the people or why should halfe the Kingdome in which there are but few Burroughes be equalled and overborne in Voting by two Counties out of which many Burgesses are chosen Old Sarum shal have as many Votes in Parliament as the Citty of London or County of Wiltes By which it seemes the Commons are not sent with equallity from all parts nor sent by all how doe they then represent all what reason is there that all the Kingdome should sit downe with their Votes the truth is the King Lords and Commons in conjunction are vertually the whole Kingdome for that all the people did at first submit themselves to their determination 25 H. 8. 21. your royall Majestie and your Lords and Commons representing the whole Realme in this your most high Court of Parliament have power c. So that in the King principally but yet in conjunction with the Lords and Commons is the vertue and power of the whole Kingdome contained But if we shall admit that the vertue and power of the whole Realme is by representation in the Commons alone or at least in the Lords and Commons what will thence follow the Kingdome you will say are the efficient cause of Kingly power and consequently above it they being above it have power over it may reassume it or dispose of it to such persons as they can confide in and this power the Kingdom may confer upon such as they shall choose for that purpose The Observator hath met with a free Gamster though his principles have beene particularly disproved and are distructive not onely to Monarchy but unto all government yet at present let him take all for granted First that the people have such power and secondly that they may transmit it unto such as they shall choose for that purpose But the question is whether they have done it whether they have chosen the new members for that purpose or for some other The King did not create the Lords I beleeve for that end nor create Borroughes with power to send Burgesses for that end nor command the Counties to elect Knights for that purpose nor did the Borroughes and Counties when they did elect give any such power upon the receipt of the Kings Writ by the Sheriffe and warning or notice given to the Freeholders they meet and cry up some mans name this in it selfe imports nothing but with reference to the Writ so that the people intrust them to doe onely what the Writ requires and thereupon the Sheriffe returnes Elegi feci duos milites who have power from the County ad faciendum what I pray quod breve in se exegit in that they have no avthority without the King to judge of dangers and oblige the King and people to goe their way for repelling the â—ame and yet doth the Writ continue as large as ever it hath been seeing neither the Kings writ nor the peoples election made thereupon doe give it I demand whence have the Lords and Commons excluding the King this soveraign power to judge of dangerâ—â— and thereupon if they so cause to take from the King the power of the Kingdome and according to their pleasures to dispose thereof unto certaine confiding persons unto which disposition the King and people are all required to conform and give consent We have beene often told that it is by the fundamentall Law of the Land a foundation so deepe that like the River Nilus it hides its head from all that seeke it never yet could any the most learned instruct us where to finde out this fundamentall Law which hath layen buried so long that no Law-booke Record or Chronicle makes any the least mention thereof But yet at length a certaine Pamphleter defending the Observatour hath hapt upon it but not amongst the Lawes of this Land he was nessitated to dig a little deep for it but amongst natures principles It is radically couched in nature it selfe and irrepealably enacted in her Magna Charta to which all positive Lawes must in equity vaile that the State may lawfully of its selfe provide for its preservation espectally if the King either see not the danger or seing it will not provide for it in such mâ—nner as may give best security to himselfe and the Common-wealth Certaine it is there is no state but is endued with ability and meanes to preserve it selfe instinct of nature will force all men preserve themselves from present destructior and providence teacheth all to provide against future emergent dangers and this surely the State of England hath done in submitting it selfe to the care and protection of a King on whose good foresight and wisdome next under God the welfare of the whole Realme dependeth he sits as on a watch Tower survaying his owne dominions and by the vigilancy of his Councell at home and Embassadours abroad hath timely intelligence of any approaching evill against which if he shall need any extraordinary advise or aide of his Subjects he hath power by his writ to assemble them in Parliament and with their assent to raise mony and other necessary provision for their defence and safeguard And this I say is that meanes of safety wherewith the State of England hath provided it selfe by putting themselves for better for worse under the protection of a King against all dangers And certainly he that ought to protect them against dangers to him it appertaines to judge of danger and so much was admitted by those who argued for the Subject in case of Ship-mony that the King was sole Judge of the dangers but that he could not therupon tax the Subject but by assent in Parliament But what you will object if the King will not see the danger or seeing it will neverthelesse suffer the Kingdome to fâ—eat at all hazzards or what if being carried away with Malignant Counsell he himselfe shall steere it towards rocks and shelves May not the Kingdome in such case save themselves from ruine and oppose the King There can be no Generalissime so uncircumscribed but that if he shall turne his Cannons upon his owne Souldiers they are ipso facto absolved of all obedience of all Oathes and tyes of Allegiance whatsoever for the time and bound by higher duety to seeke their owne preservation by resistance and defence For my part I cannot but thinke that a state after much sufferance seeing utter destruction to be at hand ready to swallow them up may use any good and lawfull meanes as flight and avoydance to preserve themselves from ruine by the hand of a tyranizing Lord yet I dare not approve of active resistance by taking up armes against a lawful Soveraign Prince though
â—yranizing over his Subjects If the Prince saith Bodin be an absolute Soveraigne as are the true Monarches of Spaine England c. where the Kings themselves have the Soveraignty without all doubt or question not divided with their Subjects in this case it is not lawfull for any one of the Subjects in particular nor all of them in generall to attempt anything either by way of fact or of justice against the honour life or dignity of the Soveraigne albeit that hee had committed all the wickednesse â—mpiety and cruelty that could be spoken for as to proceede against him by way of justice the Subjest hath uo such jurisdiction over his Soveraigne Prince of whom dependeth all power and authority to command Now if it be not lawfull for the Subject by way of justice to proceede against his Prince how should it then be lawfull to proceede against him by way of fact or force for question is not here what men are able to doe by strength and force but what they ought of right to doe the subject is not onely guilty of Treason in the highest degree who hath slaine his Soveraigne Prince but he also which hath appempted the same who hath given Counsell or consent thereto And then he goes on to prove the same by sundry examples taken out of Scripture and then saith he to answer vain objectiâ—ns were but idely to abuse both time and learning But as he which doubteth whether there be a God or noe is not with arguments to be refuted but with severe punishments so are they which call into question a thing so cleare and that by Bookâ—s publiquely imprinted that the Subjects may take up armes against their Prince being a Terant Howbeit the most learned Divines are cleare of opinion that it is not lawfull without especiall command from God And as for that which Calvin faith if there were at this time Magistrates appointed for the defence of thee people and to restraine the insolency of Kings as were the Ephori in Lacedemonia the Tribunes in Rome and the Demarches in Athens that they ought to resist and impeach their licentiousnesse and cruelty He sheweth sufficiently that it was never lawfull in a right Monarchy for he speaketh but of the popular and Arâ—stocratique States of Common-weales We read also that the Protestant Princes of Germany before they entred into armes against Charles the Emperour demanded of Martin Luther if it were lawfull who frankly told them that it was not lawfull whatsoever Tiranny or impiety were pretended yet was he not therein of them beleeved So thereof ensued a most deadly and lamentable Warre the â—â—d whereof was most miserable drawing with it the rume and destruction of many great and noble houses of Germany with exceeding slaughter of the Subjeâ—ts The Prince we may justly call the Father of the Countrey and ought to bee more deare unto every one then any Father Et nulla tanta impretas nullum tantum scelus est quod sit parricidio vindicandum I say therefore that the Subject is never to be suffered to attempt any thing against his soveraigne Prince how naughty and cruell soever he be Lawfull it is not to obey him in all things contrary unto the Lawes of God and nature to fly and hide our selves from him but yet to suffer stripes yea and death also rather then to attempt any thing against his life or honour This is the substance of that learned Protestants discourse which is worth your reading at large But alas all this discourse is besides the present businesse nothing is attempted against the life or honour of the Prince the taking up of Armes and shooting bullets at him is in defence of his Majesties person there are no expressions in this observatour nor yet in him that hath made observations upon a speech of King James with eight and twenty Queres nor in any other Pamphlets that licenciously slye about that doe at all touch the honour of the Kings Subjects may not resist saith Bodin and our best Divines without speciall command but ouâ— Brethren now have speciall instruction from the Spirit to doe what they doe or if they have not the Spirit assuring them that they may take armes against their Prince yet Master Cal. hath well distinguished that it is one thing to sight against a King another thing to fight against the lusts of a King Against the lusts of a King my beloved Brethren we may fight nay we ought to fight against them And our Observatour stands in defence of that distinction That levying Forces against the personall commands of the King though accompanied with his presence is not levying warre against the King but warre against his authory though not person is warre against the King But in truth are not all these shifting distinctions like a Shipmans hose that will fit an Jrish Rebell as well as an English I dare not speake my minde of that distinction the Observator maintaines but you shall heare what an honourable Chancellour of England hath long since said of it This is a dangerous distinction betweene the King and the Crowne and betweene the King and the Kingdome it reacheth too farre I wish every good Subject to beware of it It was never taught but either by traytours as in Spencers Bill in Edward the seconds time or by treasonable Papists as Harding in his confutation of the Apologie maintaineth that Kings have their authority by the positive Law of Nations and have no more power then the people have of whom they take their temporall jurisdiction and so Ficlerus Simanca and others of that crew by seditious sectaries and puritans as Buchanan de Jure Regni apud Scotus Penry Knox and such like in Calvins case it is reported that in the reigne of Ed. 2. the Spencers to cover the treason hatched in their hearâ—s invented this damnable and damned opinion that homage and oath of ligeance was more by reason of the Kings Crowne that is of his politique capacity then by reason of the person of the King upon which opinion they inferred execrable and detestable consequence 1. If the King doe not demean himself by reason in the right of his Crown his leiges are bound by oath to remove the King 2. Seeing the King could not be removed by suit of Law that ought to be done per aspertee 3. That his leiges be bound to govern in aid of him and in default of him All which were condemned by two Parliaments I will not say that this concernes the Observator or any body else let others judge I only say I am unsatisfied how we may lawfully use active resistance with our swords in our hands against a lawfull soveraign Prince though tyrannizing or if it might be done yet certainly not till after much sufferance and that destruction shall open its jawes ready to swallow us up and not upon imagenary feares and jealousies such as we have had now at lest twelve moneths past
from Papists training under ground and conspiracies against the State discovered by a traytor lying in a diteh and which have bin wrought in us by weekly relations of horrible terrible strange newes from Denmarke France Spaine and from all places in Christendome excepting Amsterdam from thence no danger at all to be feared But what if a kingdome may not resist shall they not therefore have meanes to save themselves if a seduced King shall indeavour to lead them backe to popery or to bring them under an arbitrary rule may they not in good time foreseeing the danger arme themselves for defence and not suffer themselves to be led on to the ruine of their lives fortunes and religion For Religion surely no Subjects ought to depart from it at the pleasure or command of any Prince or Potentate how great or absolute soever his power be and for their lives and fortunes no Common-wealth may want a meanes of preservation Salus populi supremalex But I thinke the best way to preserve a Kingdome or people is not to allow them a power upon such suppositions to rise against the pleasure and command of their King or Governour Caligula in a suddaine fit of cruelty might wish that all his Subjects heads grew upon one mans shoulders that so at one blow he might cut them off But is it possible that after deliberation such an unnaturall wish should settle in the minde of any Tirant certainly t is neer bordering on impossibility that a King should seriously desire to destroy the lives and fortunes of all his Subjects with which his own Soveraignty will necessarily be destroyed or if he should endeavor to make them slaves and vassals to his arbitrary power what doth he else but change the good title of a King to that of a Tirant which before a lawfull Prince will ever doe he must be extreamly blinded with ambition and cruelty And if a King of England should affect it yet hath the Law disabled him to effect it his commands must all run in the right Channels of Justice and equity or by no particular officer ought to be obayed Nihil aliud potest Rex in terris cum sit Minister Dei et ejus Vicarius quam quod de jure potest it is then a very remote danger and almost impossible that can this way befall the Subject and yet seeing it is not altogether impossible a mischiefe I must acknowledge it is to be under such a possibility But on the other side if you gâ—ve way to the inconstant multitude upon pretence of saving themselves and the kingdome to rise against authority we shall every day have the government hazarded if not destroyed and in such case doth not even naturall prudence instruct us to live under a possible mischief then under a daily inconvenience this Doctrine of the peoples power to judge of danger against the commands of their Soveraigne and upon that to take up defensive armes if it should be admitted will be more pernicious to Kingly government out of Parliament then it will be to Parliaments themselves for as the people may preserve themselves against a wilfull seduced Prince that would destroy them so may they against an Ordinance of the Lords and Commons if they shall judge it to tend to the destruction of the Kingdome or subversion of Government the Charter of nature by its supreame Law intitles all to seeke their salety and against this it will be of little purpose for you to tell the people that next to renouncing God nothing is more pernitious then to forsake thier representatives when they shall judge their representatives forsake their trust and would leade them on to Anabaptisme or any other way to destruction The King is Judge of danger at least out of Parliament but if he will not see dangers or if he himselfe shall become a danger to the Kingdome the Kingdome may save it selfe In Parliament we will suppose the Lords and Commons are Judges of danger but if some driven away by force and the rest seduced by a Malignant party will not see dangers from Anabaptists Brownists c. or shall themselves become a danger to the State and setled government the people may save themselves from ruine t is so written in Natures Magna Charta cap. 1. Will not this cloak sit exceeding well upon the backe of Irish Rebels they judge their Religion restrained and ready to be destroyed by a Prince seduced by the advise of English Protestants and defence and maintainance of their Religion they take up armes let 's first lay this ground in England and then let a Doctor in Divinity or some seditious IMP walke up and downe under hand like the pestilence in the darke to infect the minds of silly men and make up a faction whether against King or Parliament thereupon what thinke you will become of Regall and Parliamentary power will not they both be made subject to the designes of such seditious Protestants as at any time shal be able with the glorious names of Liberty and selfe preservation to abuse and intoxicate the minds of the wavering multitude If the King being led away with an old error of Protestancy shall endeavour to extirpate the beleeving Brownist or orthodox Anabaptist may not the Brownists or Anabaptists judging their Religion to be true save themselves nay ought they not to catch at all advantages whereby they may deliver their blinded King and Kingdome from following after their owne destruction in an Antichrist way of Protestancy It was long siince suspected by the King and by many of his good Subjects that the ordinance of the Militia would be used to the overthrow of Government and destruction of the Realme and since that hath raised unto the Authors of it a sufficient strength to over master all opposition we see they have already adventured to root out Episcopacy together with Deanes and Chapters Archdeacons Chancelours and the ancient and honourable profession of Eclesiasticall and Imperiall Law besides a good part of the common Law overturned and in likelyhood the rest will not stay long by us And how farre this willfull rejection I say wilfull rejection not barely the want of Episcopacy is destructive to the very essence of a Church is much to be doubted After so good eâ—rnest given of their intentions I suppose a major part of the Realm are well satisfied that their Militia and the ordinances send to the destruction of the Realm if so then by this ground they may lawfully save themselves and oppose their destruction Admit this or forsake your principle And yet if it will do you any service I am content at present you take advantage of it I will admit the Kingdom if they see the King would destroy them may preserve themselves you will say â—f the people have power to preserve themselves against the danger a seduced K. would bring upon them then must they have power to judge of that danger when it is and
omnia jura in scrinio pecttoâ—s sui And yet as the government of this Kingdome is now setled the King cannot make void or vertulesse the setled Courts of Justice and thereby draw all things to a determination within his owne breast And if any cause shall come before him as a Judge to determine yet he hath a rule to follow and that 's the Law not his will which Law in respect of the King hath somewhat more then a directive force restrayning him and disabling him to goe against it so that he can doe no wrong The Lawes are made by the Kings power with the peoples or Parliaments assent which is a superiour power or rather the same power in a higher degree or extent to the Regall power alone and withâ—â—â—â— their assent And therefore the Regall power out of Parliament cannot change nor alâ—â—â— the Lawes and Ordinances made in Parliament but is bound by them as being made by a superiour power whence it is that Bracton every where affirmes the Law to be above the King solely And by this superiour power that is by the King with the assent of his people or Parliament were the ordinary Courts of Justice founded and established and their jurisdiction assertained and therefere may not be altered by the Regall power alone and by the same reason the King cannot alter the Constitution of the Court of Parliament but is the Constitution of all Courts alike the ordinary Courts are so constituted as that the Kings speciall Concurrence is not neeessary Arts and Judgements by the ordinary Judges alone are compleat and binding their assembling and departing is setled and doth not depend on the speciall pleasure of the Prince But the Court of Parliament hath another kind of Constitution the Kings speciall concurrence is in that a necessary and essential part Rex est capâ—t principium et finis Parliamenti Their assembling expects his speciall call their continuance depends on his will the Judgemements Arts and Ordinances made in Parliiament and concerning the Kingdome in generall are the Kings onely and without him frustrate and null Consider this good observator and then tel me if you did not endeavor grosly to abuse your reader by telling us that by the same reason the Parliament is not a Court compleâ— without the King the Common-pleas and all other Courts are not I confesse I have wondred to see it of late so often aâ—â—iâ—med That as the King cannot nor ought to declare by prâ—claimation or otherwise his disalowance of the acts judgments of the ordinary Courts so not of the Votes Ordinances of the Lords Commons in Parliament being the highest Court Should the ordinary Courts take upon them to dispose of the Militia by vertue of an Ordinance by them made might not the King by his Proclamation declare the Militia of that Ordinance and forewarne his Subjects not to be abused by it if the Observator can prove that the Lawes and Ordinances made by the now major part of the Lords and Commons are without and against the Kings pleasure of any more validitie that they are in themselves Lawes and Ordinances and not onely so called then I shall admit that the King either by Prociamation or otherwise ought not to declare against them meane while let every man judge how well the observatour hath maintained the power of the Lords and Commons mauger their King to make Lawes and Ordinances that shall bind the people in generall By which Ordinances the Militia the taking of Hull the Navy the Magazine the intercepting all mony and other provision that is but suspected to be passing towards the King the imprisoning all such as appeare dutifull towards his Majesties commands and such like Acts must be justified or acknowledged unjust The Observator finding it more then difficult in a plain field to maintaine his cause endeavours to shelter it under famed pretences of extraordinary danger and necessity in this extremity the King neglecting the helme nay purposely stearing towards rocks and shelves It is the duty of his Parliament in this case to oppose and preserve him and his Kingdome from utter wrecke and ruine He will then acknowledge that in ordinary cases without the King they cannot make a binding Law or Ordinance but in danger that is when they please In the miast of our calamities we are sensible of none thankes be to God but what their Ordinances have occasioned the Parliament seeing they must make use of their legislative power and make Ordinances to secure sâ—me Forts and settle the Militia or else two Kingdomes probably will be lost they doe accordingly the King proclaimes to the contrary in this contrariety consider if the Parliament 〈◊〉 vertually the whole Kingdome if it be not the supreame Judicatory as well in maâ—â—â—â—â— of State as Law if their grounds of jealousie be vaine To what purpose shall we consider of their jealousies if we thinke them to be but pretended by the cunning and practise of some few for accomplishing their designes and plots invented by some of their owne partie to be againe by them discovered yet must King and people submit to their judgement Are not the now major part the supreme Judges of danger to whom King and people are bound to submit If they are is it lesse then a mockery to bid us consider when as after consideration will we nill we we must subjugate our understandings and opinions to whatsoever they already have or hereafter shall declare But yet at your bidding I le consider in this contrariety whether the Parliament pray call them the Lords and Commons now assembled may not make use of their legislaiâ—e power yes if they have any such but I would not have them make use of the King legislative power without him and against him had they beene partners in that power some colour you might have had to have called it theirs but it seemes the power is solely the Kings they are onely to give an assent to the use of it Then you will I consider whether they be not the supreme Judicatory I thinke not the Parliamentiâ— supreame and above them both in matters of State and Law but againe I must consisider you say if the Lords and Cammons be not vertually the whole Kingdome why doe you put in the Lords whom at other times you can be content to spare The Lords Vote in respect of their Barronies derived from the Crowne the Commons Vote in right of their electors whom they represent at least nine parts of the Kingdome neither doe nor may Vote in their election the Clergie in respect of their spirituall livingt may not nor the most substantiall Coppy-holders Farmours nor Lessees for yeers not inheritrixes Jointresses nor reversioners Heirs apparrent and men that live upon Interest are excluded and all that have not 40. s. per annum free hold Land which I imagine cannot be above a tenth part of the Kingdome Tell me good Sir you that