Westminster the King sitting upon the Throne or chaire of State they being no way enabled by the Law to treat with him in any other place or manner and in this place they are by the tenor of their Writ it being thus i Regist Bri. Cooks Instit 4. par p. Rex Vicecomiti salutem quia nos de avisamento assessensu Concilii nostri pro quibusdam arduis urgentibus negotiis nostris statum defensionem regni nostri Angliae Ecclesiae Anglicanae concernentibus quoddam Parliamentum apud Westmonast teneri ordinaverimus sbid cum Praelatis magnatibus proceribus dicti regni nostri colloquium habere tractatum c. by this Writ the Lords have a power to treat with the King sitting in their House of matters concerning the defence of the Realme and of the Church of England and the Commons may be present and are to consent to what the King and Lords shall agree of and in no other manner or place can they legally or with their owne safety treat with the King for as free Princes or equals they cannot treat with him the Law having invested them with no such powers or dignities the King being caput Regni and by the Law indowed with the Soveraigne power of the Realme and they being but Subjects and inferiour to him in all degrees either of power or abilities whatsoever In this capacity therefore as free Princes or equalls they cannot treat with him if they treat with the King any where but in Parliament and that of making of peace which is the ending of warre already begun by them and yet prosecuted against him and his loyall Subjects They must treat with him as his Subjects and if as his Subjects they therein will accuse themselves to be Traytors or Rebells in that they must treat of laying downe those Armes that they have unlawfully raised against him Therefore if they would follow mine advice they should treat with His Majesty in no other place then the Lords House and onely of those things that by their Writ they are inabled to viz. De arduis urgentibus negotiis Regem statum defensionem Regni Angliae Ecclesiae Anglicanae concernentibus Of those things that cencerne the preservation and defence of the King his state and dignity and of the Realme and Church of England and not to consult of a meanes or to demand those things that tend to the ruine and destruction of them all But in case the two Houses will not admit the King to come to the Lords House to treat with them or that if they should they demand of him those things that he neither can or ought to grant or part withall as the Militia his Negative voice or the destruction of the Church being intrusted with them by God and the Lawes for the good of the people committed to his charge and for whom he must give an account to God The Question will then properly fall out to be in the next place Whether the people of England may not justly levy Warre against them and whether the Warre be not just which Question I shall hold affirmatively Each Warre ought to have its foundation in reason and force imployed to a right use is no other then a servant to reason if then the two Houses shall deny a personall Treaty to his Majesty so qualified as afore-said whereby the Kingdome may be preserved from ruine it is agreeable to right reason that the people should use force and levy warre upon them to inforce them thereunto for when ordinary remedies doe faile by the rule of right reason men are warranted and bound for their owne preservation to recurre to extraordinary meanes provided that they be in themselves lawfull and therefore since the Houses have denyed the King a personall Treaty de integro tying him up to termes of condescention to the most weighty matters which should be the subject of the Treaty before they will entertaine a Treaty with him for the rest which can be onely of matters of small or no importance His Majesty having granted the things they demand of him before-hand the people may aid the King who is by the Law their only protector with their Armes for regaining their owne lawfull Liberties and His Majesties just Rights which will never be restored unto them by petitioning or any other civill course and therefore Grotius saith Vbi judicia deficiunt incipit bellum k Gro. l. 2. c. 1. sect 2. where legall or civill remedies are wanting or denied War may justly begin Plerique saith the same Author bellorum tres statunnt causas justas defensionem recuperationem rerum punitionem Most men do determine these three causes of Warre to be just defence of themselves recovery of their goods or estates and punishment for injuries done for as S. Augustine l Aug de fivit Dei l. 4. saith Injuria partis adversae justa bella ingerit an injury done by the Adverse Party doth ground a just Warre and what are just Warres he tells us in another place m Aug. l. 6. 9 10. Justa bella definiri solent quae ulciscuntur injurias those are just warrs which are levied to punish great injuries let all the world then judge whether according to these rules the Prince and the people of England have not just cause to take Armes the injury done to the person of his Royall Father is reputed to be done to the Prince himselfe the Prince then in defence of his Fathers person by force opprest for the redemption of it forth of prison for their recovery of the rights and revenues of the Crowne usurped and violated against all law and right by those what were called together to advise the best they could for it and have no manner or colour of Title unto it for the restoring of the people unto their antient Lawes and Liberties so much trodden upon and trampled under foot by those men who should be the chiefe preservers of them and for the resetling of men in their own proper offices estates and goods whereof they have been so illegally disseised sequestred devested robbed and dispossessed of And last of all to bring the Ringleaders of these so great evills innovations iniquities and injuries to restitution and condigne punishment and as the Prince so have the People justifiable cause and warrant to take armes and make warre against those robbers oppressors and usurpers who have not onely brought in all the innovations and injuries aforesaid imprisonments taxes arbitrary powers Excizes contributions impositions benevolences and myriads of evills onely to enrich themselves contrary to the knowne established and fundamentall Lawes of England and contrary to their promises and ingagements to the people to whom they promised that their welfare should be their supreme Law and care for as Plato saith n Plato in Alcib Justa bella geri possunt non modò si quis vi opprimatur aut expiletur verumetiam
The just measure of A Personall Treatie BETWEEN The KINGS Majesty And both Houses of PARLIAMENT Grounded on Divinity Reason History Divine and Humane Common and Civill Lawes with many other authentick Authors By R. M. of the middle Temple Esquire Printed in the Yeere 1648. The just measure of a personall Treaty between the Kings Majesty and both Houses of Parliament There are these only waies to reform these innovations and to prevent the ruin of the Kingdome 1. By a personall Treaty and how conditioned 2. If that may not be obtained so qualified from the Houses it is lawfull to levy Warre against them and that VVarre is hereby proved just A Personall Treaty between His Majestie and the two Houses of Parliament would be a Soveraigne remedy against the innovations and growing evills of this Kingdome and an assured meanes to settle a firme peace in it provided that this Treaty be thus qualified both for the manner and matter of it for if it be otherwise I am much afraid it will prove both unprofitable and ineffectuall First it ought to be when his Majestie is free and at liberty without any preingagement on his Majesties part either by concession of any thing which they demand as an inducement thereunto at least of the most materiall things which the Treaty should consist of such as the Militia the setling of Presbyteriall Government and the rest now lately offered to his Majesty to be granted unto them for untill his Majestie be set free and at liberty without any conditions preceding unto it His Majestie cannot properly or securely for the good of the people treat of any matter conducing to a Peace a Grotius de jure belli pacis lib. 3. cap. 10. sect 3. Nam as learned Grotius saith Rex qui aetatis est ejus quae judicii maturitatem non habet qui imminutae mentis est qui captivus aut exul pacem facere non potost A King that is under age of an infirme mind a captive or an exile cannot treat of or conclude a peace And else where b Grotius lib. 3. cap. 20. sect 2 Sicut Rex infans jus habet sed imperium exercere non potest sic furiosus captivus As a King that is an infant hath right to govern but cannot exercise his dominion no more can a King that is a mad man or a Prisoner and without the King there can be no peace made treated on or concluded in this Kingdome for the King having by the Law of England the Soveraigne or supreme power of the Realme as is amply manifested by the precedent discourse he hath the only power to make peace and war as the same Author observes c Grot. l. 3. c. 20. Sect. 2 Pactiones inire quae bellum finiant eorum est quorum est bellum Rei enim suae quisque est moderator unde sequitur ut in bello utroque publico hoc eorum sit qui summum imperii exercendi jus habent Regis igitur hoc erit in statu verè regio modò is Rex etiam jus non habet impeditum It is their office and to them it belongs to make leagues or pactions to end a warre to whom the right of making warre belongs for every one ought to be a moderator in his owne affaire from whence it followes that in every publique warre it is their right to make warre or peace which have the right to exercise the soveraigne power therfore it is the Kings right only to make warre or peace in his Kingdom so that the Kings right be not hindred in the exercise of it that is by infancy imprisonment or the like infirmities aforesaid this is the judgement of a most learned man what fruit then can be expected of or from a Treaty with his Majesty dureing his restreint or imprisonment certainly none nay if his Majesty should grant what they desire dureing his imprisonment and being inforced thereunto for his enlargement what validity were there in such a grant certainly none it being a cleere truth as that great Lawyer Bracton observes d Bract. l. 2 c. 5 sect 14. f. 17. Quod in nullo casu valet donatio cùm quis fuerit in Prisona vel quia hoc facit per coactionem quia potestatem sui non habet nec eorum quae sua esse debent potestatem habebit sicut ille qui in servitute fuerit nihil possidere poterit quia possidetur ita nec ille qui possidetur ab hostibus vel detentus fuerit a concession or grant is in no case valid so long as a man is in prison where he is in prison by force and not by right where he is inforced to make such grant because he hath not then the power of himselfe and having not power of himselfe he hath not power of any thing that is his for as he which is in servitude can possesse nothing because he is possest so neither can he which is in the possession of his enemies or deteined by them in prison neither can we from any rule of policie expect that whatsoever the King is inforced to grant by any restraint or coertion if the grant were in it selfe good the thing could be of any continuance since the nature of all grants and accords is to be voluntary therefore Clement Edmonds in his observations upon Caesars Commentaries well noteth e Clem. Edm. p. 629. That no accord made by force can be truely kept and Machiavel plainly excuses the breach of them saying f Mach. Discourse upon Livy pag. 629. that it is no dishonour to violate those promises grants or accords which by force a man is constreined to make and that promises or accords extorted regarding the publique wil be broken without the disgrace of him that breaks them upon this ground did the Estates g of France refuse to submit to that accord tréaty of Peace made between K. Edward of England and John King of France who was taken at the battell of Poitiers and brought by King Edward Prisoner into England where the said treaty and accord was made during his imprisonment upon the like ground did King Francis the first of that name King of France avoid his treaty and accord made which Charles the Emperor whilst he was Prisoner at Madrill in Spaine by which treaty he was obliged to grant unto the Emperor all his right in the Dutchy of Burgundy which after he was set at liberty he refused to doe because that accord was made during his restreint By these authorities presidents I conclude that it is necessary that the King should be set at liberty before he can be in a condition to grant or treat of any thing concerning the publique order for the good of the subject The place where the treaty must be is also of consideration for the Lords and Commons assembled in Parliament can treat with the King in no other place then in the Lords house at
si deceptus fuerit Just wars may be waged not onely where a man is opprest by force or plunder of all he hath but also where he hath been cheated and cozened have any people under heaven been so cheated and cozened as the people of this nation have been cheated and cozened by those that usurp the present Government Did they not at first so creep and insinuate themselves into the affections of the people give out that they would make his Majesty the most potent rich and glorious King in Christendome that they would make the people a mighty wealthy and flourishing people that they would reforme all the abuses both in Church and State and settle the three Kingdomes in a firme and lasting peace and have they not contrary to all their promises Protestations and Declarations to this purpose imprisoned his Majesties sacred person deprived him of his power robbed him of his Royall revenue and as much as in them lay sought to weaken his Majesties reputation both with his allies abroad amongst forraine Nations Princes at home amongst all his Subjects of his three Kingdomes Have they not instead of making the people of this Land a flourishing wealthy people weakned them with a long barbarous and civill Warre exhausted them with Contributions loaden them with Taxes polled them with Excize and benevolences wearied them with continuall Impositions and almost lost the reputation of the Nation in all forraigne parts Have they not instead of reforming the abuses in Church and State almost destroyed both instead of Monarchy brought in an Anarchy in the State and instead of unity and uniformity in the Church let in accursed Heresie ugly multiformity and fantasticall unstable Independency Nay I might say almost Turcisme or Atheisme And to conclude instead of setling the peace of the three Kingdoms have they not though petitioned thereunto by many Counties refused to restore His Majestie to disband their Army by which they resolve to govern and conquer the Kingdome to keep the people in thraldome all their lives yea and cut the throats of all such as shall come to Petition them as they did Surrey-mens and doe they not now make war upon Kent and Essex in order to these ends Let this be denied by any sober and indifferent man if he can and being granted I conclude infallibly upon all the rules grounds aforesaid that it is lawful both for the Prince people if they shall deny His Majestie a personall Treaty so qualified as aforesaid to make warre against them and that such a warre is just Sapienti Sal. in orar ad Caesar est saith Salust pacis causâ bellum gerere wise men make warre to obtaine peace and S. Augustine o Aug Ep. 1. ad Bonifac Non pacem quari ut bellum exerceatur sed bellum geri ut pax acquiratur men must not seek peace to the end they may exercise warre but men must make warre that peace may be obtained And to deale candidly with the world in this point mine owne private opinion is that a good and firme peace can never be obtained in this Kingdome without a vigorous war well prosecuted on his Majesties behalfe That by the Lawes of God of nature and of England the Subjects of England are bound to rise and joyne in Armes for the rescue and relief of the King out of prison and to follow the Prince or any other of the Kings Subjects or friends that shall take Armes for the King and lead an Army to that purpose notwithstanding that they have not the Kings actuall Commission FOr Subjects to imprison their King it 's against all Laws especially the Laws of England and not only an injury to the Person of the King but the greatest prejudice that may bee to the right and interest of the Subject for since the Lawes doe tell us that a Hobarts Reports p. 218. Rex est centrum stabilimentum justitiae the King is the Center and support of justice b Plow Com. 242. 12. H. 7. f. 17. and that all administration of justice is both derived from him and belongs to him originally c Case de pen. Statutis Cooks Repor and is inseparable from him since the King is d Beverleyes case Cooks 4. Reports so 124. Caput salus reipublicae à Capite bona valetudo transit in omnes the head and health of the Commonwealth and from this head the health of all the people is derived e Calvins case 7. par Cooks Reports since that all protection of the people must come from the King and none other can protect the Subjects of the Kingdome but the King alone f Hobarts Reports f. 112. since the Law tells us that the reformation of all wrongs and injuries done to the people belongs to the King g Plow Com. 268. since the King is the chiefe Captaine of Chivalry within the Kingdome h Cooks Com. sur Littleton f. 75 76. Calvins case ubi supra since that the Militia doth wholly belong unto him and hath so done to his Royall Progenitors ever sithence the raigne of King Edward the Confessor i Cooks Inst 3. par f 160. 201. Stat. of Northampton ◠E. 3. c. 13. and that no men may arme themselves in this Kingdome without the Kings assent k Cooks Instit 4. par p. 91. since that the King is subject to none within this realme since that the Law speakes it l Hobarts Reports that accesse to the King may not be shut up from the Subjects m Cooks Instit 4. par p. 93. which to do is a great presumption since as Fortescue saith n Fortescue c. 13. Rex ad tutelam legis corporum bonorum erectus est the King is ordeined for the preservation and defence of the Lawes and of mens bodies and goods and as Bracton notes o Bracton l. 2. p. 55. ch 24. Bract. l. 3. de astionibus Vt populus sibi traditus à Deo in pace sileat quiescat nè quis alterum verberet vel malè tractet nè quis alienam rem per vim vel per roberiam auferet vel asportet nè quis hominem mahemiet vel occidat That the people committed unto him by God may rest in peace and quiet that one beat not nor evill intreat another nor take and carry away another mans goods by force or robbery now called plunder nor that any one of them kill and maime another and since as the same Author saith * Bract l. 2 ubi supra Rex habet c. the King hath all rights in his hand which belong unto the Crown all temporall power that is the Militia or the power over the people and the materiall Sword which is necessary to the Government of the Kingdome and since that the King hath the only Jurisdiction of Judgement within this Kingdome that thereby as the Minister and Vicar or
fortiori therefore by the Law everie man hath power given him z to seize upon the goods of those that are the Kings Enemies a 27 Ed. 4. f. 5. 9. Ed. 4 f. 26. Cooks Reports 5. par f. 92. Semaines case everie man hath power by the Law to arrest Felons Rebells and Traitors Nay it is their duty so to doe who those Traitors and Rebells are the Law informes everie man and Commands him to pursue them holding him indempnified if he doe it and if he doe it not one way or other the Law condemnes him to punishment because it is for the weal publique to take suppresse Rebels and Traitors everie man b 12. H. 7. f 17. nay all men say our bookes are bound to goe with the King into the warres and there to * 11. H. 7. f. 18. aid him c Hornes Mirror de Justices cap. 1. Stat. peche del Majest p. 20. M. 8. They are guilty of perjury saith a learned Author of our Lawes which beare armes against the King or that stie from his battailes or from his lawfull host and those Ministers that disavowablement viz. unlawfully stop men or counsell men that they goe not into warre with the King where they are bound to goe or are summoned thereunto this is the antient Common Law of England and shewes that it is the duty of every Subject to be aiding and assisting to the King in his warres d Stat. 11. H. 7. c. 1. By Statute Law all men are bound to attend the King in his wars and to aid him with their true and faithfull service and it matters not whether the King be in person in the feild or not for if he be any where by the Kings command that is acting by the Kings Commission or by his power or in preservation of the Kings Royall Person Crowne and dignity for that his service and doing no man by the Law can or ought to be questioned molested or impeached and the reason of it is because the Law saith e Stat. 7. E. 1. de de fensione portandi arma that to the King it belongs to preserve the peace of the Realme and to suppresse all force that shall be raised without him in the Kingdom at all times when it shal please him f Cowells Instit in Proem Nam in Rege necessaria sunt duo haec arma viz. leges quibus utrumque tempus bollorum pacis rectè possit gubernare For as the learned in our Lawes say Two things are necessary for a King that is to say the power of Armes and Lawes by which he may rightly govern both in time of peace and warre * Plow Com. f. 268. Bract. 1. 2. p. 55. cap. 24. for being the chiefe Captaine of Chivalry as before is remembred he hath all rights in his hands which belong to the Crowne and his Kingly power especially the materiall sword which inables him to the government of his Kingdome therefore are all his Subjects bound to assist him in his Warres to repell forraign enemies to suppresse and subdue Rebells and such disloyall Subjects as rise in Armes against him and to assist him to chastise all trayterous Conspirators that seeke to destroy his life deflowre his Crowne and subvert his Government Rebellion hath ever been so odious in Law that in all ages g Stat 17. R 2. c. 8. Stat 13. H. 4. c. 7. Stat. 2. H. 5. c. 8. 9. Stat. 19. H. 7. c. 13. Stat. 3. Ed. 6. c. 5. Stat. 7. Ed. 6. c. 11 Stat 1. Mar. c. 12. Sta. 1. Eliz. c. 17. Briefe de assistance de Ches vic de County good Lawes have been made in Parliament for the suppressing and punishing of it by which Statutes every Subject of England be he never so great in degree of honor or estate or be he never so meane be he Farmer Artificer Yeoman Husbandman Labourer or other being of the age of 18. years or more and under the age of threescore years being able to serve and not sick lame or impotent ought to be aiding and assisting to the suppression of it and if he or they kill any of such as are in Rebellion of that fact they ought to be free discharged and unpunished h Dalton Iustice de Peace p. 206. The King is the head life and rule of the Common-wealth against him only there may be Rebellion and not against any other pretend they never so much power as to be a Parliament or State every rising in Armes against the King without his power immediate or mediately derived either by sound of Drum or Trumpet ringing of bells or otherwise In terrorem populi to doe any unlawfull act which in it self containes and is high Treason be there assembled to the number of 12. persons or above is rebellion by the knowne Lawes of England and every loyall Subject of the King is bound to be aiding and assisting to the utmost of his power to the suppression of it i Cooks Inst 3. par p. 12. Now to raise armes to imprison the King or to detaine him in prison is rebellion k 43. Eliz. Earl of Essex case Cooks Instit 3. par f. 62. to make warre against the King upon pretence to remove evill Counsellers from him is rebellion l Hill 1. Iac. the Lord Cobhams case Cooks Instit 3. par p. 9. 39. Eliz. Bradfords case Brooke Treason p. 24. or to depose him or to alter the established Lawes or Religion by force or with intent to surprize take detaine or keep from the King any of his Castles Forts or shipping or to impose unlawfull Taxes or impose new Oaths without the Kings assent these and many other of the same nature are Rebellions which every Sheriffe Justice of Peace and Constable in England yea and every man when he shall be summoned thereunto without expecting any particular Writ or Commission is bound to use his utmost power by force of Armes to suppresse and the sooner the better taking this advice of the Poet Principiis obsta serò medicina paratur Cùm mala per longas convaluere morat But here it may be objected that it is not lawfull for any man to rise in defence of the King and in aid of him to relieve him out of prison without the Kings Commission or command if any such objection be made it must needs proceed from one that hath been heretofore or still is of that party which usually is called the Parliament party To him I answer that it is much more lawfull for the Kings loyall Subjects to fight for him to set him at liberty and to restore him to his rights which is the onely means to preserve the Kingdom then it was either for the E. of Essex or the L Fairfax to fight for him without his Commission to imprison his royall person and there to deteine him to the apparent ruine and destruction of the Realme This is I hope a sufficient argument ad
hominem to convince any of that side concerning this truth But I desire that it may be remembred that it is proved before to be the duty of every loyall Subject to arrest Traitors and suppresse Rebells and withall that the King is a close prisoner that all addresse to him is blocked up by Vote and Ordinance that he cannot send his Commissions abroad that it is impossible that he should that per legem nemo tenetur ad impossibilia it being impossible to obtain the Kings Commission to chastise Traitors suppresse Rebels it is as justifiable for the preservation of the King Kingdom to raise arms in this case as it is in case a forein enemy were landed and ready to possesse one of the strongest holds in the Kingdome and the people within it should make resistance against that enemy without the Kings Commission or that one seeing a conspirator ready to stab the King and should prevent the stroak before he asked the Kings authority to preserve him from murder which if he should stay to do it might be too late to save his lifes for as the Poet saith Ignis ab exigua nascens extinguitur unda Ovid. Sed postquam crevit volitantque ad sidera flammae Vix putei fontes fluvii succurrere possint Therefore we must not expect to see the King at Liberty to grant his Commissions before they act for the preservation of the King and Kingdome but must make a vertue of necessity alwaies takeing this for an authentique Maxime in Law Quod id semper justum est quod omnino est necessarium It is necessary the Kingdom should be preserved it is therfore lawful it matters not which way But the case of those that shall engage in this warre will be much better The certainty of the Royall line saith that great Lawyer * Hobarts Reports f. 332. the Lord Hobart is the peace of the realme The most excellent Prince of Wales Qui coruscat radiis Regis censetur una persona cum Rege as the Law saith m 8. Rep. Cook the Princes case 21. Ed. 3. Fitzh Praerog 16. who is the perfect Image of his Father and shines with the glistering beams of Kingly Majesty and is esteemed one person with the King n Stat. 25 Ed. 3. c. 2. 1. H. 5. f. 7. and who ought to enjoy all the antient Prerogatives of the Crowne whose death to imagine compasse or conspire is as high a treason as it is the Kings o Br. Treason pl. 27. and against whom to fight he coming in aid of the King p Stamf. pl. de Coron f. 1. I. his father or to fight against those that shall assist him therein is also High Treason Hee I say is sufficient Commission in himselfe had he not the Kings Commission but to avoid all scruples he hath the Kings warrant and authority and issues out Commissions to such as require them in his own name as Generalissimo under his Royall Father of the three Kingdomes of England Scotland and Ireland to all such as defire them whereby all that scruple may be satisfied in the Justice and formality of their ingagements though there needs no such wary caution for mens undertakeings in so just and necessary a war unlesse it be that they desire to support this rule Abundans cautela non nocet which speakes more of curiosity then of necessity wherein not onely the safety of the Royall person of his sacred Majesty their Royall Soveraigne the preservation of his Crowne and dignity wherein all the peoples protection and safety is included the maintenance of the Lawes of the Land the Liberties and properties of the free people of England is so much concerned Nay I may justly say the health welfare and being of three famous Kingdomes lies at stake they being now in a way of ruine and destruction But to leave it without scruple that if the Prince had not Commission from the King yet both he and all the Subjects of England in his assistance may lawfully take armes in defence and preservation of the Kings cause and person and for his redemption forth of prison and this I shall prove both by sufficient presidents and the most uncontrollable Lawes that are We read in the Chronicles of England q Daniels Chron. p. 152. Sir Rich. Bakers Chron. p. 86. That Anno Christi Incarnationis 1256. in the 49. yeare of his raigne King Hen. 3. of that name King of England and Prince Edward his eldest sonne and heire apparent to the Crowne afterwards King Edward the first were taken Prisoners by the douze Peers or the twelve Governours of the Kingdome and their adherents at the battell of Lewis in Sussex King Hen. himselfe was conveyed by them Prisoner to the Tower of London and Prince Edward to the Castle of Hereford the King remaining still a Prsoner the Prince made an escape forth of the Castle of Hereford and in Wales and the parts adiacent raised an army and at Evesham in Worcestershire fought with these douze Peeres the chiefe whereof was Simon Monfort Earle of Leicester who thinking to make their party the stronger thereby declared for the King took him out of the Tower and brought him to the battaile but kept him as a Prisoner But the Prince declaring also for the King his Father the people rise in armes with him and defeated the Earles army killing him in the place with many others of his confederates and redeemed the person of his Royall Father from his imprisonment restored him to his Crowne who enjoyed it in peace afterwards till his death the fact of the Prince was approved of by the Law but those that fought against him were declared traitors and Rebells by act of Parliament r Dictum de Kenilworth an 51. H. 3. and paid their fines and forfeitures The like president we find in King Hen. 6. his time which is thus Anno Domini 1459. King Hen. the 6. was taken Prisoner Å¿ Martins Chron. p. p. 258 259 260. at the battell of Northampton by Edward Earle of March eldest sonne to Richard Duke of York afterwards King Edward the fourth and by his then assistant Nevell the great Earl of Warwick the King was conveyed as a prisoner to the Tower of London and afterwards inlarged from thence and committed to the custody of the Duke of Norfolk Queen Margaret wife to King Hen. 6. and his eldest son Prince Edward levied an Army overthrew the Duke of York at Wakefield and afterwards defeated the Duke of Norfolk to whom the King was a prisoner redeemed the Person of the King and re-established him in his Throne notwithstanding that neither of them were armed with either of the Kings Commissions for the doing thereof these presidents we have of the like undertakings many others I could produce out of the Annalls of France and Scotland if desire of brevity did not prevent me but both these and all others of this nature are
warranted by the immutable and dispensable Laws of God and nature t Exod. 10. 11. 21. 17. God hath commanded children to honour their father and mother this is a Morall and an eternall Law ever to be performed by children to their Parents u Matth. 15. 4. our most blessed Saviour hath so declared it upon which place x Iunius Tremellius Arrias Montanus Junius and Tremellius and others agree that Honoris nomine intelligitur officii omne genus quod à liberis parentibus debetur hic vero juxta proprietatem sermonis Hebraicae magis pertinet ad subsidium quà m ad salutationem ac civilia illa vitae officia By the word Honor say they is meant all kind of duty that is due from children to their Parents but in this place by reason of the propriety of the Hebrew Speech it rather signifieth aid or assistance then salutation or other civill duties of life so then in this case by the Law of God the Prince is bound to aid the King his Father by every possible meanes he can both in civill and military affaires and by the equity of this Law all the Kings Subjects are bound to doe the like as the King is Pater patriae the Father of the Countrey and common Parent of us all and as children servants and Subjects are bound by the Law of God to aid and assist their Father and King so are they no lesse bound by the Law of nature for both are by the same Law obliged to be instrumentall to their Father Master or Common Parent in all cases of aid in time of necessity were there no inducement of their owne profit inviting them thereunto for as learned Grotius hath it y Grotius de jure belli pacis l. 2. c 5 sect 2. 3. Sunt diversa hominum inter se vincula quae ad opem superiorum invitant tale instrumentum est Patri filius pars ejus quippe naturaliter tale servus quasi ex lege quale autem in familiis est servus tale in republica est subditus ac proinde instrumenta imperantis ut bellum licitè gerant There are saith he by the Law of nature divers bonds between men which invite them to the aid of their Superiours such an instrument ought the son be to the father because he is naturally a part of him such an instrument ought the servant be to the master because he is bound thereunto by the Law of Nations which is the part of the law of nature and such an instrument as a servant is in a family such a one ought a Subject of a Kingdome be to his King that is an instrument of his Soveraigne that may lawfully wage warre for him From these premises I gather this irrefragable argument That whatsoever men are bound and injoyned to do by the Lawes of God and Nature is lawfull for every man to doe without further Commission But Children are bound to assist their Parents and Soveraigns in all matters either civill or military therefore it is lawfull for the Prince to assist his Father and all the Subjects of England to rise in Armes to aid their King and his urgent necessities against his oppressors notwithstanding that they have not his actuall Commissions or any other derived from his power Agreeable to this are those rules of the common-Common-Law of England z Cooks Rep. 5. par f. 115. Wades case Quando aliquid mandatur mandatur omne quod pertinetur ad illud When a man hath command to doe his duty every meanes that is conducing thereunto is warranted unto him by the Law and likewise a Cooks Rep. 5. par f. 12. Saunders case Quando Lex aliquid alâ—â—ui concedit conceditur id sine quo res ipsa esse non potest when the Law gives a liberty to any man to do any act it gives him all the necessary meanes to effect that without which it cannot be brought to passe The Law commands and gives licence to all the Kings Subjects to aid relieve succour and redeem the King out of Prison from whom they can expect no actuall Commission therefore the Law supplies that defect by her owne power by a necessary meanes conducing to that end the Kings and Kingdomes preservation This is warrantable and justifiable by all the Lawes aforesaid let all good English men therefore take hold of the present opportunity laying a side detestable Newtrality and redeem their King Lawes and Liberties or be slaves for ever FINIS
Vicegerent of God he may give and deliver to every man that which of right belongs unto him It is not onely a most presumptuous offence against God and his Lawes a most injurious violation to the Lawes of this Realme nay even to the Lawes of nature a most barbarous and unparallell'd affront to and usurpation upon the Royall and sacreo Majesty but the most prodigious and destructive mischiefe to the generall peace and publique safety of his Majesties Dominions and the people inhabiting in them to imprison the King to detain him in prison under strong military guards to deny a personall Treaty with his Majesty for the setting of the Kingdomes though his Majesty hath often sought it and to vote an order that none of his Subjects shall make addresse unto him upon paine to incurre the punishment of High Treason what is this but to displace Gods Substitute to rob the Almighty of the honour of appointing his owne Deputy What is it but to subvert and overthrow the antient and fundamentall Lawes of England to take away and utterly to destroy the Liberty and property of the people of England to strip and rob them of the Kings protection the onely meanes to preserve them their families and posterities in a desired peace and an assured plenty to the end that they may pillage and plunder them of their goods disseize them of their estates and Lands deprive them of their offices and promotions imprison their persons nay take away their lives at pleasure without impunity of the King o Bract. l. 4. c. 24. sect 1. Qui solam habet jurisdictionem ut delinquentes puniat castiget as Braction for good Law assures us Who hath the onely jurisdiction to punish and chastise such Delinquents and to protect his good people from such violence and rapine or without the reprehension of the antient and established Lawes of England which I am too much afraid they intend to lay aside and subvert and never more to observe as being oppositely contrary to all their actions and purposes What then is there no legall remedy to prevent the Kingdomes destruction Yes there is and if there were no more to be said in it or for it then that which these men laid downe for a Maxime to ground all their rebellious practises upon falsly supposing causes of misgovernment in the King which the Kingdome now too sensibly feels under them raising of jealousies and fomenting of feare where no feare was yea even of the utter ruine and destruction of the Kingdome by the King as they then falsly alledged but by their owne actions have assured us will follow from themselves this their owne Maxime I say might serve q Declar. that a Kingdome must not be left without a means to preserve it self This mysterious rule were sufficient to warrant the whole Kingdome in case they will not admit the King to a personall Treaty and restore him to his Rights Prerogatives and Power of protecting his people to whom as a learned Authour in the Lawes of England observes r Gervas Tilburiensis in praefat ad Hen. 2. Ab ipso Deo singulariter ost credila cura subditorum Even from God himselfe the care of his Subjects are credited and committed to rise up in Armes to suppresse and subdue them but there are knowne Lawes of England and sufficient Presidents to warrant such a proceeding and without this manner of acting the work will never be done but the Kingdome must ruine Salus populi est suprema Lex the welfare of the people is the supreme Law it 's their owne Maxime and we agree to it but withall we say with that learned Sir Edw. Cook * Cooks Reports Beverl case ubi suprà Rex est caput salus reipublicae à capite bona valetudo transit in omnes The King is the head and health of the Common-wealth from whom all welfare is derived to the people therefore the welfare of the King is the chiefe Law to preserve him to serve him which is the health of all all men by nature are bound to it as is well observed by learned Å¿ Gerv. Tilbur ubi supra Oportet Regibus servire non in conservandis tantùm dignitatibus per quas gloria regiae Majestatis elucet verumetiam mundanarum facultatum copiis quae eis sui status ratione contingunt All Subjects ought to serve their King not only in maintaining those dignities by which the glory of the Kingly Majesty doth appeare but also in the strength and abundance of all those worldly faculties and powers which belong unto him by reason of their degrees Illa enim illustrant haec subveniunt the former do serve to make him famous but the latter ought to be aiding and assisting unto him saith he we ought not only that are subjects to the King to pitty him and to speak well of him to honor him with our lips and words only but we ought to honor him with our substance assist him with our armes for the recovery of his rights and of his liberty and for the subduing and suppressing of his enemies and of those that traiterously rise up and rebell against him The law t Plow Com. c. 319. doth not make the Subject greater then the King nor the servant then the Master the Law here compares the King to a Master a subject to a servant yet all men know that the Prerogative of the King over his Subject is larger and greater then the praeeminence of a Master over his servant even as much as the Law of Nature hath precedency of the civill Law or Law of Nations the Allegiance due from a Subject to the King being due u Calvins case ubi supra by the Law of Nature the duty that a servant owes to his Master being but grounded either upon his owne contract the Law of his country or at most the Law of Nations The duty then that a Subject owes to his King is more obligatory to him then that which a servant or a slave owes his Master and the Law doth more exact it at his hands and justifie him in the performance of it The law of England tells us that w 35. H. 6. f. 50 51. a servant by the Law may justifie the battery or beating a man in defence of his Master and to take bowes and arrowes or other invasive weapons x 9. Ed. 4. f. 28. 19. H. 6 f. 31 nay a servant may justifie the beating of any man for the defence of his Masters goods Nay yet more y 21. H. 7. f. 39. 3. Ed. 3. Fits Coron pl. 303. 305. 26. ass pl. 23. a servant may justifie by the Law the killing of any man in defence of the life of his Master of his house or goods Doth the Law protect a servant in his Masters defence to performe this duty and shall it not a Subject in the performance of his towards his King yes surely Ã