father that hath no son nor no man a husband that hath no wife so no man can bee said to bee protected that is not withall thereby subjected And since without such protection every man may kill him and destroy him It seemes to stand with no proportion of Justice that a man should bee protected in Life Limbe or estate by any law that will not subject himselfe to that Law It cannot bee denyed but that there is a twofold subjection legall and locall the legall subjection is due from every subject to his naturall Prince the locall from any Forreigner to that Prince or State where his person doth reside And this though it be onely pro tempore and the other during life Yet it doth for the time totally obstruct the operation of the other subjection So that no King can command any subject of his living out of his Kingdome but such subject of his is to bee disposed of by the sole Authority of that supreame power where hee makes his Residence And since the question is onely about the person of a King of Scotland for I conceive they will not take upon them any Authority to dispose of the Person of a King of England I doe affirme that if a King of Scotland should have come into ENGLAND before the Union of both these Kingdomes hee had beene instantly a subject of England and his person to bee disposed of by the sole Authority of the Lawes of England For either wee must take him as a King or a Subject since betwixt them two there is no medium as a King wee cannot take him unlesse wee should commit Treason against our naturall Prince and subject our selves to any but to him it being most certaine that there is the same relation betwixt the King and his Subjects as betwixt the husband and his wife and as no man can be said to be a husband but to his own Wife So no man can be said to be a King but to his owne subjects and therefore we cannot admit of any Regality in the person of a King of Scotland comming into England unlesse at the same time to the same person we should confesse subjection For that it is most true that as none can be said to be Rex sine Regno so no man can be said to bee Rex but in Regno Therefore if a King of Scotland comming as afore said into England if against the Lawes of England hee doe offend by those Laws of England he must be tryed and by none other For ubi quis delinquit ibi punietur And it is most sure that we have disposed of the persons of Kings of Scotland comming into England both living and dead And if wee may dispose of the person of a King of Scotland without the consent of the Kingdome of SCOTLAND much more may wee dispose of the person of a King of ENGLAND hee being now in England without their privity or advice But if they have any power to dispose of him it is because they are either our Masters or our Fellows if they be our Masters let them shew the time when they conquerd us or the price for which we were sold unto them If they be our Fellows why come they not to our Parliaments why contribute they not to our necessities But as it is apparent that they being two distinct Kingdomes governed by two distinct Lawes so they ought not to intermeddle one with anothers interest but to content themselves with what doth naturally appertaine to each of them severally There is no doubt to be made but that every Husband hath as great an interest in the person of his wife as any Subject hath in the person of his Soveraigne and yet a man may lose that interest by some act of his Wives as if she commit Felony Murder or Treason the Law disposeth of her person and her husband cannot claime any right so much as to her dead body so fareth it with a King who by going out of his Kingdome or by being taken prisoner by his enemies his Subjects lose the interest they had in him and he is at the disposall of his enemies Iure belli Iohn King of England was cited to appeare at Paris to answer for the death of Arthur Plantagenet Duke of Britaine whom hee had murthered the State of England would not let him goe as holding it a great indignity and incongruity that a King of England should answer for any thing at Paris right or wrong The French answered that they cited him not as King of England but as Duke of Normandy as King of England they acknowledged to have nothing to doe with him he was in that respect without them and beyond them but as Duke of Normandy which he held in fee of the Crown of France he owed fealty and allegiance for the same to the Crowne of France and therefore ought to answer The English replied that if the Duke of Normandy did goe the King of England must goe and if the Duke of Normandy were beheaded they knew well enough what would become of the King of England Upon large debate hereof by all the Lawyers in France it was resolved that if Iohn had been in Normandy at the time of his summons he ought to have appeared but he being Extra jurisdictionem Regni Franciae at the time of his summons and insra jurisdictionem Regni Angliae though legally he were a subject of France yet loeally he being in England his summons was voyd and hee forfeied nothing by his non-appearance I will onely urge one argument more deduced from a knowne maxime of the Law not of England but of Scotland also which the Commissioners of Scotland the other day at the Conference did cite themselves in my opinion much against themselves and that is this Quando Duo Iâ—â—a inâ—o Duo Begna sayth a great Lawyer concurrant in unae persona aequum est ac si essent in diversis which is no more then this when two kingdomes held by two distinct Titles doe concur in one and the same person it is all one as if they were in two distinct persons I suppose here is our very case here are two kingdomes England and Scotland held by two distinct Titles which doe both concur in one Person in the person of King CHARLES it is all one sayth this rule and maxime of the Law as if they were under two severall persons why then put the case that there were one King of England and another of Scotland should the State of Scotland have any thing to doe to dispose of the person of a King of England he being in England I thinke you will say they could not Sir I am sorry that our brethren have moved this question at this time for all questions make debates and debates differences and this were a time for brothers to reconcile differences rather then to make them we have now lived 44 yeeres both under two Princes and in all this time
AN ANSWER TO THE Scotch Papers Delivered In the House of Commons in Reply to the Votes of both Houses of the PARLIAMENT of England Concerning the disposall of the Kings Person As it was spoken when the said Papers were read in the House By Thomas Chaloner Esquire A Member of the House of Commons London Printed by Francis Leach 1646. A Speech made in the House of Commons the 26th day of October 1646. upon the Reading of the Scotish Papers the same day In Reply to the Votes of both Houses of Parliament of the 24th of Sept. concerning the disposall of the Kings Person spoken by Thomas Chaloner Esquier a Member of the said House Mr. SPEAKER YOu have just now heard two Papers Read before you from the Commissioners of Scotland the first concerning the disposall of the Kings Person the other touching the distractions of the North by reason as they say of the non-payment of their Army I shall speak nothing to the latter because it hath beene so sufficiently answered by divers knowing Members of this House To the first I shall wholly apply my selfe because little or nothing hath beene said to that point The question then before you is about the disposeall of the Kings person you say that hee is to be disposed of as both Houses of Parliament shall think fitting but your Brethren of Scotland say hee is to be disposed of as both Kingdomes shall think fitting And they Fortifie their affirmation with these reasons They say that he is not only King of England but also King of Scotland and as you have an interest in him hee being King of England so have they no lesse interest in him hee being KING of Scotland And as they have not the sole interest in him hee being KING of Scotland because they acknowledge with all that hee is King of England so have not you the sole interest in him he being King of England because they desire you to remember that he is also King of Scotland so as neither Nation having a sole but a joynt Interest in his person they ought joyntly to dispose of it for the weale and benefit of both Kingdomes This I take to bee the whole scope of their Argument which they have represented unto you under so many disguises and as it were by multiplying glasses Insomuch as the bare relating of it takes up three large sheets of paper But while they debate this great question with you touching the disposall of the Kings Person and while they possitively affirme that he is to be disposed of by the joynt consent of both Nations Give me leave to remember you that in the meane time they dispose wholly of him themselves and so have done for these six months and may for six months longer for any thing I can gather out of these Papers Their Argument runs thus Wheresoever the Kingdome of Scotland hath an Interest in there King there they may dispose of him But the Kingdome of Scotland hath an Interest in their King he being in England Therefore in England they may dispose of him Sir This may seeme at the first to some to be a faire and specious Argument but let it be well considered it will prove erronious and Fallacious For in the Major Proposition they understand one thing by the word King and in the minor Proposition they understand another thing by the word King and so here is a conclusion inferred which the premisses will not warrant For the cleering whereof I pray Sir remember that this word King is of a various signification sometimes it is taken in abstracto that is for the Royall power Function and office of a King sometimes it is taken in Concreto that is for the man or person whom we call King If their Major Proposition be taken in the first sense we shall never deny it them nay wee shall acknowledge that the King of Scotland being taken in abstracto wee have nothing to doe with him at all hee is solely and totally theirs God forbid that a King of Scotland going out of his Kingdome should either make Scotland cease to bee a Kingdome or give any participation of interest to that Countrey where hee doth reside Let his person reside in the furthest parts of the earth yet the Royall Office and Capacity of the King resideth still in Scotland They have his sword to do Iustice by they have his Scepter to shew mercy by they have his Seale to confirme what they please by And they have his Lawes to Governe by And in this sense it is only meant that the King is never under yeares never dyes cannot bee deceived can neither do wrong nor take wrong of any body And in this sense we fight for King and Parliament though the person of the King bee in opposition to both and in this sense the returnes and tests of the Kings Writs are Coram me ipso apud VVestmonasterium and teste meipso apud VVestmonasterium let the Person of the King at the same time be in France or the remotest Country of the world but a King of Scotland taken in this sense is never out of Scotland and therefore whereas they say in the minor Proposition That the Kingdome of Scotland hath an interest in their King he being in England this must needs be meant of a King in Conereto that is onely of the person of their King and not of his Royall Capacity And in this sense we must deny that they have any thing at all to doe with him For though the Royall Office of the King of Scotland is solely to bee disposed of by the State of Scotland Yet it is not so with his Person For Persona sequitur locum and his person must be disposed of by the supreame power of that Country wheresoever he shall happen to abide Suppose a King of Scotland should bee in Spaine will they say they have as great an interest to dispose of his Person there as in Scotland I thinke they will not say so and yet they did affirme last day at the Conference that they had as good right to dispose of his person at Westminster as they had at Edenburgh But under their favour England is as distinct a Kingdome from Scotland as Spaine It is as distinct in Lawes distinct in Priviledges distinct in interest it is neither subordinate nor dependent of Scotland and they can no more dispose of a King of Scotlands person he being in England then if he were in Spaine I shall take this as granted for good Law that let the person of any Nation under the sun which is in amity with England happen to come into England that person is forthwith a subject of ENGLAND For hee being protected by the Lawes of England hee becomes thereby subject to those Lawes it being most certaine that Protectio trahit subjectionem subjectio protectionem they being relatives the one cannot stand without the other and as no man can be said to be a
this question was never stirred in till now had it been stirred in no question but it had been rejected The people of England would have held it very strange that they could not have disposed of the person of their owne King or that a King of England could not have gone from Whitehall to Richmond or Hampton-court without the will and appointment of the Councell of Scotland they would have thought they had made an evill bargaine by such a union For before the union they might have disposed of the person of their Prince but after not And since they conceived that by the addition of Scotland there was an addition of charge they would have been very sorry withall to have had an addition of servility Since the beginning of the World there was never before such a contention about the person of a King The Greekes and Trojans did contend for a long time in fight about the dead body of Partroclus which of them should have it But here is not a contention about the dead body of a private man but about the living body of a King neither doe we contend as they did who should have his person but here you do contend as farre as I conceive who should not have it Your brethren of Scotland say positively they will not have the Kings person upon any conditions whatsoever It is now above six moneths past that you voted in this House the demanding of the Kings person but the Lords refused to joyne with ye ever since untill this present you your selfe did Acquiesce as if you had repented of your former vote Now he must be put upon you and with such termes as his present Gardians please to allow of Truly it seemes strange to me that an Army of Scots in pay of the kingdome of England which by the Treaty ought to be governed by the joynt consent of the Committees of both kingdomes upon the place should in England take a King of England without the privity of the English Committee and convey him to Newcastle a Towne likewise of England and should there keepe him for six whole moneths without the consent of both Houses of Parliament And when they finde it not convenient for them to keepe him any longer then they will capitulate with you upon what conditions you must receive his person I never thought to have found a King of England his person being in England under any other protection but that of the Lawes of England but now I finde him under the protection of a Scottish Army whether they say hee is fled for shelter and that they cannot render him up in Honour Sir if that Army of theirs be come into this kingdome as brethren friends and confederates as we hope they are then is every person of that Army during the time of his stay here locally a subject of England and such children as are borne to them here are not Aliens but Denisons and not onely locall but legall Subjects of this kingdome And therefore they having gotten the King into their hands they ought no more to capitulate upon what terms he should be delivered into yours then if the Army of Sir Thomas Fairfax were in possession thereof who if they should deny the surrendring of the King unto you but upon condition no question but it were capitall They say that by vertue of the Covenant they are obliged to defend his Person and Authority What his Authority is in Scotland themselves best know but you onely are to judge of it in England since being not subordinate to any power on Earth there is no power under Heaven can judge you The Covenant ties you to maintaine in the first place the Rights of Parliament and the liberties of the Kingdome and in the second place the Kings Person and Authority and that onely in defence of the former and not otherwise And whereas they expect the King should be received by you with Honour safety and freedome I beseech you Sir consider whether as the case now stands his Reception with Honour can stand with the Honour of the Kingdome whether his safety be not incompatible with the safety of the Common-wealth and whether his freedome be not inconsistent with the freedome of the people I pray Sir take heed least that bringing him in with Honour you doe not dishonour your selfe and question the very justice of all your Actions be wary that in receiving him with safety you doe not thereby endanger and hazard the Common-wealth be advised least in bringing him home with freedome you doe not thereby lead the people of England in thraldome I pray Sir first settle the honour safety and freedome of the Common-wealth and then the honour safety and freedome of the King so far as the latter may stand with the former and not otherwise Wherefore I shall conclude with my humble desire that you would adhere to your former vote that is that the King be disposed of as both Houses of Parliament shall thinke fitting and that you enter into no Treaty either with the King or your brethren of Scotland least otherwise thereby you retard the going home of their Army out of England FINIS