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-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
their consent and advice of the Lords shall deeme to be just and fit And this power or rather trust they derive from the people their Electors yet not without dependance on the King The Knights are sent by the County but the County had power and command by the Kings Writ to send them And as for the Burgesses their trust or power call it what you will doth more especially referre unto the King as the author thereof for whence had the elected Burgesses their power but from the Borough that sent them whence had the Borough power to send but from the King who by his Letters Patents incorporated them into a Borough and gave them power to send Burgesses to the Parliament which otherwise they had no more right to doe then any other vile whatsoever And this is the ground of that power which the house of Commons have as concerning the generalty of the Kingdome And besides this the house of Commons although a great and honourable Assembly yet of themselves as I think they are no Court either of Record or of ordiâ—ary Iustice unlesse it bee with respect to their owne Members which is rather a necessary priviledge then any power They can neither administer an Oath nor give any judgement twixt party and party nor have they power to controll or reverse a judgement given in the meanest pipowder Court I speak not this with a minde to derogate from the due honour of that Assembly but to occasion some friendly brother if I am in errour to instrâ—ct me how the imposing of the Protestation by order of the Commons only upon all the subjects in generall under a penalty of being branded with malignancy and adjudged unfit to beare any publike office may be defended How that order for levelling Chancels and making other alterations in the Church which issued from the Commons without the King and in opposition to the Lords may be justified either by reason or president How that Remonstrance a chiefe meanes of all our succeding dissentions that was voted with so much opposition in their owne house and was after published I will not say to disaffect the people from his Majesties government may be defended and justified In briefe may I be instructed with some grounds by which these and many other their actions and Votes may be warranted I shall thenceforth acknowledge them whom now perhaps by mistake I think to be no Court at all to be the most supreme Iudicatory both for Law and State In the meane while I am ignorant of any trust they have other then a trust from the people to consult and assent to the King and Lords in the making of Lawes which without the consent of the Lords and his Majesties concurrence is altogether uselesse and of no vertue And in them apart I know no Iurisdiction but with respect to their owne Members and surely that such as it is they have from the Crowne the fountaine of all Iustice and the spring head of all Iurisdiction The house of Peeres considered simply have power by assent or disassent to enable or disable the making or repealing of any Lawes and generall Ordinances but without the concurrence of King and Commons this of it self is of no use They are likewise an high Court of Iudicatory in respect of particular causes orderly brought before them having Iurisdiction in many though not in all Cases In criminall causes concerning life and member I think they have not Iurisdiction without the Kings speciall Commission and therefore they cannot attaint any man for treason murder or felony They are not only a Court of Iustice but of Record they may take a recognizance and by the Kings Writ or Commission may reverse for errour the Iudgements given in any of the ordinary Courts But all these powers as likewise their Baronies by reason of which they have place and vote in Parliament are immediately and meerely derived from the Crowne the fountaine of all honour and jurisdiction and they doe so necessarily depend upon the King in matters of Iudicatory as that in iudgement of law they speak ove bouch le Roy mesme Thus much concerning the Lords and Commons apart from the King The King alone he is Capitalis Angliae Iusticiarius the fountaine of all Iurisdiction and above all other Iurisdictions Britton speaking in the person of King E. 1. nous volousque nostre jurisdiction soit sur touts jurisdictions in nostre royalme By the law of Nations and by the very end of Regall power the King is to iudge the people 1 Sam. cap. 8. Give us a King to judge us vers. 20. We will have a King over us that we also may be as the Nations and that our King may judge us Bracton tels us That the King alone if he could suffice ought to judge the people and that by his Oath he is bound thereunto And as the ordinary iuridicall power is supreme and originally in the King so likewise is the legislative it being a principall end of Regall authority dare jus populo which power was in Kings by the law of nature while they governed the people by naturall Equity long before either municipall lawes or Parliaments had a being Before Moses there were no standing municipall lawes or at least not before Pharoneus long before which there were Kings of Sâ—itâ—â—â— Assyria Egypt c. who according to naturall Equity gave law unto their people Rhemo cum fratre Quirinuâ— jura dabat Hoc Priami gâ—stamen erat â—um jura vocatiâ— Mâ—râ— dâ—ret populâ—â— But their lawes they so gave ought to bee agreeable to naturall Equity aiming no lesse at the good of the people then of themselves Such conditions and limitations as are agreeable to naturall Equity Kings by the divine institution were bound to observe and some by their voluntary Oaths for themselves and their successours many times bound themselves to more strict limits then were absolutely requisite yet being agreeable to Equity and consistent with Royalty ought to be observed And thenâ—e it is according to the severall degrees that the latitude of naturall Equity doth admit in giving lawes that some Kings are more strictly limiâ—ed then others and according to the oaths and promises made by the King of this Realme they can neither give nor repeale any law but â—ith the assent of the Peeres and people The Observaâ—or doth not deny the Legislative power to bee in the King but saith he partly in the King partly in the Kingdom which I shall admit to be true in this sence viz. that the Legislative power is not so in the King onely as that he being sole can either in ordinary or extraordinary cases make or alter any Law for thereunto is necessarily required the assent both of Lords and Commons But yet to speak properly the Legislative power is solely in the King although not in the King being sole Rex solus legislator non si solus the assent of
Church and Common-wealth and yet before that the Lords had rejected a bill for imposing the same Protestation How shaâ—l I defend their published orders as that of the ninth of September in derogation of the book of Common prayer and for suspension of some lawes in force concerning Church-government Or if not in ordinary â—ases yet informe me whether in case of neâ—essitie the Commons may make Oâ—dinances mauger the King and Lords and dispose of the strengeh of the Realme And if so whether they may not likewise levie Subsidies and impose taxes in such manner as they shall think fiâ— Whether is it pliamentaâ—y when a Biâ—l hath been once and againe rejected to obtrude it a third time in the same Session taking advantage of the absence of such as are knowne to oppose it Thus it is said was done to passe the Ordinance for the Militia How shall I satisfie such as saw heard and felt the frequent tumults resorting to the Parliament house dâ—ores o be no tumults but lawfull assemblies although they threatned and assaulted some Members and afâ—righted very many If I yeeld they were tumults I contradict a Declaration in the name of the Lords and Commons defining them to be lawfull assemblies If I say they were not tumults I am threatned by a Declâ—ration formerly made by a fuller house of Peers and sâ—nt downe to the house of Commons to have had their assistance for the suppressing of such tumulâ—s If it be objected to me that the new major part of the Houses doe assume and challenge ordinary power to make new and repeale old lawes shall I answer that they have not as yet so farre incroached upon the libertie of the Subject my opponent will I doubt reply that indirectly and impliciteâ—y they have alrâ—ady done it though polâ—â—ie will that they forbeare a while to claime it in downe right termes for feare it should too much staâ—tle the subject whose libertie must be invaded by degrees at first thâ—refore the vâ—te shall be onely thus Whensoever the Lords aâ—â— Commons shall dâ—claâ—e what the law of the land is the same must be asseâ—ted to and obeyed Let this be â—rst swallâ—wed and it wâ—ll â—hence be early proved in good time that those that may authorative declare the law lâ—ying an obligation immediately upon all to obey such Declaration may likewise whensoever they please make new or repeale the old law this will wilâ— be proved by a Declaration of the Lords and Commons If it were admitted say they that the King by his Proclamation â—he â—ow major part of Loâ—ds and Commons by their vote may declare a law thereby his Proclamation their vote will in effect become lawes which would turne â—o the subversion of the law of the land and the rights and liberties of the Subject This againe the Observator proves There is saith hee in the interpretation of law upon the last appeale the same supremacy of power requisite as is in making it and therefore grant the King to be supreme interpreter and t is all one as if we grant him to be suprâ—mâ— maker of law grant him this and we grant â—im to be above all limits all conditions all humane bounds whatsoever we resigne all into his hands Lives Lawes Liberties Parliaments all to be held at meâ—re discreâ—ion But the King will my opponent say never câ—aimed to himselfe alone any such power but the now major part of the two Houses do claime to themselves and such as shall at any time make themselves a major part this supreme power of interpreting and declaring law and accordingly they declare that the King may not send for Serjeant Skippon nor require any subject to come to him which by some speciall service is not bound to come to him That the Kâ—ng could not by the law adjourne the Terme to York and many such other Declarations and Interpretations of law they have made to all which they require the kingdome should obey without appealing And so they not the King will have our Lawes Lives Liberties Parliaments all to be held at meere discretion Now what cleere answer may be made to this reply I desire to be instructed Another doubt that perplexeth me ariseth from their declaring the priviledge of Parliament to extend to high treason now I do not know that any priviledge can have its ground or commencement unlesse it be by statute grant or prescription no statute grant or presciption can be alledged for this priviledge against treason nor indeed can a grant in such case hold foâ—ce if the King and Pope when the Pope was conceived to have had plenitude of power should have both joyned in granting a Sanctuarie for treason although it were not to exempt traytors from all manner of triall or punishment yet was such a grant in it selfe meerly void 1 Hen. 7. Staffâ—rds case c. And by the statute 26 Hen. 8. cap. 13. it is enacted that no offendor in any kinde of high treason shall have the priviledge of any manner of Sanctuarie And as there is neither statute nor grant so no prescription neither to exempt the members of Parliament wholly from punishment nor yet to change the method and manner of their triall for no prescription can be but it must be both reasonable in it selfe and also used and allowed now there hath not been nor can be any one instance given to prove that this priviledge was either allowed or so much as claimed nay the contrary practise hath been witnessed by Wentworths case cited by his Majestie whereunto many others might be added and as it wants allowance or claime so is it in it selfe unreasonable for if after the rising of the House I shall overheare or discover a Parliament man plotting treason and yeâ— may not attach him till I have acquainted the House which cannot be till next day or perhaps two dayes after that they againe sit the treason in the meane while will be executed or the traytor perceiving himselfe discovered will be fled So if a Parliament man at York commit treason murder or robberie if you may not arrest him till you have been at London and got leave of the House the offendor without doubt will not stirre away till you returne to apprehend him Can we imagine any should have greater priviledge then the law of Nations gives to Embassadours and yet they have no priviledge iâ— case of high treason being an offence against the lawes of Nations and Nature Cambd. Eliz. fol. 201. May not every Iudge in Westminster Hall claime this priviledge with better colour then a Member of Parliament though the Parliament be a higher Court then any of them For as the King may impeach one Iudge so more and then it will be in his pleasure or of any other accuser to make the ordinarie Courts though setled by prescription and Acts of Parliament and lesse depending upon the will of the King then doth the being of the two Houses what they will
when they will and then if the King hath any suit depending in the Common Pleas and finds some of the Iudges inclyning against him they may be held under a fained accusation of Treason till the others have given judgement for the king Surely though the Parliament be a superiour Court yet have the ordinary Courts as firme a foundation as that can have and are more necessary for the people and yet without question upon such pretence no judge may claime a priviledge from arrest in Case of Treason If wee consult with our Law bookes they tell us that the priviledge of Parliament doth not extend to Treason nor yet breach of the peace nor yet as I thinke against the kings debt for the reason and ground of priviledge is because the king hath an Interest in the members to have their advice therefore no subject may arrest them for his debt But that cannot give them priviledge against the king himselfe Vidâ— Dyer 59. 60. Every Burgasse hath priviledge quant larrest nest forsque al suite dun Subject 2 8. 4. 8. b. per Danby Dyer 275. Crompton 8. b. 9. 10. 11 Elsmâ—re Postnati 20. 21. Now whereas the observator saith that this priviledge is Claymed in case of suspition onely and when leave may be had and when competent accusers appeare not This overthrowes the reasons given by the Houses and is not in it selfe satisfactory For thâ—e Attorney Generall in the most competent accuser and the accusation was of downe-right High Treason not onely of suspition and yet upon probable suspition the accused ought to be imprisoned I must therefore intreat the observator in this particular for that it hath beene a cause of so great combustion and taking up of armes within this Kingdome to give me a more full satisfaction There remaines one other scruple wherewith I am perplexed and it ariseth for their voting the Commissions of Array to be illegall whether they deny the power it selfe or onely dislike the â—orme of this present Commision is uncertaine Now as concerning the first it seemes to me that posse regni or the power over the Militia muster array c. is by the fundamentall Law inmovably setled in the Crowne or rather the Crowne setled on it â— being such an individuall right of the Crowne as if a King without it is in truth nothing Opâ—rtet saith Glanvill regiam potestatem armis esse decoratam Jn rege saith Bracto qui recteregit necessaria sunt hac duo arma viz et leges and the Statute maâ—e Elâ—â—ven Henry the Seaventh Cap 1. tells us that by duty of All glance the Subjects are bound to serve their Sovereigne Lord for the time being in his warres fâ—r dâ—fâ—nce of him and the Land against every Robellion power and miget reared agâ—inst â—im And with him to enter and abide in service in battailâ— if the case so require c. And another Statute 4. 5. Phil. Mary Cap 3 Shewes that the Kiâ—gs of his Realm have ever used to muster their Subjects and to Levy a number of them for servâ—ce in waâ—res And so those Reverend Iudges Hutton and Crooke arguing for the Sâ—â—ject in Case of Shipmoney acknowledge the mustering and arraying of the Subjects by Commissions to be undoubted right of the Crowne Hutton fol 39. That there have beene Commissions of Array and provision for Armes and for preparing Armour according to the variety of times for training and disciplining of Souldiers to be prepared for defence c. That this hath beene in use no man can or ever could deny But the armes where-with they were charged were still their owne proper goods And doth not the whole frame of Government of the Realme depend and ever hath done upon Commissions granted by the King to Shereiffs and Iustices of peace whiâ—h are in substance the same with this 12. Hen 7. 17. tels us that at first all administration of Iustice was in the Crowne till people multiplying Shereiffs were deputed under whom are all to be ready for defence of the Realme when enemies come And the Sherifâ—e is to attend the King in time of warre and shall cause the people to goe with the King for the defence of the Realme against enemies and now by all this it appeares that it is the kings right to discipline and array the souldierâ— and to dispose of the strength of the Realme And that this power is inseperable from him even an act of Parliament if it would disable the king tâ— defend the kingdom is voyd being agâ—inst Law and reason Cookâ—s Argument 56. But you saâ— that the Parliâ—ment â—esires no â—em vall of that power which was in the King but that which was in such or such a substituâ—e But whether they desire it or no they have by thâ—i ordinance of Militia taken away that power which was in the King unlesse we shall thinke those to be his substitutes that take it against his wiâ—l and hold it and imploy it against him Againe you tell us it is but for a time disposed of by a tâ—mporary Ordinanc and not absolâ—tely and for ever takâ—n from the King and seeing thâ—y deâ—â—red it not for the present occasion why shâ—uld the King dâ—ny it Should a good fellow desire the observators wiâ—e fâ—r the present occasion I doubt he would not be so kind hearted as to grant it And surely there bee some kinde of things that are not to be departed with though for a day Semiramis desired of her husband king Ninus that he would grant unto her the sovereigne power for five dayes as Diodorus Siculus or as Plutarch reporteth but for one day which being granted her she in that place caused her husband to be slaine and ever after ruled as Queene I hope no body is so wicked as to imagine any such vile intention and yet this story may well shew how a king is no more himselfe iâ— he but for a day depart from his individuall right And such it appeares by his right to the Militia of the Realme and therefore the Commission of Array is in substance undeniably good But then whether the forme of the Commission be legall I can see as little reason to doubt seeing it is for substance and forme both by a very act of Parliament now in force and by his Majesties Ceclararation cleared from all colour of objection So that in mine owne understanding it seemes unquestionable both for matter and forme You will say neverthelesse that I ought to submit my understanding and implicity beleeve it illegall because so voted But this sound somewhat harsh that we should be bound to submit to such votes against an Act of Parliament upon record vnlesse you can assure me that they are proper â—udges against the king and all such as discent from them wheather it be an Act of Parliament or not And if they are yet I pray satisfie mee concerning the manner of their proceedings why was it so hastily determined being a question of that weight and which required a perusall of many ancient Statutes and Records Why were none of the Iudges nor Sarjeants advised within such a quâ—stion of legalitie or illegalitie The Commission is in Latine and old legall Latine are all the members that voted against it able to give the Grammer Construction of it But above all why was it voted without so much as hearing the King or his Counsell to speake in his cause before it were condemned You know what the Poet saith Qui statuit aliquid parte inaudita altera aequum licet statuerit haud aequus futi I spare to load the Observator with any more doubts concerning their past votes the good Consequences whereof and of other concomitant proceedings I doe much feare If the observator shall give me but probable hope of the good event of things and satisfy my doubt in these perticulars I shall with cheerefulnesse ever after pay an humble obedience unto all such votes and proceedings and shall from thenceforth acknowledge my selfe for his industry in setling and satisfying my yet unsatisfied Conscience to be much indebted unto him Meane while I bid him heartily farewell FINIS Decl of the Lo Com of the 2 of Novemb. Luciâ—â— Sâ—â—mâ— 158. 1. H. 74. 6. Plow Com. 238. 244. Camb. Britan. 163. The King hath Soveraign power hee acknowledgeth no superiour but God alone See Sir Tho. Smith de Rep. Ang. li 2. cap. 4. 5. Rep. so 86. de Iure regis Eccl. siastico Rodin de Rep. cap 8. 7 Rep. 12 13. Câ—lv Case Prov. 11. Livy Gen. 14. â—â—od 32. Sir W. Rawley l. 2. Hist. Mund. Sozomen li 6. Seneca Stamford Preface Cokes Instiâ— 2 part pag. 379. â— H. 7. 20. Stamf. 72. 12 H. 7. 17. Mirror of Iustice Bracton lib. 3. fol. 107. Fortescue cap. â—â— 13. â— Rep. Calâ—ins â—ase 13. Virg Davis rep. Rex Angliae est monarcha Imperator in regno suo Cassaneus in catol. glor. mundi Rex Angliae est absolutus Monarcha in regno suo Vide Crompt Juâ—iâ—d 108. Modiâ— tenendi Parliament Page 1. Page 4. Bodin de Reput l. 2. cap. 5. Vide Cambd. Eliz. pa. 118. accord Page 45. Elsmere postnati 99. 33. H. 8. ca. 1. 28. H. 8. c. 19. Davis Rep. 25. Eccles. 8. vâ— 8. Bracton l. 5 tract. 3. c. 3. li. 1. cap. 8. Wâ—sd 6. pag. 45. Arist. Eth. 18. Cap. 10 Plato in Bolitico His Majesties Answer to the 19. propositions Huttons Argument against Ship mony p. 33 page 34. Deâ—lar Maii 27 concerning the Stat. of E. 1.