Precedent to us who are not governed by the Iudicial Law of Moses but by the common Law of England and the ruled cases in that Law And therefore tell me if you can whether our own books of afford you any of the like examples Answ. Our own books do afford us many as viz. in the case of Walker a Citizen g of London and that of Mr. Burdet g an Esquire of Warwickshire both executed in the time of King Edward 4th for words which might be construed to a treasonable and rebellious sense tho perhaps no ill meaning was intended that of the Windsors h Butcher in the reign of King Henry 8th for saying that rather than sell his meat at so mean a rate he would send it to the Rebels in the North and finally of one Oldnoll one of the Yeomen of the Guard in Queen Maries time i who had judgment of death for certain traiterous and seditious words spoken against her Majesty altho no insurrection or Rebellion did ensue upon them For the particulars I must refer you to our law books and the common Chronicles 7. Quest Proceed we now unto your third and last sort of Rebellion and tell me what you mean by the Rebellion of the hand and how many sorts there are of it Answ. The Rebellion of the hand is of two sorts whereof the first is the composing dispersing of false scandalous Books and Pamphlets tending to the dishonour of the King His Subordinate Officers Form of Government of purpose to alienate the affections of his Subjects from him and make them the more apt to Rebel against him And this is punishable with death also by the law of England as may appear by the examples of k Bugnall Scot Heath and Kennington being Sanctuary men in S. Martins Legrand London who had judgment to be hanged drawn quartered in the time of K. Hen. 7th for setting up seditious Bills to the scandal of the King and some of his Council of Penry Udall Barrow Greenwood Studley Billott and Bowdler l zealous Puritans all all of which were condemned and three of them hanged in Q. Elizabeths time for writing treasonable seditious Books by wch the peace of the Kingdom might have been disturbed tho no Rebellion followed on them of Copping and Thacker m who were hanged at S. Edmunds bury in the said Queens time for publishing the Pamphlets writ by Rob. Browne against the Book of Common-Prayer which Compton thus reports in his Lawyers French n Deux executez pour poublier les livres de Robert Browne encontre le livre de common praut And finally witness the example of Mr. Williams o a Barrister of the Middle Temple who was executed in King Iames his Reign for writing a defamatory Book against the said King and his Posterity 8. Quest What is the other sort of that Rebellion which you call the Rebellion of the hand Answ. The other sort of the Rebellion of the hand is that which commonly is called Actual Rebellion and is defined by the Statute of the 25 of King Edward 3. p to be a levying of War against our Sovereign Lord the King in his Realm or an adhering to the Kings Enemies in his Realm giving to them aid and comfort in the Realm or elsewhere And so it is determined also in the Civil Laws by which all those q qui arripiunt arma contra eum cujus jurisdictioni subditi sunt who take up Arms against such Persons to whose authority they are subject are declared to be Rebels Where note that not the open Act only but the attempt machination is brought within the compass of Rebellion Rebellio ipse actus rebellandi est qui non solùm facto sed machinatione committitur as those Lawyers tell us r And it is worth our observation that not only the bearing Arms against the King is declared to be Rebellion by the law of England but that it was declared to be Rebellion by the chief Judges of this Kingdom s at the arraignment of the Earl of Essex the Father of him who now is in the head of this Rebellion for any man to seek to make himself so strong that the King should not be able to resist him altho he broke not out into open act 9. Quest What is the end that Rebels do propose unto themselves when they put themselves into Rebellion Ans. The deposition destruction of the King in possession an alteration of the present Government And so it was determined by the joint consent of all the Judges t at the Arraignment of the Earl of Essex above mentioned by whom it was resolved for Law that in every Rebellion there was a plot upon the life and deposition of the Prince it being not to be conceived that the Rebels would suffer him to live or reign◠who might have opportunity in the change of things to punish them for their Rebellions and avenge himself upon them for their Treasons And this they did confirm by the Civil Laws and further justifie and confirm by the strength of Reason with which it seemed inconsistent ut qui semel Regi jus dixerit that he who had once over-ruled his King by force of Arms should either suffer him to live or recover the possession of his Realm again All which they made good by the sad examples of King Edward the second and King Richard the second who did not long enjoy either life or Crown after they came into the hands of those who rebelled against them 10. Qu. But those Examples which you speak of were in times of Popery have you the like to shew since the Reformation Answ. I would to God we had none such but we have too many For not to look into our neighbouring Realm of Scotland and the proceedings of some there who called themselves Protestants against their Queen the Rebellion plotted by the Earl of Essex in Queen Elizabeths time though there was nothing less pretended was to have ended in the death of the Queen and the alteration of the Government For as was afterwards confessed by some of his Accomplices the secret part of the design was to have seized upon the Queen and secured his Adversaries in the Court whom when he had condemned and executed u Parliamento indicto reipub formam immutare statuit he then resolved to call a Parliament and settle a new form of Government Which how it could be done and the Queen alive I believe you know not And so much was acknowledged by the Earl himself after the sentence of death was passed upon him when he affirmed to certain of her Majesties Council Reginam sospitem esse non posse si ipse supersit x that whilst he lived it was not possible for the Queen to continue in safety Thus have you seen the main design of that Rebellion as of all others whatsoever what his pretences
unto Porphyries Tree in which there is one Genus summum and many Genera subalterna Now 't is well known to every young Logician who hath learnt his Predicabiles that Genus subalternum is a species only as it looks up to those above it a Genus in relation unto these below it If you have so much Logick in you as to make application of this Note to the present case you will perceive inferiour Magistrates to be no Magistrates at all as they relate unto the King the Genus summum in the scale of Govenment and therefore of no more authority to resist the King or call the People unto Arms than the meanest Subject 22. Quest If so then were the Christian Subject of all men most miserable o in being utterly deprived of all ways and means by which to free his Country from Oppression and himself from Tyranny And therefore tell me if you can what would you have the Subject do in these extremities in which you have deprived him of all means to relieve himself Answ. That which the Lord himself prescribed and the Saints have practised When first the Lord acquainted those of the house of Israel how heavy a yoke their violence and importunity in asking for a King had pulled upon them he told them of no other remedy for so much affliction but that they should cry out in that day because of the King whom they had chosen p No casting off the yoke when we find it grievous nor any way to make it lighter and more pleasing to us than either by addressing our Complaints to the Lord our God or tendring our Petitions to our Lord the King Kings are accomptable to none but God if they abuse the power which he gives unto them Nor can we sue them for a Trespass in any other Court than the Court of Heaven Therefore when David had defiled the Wife and destroyed the Husband he thought himself responsal for it unto none but God against whom only he had sinned q as he saith himself And thereupon S. Ambrose gives this gloss on those words of David Homini ergo non peccavit cui non tenebatur obnoxius r David saith he confesseth no offence to man by whom he could not be impleaded but only unto God who had power to judg him St. Gregory of Tours understood this rightly when he did thus address himself to a King of France Si quis de nobis c. s If any of us O King do transgress the Laws thou hast power to punish him but it thou goest beyond thy limits who can punish thee We tell thee of thy faults as occasion serves and when thou listest to give ear thou dost hearken to us Which if thou shouldest refuse to do who shall judg thee for it but he that calls himself by the name of Justice And that you may be sure that it is no otherwise in England than in France and Iewry Bracton a great and famous Lawyer of this Kingdom doth affirm expresly that if the King proceed not in his Government according unto Law and Right there is no legal remedy to be had against him What then is to be done by the injured Subject Locus erit supplicationi quod factum suum corrigat emendet quod si non fecerit satis ei sufficit ad poenam quòd Dominum expecâ—et ultorem t All that he hath to do saith he is that the doth petition him for relief and remedy which if the King refuse to consent unto it will be punishment enough unto him that he must look for vengeance from the hands of God Which said he given this reason for it Because that no man is to call the Kings Acts in question multò fortiùs contra factuâ— suum venire must less to go about to annul and avoid them by force and violence 23. Quest We grant it to be true which you cite from Bracton as it relates to private and particular men but think you that it doth concern or oblige the Parliament which is the representative body of the Kingdom Answ. Hoc sumus congregati quod dispersi u as Tertullian tells us of the Christians in another case We shewed before that Subjects were in no case to resist their Sovereigns in the way of Arms either as private persons on inferiour Magistrates And thereupon we may conclude that the People of this Realm in the diffusive body of it having no power of levying War or raising Forces to resist the King without being punishable for the same as in case of Treason cannot enable the two Houses of Parliament which are the representative body of it to do those Acts which they want power to do themselves for no Man can confer a power upon any other which is not first vested in himself according to that good old rule Nemo dat quod non habet And therefore if it be rebellion in the English Subject out of times of Parliament to levy War against the King in his Realm or to adhere unto his Enemies and be aiding to them I know not how it can excuse the Members of the two Houses of Parliament from coming within the compass of that Condemnation if they commit such Acts in time of Parliament and under the pretence of the power thereof which are judged Treason and Rebellion by the Laws of England 24. Quest But Master Prynne hath learnedly removed that rub x who tells you that the Statute of 25. Edward 3. runs only in the Singular number If a man shall levy War against the King and therefore cannot be extended to the Houses who are many and publick persons What can you answer unto that Answ. That Mr. Prynne having so often shewn malice may have a little leave sometimes to shew his folly and make some sport unto the Kingdom in these useful times for if his learned observation will hold good in Law it is not possible that any Rebellion should be punished in a legal way because so many and some of them perhaps may be publick persons are commonly ingaged in actions of that wicked nature And I suppose that Mr. Prynne with all his learning did never read of a Rebellion that is to say of a War levyed by the Subject against his Sovereign plotted and executed by one man only in the Singular number Had Master Prynne affirmed on his word and credit that the Members of the two Houses were not men but gods he had then said somewhat which would have freed them from the guilt and danger of that dreadful Statute If he admit them to be men and grant them to have levyed War against his Majesty or to be aiding to the Rebels now in arms against him he both conclude them to be guilty of this great Rebellion with which this miserable Kingdom in almost laid desolate His Sophistry and trim distinctions touching their quality and numbers will but little help them 25. Qu. We have
life they had before expressed such a dangerous malice Then add to this that when they came unto Edge-Hill they bent their Canon more especially and spent the hottest part of their shot and fury towards that part of the battel in which according unto that advertisement which the villain Blague had given their General a Man as full of discontent and malice as the worst amongst them the King in Person and the two young Princes meant to be Put this together and compare it with some subsequent passages which have been desperatly vented in the House of Commons touching the deposition of the King without check or censure and the inviting of a forreign Nation to Invade this Kingdom the better to effect their business and tell me if you can what is aimed at else then the destruction of the King and his Royal Issue 30. Quest I must confess you put me to it but I must take some time to consider of it before I tell you what I think In the mean season I have one more doubt to propose unto you which if you can remove I am wholly yours The name of Parliament is sacred to me and I am loth to scruple any of those actions which receive countenance and authority from the awful body Can you make proof that the Party which remains at Westminster have not the full authority of the two Houses of Parliament If you could make that clear then the work were done Answ. I dare not take that task upon me it is too invidious but I shall offer these few things to your consideration First it would seriously be considered Whether the King whose presence as the head of that awful body gives life and motion to the acts and results thereof do purposely absent himself to make their consultations frustrate and their meeting fruitless or that he hath been driven from them by force and violence Secondly Whether such considerable numbers of the Lords and Commons as are now absent from the Houses have left the Houses and the service for no other reason than for compliance with the King and to serve his ends in hope of getting honours and preferments by him or on the motion made by the rascal multitude to have the names of these given up who Voted not with Say and Pym and other the good Members of both Houses Thirdly What mischief would ensue both to the Church of Christ and the States of Christendom If when the greater and sounder part of Parliaments and General Councils shall be driven away either by the threats and practices of the lesser and the worse affected the less and the worse affected part may have the reputation of the whole body and their actions countenanced by the name thereof Fourthly Whether it be not one of the greatest prejudices which the Protestants have against the Council of Trent k that it was held in an unsafe place which they could not come to without danger and that the Prelates there assembled were so prelimited by the Popes instructions or awed with an Italian Guard which was set upon them under pretence of safety to their Persons from affronts and injuries that they had neither freedom to debate the points which were there propounded nor liberty of suffrage to determine of them Fifthly Whether the King calling the expulsed Party of the Lords and Commons to some other place and summoning all the rest also to assemble there may not with greater reason take unto themselves the name the power and reputation of a Parliament than the remaining party now at Westminster consisting seldom of above an hundred Commons and sometimes not above three Lords have challenged and usurped the name of the two Houses Sixthly and lastly 31. Quest Hold I must interupt you there The King by Writ appoints his Parliament to be held at Westminster and by a subsequent Act or Statute hath so bound himself that he can neither dissolve nor adjourn it without their consent How can he then remove it to another place than that which was at first appointed Answ. No doubt but he may do it with as good authority as the two Houses or either of them may adjourn to London which you cannot choose but know hath been often done since the beginning of this Session For tho they sit not there as Houses but by turning the either of the Houses into a Committee of the whole House yet this is but an Artifice to elude the Writ and act their business in a place of more advantage The change is only in the name but the power the same Witness those Votes and Declarations which they have passed and published in the said Committees as binding and effectual to their ends and purposes as any thing transacted in the several Houses Nor is the place so necessary and essential unto the being of Parliament but that the major part with the Kings consent may change it if they think it profitable for the Common wealth Otherwise we might say of Parliaments as once Victorinus did of Christians l Ergone pariete faciunt Christianum Is it the place and not the persons which do make a Parliament Or grant we that of common course the Houses cannot regularly be adjourned to another place but the adjournment must be made in the House it self yet this is but a circumstance or at most a ceremony not of the substance of the work And if that speech of Caesar carrieth any weight as all wise Men conceive it doth Legem necessitati cedere oportere m that even the strictest Laws must yield to the necessities and uses of the Common-wealth no question but so slight a circumstance as that of place must needs be thought in the present business is to give way unto the peace and preservation of this wretched Kingdom 32. Quest These points I shall consider of as you have advised only at present I shall tell you that I am very well resolved of the unlawfulness of this War against His Majesty and think them guilty of Rebellion who either laid the plot thereof or have since pursued it Tell me now for the close of all what punishment the Laws do inflict on those who are convicted of so capital and abhorred a crime Answ. You cannot be so ignorant of the Laws of England as not to know That a convicted Rebel is condemned to be hanged drawn and quartered his belly to be ripped up and his bowels to be taken out whilest he is yet living his head and limbs to be advanced on some eminent places for a terrible example unto others his blood attainted his estate confiscate his possessions forfeited The Civil Laws go somewhat further and execute them after death in their Coats of Arms which are to be defaced and razed in what place soever they are found Rebellium arma Insignia delenda sunt ubicunque inveniuntur n as Bartolus hath it I end as I began with the Book of Homilies Turn over and read