in the Lawes and learned in them and are assisted with all or most of the Judges of the Benches do upon Writs of Errour in Parliament revise and by the advice of the Judges affirme or reverse the Sentence of the next inferiour Courts where the judgement whither given for the King or for a common person may be reversed and as well the King as the common person bound by their reversall and judgement unlesse they be relieved by expresse Act of Parliament Other way of Declaring Law in true proprietie of speech that is to declare the genuine sense and dictate of the Law as it naturally ariseth from the force of Lawes in being there is none for as for declaring Law by Act of Parliament though that of all other be most authentique yet it is not authentique for acurate judgement in interpretation supposed to be in the two Houses there so much as for authoritie legislative administred by the three Orders of that high Court for should the three Orders declare Law contrary to what were Law indeed yet could not their Declaration be erroneous for that it thenceforth altered the Law and made their dictate Law though it were none before Such Declaration of Law therefore being never possible to be made but by the full legislative power of all the three Orders is not so properly a Declaring or interpreting of Law as rather the making of it and is therefore to be referred to the point of restraint in making of Law And this is clear that in such declaring of Law the Kings power is so much lesse restrained than it is by declaring of Law by their inferiour Courts as that in this he himselfe hath ever a personall Vote in the Declaration but in other he hath none at all As to the restraint of regall absolutenesse in point of making Law When our wise and pious Christian Princes had once brought the Kingdom to an happy frame of just and regular Government and sought by all meanes the establishment of that good condition which promised both prosperitie to their people and stabilitie to their own Dominion Change and Innovation being thenceforth more to be feared than any other thing They for preservation of what they had done began to yeild the absolutenesse of their power without which they could never have brought the State into any perfect frame unto some retardation of motion and regulation of power and came by degrees not onely to use the advice of the Bishops and Barons in making of their Lawes but their consents also and then not onely their advice and consents but the advice and consents of the Commons also condescending at last that as to the power of making Law their Scepter should thenceforth be locked up under the cautelous ward of a triple hand so as no new Act whatsoever should obtain the Authoritie of a positive Law without the agreement of the King the Peeres and the Commons to the end that no unadvised Law not well examined and found agreeing with the interests of every of the three formall parts of this Kingdom might in any part maime or enfeeble the established frame which yet did not so much coop up or curbe the regall power from any due worke or office that belongeth to it as rather close and fence it in within the bounds of safetie and of preservation Now this restraint being at first collaterall and accidentall to the Soveraigne power did not in the beginning otherwise binde our Princes than by their voluntary and pious submission of their wils till constant custome becomming a Law made that usage which was at first at their will become an absolute and inevitable limitation of their power so as that at this day no positive Law can now be made by the King without the consent of the Peeres and of the Commons and yet for all this necessitie now of their concurrence and consent not any part of the Soveraignitie to which the legislative power is inseperably incident is in any sort transferred or communicate unto them but as in our Copy hold Estates the Copy holder of a meer Tenant at Will comes by custome to gain a customary inheritance and so to limit and restrain the will and power of the Lord as that he cannot make any determination of the Copy-holders estate otherwise than according to the custome of the Mannour yet does not he deprive the Lord of his Lordship in the Copy hold nor participate with him in it neither yet devest the Fee and Frank-tenement out of the lord but they still remain in him and are ever parcell of the Lords Demeasne So in this restraining of the Kings legislative power to the concurrence of the Peeres and Commons though the custome of the Kingdom hath so fixed and settled the restraint as that now the King cannot in that point use his soveraigne power without the concurrence of the Peeres and Commons according to the custome of the Kingdom yet still the Soveraignitie and with it the inseperable legislative power does soly reside in the King As for the Peeres and Commons they being meerly Instruments of Regulation and qualification of the Kings legislative absolutenesse are no sharers with him in the Soveraignitie but alwayes remain as our very legislative Acts of Parliament do alwayes speak them His Majesties Subjects And His Majestie for all this restraining power of theirs remaines as they themselves in the legislative Acts and not without an Oath acknowledge Him their true and onely Soveraigne Apparantly therefore the Soveraignitie or regall power being thus in matters of private interest restrained to the rule jurisdiction and administration of Law as well by inferiour Courts as by the House of Lords and in the publique affaire of making Law restrained to the concurrence of the Peers and Commons is not so properly said to be restrained as regulated For neither is any of the Kings just and necessary power to the prejudice of the Crown taken from Him for the Law in no sort suffers any diminution of the just and due Soveraignitie neither is there any partenership of the Supremacie thereby thrust upon the King when the Law notwithstanding the restraint expresly declares Him The onely Supreme Governour Neither yet is any of the irregular and exorbitant absolutenesse which the Law separates from the regalitie any way transferred to the Courts or persons that are the instrumentals of the regulation but the Law separating all irregular licentiousnesse from the Regalitie utterly annihilates and makes null all practice and exercise thereof In summe all that is effected by this regulation is the King as He ever was so still remaines wholly and soly Soveraigne of the Kingdom onely not of a licentious and illegall but of a regular and legitimate Dominion But when the power and authoritie of Parliament is acknowledged to be the highest most absolute and most Soveraigne power in the Kingdom and seemes repugnant to that which we have alleadged that the Soveraignitie is wholly and
without any claime of right made by the two Houses and our Law hath not a surer badge of right than continuall and unquestioned possession Besides the Parliament it selfe 7. E. 1. declares unto the King that To him of right belongs straightly to defend that is to forbid all force of Armes and thereunto they are bound to assist him as their Soveraigne Lord The Statute 11. H. 7 18. reciteth Where every Subject by the dutie of his Alleageance is bound to serve assist his Prince and Soveraigne Lord at all seasons when need shall require c. In the 3. of Edw. 3. The House of Commons disclaime the having cognizance of such matters as the guarding of the Seas and Marches of the Kingdom And by the Statute 25. E. 3.2 It is made High Treason for any to meddle with the Militia so farre as To levie Warre against the King or to aide them that do it And we all know that to levie Warre without Commission from the King or to give aide unto it is by our Law to levie War and give aide against our Soveraigne Lord the King His Crown and Dignitie And we never knew of any exception out of that Law in case the Warre were levied by Authoritie of the two Houses And when we have not in our power to search the Parliament rols for clearing these things If besides our published Statutes our Law-bookes have any authoritie we have not onely Bracton whom they insist upon but other authentique Law-bookes concurring with him who all speaking of the King and the Houses do expresly say that seeing The King hath no Peere The King cannot be iudged by them So that whatsoever authoritie is in the constant practice of the Kingdom and whatsoever authoritie in the known and published Lawes and Statutes all do conclude the Soveraignitie in the person of the King and the alleageance faith obedience of the Subject even of the Subject virtually united in the Bodie Representative to be inevitably devinct and obliged to the person of the King The Soveraignitie both of the frame of the State and positive Lawes of the Kingdome being fixed in the person of the King and the Alleageance of the Subject by Law inevitably thither assigned then comes in Religion and fortifies and enforces all those bonds of dutie and obedience and that under the severe menace of damnation which when it is in divers precepts and examples well known unto us abundantly set forth in the Scriptures It will not be safe for us to let slip the consideration of two examples especially The Children of Israel being redeemed out of Egypt baptized in the Red Sea and brought for triall into the wildernesse as they were the type of the Church of God in all Kingdomes whatsoever in this world so Moses their Governour was the type of that regall power under which the Church of God in this world was generally to be governed so as though he were not a King in point of interest for the people were not yet in the Countrey that was to be the Kingdom neither was Moses of the Tribe to whom the Kingdom was promised yet saith the Text He was King when the heads of the people were assembled Moses so personating the kingly Office when as yet there was no expresse command concerning obedience and subjection more than Honour thy father and thy mother and he that curseth father or mother let him die the death It happened that Corah Dathan and Abiram rebelled against him and their rebellion was but this they in the behalfe of the Congregation of the Lord because that it was holy every one of them and the Lord among them question Moses his Soveraignitie charge him and Aaron that they exalted themselves above the Congregation of the Lord and that Moses had not kept touch with them to bring them to a Land that flowed with milke and honey but sought to starve them in the wildernesse while blinding the eyes of the people he might in the mean time make himselfe a Prince over them and out of jealousie of this they refused obedience to Moses and would not come at him when he sent to call them and so much was their cause believed to be just and right as that they were seconded with two hundred and fifty Princes of the Assemblie famous in the Congregation all of them so confident that they durst joyne issue with Moses and put themselves upon triall by Gods immediate judgement in the case and they were also backed with many thousands of the people This was the Rebellion the Judgement we all know to be most exemplar Judgement that ever was given in any case The Heads of the Rebellion Corah Dathan and Abiram with their wives their children and all their substance were swallowed up of the earth they went down quicke into Hell saith the Psalmist The two hundred and fifty that invaded the holy Office were slain with fire from Heaven and fourteen thousand and seven hundred of the people that favoured their attempts and murmured at the Judgement were in an instant in lesse than Aaron could get his Censer with fire from the Altar and run among them consumed in a speedy plague It will be objected that Moses was a man of extraordinary calling and that Rebellion against an ordinary Governour though a soveraigne King is not like Rebellion against a Governour of so extraordinary calling and priviledge all that granted yet this exemplar Judgement comes home to manifest the hainous sin of rebelling against Kings at this day Moses had an extraordinary calling he could not else have been a type of regal Authoritie but in type He was King when the heads of the people were assembled He had the Priest made subordinate to him He shall be unto thee instead of a mouth and thou shalt be unto him instead of God And had the Magistracie derived from his Authoritie to beare the burthen with him God took off the spirit that was upon him and put it upon the seventie two Elders So Moses was clearly endued with regall power and for trangression against that very Authoritie of his was the Judgement made so exemplar It could not be exemplar in regard of any other Authoritie which he had then and no other since either had or could have but that we may know the Judgement was exemplar against Rebellion against regall Dominion which would often be committed in the later dayes the holy Ghost speaking against the seducers deceivers wch in the later dayes should make perilous times describes them not onely by being Cursed speakers disobedient to parents that is as well to Civil parents as Natural traiterous headie high-minded resisting the truth like them that resisted Moses Despising Dominion despising Government speaking evill of Dignities of those that are in Authoritie of those things which they know not c. but by this likewise that They perish in the gainsaying of Corah The other
The Case of our Affaires IN LAW RELIGION And other Circumstances briefly Examined and Presented to the CONSCIENCE Printed in the Yeare 1643. The Case of our Affaires in Law Religion and other Circumstances briefly examined c. THough the Bonds of all Dutie are originally and principally founded in God and tied by Religion yet seeing all civill Duties relate to the particularitie of the humane Ordinance and according to the nature of it is with more or lesse importance to be exacted What Subject soever would finde the true rule and bond of his obedience must in the first place look what the State is wherein he lives and in whom the Soveraignitie is to which his obedience and faith is inevitably bound Our State of England even by the declaration of our Lawes is a Kingdom an Empire a well regulated Monarchie the Head thereof a Supreme Head a Soveraigne a King whose Crown is an Imperiall Crown the Kingdom His Kingdom His Realme His Dominion the People His People the Subject His Subject not onely as they are single men but even when being in Parliament assembled they make the Bodie Representative of the whole Kingdom considered apart without the King so that the very Parliament it selfe is also by our Lawes called His Parliament the King alone by Law hath power to call together in Parliament that Representative Bodie and at His pleasure to dissolve it He personally hath Homage and Oath of fidelitie of all the Peeres as of His Barons and all the Commons in Parliament do by Law swear Alleageance to Him as to the Onely Supreme Governour and to assist and defend all Jurisdictions Priviledges Preheminences and Authorities belonging to Him His Heires and Successours or annexed to the Imperiall Crown of the Realme By the same Oath also is every Officer of considerable trust in Church and Common-wealth assured to His Majestie and not onely they but every single man of twelve yeares of age ought by Law in some or other of His Majesties Leetes to swear Alleageance to His Majestie and never in our Law have we known an Oath of obedience to be made unto the Parliament or any other Power in any case either of mis-government or danger how extraordinary soever This Soveraignitie in the King appeares not onely by that Oath of Supremacie but by the constant acknowledgement of our Acts of Parliament both antient and moderne which alwayes stile the King Our Soveraigne Lord the King that is not Soveraigne Lord to every single man onely as the Observer traiterously and foolishly would make it but the universalitie of us even to our Bodie Representative in Parliament For we must note that though we have among us many that are called Lords even by our Acts of Parliament themselves yet being Lords without relation to the communitie or publique they are never called Our Lords but The Lords with addition of such or such place or Office and they indeed are Lords singulis not universis for every particular man may call such a Lord My Lord but the Communitie may not call him Our Lord for to be Our Lord is to be Lord of the Communitie and that belongeth onely to Our Soveraigne Lord the King Our very Acts of Parliament declaring this State to be a right Imperiall Kingdom a Kingdom we know consisteth of no more than two formall parts onely that is to say a Soveraigne Head and a Subject Bodie and then it clearly followeth that what cooperation soever there be of any of the Members with the Head for the doing of any necessary Act of State whatsoever necessitie there be of the concurrence of those Members and howsoever they may seem to be Parties Orders or States co-equally authorised in the power of acting with the Head yet plainly there neither is nor can be any co-ordination nor co-equalitie of any Estate Order or Degree of the Subject with the Soveraigne nor any competition of the Subjects power in his concurrence with the virtuall and primary influence of the Soveraignes power but a plain subordination and subjected ministration of the one under the Soveraignitie of the other as in the further examination of their differing interests will manifestly appear We see the Soveraignitie of this State clearly vested in the King by Law established in Him and inseparably annexed to His Person by which He hath also inseparably both the Soveraigne power and Soveraigne judgement but as in judging and determining matters of private interest His power is not absolute but is restrained to judgement not judgement arbitrary in His owm Person but judgement to be administred by the proper sworne Judges of His Courts of Law so in matters of publique affaire for so much as concernes the making of Law His power and judgement are so restrained to the concurrence of the Nobles and Commons in Parliament as that He cannot make any settled Law without their consent but then in all other things that are not expresly restrained by any Law as in providing for the present safetie against suddain danger which Senates are so unapt to do as that the famous Roman Senate was ever fain to choose a Dictator to do it for them likewise in levying of Armes suppressing of tumults and rebellions convoaking of Parliaments and dissolving of them making of Peeres granting libertie of sending Burgesses to Parliament treating with Forraigne States making of War League and Peace granting safe conduct and protection indenizing giving of Honour rewarding pardoning coyning and the like in all these and divers other points of Regalitie the Soveraignitie both of judgement and power ever hath been and still is in the King alone freely and at his own discretion is secured to him by tâ—â— Oath of Supremacie whereby as aforesaid the vvhole Representative of Commons all Magistrates and men in place both in Church and Common-vvealth svvear To assist and defend all jurisdictions priviledges preheminences and authorities belonging to the Kings For it is plain that seeing that by the Lavv of God and Nations to be King is to be Supreme Judge and Lavv-giver vvhosoever is King is supreme in every thing vvherein he is not especially restrained and his restraint being by the peculiar Lavves of his Kingdome he can be no further restrained than the knovvn Lavves thereof expresly manifest The great restraint of regall absolutenesse in our State is in the tvvo points of declaring and making of Lavv in neither of vvhich doth the King depart vvith any vvhit of his Soveraignitie In the point declaring of Lavv the King is restrained ordinarily to the mediation of his Judges vvho to declare the Lavv by deliverie of the genuine sense and interpretation of Lavv according to to art and rules of science are in their respective Courts the proper and authorised Judges and Interpreters of Law and do by their interpretation and judgement then binde both the King and Subject Next above them upon errour supposed in their judgement the House of Lords who anciently were exercised
soly in the King We shall easily reconcile that apparition of contradiction if we consider that we use the word Parliament to divers senses and that in two senses wherein we use the word Parliament there is no Soveraignitie to be ascribed to it We sometimes use the word Parliament for the House of Lords onely As when upon Writs of Errour any Judgement in the Kings Bench is examined in the House of Lords and there affirmed or reversed the Judgement is said to be affirmed or reversed by Parliament And yet though in that sense the House of Lords is well enough called The Parliament yet is it not the high Court of Parliament which is the supreme Judgement power and Authoritie of the Kingdome and that we may easily see in this that though the Lords have power there to reverse the Judgements of their inferiour Courts yet have they not power to reverse their own Judgements nor to restore again any Judgement that they have reversed for they judging ministerially and not soveraignely do as well binde their own hands as the hands of their inferiours whereas the absolute soveraigne power doth not so but may reverse any judgement that they themselves have given and again restore the judgement that they themselves reversed for the absolute supreme Court having Juris dandi dictionem can never be at the last period of her jurisdiction but looking ever forward to the present occasion whatsoever passed before it pro re natâ legislatively judgeth maketh and declareth Law But the House of Lords though the most superiour of all Courts of ministeriall iurisdiction and all other inferiour Courts they having no other iurisdiction than onely juris dati dictionem in using their iurisdiction do consummate it and bring it to a period beyond which they cannot go Besides the House of Lords is nor universally to all occasions a iudicatorie and therefore not soveraigne but is the distinct Court of the Kings Barons of Parliament of particular and ministeriall iurisdiction in which the King though one of the three Voters in Parliament yet in those things which come by processe of Law to receive determination there onely hath no Vote at all no more than in all other Courts of ministeriall iurisdiction Sometime we use the word Parliament for the two Houses of Parliament onely and that in regard they are the grosse of the Bodie whereof the Parliament consists there wanting onely the Soveraigne Head to compleat it But the two Houses alone without the King are so farre from being the supreme and high Court of Parliament as that they are not at all a compleat Court neither can they so unite or conioyne as to be an entire Court of either soveraigne or ministeriall iurisdiction But are two distinct Courts if so be the House of Commons which cannot minister an Oath nor fine nor imprison any but their own Members may be called a Court then are they Courts not otherwise co-operating than by concurrence of Votes in their severall Houses for preparing matters in order to an Act of all the three Orders of the Parliament which when they have done their Votes are so farre from having any Legall Authoritie in the State as that in Law there is no stile nor forme of their joynt Acts nor doth the Law so much as take notice of them untill they have the royall assent which if the King refuses he yet doth no injurie to any for that every of the three Orders that are the formall parts of the high Court of Parliament that is the King the Peeres and Commons are every of them by Law trusted for their own respective interests to be the onely assured Conservatours of the rights that do belong unto them and may therefore every one of them freely dissent from the Votes of the other two nor is their any danger that it should be so but contrarily the most assured safetie that may be for the consequence of their not agreeing can be no worse than that their severall interests shall still remain in the condition that they were before untill such time as that they shall all three agree upon the state of alteration Now when the two Houses alone do no way make an entire Bodie House or Court and when their is no known stile nor forme of any Law or Edict by the Votes of them two onely nor any notice of them taken by the Law it is apparant there is no Soveraignitie in their two Votes alone To argue now as some do that the King must not deny His Vote for if by denying it He may frustrate the Votes of the two Houses by the same reason may He frustrate the Votes of all inferiour Courts and open a way to the most boundlesse tyrannie that ever was is a most perverse and absurde falsitie there being no affinitie nor resemblance of the course of those Courts with that of Parliament For in inferiour Courts the Judges sit and give Judgement for the King and not for themselves and the Law there authorises them to give the Kings Judgement and none but them and therefore the Kings Dissent or Countermand cannot frustrate their Judgements But in Parliament the Peeres and Commons neither sit nor Vote for the King but for themselves And the Law appoints the King himselfe to give His own Vote there which if the Peeres and Commons in His absence could have supplied the Statute 33. H. 8.21 needed not have provided that His Consent or Vote by His Letters under His Great Seale should be as effectuall as if He himselfe in Person had assented Besides the Judgement given by the Judges in inferiour Courts is compleat in Law without the assent of the King and therefore cannot be frustrate by the Kings dissent but the Votes of the two Houses are therefore to be frustrated for want of the Kings assent because without it they are not compleat nor perfect The high Court of Parliament therefore resembling a Chaire of three feet the two Houses make but two of the three which without the third is lame and uselesse as to making of Law but with the third becomes a firme and usefull seate and makes that sacred Tripos from whence the Civil Oracles of our Law are delivered When therefore we speake of the Soveraigne power and Authoritie of the Parliament that never is to be understood of the power of the two Houses onely nor any such Soveraigne power to be ascribed unto them Now in the last place we use the word Parliament for the three Orders of Parliament agreeing in their Votes then and then onely use we the word Parliament properly and in that sense onely is the Parliament the supreme Court the highest judicatorie and most soveraigne power and authoritie in the Kingdom But we must ever understand that it is not the most Soveraigne Court for any Soveraignitie placed in the two Houses and from them transferred or communicated to His Majestie by their joyning or consenting with him but it is therefore
the most soveraigne Court because every compleat and perfect Act of it is the Act of the personall will and power of the Soveraigne himselfe Standing in His highest Estate Royall and through the concurrence of those that are the instrumentals of His restraint more freely and absolutely working there than in any other time and place he can do For as a man that yeildeth himselfe to be bound by keepers hath the use of his strength taken from him but none of the naturall strength it selfe much lesse any of it transferred to them that bound him but whensoever they loose his bonds he again workes and acts by virtue of his own naturall strength and not by any received from them So the naturall right and interest of the Soveraignitie being soly in the King and the Peeres and Commons being onely interessed in the Office of restraining for the regular working of true legitimate Soveraignitie in whatsoever the Peeres and Commons by consenting remit the restraint the King in that willeth and worketh absolutely by the power of his own inherent Soveraignitie And whatsoever Act of the Court so passeth the hands of all the three Orders does in truth virtually proceed from the King as from the true and proper efficient thereof which does not obscurely nor rarely appear in our Acts of Parliament but plainly and frequently throughout the whole Bodie of our ancient Lawes The King Willeth the King Commandeth the King Ordaineth Provideth Establisheth Granteth c. And yet though properly they be the Acts of the King in Parliament yet are they also truly the Acts of the whole high Court of Parliament because that every of the three Estates contribute their power according to the diversitie of their office and interest the two Houses by remitting through the consenting the restraint and the King by using his then unrestrained power We are also to consider that though this high Court of the three Orders be the supreme Judicatorie of the Kingdome yet it hath not that superioritie of judgement ascribed to it for any soveraigne facultie it hath in discerning the true dictate and result of Law no more than of any other particular Science as of Divinitie Philosophie Physicke Mathematiques c. for the judgement of Sciences belongeth to the professours thereof and the judgement of Law as well as of other Sciences But the high Court of Parliament is the supreme judge for the great trust the Law reposeth in the concurrence of all the three Orders who have meanes to have the best information of Law that the whole profession doth afford and are supposed to use it and likewise for the great power they have to binde all other judgement and to make their sentence Law though as we have said it were not Law before But we are further to observe that in the point of making of Law the Law restraining thus the Soveraigne power to the consent of the Peeres and Commons the more that by this regulation it purged it from destructive exorbitances the more tender it grew of the just and legitimate rights thereof remaining and therefore considering the person of the Soveraigne to be single and his power counterpoised by the opposed wisedome of the two numerous Bodies of the two Houses it allowed unto the King power to sweare unto himselfe a Bodie of Councell of State which our Lawes sometime call His Grand Councell and to sweare unto him also Counsellours at Law even the Judges themselves and others learned in the Law faithfully to advise him in his Government that he may neither do nor receive wrong especially not in Parliament where the wrong may be perpetuall And if upon a generall pretence of evill counsell without any instance in what his Majestie be deprived of the use and assistance of and assistance of any of his sworne Counsell especially in Parliament time when the Soveraignitie may be so easily overmatched it will make such a breach of the priviledge of the first of the three Orders in Parliament as will destroy the true frame of Parliaments diminish the power of the Crown and bring the settled estate of the Kingdome into the calamitous innovation of an unsettled and ever changing Forme of Government and so into all manner of miserie and confusion The Soveraignitie in the King alone is so clearly acknowledged by our Law as that unlesse we would reiect the iudgement and recognition of all our Parliament and especially of all our most sincere and unquestioned Parliaments all the time of Queen Elizabeth and ever since all which do not onely affirme but sweare it it would be idle to go about to make praise of it But when the incredible perversenesse of some and in particular of him that writes The treacherie and disloyaltie of Papists c. does not onely affirme the contrary but would pretend to prove it It cannot be a digression in a word or two to give some answer to his reasonings I shall passe over Minshaw's Dictionarie Speed Stowe Vowell Foxe and others whose authoritie he is not ashamed to cite for determining matter in Law and which if indeed it were a question were of the greatest consequence that ever was stirred in Law And because he so much insists upon Bracton I shall briefly examine Bracton and the Authours integritie in citing him and others And first that all men may know how little authoritie in Law Bracton either now hath or anciently hath had Our yeare-bookes tell us that in the 35. H. 6. It was declared by the whole Court that Bracton was never held an Authour in our Law and then it is not materiall what is the opinion of one that is of no authoritie But if he were yet those words in Bracton so much insisted on Rex habet superiorem Deum Legem item Curiam suam c. are not indeed Bractons assertion For Bracton speaking of the Kings Deeds and Charters and affirming which we would be loath should be Law at this day that Neither the Iustices nor private men may dispute the Kings Deed but that if there be doubt of his Deed or Charter the resolution must come from the Kings own interpretation and will c. Then goes he on thus But some may say saith he that the King may do justice and well and if so he may by the same reason do ill and so put a necessitie upon him that he mend the injurie least both King and Iustices fall into the judgement of the living God for the injurie The King hath a Superiour to wit God also the Law by which he is made King also His Court to wit the Earles and Barons c. Now whosoever considers the place it is all a reasoning which Bracton supposes some other to make and no affirmation of his own and that is also plain by his words in another place where speaking of the King If Iustice saith he be demanded of him seing no Writ lies against him one must petition that
he would correct and amend what he had done Which if he do not it is sufficient for his punishment that he must expect God to be the Avenger of it Not a word of the Courts avenging or rectifying of the iniurie or of their enforcing the King to do it himselfe Again speaking of Earles though with little iudgement he would seem to derive their Office from the Etymologie of the Latine name Comes which was but a late borrowed translation brought in use by the Conquerour and would so make them a kinde of Companions with the King yet does he not make them Companions thrust upon the King by Law but the Kings saith he do associate such to themselves for advice and government Every one truly is under him and he under none but God and he hath no Peer in his Kingdom for then he should loose the Command when as one Peer hath no command over another much lesse hath any one command over his superiour for so he should be inferiour to his own Subjects and the King ought not to be under man but under God and the Law now these words of Bracton tell us that the other are neither his assertion nor approbation And whereas by those words of Bracton that The King ought to be under the Law he would inferre a direct Soveraignitie over the King he very much corrupts the meaning of Bracton for it is one thing to be subiect to Law and to the administration of Law and another thing to be a Subiect to those that have the administration of Law as to his Soveraignes Our Saviour Christ was subiect to the Law and to the administration of the Law in the hands of them that were the Ministers of it yet was not Christ the Subject of those Ministers nor they his Soveraignes but contrary he theirs he being Borne King of the Iewes And Bracton's reason that the King must be under the Law is because he is Christs Vicar on earth And Christ himselfe was under the Law so as plainly Bracton meanes not the King otherwise under the Law then as our Saviour Christ was who did subject himselfe to the just execution of the positive Lawes of the Kingdom of which he himselfe was the Head and Fountain not that he should be subject to the administration of any arbitrary Law residing in the people who should in the last resort be Soveraignes over their own King for that was not sutable to one that should be Vicar of Christ but to a Vicar of the people Neither is the King more subject to any judgement that can be given in Parliament than He is to judgements given in inferiour Courts to which if you will say the Parliament is superiour to those Courts and the superioritie that is but subordinately in them is soveraignely in the Parliament truly the superioritie if it may so be call'd that is subordinately in the inferiour Courts is but more superiourly in the House of Lords than them but it is not soveraignely neither in the Lords House nor any other part of Parliament till we come to the judgement of all the three Estates where the Kings will is the efficient formall of the Law and there you may see that the Vicar of Christ the King like Christ His Lord whom He representeth in being subject to the Law of which He is Soveraigne becomes at last subject to none but Himselfe for that high Court of Parliament speaketh not without Him But ere we give over his citation of Bracton we must not forget his unfaithfull application of it For as for those words The King hath a superior that is to say God also the Law also His Court to wit the Earles and Barons He would not onely have them Bracton's words and have them understood to carry Soveraignitie over the King but would have that Soveraignitie placed in the two Houses when as Bracton expresly expounds that the Court which he meanes is the Earles and Barons that is to say the House of Lords onely and not the Commons too plainly shewing that he meanes no other superioritie than such as is incident to the regular course of Justice in the way of legall suit and processe which in that course never goes further than the House of Lords there is no forme of prosecution in that kinde in the two Houses and therefore neither Soveraignitie nor Superioritie in that kinde can be ascribed to them Neither may we passe over his falshood and shuffling to extenuate the Oath of Supremacie that securitie may make men swallow their perjurie and never know it for though it be true that the Oath was pricipally intended against Papacie because the Papacie was the first that ever pretended Soveraignitie over Kings and the clause of renouncing runnes against Forraigne powers onely as those that then were onely feared to be pretenders under the Papacie yet the recognition it selfe that The King is the onely Supreme Governour And the Oath it selfe to beare faith and true Alleageance to the King His Heires and Successours and to assist and defend all jurisdictions priviledges preheminences and authoritie belonging to them c. are clearly generall absolute and unrestrained to any particularitie of Papacie Forraigners or any thing else whatsoever But to come to that that is the maine Authoritie scope and drift of his book and which he would by all meanes inculcate though but under the shew of telling what popish Parliaments have done lest otherwise his horrible intention might appear he brings us precedents that the two Houses of Parliament have upon all occasion soveraignely disposed of the Crown and of all the rights that do belong unto it and that even our Kings themselves have submitted their soveraigne rights to the determination of the two Houses Good God! How Evill men and Seducers wax worse and worse deceiving and being deceived He that writ the Observations upon His Maiesties Answers and Expresses had so much ingenuitie left him as to acknowledge that There was never King deposed by any Parliament lawfully assembled and that the Acts of the Parliament R. 2. were not so properly the Acts of the two Houses as of H. 4. and His victorious Armie But this man being not ashamed to licke up what his fellow vomited out presents the world with a cull of all the irregular times of our unfortunate Princes in which by the consent of all men the Acts of neither side are to be drawn into example and bring us for judiciall Authorities the horrid facts of irregular power in the Times of King Iohn R. 2. H. 4. H 6. c. And is so supine in his purpose that with the factious Parliaments in the Times of H. 3. E 2. and R. 2. which he cites to have exercised authoritie over Kings he stickes not to couple the Rebellions in the North against H. 4. and the rebellious Insurrections of Iacke Cade Iacke Straw Wat Tyler Doctour Mackerell Ket and others as Acts that made equall proofe
of the soveraigne power of the Peeres and Commons indeed in both there were much what the same pretences and both had much what the same warrant But all those Parliaments as they were called in the troublesome Times of Faction and Civill War so were they ever swayed by those that were the Heads of the most potent Faction and while they alwayes acted in favour of them and their Designe they are so farre from being instances of the power and authoritie of the two Houses as that cleane contrary they are plain instances of the weaknesse and unsteadinesse of them when forsaking the moderation and guidance of their naturall Head they suffered themselves to be lead by the private conduct of every popular pretender and so even among the precedents which he citeth we see that when Canutus prevailed by his Armes he could have a Parliament resolve that his Title was the best When Hen. 4. had an Armie of 60000. he could have a Parliament depose R. 2. and conferre the Crown upon himselfe When Edw. Duke of Yorke grew potent he could have a Parliament be the instrument of determining the Raigne of H. 6. and leave him onely the name of King for his life but give the Duke the very Kingdom under the names of Protectour and Regent Edw. 4. could by Parliament procure H 4. H. 5. H. 6. to be declared Kings in fact but not in right R. 3. though an Usurper could procure a Parliament to declare him a lawfull King Henry 7. could procure the forementioned Acts in favour of Edw. 4. R. 3. to be adnulled Hen. 8. could have a Parliament authorise his Divorces And Queen Elizab. could by Parliament make it High Treason to say that the Queen could not by Act of Parliament binde and dispose the rights and Titles which any person whatsoever might have to the Crown when yet we know that no Act of Parliament no not an Attainder by Parliament can disable the right Heire to the Crown because the descent of the Crown upon Him purges all disabilities whatsoever and makes Him capable of it This is the summe and true estimate of all the Authorities which he cites in which if the Acts could be granted to be the meer Acts of the two Houses yet did they no more prove the soveraigne power to be in the two Houses than the Popes deposing of Kings proves the right of deposing them to be in him that the things were done is no proofe that they were lawfully done and yet as idle and vile a collection of examples not to be imitated as he hath made he is fain to belie them to makem seem to serve his turne for truly though he affirmes that the popish Parliaments c challenged or claimed greater jurisdiction over Kings than any ever since yet his instances prove no more claime of Soveraignitie than a robber claimes when he exercises an arbitrary power over a mans person and fortunes what they did they did de facto upon some inferiour reasons not upon claime of the Soveraignitie they neither taught nor ever learn'd that Jesuitique depth of Sathan that the Soveraignitie over the Soveraigne is placed in the Bodie Representative of the Subject All claime therefore of either the Soveraignitie it selfe or of the rights thereof by any Representative of the Subject is a transcendent impietie beyond the parallell of all his unimitable examples in which I cannot but the more wonder that he should ascribe the Acts unto the two Houses when by making the Acts theirs he makes all the long miserie and bloodshed that ensued upon those Acts to have been brought upon the Land by the meer Act of the two Houses Considering therefore the every way faulty Argument of that Book both in citing and applying I am forced to conclude with the same words that in the frontispice of his Book he begins with The treacherous dealers have dealt treacherously yea the treacherous dealers have dealt exceeding treacherously As for the second part of the same Author that came since forth under a title that pretends to shew the lawfulnes of a defensive war that answers it selfe that it comes nothing to the case in question where the War is acknowledged to be an Invasive War to take from His Majestie certain Counsellours pretended to be evil Counsellours If possibly therefore he should prove what he undertakes to maintain that Subjects may make a Defensive War against their Soveraigne yet being nothing to our case deserves at all no answer here I therefore returne again unto my purpose That the Soveraignitie with all the rights claimed by His Majestie is in the King inseparably inherent in the person of His Majestie we have not onely the forementioned testimonies and reasons but we have the witnesse of the two Houses themselves for whom our deceiving Pamphlets do now make all the new arguments of pretence For first we have as I have said the whole current and bodie of our very Acts of Parliament acknowledging it in these very termes Our Soveraigne Lord the King We have the Parliament 25. H. 8 declaring thus This Your Graces Realme recognizing no Superiour under God but Your Grace The Parliament 16. R. 2.5 affirming The Crown of England hath been so free at all times that it hath been in no earthly subjection but immediately to God in all things touching the regalitie of the said Crown and to none other In the 25. H. 5. both Houses declare That it belongeth to the Kings regalitie to grant or denie what petitions in Parliament he pleaseth In the 15. E. 3. The King being unwillingly drawn to consent to certain Articles prejudiciall to the Crown and to promise to seale the Statute thereupon made least otherwise his affaires in hand might have been ruinated Another Statute the same year reciting the matter enacted in these words It seemed to the said Earles Barons and otherwise men that since the Statute did not of Our free will proceed the same be void and ought not to have the name nor strength of a Statute and therefore by their counsaile and assent We have decreed the said Statute to be void c. In the Statute of Banishment of H. Spencer the first Article against him is for making a Bill wherein he affirmed Homage and alleageance to the King is more by reason of their own than of the person of the King The word hath a note of a Parliament roll Diarie of H. 4. The Commons in Parliament pray the King that They may not be made parties to any judgement in Parliament but where in rei veritate they are parties for that the judgement belongs onely to the King except where it is given by Statute As for the Militia the Shippes and Forts of the Kingdom The King and His Predecessours have not onely been ever in possession of them commanded and disposed of them even during the sitting of Parliaments but have enjoyed that possession
else their aide and service must make his Armie a popish Armie surely not to admit them into his Armie when they cannot otherwise be safe were uniustly to deny them the protection of Subiects and to spare them either in their personall or pecuniarie assistance were with inequalitie toward his Protestant Subiects and with danger to their Cause to refuse his needfull duties from the Papists though therefore Protestants should never lay down their iealousie of the growth of Poperie yet should they not let it so abuse them as to make them believe they have no danger to feare but onely Poperie especially now when Schisme and Sectarisme do with such authoritie invade us and when nothing can more advance the bringing in of Poperie if it be possible than the confusion in Church and State that does inevitably follow them the expectance whereof was the cause that made the Cardinall and the popish partie from beyond sea so effectually labour the promoting of them Undoubtedly if Poperie be at this time to be feared it is to be feared from the prevailing of Schismatickes by the Designe and manage of so potent and active forraigne Instruments of Poperie and it would returne with comfortable satisfaction to our consciences that having for a feigned feare of Poperie engaged our selves in reall Rebellion we should finde our paines rewarded with the felicitie of becomming instruments of the evill that at so deare a rate we did unnecessarily resist When in every thing considerable to resolution the conscience is on every hand so strongly beset with reasons all concluding for obedience to our Soveraigne and for our utmost assistance to His Cause How weak is the sole Authoritie of an imperfect representative of Peeres and Commons so to possesse the conscience with perswasion to the contrary as upon it to venture the present and eternall safetie of ones selfe and of so many thousands in our Israel But say that this world were onely to be considered in the businesse let us yet but see what must needs be the event in case the Parliament Forces which God forbid should prevaile either they must leave the Soveraignitie in the King as it was before and content themselves with strict Lawes against all grievances that may be feared in Religion or in Government and then they bring no more to passe then what His Majestie before their Warre did of himselfe and does yet gratiously offer or else they must take the soveraigne power from the King into their own hands and leave him no more at most than the contemptible name of King then shall we loose our old legall Government and be governed by the absolute arbitrary and tyrannicall way of their Votes and they to secure themselves in that new and uncouth way of Government that they must institute must to the overthrow of Trade and intolerable burthen of the Subject keep the Kingdome under perpetuall Garrisons and then what with the Faction and discord of our ambitious New-States what with the unrulinesse of the commanding Souldier and what with the attempts of those whose fidelitie will ever excite their utmost endeavour for their Soveraignes never dying right we shall fall into an incessant Civill Warre untill the Kingdome being ruined the Soveraignitie returne into the hand to which it rightfully belongeth Unles therefore it please God that our great Metropolis of London partaking rather of the wise spirit of the men of Abel than of the obstinacie of Gibeah the Benjamite shall either deale so effectually with those that there reside in shew of Parliament as that they bring them to yield to the equalitie of a free and legall Parliament and so provide against future grievances without any violation of the Rights of the Crown or else in case they refuse shall like the Abelites deliver unto the King the Heads of those Opposites that rise up against Him We may assure our selves that that Citie like those of Gibeah and Benjamin are hardened to all our Israels punishment and to their own destruction and may as they did prevaile once and again against the residue of the Kingdome untill they have fulfilled Gods determined Visitation upon the Land and then consummate all with their deplorable destruction FINIS A DISCOVERIE OF LONDONS OBSTINACIE AND MISERIE THere hath been many Admonitions sent from His Majestie advising that Citie of their own preservation yet they have continued stubburne though they cannot but see the hand of the Lord to assist all the King's Majesties proceedings whereas their actions are so farre from prosperitie that they winde themselves wilfully and force others ignorantly into miserable adversitie Furthermore though God hath manifestly fought against the Rebells for the King giving Him Victorie in many Battailes when all humane helpes and advantages were on the Rebells side though God hath miraculously and beyond the hope of man restored unto Him the hearts of the people which the Heads of this Rebellion by slander had stolne from Him though from small and contemptible beginnings in the eyes of His Enemies few or none standing for Him but God and the justice of His Cause God hath prospered him into many mighty Armies which render Him formidable to the proudest and stoutest of the Rebels though every Victorie hath been seconded by a tender of Peace and with an overture of Pacification so that as Himselfe speakes in that Declaration published Iuly 30 1643. He could not probably fall under the scandalous imputation which hath usually attended His Messages of Peace that they proceed from the weaknesse of His Power not love of His People Lastly though like an indulgent Father of rebellious Children He hath courted this Citie and wooed it by many pardons many and often repeated Acts of Grace and Favour to recall us to our former Loyaltie if ever we were Loyall yet inconsiderate unthankfull wretches as we are we over-look or sleight all these invitations for instead of returning we have added this as the complement of our other Rebellions that whether more unthankfully or undutifully I cannot tel we have cast dirt in our Soveraignes face and slandered the footsteps of Gods Anointed as if He were guiltie of all those Miseries which at this time threaten the subversion of this Nation we will no longer wound the King secretly through the sides of his evill Counsellours or Cavaliers but charge Him directly and point blanke as in that most seditious Declaration or whatever you will call it presented by Sir David Watkins and that broken Citizen out at elbowes called Satten Shute to the Common-Councell and by them to the remainder of the Lower House if it be not breach of Priviledge to call it so How willing have we obeyed every Commandment except God and the Kings How forward have we been to employ the large Revenues of our severall Companies and Brotherhoods as heretofore to excesse and gluttonie so now to support this Rebellion How ready even beyond our abilities have we been to submit to every Taxe
and illegall Imposition even to the bondage slaverie of Excise by which we are not so much Proprietaries of our own as Stewards or Casheerers to the heads of the Rebellion and all this to no other end but to keep up the Rebellion we have not onely protected and supported the Kings mortall Enemies but as much as in us lay have persecuted all His Friends or if but suspected to stand well affected to Him and the Justice of His Cause not sparing the effusion of innocent blood as that of Master Tomkins and Master Chaloner which like the blood of Abel calls loud to Heaven for vengeance on this bloody Citie and questionlesse will in time be heard for not content to buy these mens bloods with great summes of monies which could not be advanced but on this condition that Master Tomkins and Master Chaloner be delivered up to their pleasure and murthered for a strange Conspiracie called Obedience to the King but being dead in an unheard of barbarousnesse they presse into the houses where their dead bodies lay before their Funerals and thinking they could never be sure enough of so great a guilt they will not believe that they are dead unlesse they force the houses to see the bodies of them whom themselves had murthered insomuch that to avoid further violence and rage of the Citizens they were fain to set open the doores where their bodies lay and expose them to the view of all that so they might glut themselves with beholding that sad spectacle which themselves had made That the Kings Gracious offers of Peace have been sleighted and rejected with scorne and contempt and His Messengers that brought them contrary to the Law of Armes and Nations imprisoned That those miserable distractions which have rent and torne this flourishing Kingdome are so farre from being closed that they are rather made wider That the Sword of War so long devouring is not yet sheathed except in one anothers bowels That this Kingdome is still made the Scene of Murthers Rapines Oppression and Plunderings and whereon all the horrid acts of rage and injustice are every day acted and the Nation put almost out of hope ever to enjoy her former Peace and Plentie is our fault and ours wholly Had not the 〈◊〉 â—f this Rebellion been animated by this Citie and encouraged by promises of more Supplies of Men and Monies they had long before this laid down their Armes and come with halters about their neckes and cast themselves at the Kings feet submissively begging those Pardons which they have presumptuously rejected Time was when the two Houses gave a Law to the Citie now it is come to that passe that the Citie prescribe to the Reliques of the two Houses They must not conclude of War or Peace without consulting the Citie if they doe they reckon without their Host. Nay though Fairfax be utterly routed in the North and William once sirnamed a Conquerour be totally defeated in the West yet can they neither be perswaded nor beaten into thoughts of Peace On the 20th of Iuly last no longer ago many Thousands as the printed paper tells you preferred a Petition to the House of Commons presented by M. Norbury of the Cursitors Office and Iohn Hat an Atturney of Guild-hall both pernicious men which as it evidently shewes their obstinate aversion from Peace so it is the most desperate devilish slander that ever yet durst look the world in the face for first they tell the House of Commons and in them the world That the King without any touch of conscience and in defiance of God hath raised an Armie of Papists Outlawes and Traitors for Robbing Burning Murthering and Destroying of His Religious Honest and well meaning People And then knowing not onely their interest in but their power over the House of Commons they do not so much Petition as Command them to accept of their assistance for the raising a new Armie and in expresse termes prescribe unto them and limit them to a Committee of their own nomination for the seizing and receiving of such summes as the willing shall thinke fit to offer or they shall thinke fit to extort from the unwilling for this service and that you may judge of the whole bunch by some they name Pennington the pretended Lord Maior Stroad one of the five Members Harry Martin Plunder-master Generall and Denis Bond Burgesse of Dorchester and Patriarch Whites own disciple a man of a double capacitie to be a Rebell and finding themselves more alone in these undertakings than they did imagine like desperate Traitours they call on the whole Kingdome as one man according to the intent of the late Covenant to joyne with them in this Rebellion And having thus taken a course to raise new Forces on Saturday the 29th of Iuly at a Common Hall they Voted Sir William Waller Generall of their new intended Armie whom to indeare the more they interest him in the Government of the Citie hoping that being as mad as his Ladie he will hold up the Rebellion as long as he can and then be one of the last to run away I mean not from Battaile for in that he hath shewed himselfe as forward as the foremost but from Iustice and the due reward of his disloyaltie By all which it is most evident that this Languishing Rebellion had before this day gasp'd its last and given up the ghost had not this rebellious Citie by its wealth and multitudes fomented it and given it life If therefore Posteritie shall aske who broke down the bounds to those streames of blood that have stained this earth if they aske who make Libertie captive Truth criminall Rapine just Tyrannie and Oppression lawfull who blanched Rebellion with the specious pretence of Defence of Lawes and Liberties War with the desire of an established Peace Sacriledge and prophanation with the shew of Zeale and Reformation Lastly if they aske who would have pulled the Crown from the Kings head taken the Government off the hindges dissolved Monarchie inslaved the Lawes and ruined their Countrey say 'T was the Proud Unthankfull Schismaticall Rebellious Bloodie Citie of London so that what they wanted of devouring this Kingdom by cheating and couzening they mean to finish by the Sword That therefore these dangerous Defluctions and continuall not small Distillations but Floods of Men Money Ammunition and Armes descending from the Head Citie and Metropolis of this Kingdome may not for ever dissolve the nerves and luxate the Sinewes of this admirable composed Government it will highly concerne this Nation to look about them to undeceive themselves and to consult their own Peace and safetie by joyning with their Gracious Soveraigne in chastizing these rebellious insolencies and reducing this stubburne Citie of London either to obedience or ashes FINIS 25. H. 8. cap. 22. 24 H 8. cap. 12. 26. H. 8. cap 2. 1. Eliz. 1. 1. Iac. 1. Co. 5. Codry case fol. 9. b. vide the Parl. writ 1. Eliz. 1. 5. El. 1. Lo. Cha. Egertons Post nati 73. b. Psal. 60 7. Gen. 49.10 Deut. 33.4 5. Lo. Cha. Egertons Post nati fol. 22. 23. sect. 4. Crompt â—ur 10. b. The speech of H. 8. in Parl. by information of the Judges Stat. West 1 3. E. 1.1.3 E. 1.3 6 42. Stat. of Merch 13. E. 1. Westm. 3.18 E. 1.1 Stat. of waste 20. E. 1. of Appeale 28. E. 1.1 E. 2.1 and all the Titles of the Acts of our Parliament Vnicuique in suà arte credendum 11. H 7.9.34 H. 6 14 25. E. 3.4.37 E. 3.18 42. E 3.3.17 R. 2. Vide the Oath of the Justices an. 18 E. 3. Yee shall swear c. that lawfully ye shall counsell the King in his businesse and ye shall not counsell nor assent to any thing which may turne him in damage c. and ye shall do and procure the profit of the King and of his Crown with all things where ye may reasonably do the same and if ye be found in default c. ye shall be at the Kings will of bodie goods and lands thereof to do as shall please him So helpe c. Vide the Statute de Bigâ—m 35. H. 6. Fitz Aâ—r tit. gard 72. pag. 3 Braect li 1 c. 16. parâ— 3 fol. 34. Bract. li. 1. c 8 p. 5. Pag. 38. 2 Tim. 3.13 Ed. 2. Pag. 8. to pag. 15. Pag. 15. Pag. 33 34 35 35 Adjudged H. 7. Pag. 4. Co. 5. de jure Ecc. fol. 9. b. 25 H. 8.21 16. R 2 5. 25. H 5. 15. E. 3. 5. E. 3. Vide Ola Mag. Cha. Dâ—ar H. 4. 7. E. 1. 3. E. 3. De queux ils nont pas cognizance 25. E. 3.2 3. E. 3. Fitz tit. Cor. sta 〈…〉 pl Cor. 153. Bract. ti 2. cap. 22. fol. 52. a. Rex parem non habet nec vicinum nec superiorem Deut. 33.5 Numb. 16.3 ib. v. 13. ib. v. 2. Psal 106.17 Deut. 33.5 Exo. 4.16 Numb. 11.15 2 Tim. 3 2. 4. 2 Pet. 2.10 Jude 8.10 11. 1 Sam. 16.14 verse 1. 1 Sam. 26.9 Afterward David was touched in heart because he had cut off the lap of Sauls garment 1 Sam. 24.6 The Book of Observations Treacherie and disloyaltie of Papists c. 2 Sam. 20.16 Judges 20