they did to be virtually in themselves And if so it only differs in words from that Vote whereby they resolved to have no King In substance it is one and the same And if the Members mean as the words seeme to import that the power of Government shall be in the King Lords and Commons joyntly and that this Vote be so far binding as to settle that government for ever which is in it selfe inconsistent with that arbitrary power they now even by this very Vote assume it is likewise in it selfe most absurd It is true that we having a knowne Law whereby we are protected in our persons lives and estates to have this Law unalterable otherwise then by the joynt concurrence of the King and two Houses is a constitution beneficiall for the Kingdome but in point of Government it is a Composier not onely improper but destructive to the whole Nation In every Common-wealth accidents frequently happen which of necessity require things to be done yet if not acted with secrecy hazards the ruine of the people For example The King hath intelligence that a forraigne Nation is prepared and resolved to invade this Kingdome Hereupon with great care and secrecy a designe is laid to surprize the enemy In this case for the King at the same time to proclaime his plot not onely frustrates his designe but endangers the destruction of the whole Kingdome Now admit the King Lords and Commons jointly to have the power of Government and it is impossible whatever the designe be although the publishing thereof unavoidably destroy both Nation and people to keep it secret First for the Lords The Members sit and Vote in that House of what capacity or disposition soever by descent and experience shewes that wise men although Lords too sometimes beget fooles Honest men knaves and Loyall men Traytors And for the Commons House he who examines his owne Country be it in any part of the Realme I am confident will find the greater number of those elected Knights and Burgesses unfit for Statesmen or Privy Councellors Nor is it possible that the multitude if they had authority to make such elections which they have not should make choice of apt persons to governe the Kingdome Then adding hereunto the number of those Members amounting unto seven hundred or more and doubtlesse in point of secrecy to proclaime it at the market Crosse and to advise with them is one and the same thing But admit every Member a perfect Statesman the composier of that Body consisting of the King Lords and Commons is such as not onely renders them incapable to governe the Realme but is in it selfe so pernitious to the Common-wealth as that it is impossible for the Divel himselfe to invent unlesse it be that the two Houses without the King a plat-forme more apt to introduce confusion both to Church and State When a Capitall or Criminall offender is convict the knowne Law in point of punishment doth not distinguish of persons The Judge whether the offender be capable of pardon or not must give sentence according to the nature and quality of the offence upon every one alike He hath not power either to pardon or mitigate the punishment That is the office of the Supreame Magistrate Then what a Tyrannicall constitution it were that the King shall not have power to distribute mercy untill the major part of the two Houses have Voted it common experience makes it easie to judge And on the other side if the King without that joynt consent hath not authority to punish offenders It will be very difficult to bring the most horrid malefactors to triall be the offence Treason Murder Sacriledge or any other crime how execrable soever whilst either House doth omit or refuse to Vote it so no punishment An infallible way I confesse it is to embolden themselves and all others their adherents to perpetrate all wickednesse under the Sun If a dispute happen whether to make War or to proclaime Peace to fight or not to fight an enemy and the like it cannot be expected but that those three bodies shall even to the ruine of the Nation irreconcileably differ in opinion But it were endlesse to insist upon particulars of this nature the calamities which have befallen us by the Members arrogating the Soveraigne power of Government and which daily must ensue whilst they either continue that usurpation or shall be suffered in point of Government to share with the King words cannot expresse Suppose three single persons had jointly the Soveraigne power of government no man can imagine but that they would even in matters of greatest weight and perill sterne severall wayes But in point of Government to adde unto the King the Members of the two Houses make it a composier far more preposterous and absurd And consequently to submit to that Vote to be governed by King Lords and Commons although it be admitted the Members intend it a joynt power were no other then to introduce contradictions distractions and confusion Besides by setling the government in King Lords and Commons ipso facto the knowne Law is subverted and an arbitrary power introduced for as before appears they who have the Government and also power to make new and change the old Law cannot be guided but by their owne will Whereas by observing the constitutions of the Realme in submitting to the King alone for matter of Government unto the King and the two Houses joyntlie for making new Laws or altering the old and unto the lawfull Judges of the Realme to expound and declare the Law all arbitrary power is avoided And the King for his assistance in matters of Government hath by the Laws of England three sorts of Councellors viz. His Great Councell His Privy Councell and His Learned Councell The first is properly the Prelates and Peeres of the Realme which besides infinite other testimonies is proved by the Writ of Summons to every Parliament The words are these viz. Rex Vicecomiti c. Quia de advisamento assensu Concilii nostri c. quoddam Parliamentum nostrum apud c. 1. die c. teneri ordinavimus ibidem cum Prelatis Magnatibus Proceribus dicti Regni nostri colloquium habere tract Tibi precipimus c. duos Milites c. venire facias ita quod iidem Milites plenam sufficientem potestatem proâ—se CoÌ„munitate Commitat predict ' c. habeant ad faciendum consentiendum his quae tunc ibidem de communâ— concilio dicti Regni nostri favente Deo contigerint ordinari suantedictis And the Sheriffs returne is thus viz. Virtute istius brevis eligi feci duos Milites viz. A. B. qui plenam sufficientem potestatem c. habent ad faciendum consentiendum iis quae c. de communi concilio Regni Angliae ordinari contigerint Thus it is manifest that it is the Prelates and Peeres who have assistants unto them the Judges and others
government of the King cannot be forced either in person or estate otherwise then the knowne Law judged by indifferent persons unconcerned as aforesaid doth permit And consequently the people of England a most free subject CHAP. XIII That the people of England under the government claimed by the Members of the two Houses are absolute slaves IT cannot be denied but that where the King or the Supreame Magistrates authority over the people is arbitrary that government is tyrannicall No tyrant ever had or can have a greater power Nor is it possible for people where any Law is admitted to be under a greater servitude For he whose will is a Law as he hath no superiour so by any under his command he cannot be said to erre in judgement be his sentence never so bloody cruell or barbarous the dispute is ended no appeale or Writ of Error lyes so that the wisest man how industrious or conscientious soever cannot for the least instant of time promise to himselfe security of life or challenge property in his estate Therefore if the government in England practised and claimed by the Members be arbitrary it followeth that the people are absolute slaves wherein these things are considerable 1. Who they be that arrogate the government 2. What those persons act de facto 3. What power they claime to have de jure 1. For the first they are the Members of the two Houses being in number the Assemblies admitted full about seven hundred persons They are divided into two severall distinct bodies without any head and every body having equall power Then for their priviledges It is by themselves declared to this effect viz. That none of them although he hath committed Treason Sacriledge Murther Rape Felony or any other crime how execrable soever is to be appehended questioned or prosecuted for the same untill licence be thereunto obtained from that House whereof he is a Member Every offender herein is by their Declarations denounced a breaker of the liberty of the Subject of the priviledge of Parliament and a publike enemy to the Common-wealth And such a licence being obtained and the Malefactor thereupon apprehended he is not say they to be prosecuted by indictment or otherwise but in such manner and before such persons as that Assembly thinks fit to direct their persons are so sacred as that none but themselves must judge their actions Thus for the persons commanding 2. What they act de facto We see by a new Law called an Ordinance made by themselves without the King the late Arch-Bishop of Canterbury was condemned to death and executed They have confiscated his and other mens estates and by the same pretence they have taxed the people to the twentieth and fift part of their fortunes They have laid an imposition upon the Subject heretofore not heard of in England called an Excise They have taxed them with vast impositions and payments of money by way of assessements and otherwise at pleasure They receive and dispose of the confiscations and of all the aforesaid summes of money as themselves thinke fit They assume the power finally to declare and Judge the Law and by colour of their owne authority they have de facto repealed severall Acts of Parliament And have imposed upon the people new Lawes of their devising 3. What they claime to have de Jure if themselves be asked whether by Law they have not power to act the foresaid things If they have not authority without appeale to determine what is Treason murder felony or other capitall offence To put to death who they please To confiscate any mans estate To tax or impose upon the people without stint whether the profits of those confiscations taxes and impositions be not at their owne dispose and all this without any account To these they doe they have already answered affirmatively However all men of judgement may be herein satisfied The Members had lawfull power to put to death the Bishop of Canterbury and to seize his estate else he was murdered and his estate seized against Law now if they had therein lawfull authority it followeth that by the same Law they may whether guilty or not guilty of a crime put to death any other who they shal say deserveth to dye and may confiscate whose estate they please dispose thereof to their own use or otherwise as they thinke fit And accordingly we see they have and are going fast on as theives do their booties to divide and share the wealth of the Kingdome amongst themselves If they did lawfully tax the people to a fifth part by the same Law they may tax them to their full worth And for excise admit them to have power to charge any commodity with one peny and it cannot be denied them to have power to tax every one for every drop of drinke or morsell of mâ—â—t or what he buyes or sels to the full double or treble value thereof If they have power to repeale one Act of Parliament they have authority to repeale all the statutes in England And if they have authority to impose upon the people one Law their power therein is without limitation They may inforce upon the Subject what Laws they please and consequently their power claimed as highly arbitrary and tyrannicall as any have or can claime to have And having made this claime Then for their security therein they tell us that in all matters both for soul and body we have no Judge upon earth but themselves and denounce every one an enemy to this new State who shall deny that to be the Law which they declare Law Yet even now the people are told that they are and shall be governed by the knowne Law because say they Judges are appointed and suites of Law admitted Answer There was never any Tyrant but in some sort permitted a known Law among his vassals else the slaves could not acquire estates and so confiscations to the Tyrant would prove inconsiderable By the Laws of England a villaine hath power to buy and purchase and is therein protected against all persons his Lord excepted But the Lord may seize his estate beate or strike his villaine at his pleasure The Turke who hath been accompted the greatest tyrant his vassals acquire vast fortunes and are by a Law protected therein against their fellow slaves But the Turke at pleasure may not onely seize their whole estates but take their lives too Even so it is at present with the people of England we have liberty to buy and sell and acquire wealth we are as an English villaine or Turkish slave sometimes that is when the Members please else not protected therein against one another But when the Members thinke fit every mans estate his fortune his person his life all is at their will and doome That Law permitted amongst the people reacheth not so high as the Members when they thinke fit their will is the Law so that our slavery for the present is worse
politick Capacity If the King die during a Parliament ipso facto the Parliament is dissolved Therefore Soveraignty is not virtually in the two Houses By the Kings death untill a late Statute made therein all suites in Law even between party and party were discontinued And at this day the Chancellor the Keeper of the Great Seal the Judges the Sheriffes of Counties Justices of Peace and other Officers by his death are void which could not be if Soveraigne power were not in the naturall person of the King or if that Authority were virtually in the Members The Law of the Land saith that Allegeance is due from the Subject to the King so soon as he is born therefore he is called Subditus natus And so both Soveraignty and Allegeance inherently and by birth-right the one in the person of the King and the other in the person of the Subject And this duty is reciprocall The King ex Officio as King is obliged to protect the people And the Subject in duty is bound to obey their Soveraign for protectio trahit subjectionem subjectio protectionem There be two sorts of Homage viz. Homagium Ligeum homagium feudale The first being Allegeance is due onely to the Kings Person And therefore our Law saith it is inherent inseparable and cannot be respited But the latter being due by reason of the tenure of Land a Writ lies to respite it Besides a body politick can neither doe nor receive Homage It cannot be done but to the naturall person of a man The Lords and Commons 10 Jacobi made this recognition viz. Albeit within few houres after the death of Queen Elizabeth we declared your Majesty our onely and rightfull Leige Lord and Soveraigne Yet as we cannot doe it too often or enough So it cannot be more fit then in this High Court of Parliament where the whole Kingdome in person or by representation is present upon the knees of our hearts to agnize our most constant Faith Obedience and Loyalty to your Majesty your Royall Progeny humbly beseeching it may be as a Memoriall to all Posterity recorded in Parliament and enacted by the same that we recognize and acknowledge that immediately upon the death of Queen Elizabeth the Imperiall Crown of this Realme did by inherent birth-right and lawfull and undoubted succession descend and come to your Majesty And that by Lawfull right and discent under one Imperiall Crowne your Majesty is of England Scotland France and Ireland King And thereunto we most humbly and faithfully submit and oblige our selves our heires and posterities for ever untill the last drop of our bloods be spent And beseech your Majesty to accept the same as the first fruits of our Loyalty to your Majesty and Royall Progeny and Posterity for ever Which if your Majesty will adorne with your Royall Assent without which it neither can be compleat nor remaine to all Posterity we shall adde this to the rest of your Majesties inestimable benefits By this we see that this Kings Father by inherent birth-right had the Soveraigne power of Government That the Lords and Commons in Parliament did not onely submit thereunto but at their humble suite by Act of Parliament obliged themselves their heires and posterities for ever even to the spending of their last drop of blood to preserve Him and His Posterity therein But to insist upon particulars of this nature were too tedious There is no other Language to be found from the beginning of this Parliament up to the Romane conquest Every Statute booke of Law History and the constant practice of the Kingdome herein concurs Neither tongue nor pen untill these Antipodes the Members who belch nothing but contradictions to truth justice and honesty ever made other expressions But the juggle is now even by the vulgar clearly discovered and found to be too slight an Hocus Pocus trick to gaine three Kingdomes But it is visible to the world The Members use the word King as they do the name of God himself either for their owne advantage or to gull the people which amongst infinite other particulars by their various proceedings concerning the Kings Soveraigne power it is manifest First by their foresaid Declaration in words they ascribe unto the King a greater power then he either hath or challengeth He is say they absolutely Supreame head and Governour And this in all things and that finall too for say they from him there is no appeale But even by the same Instrument they tell us that this Soveraignty is not in the Kings person but totally in the Members of the two Houses And after their preaching of this doctrine and exercising the Kings office for some years then they tooke the boldnesse in plaine tearmes to tell us they would have no King that they themselves would without their Soveraigne governe the Kingdome But herein they catched themselves for instantly thereupon the people plainely discerned their intention even from the first they were by this Vote satisfied that the Members aime was not for the publicke but for their owne private to subvert the knowne Law and to reduce the people to the slavery of an everlasting arbitrary and tyrannicall power under their equals The Subjects of England upon this Vote unanimously even through the whole Kingdome as if they were at one instant generally inspired make their Protestation against these usurpers They cry out and call for their leige Lord their King They resolve to submit unto no other government then by our ancient and knowne Laws which the Members perceiving they returned to their owne vomit and thinking to deceive the people with a new sleight do now againe begin to word it for a King and Vote thus That this Nation shall be Governed by King Lords and Commons Which is as perfect a juggle as that whereby they Declared the Kings power to be virtually in themselves If those Votes binde it followeth that we neither have nor can have otherwise then at the Members will either King Law or Government Their last Vote in words seemes in some sort to set up a King But for any thing we know before the next new Moon the Members may fancy to themselves the same motives as formerly and Vote Him quite downe againe So that admitting this power in the Members to set up and pull downe to Vote and uâ—-Vote it is indifferent both to King and people whether to have a Statue and call it King or a King by the Members Vote Then for the Vote it selfe admitting the Members to have authority by their Votes to alter the Law which they have not it is in it selfe most grosse We must say they be governed by King Lords and Commons But what power is hereby intended for the King non constat By the next Vote the Members may declare they meant hereby that the King shall not have any authority in his owne person but still judge the Soveraigne power as formerly
claime any right interest or authority but such as He is intitled unto by the Common Law by Particular Custome or by Act of Parliament In the next place it is shewed when the two Houses were Instituted and what is a Parliament CHAP. II. What is a Parliament and how and when the two Houses were Instituted AS it is necessary for a Common-wealth to have a Law so every known law must be grounded upon certain rules Therefore be it composed with never so much care the people cannot be well governed unlesse some persons have power in some things to alter the old and make new Laws Emergent occasions are oft such as require raising mony and other things to be done which the prescribed rules of a known Law cannot warrant which persons so authorized to make Laws in this Nation are called the Parliament And that those Persons at this time consist of the King and both Houses joyntly is a thing most obvious to all men but how long it hath been so is uncertaine For although all the Sages of the Law and judicious Historians agree and therwith reason it self concurreth that ever since we have had Lawes some persons have had power in some things to alter and make new Lawes which might properly be called a Parliament yet untill long after the Norman Conquest I doe not finde it cleared what was a Parliament or what Persons had that power But upon perusall of the Statutes themselves which I conceive in this case to be the best proof I confesse I am much inclined to believe that untill the Raigne of King Edward 1. there was not any formed body or known persons whom the King was obliged to summon unto a Parliament for the making of Lawes wherein I shall begin with the first Law of that nature which at this day binds the people And therein we cannot goe beyond the ninth year of the Raigne of King Henry 3. that of Magna Charta being the first upon serious perusall of which Act the Charter of the Forrest and the Statute of Ireland enacted the same year by the words thereof I am induced to believe although doubtlesse with the consent of divers of His Subjects that they were made by the sole power of the King In the Preamble of the Statute of Merton made 20. Hen. 3. are these words viz. It is provided in the Court of our Soveraigne Lord the King holden at Merton before William Arch-bishop of Canterbury and others His Bishops and Suffragans and before the greater part of the Earls and Barons of England there being Assembled for the Coronation of the King and His Queen about which they were all called where it was Treated for the Common-wealth of the Realme And then were made diverse Acts of Parliament By which it clearly seemes to me That the Persons consenting to the Lawes then made were not summoned to a Parliament but to the Kings Court and not called to make Lawes but to solemnize the Coronation of the King and His Queene Those Treated with Bishops Earls and Barons not the Commons nor all the Bishops Earles and Barons only such as the King thought fit to be present at His and His Queenes Coronation And none of them called by Writ Likewise in the Preamble of the Statute of Marlbridge made 52 Hen. 3. are these words viz. For the better Estate of this Realme as it behoveth the Office of a King the more discreet men of the Realme being called together as well on the higher as on the lower estate c. So that to this Parliament it seemes only such Lords and other discreet men of the Common-wealth such as the King thought fit were summoned But in the Preamble of the Statute of Westminster first made 3 Edw. 1. are these words viz. These are the Acts of King Edw. 1. by His Councell and by assent of Arch-bishops Bishops Abbotts Priors Earles Barons and all the Commonalty of the Realme being thither summoned because our Soveraign Lord the King had great desire and zeal to redresse the State of the Realme By which it appears that to the making of Lawes at this time there was a great and generall concurrence for besides Arch-bishops Bishops Abbotts Priors Earles Barons and all the Commonalty the Kings Councell gave their advice therein and consented thereunto But by subsequent Acts of Parliament it seemes to me such a generall Assembly was not necessary For in the Statute of Bigamy made the next year being 4 Edw. 1. are these words viz. In the presence of certaine Reverend Fathers Bishops of England and others of the Kings Councell as well the Justices as others did agree they should be put in writing for a perpetuall memory And 6 Edw. 1. The King and His Justices made an exposition of certaine of the Articles upon the Stat. of Glocester In the Preamble of the Statute of Mortmaine are these words viz. We therefore intending to provide convenient remedy by the advise of our Prelats Earles Barons and other our Sujbects being of our Councell have provided c. In the Preamble of the Statute called Articuli super Chartas it it thus expressed viz. Forasmuch as the Articles of the Great Charter hath not been observed because there was no punishment upon the Offenders c. our Lord the King at the request of His Prelats Earles and Barons Assembled in Parliament hath enacted certaine Articles c. In the Statute of Eschetors made at Lincolne 29 Edw. 1. are these words viz. At the Parliament of our Soveraign Lord the King by His Councell it was agreed and also commanded by the King Himself That from thenceforth it should be observed and done according to the advice of the Reverend Father William Langton Bishop of Coventry and Lichfield and Treasorer to the King John Langton then being Chancellour and other of the Councell then being present before the King c. By these Acts it still seemes to me That both for the Lords and for the Commons as the King pleased sometimes were called more sometimes fewer sometimes part of the Commons sometimes all and somtimes none of them yet the power one and the same for at all the times aforesaid severall Statutes were made which to this day binde the people equall to any Act of Parliament made since Whereupon I conceive that the two Houses of Parliament were not originally composed with the beginning of the Law for as by the aforesaid Acts of Parliament it doth appear in the Raign of King Edw. 1. being the ninth King after the Conquerour and in time above two hundred years from the Conquest all which space we were governed by the same Law we now have there was not any formed Body known Persons or Assembly whose consent was necessary to joyne with the King to make an Act of Parliament but it seems that when the King conceived it fit to make a Law He called to Him such of His Subjects either
of His Councell or others as He thought most proper to be consulted with concerning that present occasion if it concerned matter of Law as in these of the exposition of the Statute of Gloucester and the Statute of Bigamy and other such Acts the Judges and other of His Councell learned were principally consulted with if it concerned the people in generall as that of the Statute of Will 1. and other such like the people of all sorts were called to advise with the King what Laws were to be made And so I conceive it was from that time upward to the Conquest Therefore when any Book or History makes mention of a Parliament in those daies that Assembly as I conceive was no other but as aforesaid And rare it was for any King in those times to consult with any other in making Laws but the Prelats the Peers his Privy Councell the Judges and other persons learned in the profession yet doubtlesse never concluded any matter of moment without consent of such his people as were proper to be advised with therein Nor do I conceive it was in the power of any King after William the Conquerour had consented to govern by a known law to alter the fundamentall grounds thereof But in those daies although we were governed by the same law as now yet it appears to me we had not any formed bodies of the Houses nor could any Subject by the law challenge a particular priviledge to be summoned to Parliament nor claim right to a negative voice But now the law is otherwise there be two formed bodies which must be summoned assembled and their assents had before any new law can be made or the old changed the King at this day hath not a power therein without the joint concurrence of the two Houses which constitution of the two Houses and this power which the Members have to consent unto or refuse laws propounded by the King seems to me to have been attained thus Cleer it is nothing is more plausible to the people then to be preserved from extraordinary Taxes and payments of mony And that might induce King Edw. 1. to make a Law which I find he did 34. of his Reign in these words viz. No Tallage or Aid shall be taken or levied by Vs Our Heires in Our Realm without the good will and assent of Archbishops Bishops Earles Barons Knights Burgesses and other Free-men of the land By this the King excluded himself and his Successours by themselves alone to tax or impose upon the people any payments of mony and from thenceforth no subsidy or other aide could be given him by the Subject without consent of Prelats Peers and Commons This I conceive was the first foundation of the House of Commons and the ground-work for the formed bodies of both Houses For it is obvious that if not the principall one chief end of calling Parliaments was and is to raise mony for the publike affaires so that after the aforesaid Statute of 34 Edw. 1. it had been to little purpose to call a Parliament of Prelats and Peers and not to summon the Commons And upon view of the Statute made after that time it appears that those persons were more frequently called And doubtlesse King Edw. 1. and other succeeding Kings finding that the greater number of the Prelats Peers and Commons consenting thereunto more cheerfully the Laws were obeyed it begat in them a desire to increase their number and to have their assent not only to Subsidies but to every New law And accordingly severall Kings summoned more Towns to return Burgesses created new Corporations and granted to them power to send their Deputies yet was it not reduced to any certainty what number were to be summoned to Parliament the aforesaid Statute of 34 Edw. 1. only declaring That no tax c. shall be levied without assent of Arch-bishops Bishops Earles Barons Knights Burgesses and other Free-men of the Land not mentioning how many or what particular persons so that it was still left to the Kings choice how many to call And so continued for a long time after For to the making of the Satute of Staple 27. E. 3. but one single person was summoned for any one County as by the preamble thereof in these words appears viz. Edw. by the grace of God c. Whereas good deliberation had with the Prelats Dukes Earles Barons and great men of the Counties that is to say for every County one for all the County And of the Commons of Cities and Boroughes of our Realme summoned to our great Councell holden at Westminster c. But afterwards all the Bishops and Peers two Knights for a Shire two Citizens for a City and two Burgesses for a Borough towne were usually called And by a Statute made 7. H. 4. the Writ of summons now used was formed and by one other Act made 1. H. 5. direction is given who shall be chosen that is to say for Knights of the Shire persons resiant in the County and for Cities and Boroughes Citizens and Burgesses dwelling there and free-men of the same Cities and Boroughes and no other And so by frequent calling Parliaments constant summoning the Prelates Peers and Commons as aforesaid the Kings not pressing Laws to passe nor any Law being admitted to bind without such consent the Parliament became a body composed thus viz. of the Lords Spirituall the Lords Temporall and the Commons being three Estates and the King head of all and as the soul adding life And by continuance of time it likewise became in the nature of a fundamentall ground That no new Law can be made or the old altered but by the King with the assent of the two Houses of Parliament And yet the King at this day which is evident by common experience hath power to increase the numbers of either House and that without stint Thus the power of the Kings of England was restrained from making Laws without consent of their Subjects as aforesaid wherein the difference is but thus Former Kings in some things without consent of any knowne Body or Assembly had power to alter the old and make new Lawes our King cannot in any one particular alter the old or make a new Law without the assent of the two Houses Yet Monarchy remaines the people are governed by the same Law under the same power as before which is by the Kings sole Authority And Laws now made by Act of Parliament although they bind not without assent of the two Houses yet they are the Kings Laws and are properly said to be made by Him And the Statutes for the most part are and the best forme of penning an Act is thus viz. Be it enacted by the Kings Majesty with the assent of the Lords Spirituall and Temporall and the Commons c. Besides at this day after a Law is made by Act of Parliament the execution of that Law is by the Kings sole
pro quibusdam arduis urgentibus negotiis c. quoddam Parliamentum nostrum apud civitatem nostram West 1. Die Maii prox futur ' teneri ordinavimus ibidem vobiscum cum Prelatis magnatibus proceribus dicti regni nostri colloquium habere tractatum vobis sub fide ligeantiis quibus nobis tenemini firmiter injungentes mandamus quòd personaliter c. So that to the institution of the Lords House and the power which the Members of that Assembly have to sit and Vote in Parliament the people are not at all consulted with in any particular And for the Commons House the institution thereof and the Commission which the Members of that Assembly have is derived from the King too That which the people act and do therein is only to elect the Knights of the Shires Citizens and Burgesses and therein too their authority is by the Kings Writ the direction whereof they are bound to pursue It is not in the power of the Inhabitants of any County or towne to adde unto or lessen the number of persons to be elected or to inlarge or limit the authority of those chosen But former Kings as before is shewed sometimes called more sometimes fewer and at their pleasure created new Corporations and gave them power to send Burgesses And every King had and at this day hath authority to enable and command every towne in England to send Burgesses to Parliament And when the Knights and Burgesses are elected the peoples power is ended then the persons chosen are to performe their duties wherein they must be guided by their Commission it is that which doth distinguish them from other men else every one in the Kingdome had equall power to sit and Vote in Parliament And they have no other Commission then the Kings Writ of summons which followeth in these words viz. Rex Vicecomiti salut ' Quia de avisamento assensu consilii nostri pro quibusdam arduis urgentibus negotiis nos statum defensionem regni nostri Angliae Ecclesiae Anglicanae concern quoddam Parliamentum nostrum apud Civitatem nostram Westm ' tertio die Novembris prox ' futur ' teneri ordinavimus ibidem cum Praelatis Magnatibus proceribus dicti regni nostri colloquium habere tract ' tibi praecipimus firmiter injungentes quod facta proclam ' in prox Comitatu tuo post receptionem hujus brevis nostri tenend die loco predict ' duos milit ' gladiis cinctos magis idoneos discretos Comit ' praedicti de qualib ' civitate Com' illius duos cives de quolibet Burgo duos Burgenses de discretior ' magis sufficientibus libere indifferenter per illos qui proclam ' hujusmodi interfuer ' juxta formā statutorum inde edit ' provis eligi nomina eorundum milit ' Civium Burgensiū sic electorum in quibusdam Indentur ' inter te illos qui hujusmodi election ' interfuerint inde conficiend ' sive hujusmodi elect ' presentes fuerint vel absentes inter eosque ad dict' diem locum venire facias Ita quod iidem milites plenam sufficientem potestatē pro se cōmunitate Comit ' Civitatū Burgorū praedictorum divisim ab ipsis habeant ad faciendum consentiendum his quae tunc ibid ' de communi consilio dicti regis nostri favente Deo contigerint ordinari super negotiis ante dictis Ita quod pro defectu potestatis hujusmodi seu propter improvidam electionem militum Civium aut Burgensium predictorum dicta negotia infecta non remaneant quovis modo Nolumus autem quod tu nec aliquis alius Vicecomes dicti Regis nostri aliqualiter sit electus electionem illam in pleno Comitatu factam distincte aperte sub Sigillo tuo singulis corum qui electioni illi interfuerint nobis in Cancellar ' nostram ad dictum diem locum Certifices indilate remittens nobis alteram partem Indenturarum predictarum praesentibus consuet ' una cum hoc breve Teste meipso apud Westminster And the returne of the aforesaid Writs in these words viz. Virtute istius Brevis eligi feci duos milites gladiis cinctos magis idoneos discretos de Comitatu meo viz. A. B. qui plenam sufficientem potestatem pro se Communitate Comit ' predict ' habent ad faciendum consentiendum iis quae ad diem locum infra contentos de Communi Consilio regni Angliae ordinari contigerint Et predicti A. B. manucapti sunt per quatuor manucapt ' ad assulendū ad Parliamentū dom ' Regis apud Westminster ad diem infra contentum ad faciendum quod hoc breve in se exigit requirit I have here exactly set downe all those Commissions by authority whereof the Lords House and the Commons House sit and Vote in those Assemblies which is far short of giving them power to make Laws That of the Lords commands them to advise and consult with the King concerning the great affaires of the Realme both in Church and Common-wealth That of the Commons to doe and consent unto such things as the King and the Peeres shall agree upon And as the Members have their authority to sit and Vote in the House from the King so it is at His will to summon a Parliament when and as often as He thinkes fit And the Members being met together are kept there as long as he pleaseth and at every instant time when he seeth cause dissolved againe And whilst they are continued together their office is to enquire and informe themselves of the grievances of the Kingdome to consult how to reforme them and for that purpose if need be to compose Laws and present them to the King But all this is onely by way of advise it binds not untill the King hath taken their Councell and put life into those Laws by His Assent All which is not onely pursuing their Commission but is made good by the constant practise of the Kingdome For there was never any Law Statute Act of Parliament or Ordinance made in this Nation which bound the people whereunto the King did not give His Royall Assent And scarce one Parliament since the Institution of the two Houses but the Members of both those Assemblies have passed Bils for new Laws presented them to the King which He hath rejected whereupon every such Bill was instantly set aside acknowledged by the Members and judged by all men to be invalid neither binding King or people And for these words le Roy s'avisera the opinion of Justice Hutton and the words of King Richard the second nothing can be inferred thereupon against the Kings negative Voice but rather the contrary The Kings answer say they to Bils presented to Him by the two Houses which He rejects is thus le Roy
is none either to umpire or mediate between the Members and the people And so the Members by this have assumed an arbitrary power Nor doth this power of a negative Voice in the King take away or lessen the authority of any Court of Justice Every Court of Judicature pursuing its Commission hath power to determine the interest both of King and people and that without assent either of King or Member The knowne Law is their ground to judge by not the opinion of the King or of either or both Houses Nor can the King in this be said to Judge out of his Courts or against the two Houses of Parliament for the King and the two Houses have herein equall power that is every one of them a negative Voice they are all together joyntly Judge of that high Court of Parliament but no one or two of these bodies is Judge thereof So that by the Kings and either Houses having a negative Voice it cannot be said they Judge each other out of that or any other Court of Justice But some object that if the refusall of the King shall hinder the making of Laws the Common-wealth is in danger to suffer for say they the King may be refractory and deny to passe good Laws Answer No humane Law can preserve a Common-wealth from every mischief That Law which avoideth the most inconveniencies is the best Law It is granted that the will of the King or of either House by refusing to passe a Law propounded may prove mischievous But upon pretence of necessity to give power to the King and either House or both Houses without the King to alter the Law or to make new Laws were more dangerous If that rule serve them to make good Laws it enables them to make bad ones too If they be Judge when to make one Law they are Judge to make as many and what Laws they please they who have this power may declare what they list to concerne the safety of the Kingdome Once breake this rule That no new Law can be made with consent of the King and the two Houses and there is no end of the distraction Upon the same ground that the Lords and Commons in the case of the Militia pretending a necessity and that the King was refractory assumed power to make Laws without Him the Lords House may exclude both King and Commons the Commons House Lords and King or the King both Houses When there ariseth a difference between the King and the two Houses if it be of necessity that the King or the two Houses must so far Judge the businesse as to make a Law without the other by the same reason when a difference happens between the two Houses one of them must be Judge against the other and make a Law without the others consent for such a difference between the two Houses may as well happen to concerne the safety of the Kingdome as when the difference fals out between the King and both Houses And if either House obtaine the sole power to make Laws still there is no period for if reason or reall necessity require it and should be Judge when and what Laws are to be made the lesser number of one of those Assemblies peradventure may be in the right But whether right or wrong the zelots may chance to side with the little flock rise up and in tumults call it Justice And so consequently the good Law of the Land destroyed and club-law introduced and the very being of Parliaments taken away whereas by observing the constitutions of the Realme in submitting this power of making Laws to the Judge thereof that is the King without the assent of the two Houses all these absurdities and inconveniences are avoided Which constitution being rightly understood is grounded upon great reason and is most equall between King and people for the Commons House upon just grounds for any thing to them appears may passe a Bill which the Lords upon as just reasons may reject the Members of that Assembly being persons who for the most part have a greater deeper reach insight in State affaires And both Houses may passe a Bill conceiving it necessary for the preservation of the Kingdome to have it made a Law and thereupon desire the Kings consent which the King may as justly reject And for such reasons they may be matters of that nature as not convenient and most unfit to be imparted and revealed to such a multitude as the seven hundred Members or more of both Houses But when all that is when the King and the two Houses concur the Common-wealth may as safely depend upon it as upon any humane institution Upon these grounds it is that when a dispute happeneth concerning the making of a Law the King being of one opinion the Lords of another and the Commons of a third or when any one of the three bodies dissent from the other two there is no umpire but themselves to end that controversie nor can they decide the question by any other way but by a joint agreement or quitting the dispute for untill a joint concurrence of all three their proceedings are but conferences and their results what they would have to be Lawes but no Laws indeed untill by consent of all three they be reduced to Acts of Parliament No Order Ordinance or what ever it is or shall be called made by consent of any one or two of these bodies alone hath the strength or force of a Law our Law takes no notice thereof like a verdict for life lands or goods in which case the major part of the Jury determineth not the question all twelve must agree else it is no verdict for the question being fact some one of the Jury may have better knowledge thereof then all the rest So in this case by the constitutions of the Realme no new Law can be made or the old altered without a joint concurrence of the King and the two Houses It is that united body which at this day as to the Legislative power represent the whole Kingdome The Members of the Commons House alone do not in that manner represent the Commons of England the Lords the Peers and the King for Himself but all together do represent the whole Kingdom no one or two of these bodies can herein be said to represent only any part every common person doth herein by the Laws of England asmuch depend upon the judgement of the King and the Lords as upon the Members of the Commons House And so do the King and the Lords upon those Members for the King the Lords and Commons as now by consent of former Kings it is setled are herewith joyntly trusted As if three Lords authorize three severall persons to sell their Lands if two of them sell it binds not therefore in judging that sale void no man is injured the Lords are seized of their Lands as before and the persons trusted have the same power that is
therefore such Citizens and Burgesses should be tradesmen which appears both by the foresaid Statute made 1 H. 5. and the words of the Writs of Election By that Statute it is enacted that none shall be elected Citizens or Burgesses but freemen dwellers and Inhabitants in such Cities and Borough Townes And by a Statute made 23 H. 6. It is enacted that none shall be chosen a Knight of the Shire but Knights or notable Esquires or Gentlemen borne and shall be able to be Knights And no man to be such Knight which standeth in the degree of a Yeoman and under And the words of the Writs of Election are these For the Shire Duos Milites gladiis cinctos c. For a City Duos cives c. For a Borough Duos Burgenses c. And so both by Act of Parliament and by the Writ the Intent of the Law is declared to be that for the Shire Gentlemen for Cities and Boroughs Tradesmen are to be elected And the Members who serve for those Corporations are above four times the number of all the rest So that the Laws of England for electing Citizens and Burgesses being observed as they ought to be the far greater part of that Assembly must consist of Tradesmen and persons very unapt to judge the Law Yet more proper for that service for which they were intended then such as are at this present usually chosen Whilst the Statutes and the Laws of the Realme were therein observed we heard not of any tumultuous or disorderly proceedings in that House But of later times and especially since the beginning of King James His Reigne the Borough Townes by procurement of factious persons have more frequently chosen such who were so far from having knowledge in the Trades and Traffick of those Boroughes or being resident or dwelling there as that they never saw the Towne nor was the Burgesse ever seen of any one of his Electors yet contrary to the expresse negative words of the aforesaid Statute and direction of the Writ the Commons House declare those Elections Legall which shewes that these Members are very uncapable to understand the Law else a company of persons who have illegally without any due election by faction as aforesaid packed themselves into that body and accordingly resolved to observe no other Law but their owne will and so however whether learned or unlearned not fit to be Judges of the Realme or finally to declare the Law 2. All the Members of that House as well Knights as Burgesses are elected by the vulgar multitude and therefore were elections made according to the Laws of the Realme Popular elections sometime produce like unto themselves In somuch that it may happen that not one knowing man in the profession of the Law or one person literate shall be returned Member of that Assembly 3. Experience shewes it is most frequent as well for Knights of the Shire as for Burgesses to elect Infants and Children which are by that Assembly approved on and have equall Voice with the rest although by the Constitution of the Realme as experience sheweth they are so far from being admitted Judges of the Law as that none untill he be of the age of twenty one years is capable to be sworne of a Jury to try the least matter of fact 4. All differences in that House are decided thus First by debate the businesse is reduced to a head Then the Speaker puts the question then the Members Vote and the greater number carrieth it so that if the question be upon a point of Law the quality of the persons of that Assembly considered admitting them as learned as ordinarily they are returned the best which can be expected in such a case is That the major part who is the Judge in every question there may happen to concur in Vote with some few of their fellow Members who they hope understand the businesse And so at the best this Judge decides the controversie by implicite faith For it cannot be imagined that the greater number of that Assembly by any debate there had shall understand many questions of a Law which daily and frequently happen And for the Lords House the Members of that Assembly have no other authority to sit or Vote there but as Peers of the Realme and admit the King never to create a Peere of the Realme but a man of the greatest judgement it cannot be expected understanding should alwayes descend Upon which ground it is that a grant of a place of Judicature to one and his heires as to his heires is voide in Law and although the education of the Lords for the most part are fit for persons of Honour yet they are not qualified to Judge the Law Thus for the quality of the Persons Now for the Commission Admit every Member of each House in knowledge more profound then the most learned Judge that makes them not Judge of the Law If the most learned because so learned be a Judge it is far more difficult to find out the Judge then to know the Law it is like as well the ignorant as the learned would pretend to the greatest knowledge But that is not the rule to know a Judge he is distinguished from other men by his Commission It appears before that no Court Assembly or Person hath authority to determine any matter of Law but by Grant from the King by Act of Parliament or by prescription Even so it is for the power extent and jurisdiction of any such Court person or Assembly For as no man can have any authority but by Commission so none can claime greater or other power then is thereby granted For example If the Court be erected by the Kings grant the Patent declares what authority the Iudges have beyond which they have none If by Act of Parliament the Statute doth expresse what they have Jurisdiction of if by prescription Custome and use informe the Iudges what they have to do and for a prescription to make it good these three things must concur 1. It ought to be time out of mind which is not allowed by our Law If it can appear to have had its commencement since the Reigne of King R. 1. Secondly although it hath been ancient yet unlesse it have constantly and frequently practised without interruption it is not good Thirdly The thing it selfe claimed must in the judgement of the Law be reasonable otherwise be the usage time out of minde and how frequent soever it ought to be disallowed for malus usus abolendus The Chancery the Kings Bench the Common pleas and the Court of Exchequer are Courts of Justice The Iudges thereof have power of Judicature and although in some things their authority may be inlarged and in other things abridged by some particular Acts of Parliament they have their jurisdiction principally by prescription Custome and use is their Commission The said Courts were not erected by Patent nor by Parliament yet every one
can be expected Thirdly the Composier of these Members being two distinct bodies considered it is as prepostrous for them to command the Militia as to have the Soveraigne power of Government or to judge the Law It may fall out even in the time of greatest danger that one House shall Vote to fight the other not to fight the enemy And this difference may happen to be unreconciled untill the Nation be conquered or destroyed Thus it appears that the Members have no power over the Militia It now rests to prove that it is the Kings right which is made good by authority and reason First for authority it is proved by constant practise which is not onely the strongest proof in our Law but it is the Law it selfe We have no formall Institution of the Common Law it is no other but common Ancient and frequent use For example it is felony to steale it is not felony of death unlesse the thing stolen exceede the value of twelve pence These are things so certainly knowne and so generally received for Law as that any man to dispute them renders himself ridiculous yet being denied none can shew when the Law began how or by what authority it was made there is no other proof to make it good but custome and use So for the Militia of the Kingdome it was never estated upon the King by Act of Parliament or by any other constitution It is His right by the Common Law of England which is made good by custome and use and authorities of bookes And first for custome and use Any man of what quality or ranke soever he be reflecting upon his owne memory and observation must acknowledge that in all his time no Souldiers were impressed armed arrayed or mustered no Forts strong-holds or â—â—rrisons held or commanded no Commanders Officers or Souldiers Imployed by Land or Sea no Commissions concerning War either Forraigne or Domestick or concerning the administration of Justice but by authority derived from the King alone And such as search the Records in former times will finde the like practise in all ages And with this agrees all Histories and stories from this day upward unto the Roman Conquest Then for authorities and to begin with Acts of Parliament Magna Charta granted about 440. years since not onely being the first Statute but beyond it there is scarce an authentick record of Law at this day to be found In which Act it is thus declared by King Hen. 3. viz. And if We do lead or send him who is by tenure to defend a Castle in an Army he shall be free from Castle-guard from the time that he shall be with us in fee in our Host for the which he hath done service in our Wars Thus even in that Instrument whereby the King confirmed unto the people their Liberties It appears that by the Laws of the Land the power of War was the Kings sole right By an other Statute made 7. of King Ed. 1. being the son and next succeeding King to H. 3. The Prelates the Earles the Barons and the Comonalty of the Realme Assembled in Parliament declared that to the King it belongeth and His part is through His Royall Signiorie straightly to defend force of armour other force against the Kings peace at all times when it shall please Him And to punish them which shall do contrary according to the Laws and usages of the Realme And that they the Subjects are hereunto bound to aid their Soveraigne Lord the King at all seasons when need shall be After this by severall Acts of Parliament viz. 13. of the same King 1 Ed. 3. 25 Ed. 3. 4 H. 4. 5 H. 4. and other Statutes it is declared how and in what manner the Subject shall be charged with armes mustered arraied and forced to serve in War In all which Acts without dispute the whole power and command therein is admitted to be in the King By a Statute made 11 H. 7. The Lords and Commons Assembled in Parliament declare it to be the duty and Allegeance of the Subjects of England not onely to serve their Prince and Soveraigne Lord for the time being in Wars but to enter and abide in service in battaile and that both in defence of the King and the Land against every Rebellion power and might reared against him By a Statute made 2 Edw. 6. in the Raigne of a child King The Lords and Commons Assembled in Parliament declare that it is the bounden duty of the Subjects to serve their Prince in War By a Statute made 4 and 5 P. M. In the Raigne of a Woman the Lords and Commons Assembled in Parliament declare thus viz. That whereas heretofore commandement hath been given by the Queen and her Progenitors Kings of England to diverse persons to muster their Subjects and to levy them for the service of their Majesty and this Realme in their Wars which service saith the Statute hath been hindred by persons absenting themselves from Musters and by being released for rewards And then provides remedy therein when the Queen her Heirs or successors shall authorize any to muster the people And by that late unanimous and voluntary recognition made by the Lords and Commons in Parliament unto King James they declared thus viz. We being bound thereunto both by the Lawes of God and Man doe recognize and acknowledge and thereby expresse our unspeakable Joyes That immediately upon the death of Queen Elizabeth the imperiall Crowne of the Realme of England did by inherent birth-right and lawfull and undoubted succession descend and come to your most Excellent Maj. that by the goodnesse of Almighty God your Maj. is more able to Governe us your Subjects in Peace and plenty then any of your Progenitors And thereunto we most humbly and faithfully submit and oblige our heires and posterities for ever untill the last drop of our blouds be spent Now every man of sense will agree that the opinion of the Members of this Parliament is no more authentique then the opinions of the Lords and Commons Assembled in former Parliaments And that being granted it followeth that any one of the aforementioned Statutes whereby the Lords and Commons declare That by the Law of the Land the power of the Militia is in the King is so much the more weighty and so much more to be relyed upon in this point of the Militia then the opinion of these Members by how much more persons are competent to determine a question concerning another then to judge their own case or when they resolve for or against themselves But these Members setting aside their owne Votes in this their own case for their own advantage cannot make their pretence to the Militia good by any one Authority Opinion Practise or President But this not all These Westminster men themselves even this Parliament have both in their Ordinances as they call them and Petitions acknowledged the Militia to be the
as frequently as the tyde turnes that the faction of that House changeth And accordingly expulsions follow and new elections are made So that admitting this power to expell it would ease the people of much trouble for the Members to indorse upon every Writ the names of such as shall be chosen Or rather by their Speaker after a Vote to that purpose naming the man to summon him to the House and so as they Vote out one Member to Vote in onother Which in effect is exercised at present We see it is not at all considered whether the party chosen be fitly qualified for the service or not If he be of an humor to concur in opinion with the present faction good enough Hence it is that we find the children or kindred of those who for the time being sterve the House of what age or capacity soever and none else are judged fit for the imployment And so admitting this authority in the major part of that Assembly The issuing out of the Writs the peoples electing and the returning of the Members are become but frivolous and uselesse ceremonies Therefore the Members no representatives and consequently no House of Parliament And for the minor It needs not the helpe of a Lawyer to make it good every man of the meanest capacity may judge it For if being named in a Patent of Monopoly or acting therein because to disable a Member of either House to sit or Vote it follows that no man in the Kingdome is qualified for that service Every one in some degree is guilty of the breach both of the Laws of God and of the Realme Suppose another faction in that House happening to be the major part present Order that every Member who in any fort hath broken the Kings peace committed fornication sworne an Oath or transgressed the Law of God or man be forthwith expulsed the House If that Order concerning Monopolies be binding absurd it were to deny this to have the same effect For every one comprized in each Order is a transgressour of the Law and punishable according to the quality of the offence But no one of them more then the other by the knowne Law is disabled to sit or Vote in the Parliament He who hath been an actor in a void Patent of Monopoly is as capable to be a Parliament man as another who hath committed fornication adultery assaulted or beaten his neighbour or the like So that it appears to be the Order of the House and the will of the Members not the Law of the Land which doth now in that Assembly regulate and ballance the businesse Therefore clear it is that those Members were wrongfully injuriously and illegally expulsed the House So that if no more were in the case those persons at Westminster are not the Commons House of Parliament 2. Secondly The Members finding the aforesaid Order of expulsion far too short still appearing in the House many honest English-men It was resolved to cast them out by club-law It was hereupon insinuated unto the giddy multitude that severall Members of each House opposed reformation and Justice The names of such Members as discent in Votes from the sense of the present major part are posted in the streets and injuriously branded with a character of evill affected persons to reformation The people hereupon in great multitudes swarme to the doores of both Houses and there being prepared and instructed accordingly with hideous noise clamor against Bishops Popish Lords and evill affected Members And although most ignorant what it is call for Justice Now this violent medicine was so long and so often applyed that the Houses according as empricks commonly use their patients absolutely confounded their owne bodies for of above two hundred Lords 5. 6. or 7. at this day is a compleat House of Peeres And in matters of greatest moment rare it is to have ten of that Assembly to carry the question And for the Commons House of 500 Members not 100 of those now permitted to sit or vote there were at any time by the Law of the Land Parliament men And so unlesse the whole World hath hitherto been mistaken in attributing the powers of those Assemblies to the Major part of the Members whereas it ought to have been given to the least number And that by the constitution of the Realme it is lawfull for a part of them by force and without lawfull cause to drive from thence their fellow Members We have no House of Parliament at this day Nor is the case of the lower House any thing better by their excrease of number That forgery of the Kings Great Seal doth no more authorize the Inhabitants to elect a Knight Citizen or Burgesse then should the Speaker of the lower House in pursuance of the Votes of both Assemblies counterfeit a deed in the name of the Speaker of the higher House purporting a conveyance to himself of that Lords Estate would legally intitle him thereunto Besides were that no counterfeit Seal The Inhabitants of the County the free men of the Cities and Boroughs being deprived of their freedome of election not daring as before is said to choose other but such as are intimated to them to be nominated by the House or the Souldiers they are not in Law Members of that Assembly Thirdly the Members although reduced to so small a number were not hereby cured of all their griefs The haunting Ghosts and inseperable Companions of every Traytor feares and Jealousies still stick close unto them by driving from the Houses such as visibly opposed this work of destruction gave not sufficient confidence to the rest of their owne perseverance therein The conscience therfore of every one this elect little remnant in the next place must be fettered wherein speciall use is made of that clause concerning priviledges of Parliament contained both in the Protestation and Covenant The words thereof being generall to defend all priviledges the Members declared that by whom and when this priviledge is broken themselves and none else must be Judge And like Judges in their owne case they have determined the question no lesse to their own advantage then by enthralling not only the Consciences of their fellow Members but of every Soule in the Kingdome to their sence In order whereunto as before appears they have voted that every one who shall oppose any result of theirs is an Infringer of Parliament Priviledges Now although the nature of this crime is not yet by them defined it may at every instant time when they think fit even by one blast of winde be made to exceed the highest Treason So that most clear it is after these Votes no man indued with honesty or courage could with safety sit or vote in either House Every one not of the tribe unlesse he run into his own ruine must stand mute untill the design of the present prevalent faction be visible And then however it suites with his heart his tongue must chime with that party
himselfe and family as if it were taken by way of Ship-money Loan or Benevolence Nor is any mans hunger satisfied his thirst quenched or his children clothed by being told that this is done by the representative body of the whole Kingdome But on the other side it is apparent that the people are hereby generally impoverished and the Members in pompe glory and wealth advanced far beyond their ranks and fortunes We had a Star-Chamber and a High Commission the Judges whereof sometimes imposed exorbitant punishments But we have now the Members stiled a Parliament who have not onely accumulated unto themselves the power of those Courts and of all other Courts of Justice in the Kingdome but have therein assumed an unlimited power when they think fit to censure whether it be for a crime or vertue disobedience or obedience of the Law The punishment if they please is either pecuniary corporall brands of infamy confiscations of their whole estate or death it self And in all this which by the Lawes of England is most horrid the Members are both Judge and Party the profits of those forfeitures redound unto themselves But the new mercenary Preachers and other incendiaries appointed for that purpose blaze those Westminster-men to be persons full of grace and mercy They would make the people beleeve they are such as drive onely at the publicke not looking upon their owne particulars And herein make speciall use of the putting down of the Court of Wards The truth whereof is but thus By the Lawes of England every one who holds Lands by Knights service whether of the King or of his fellow Subject and dyes his heire within age of 21 years the King or that Lord of whom it is held hath the profits of such Lands untill his full age and the government and marriage of his person Which being an interest due unto his Lord by reason of the tenure of his Land is as justly his as the rent of a Tenant for yeares belongs to his Land-lord Now this right both of King and Subject these Westminster-men take upon them to dispose and call it their own act of grace Much like unto their taking from their King and His Loyall Subjects their whole Estates and bounteously dividing it amongst themselves But admit they had had Authority which they have not the least colour to challenge to alter the Law in this case of tenures yet the people are not by this alteration any whit bettered It is true formerly the eldest son or the heire of some particular persons were during their minorities subject to wardships But under the Tyranny of these men and by the doctrine they preach the King and all the people are hereditary slaves Themselves all their Children their Childrens Children and posterities for ever in person estate and fortune whether owner or not owner of Land and however it is held even to the worlds end are at all times at their absolute command Suppose the King should quit His right of tenures and then by other impositions wrest from the people 40 times the value thereof these Members would judge that to be no act of bounty And if so in the Kings case much worse it is in them For they neither have power in the one nor in the other They cannot acquit any one of Wardship nor lawfully tax the people one penny And suitable to this we heaâ— of another bounty intended The people say they must be eased of free-quarter wherein the Country-men are dealt with as sometime it happeneth to an innocent man upon the racke who to gain a little respite from the present torment falsely accuseth himself of a crime for which he is put to death or like unto the carriage of a sturdy bold theif whereof these times afford examples enough who tels the owner of a horse that unlesse he may have the value of it he will steal the horse but having got the money takes the horse too So here the people are pestered with quartering of Souldiers and are so barbarously used by these inhumane wretches as that the poor men are prepared to part with their whole fortunes to be eased of that present Tyranny Hereupon a new and an illegall tax of about 20000. l. the weeke is laid upon them which done although it a mounts to twice treble the charge of quartering still the Souldiers must be bilited And their insolency hereby rather increased then abated These and such like are all the favours we can expect to have during the time of the raign of these Westminster-men To be short they have got possession of the wealth of the whole Nation and have usurped an Arbitrary power So that did they incline thereunto they cannot do unto the people any considerable favour or act of grace For so long as they abide to these their owne principles of which Arbitrary power they cannot settle in any man a permanent estate interest power or authority wherein the City of London may be a paterne to the whole Nation We see these Westminster-men sometimes judge it fit that the Citizens should enjoy all their liberties and priviledges Presently upon that even by the same hand they are not permitted so much freedome as from the Lord Major to the petty Constable to elect one officer But those Officers are placed and displaced at the pleasure of these Members To day is granted to them their owne Militia to morrow by the same Authority they are judged persons of so base a condition as not capable of so great a power And not long after that courted to accept of it againe They are now exalted to the heavens and instantly thereupon even by the same mouthes and as it were with the same breath impeached of Treason And this is every mans condition Suppose one by these Members to be condemned to death is by them afterwards pardoned The next houre even by â—â—ese who pardoned he may be put to death An estate of Land an Office or other power or authority is by these men given for life or in fee be it as strong and ful as words can expresse it neither that nor any other act of these Tyrants binds one minute longer then they please And all this consonant to these their new principles for these men tell us their will is the Law we have no other Judge upon earth either in soul or body say they but themselves Farre otherwise it was with the people of this Nation under the King The King neither hath nor claimes power to tax the people or impose upon their estates but as the known Law permits When the King hath once made His grant either of Land Office Power or Authority He is concluded He cannot recall it or take to himself any thing in Lieu thereof Therefore shall the King quit His tenants of the foresaid tenures and put down the Court of Wards It may properly be said an Act of grace and bounty And so it is in all other things granted by Him
name but the power of Judges the knowne Law of the Land is their rule to determine every question depending before them which they are sworne to observe notwithstanding any command of the King the Members or any persons whatsoever And consequently every one is thereby preserved in his just Interest but by the Members taking upon them both to nominate the Iudges and to declare the Law the Law it selfe is destroyed and both King and people inslaved Upon the whole matter clear it is That the King and none else hath power to nominate and authorize the aforesaid Iudges and officers And therefore if the Members of the two Houses have or shall either in the Kings name or in their owne de facto appoint any persons for Judges in those Courts or in words by Commission of Oyer and Terminer or generall Gaole delivery give power to any to execute the office of Judicature in Circuits or otherwise such persons have not de Jure the power of Iudges For the Members have no more authority to make a Judge or to give any such power then any other subject in the Kingdome hath therein And consequently all the judgements acts and proceedings of those nominall Iudges or such Commissioners are void as things done coram non Judice Every person by such authority who either in the Kings Bench or at the Assises or elsewhere hath been or shall be condemned and executed for any crime whether guilty or not guilty is murdered And every other judgement or sentence by them given either in Capitall Criminall or Civill affaires is invalid In the next place it is proved that the King is the only Supreame Governour CHAP. VII That the King is the onely Supreame Governour unto whom all the people of this Nation in point of Soveraignty and Government are bound to submit themselves AGainst this undoubted right of the Kings these distractions have produced another Treatise of Mr. Pryns likewise published by authority of the Commons House intituled thus The Parliament and Kingdom are the Soveraigne power Wherein his aime is to perswade the people that the Members of the two Houses are the supream Governours of this Kingdom and begins thus The High Court of Parliament and whole Kingdome which it represents saith he may properly be said to be the highest Soveraigne power and above the King for saith he every Court of Justice whose Just resolutions and every petty Jury whose upright verdicts oblige the King may truly be said to be above the Kings person which it bindes But the Court of Parliament hath lawfull power to question the Kings Commissions Patents and Grants and if illegall against the Kings will to cancell or repeal them Therefore the Parliament hath Soveraign power above the King Answer Here I deny both his Major and Minor First for his Major Although it is true that every Just resolution of any Court of Justice That is when the Judges legally determine such things as regularly depend before them in point of Interest bindes the King as well as a Subject that proves not a Soveraigne power in the Judges If so it followeth that the Judges of the Kings-Bench the Common Pleas and of all other Courts of Justice And by M. Pryns Argument every petty Jury too have in point of Soveraignty a power above the King which is most grosly absurd So that admit the two Houses a Court of Justice which they are not and to have power legally to determine Causes which they have not That is nothing to Soveraignty It is one thing to have power to make Lawes another to expound the Law and to Governe the people is different from both The first appertaines to the King and the two Houses the second to the Judges and the third is the Kings sole right Neither the making declaring or expounding the Law is any part of Soveraignty But regulating the people by commanding the Lawes to be observed and executed pardoning the transgressors thereof and the like are true badges of a Supreme Governour All which are the Kings ☞ sAnd for his Minor take his meaning to be the true Parliament That is the King and the two Houses And it is false that the two Houses without the King have power legally to cancell or make voide any Commission Patent or Grant of the Kings For as before appeareth That united body cannot speak or doe any thing but by Act of Parliament To say the Parliament without the King may make a Law is as grosse a Contradiction as to affirme that the King may make an Act without the King And his meaning being taken to be the two Houses without the King In that sense the Members have herein no power at all for as before appeares they are neither a Parliament nor a Court of Iustice and consequently have not jurisdiction legally to cancell or repeale any Commission Patent or Grant of the Kings But saith Master Prin the King although he be cheif yet he is but one Member of the Parliament and saith he the greatest part of any politicke body is of greater power then any one particular Member As the Common-Councell is a greater power then the Major the Chapter then the Dean the Dean and Chapter then the Bishop and so the whole Parliament then the King for saith he in an Oligarchy Aristocrasie and Democrasie That which seemes good to the major part is ratified although but by one casting voice As in election of the Knights of the shire Burgesses and the Votes in the two Houses And saith he by the Lawes of England The Kings the Lords and Commons make but one intire Corporation and so concludes that the Major part of the Parliament which in Law saith he is the Corporation is above the King Answer There is scarce one word in this discourse but it is false or misapplied It appears before That the Parliament consists of 3 distinct bodies viz. the King the Lords House and the Commons House and in making Lawes which is all they have to doe they have but three Voices yet that which seemes good to the major part of these three is not ratified For as before it appeares they must all concurre else no Parliament It is true where the Government is Aligarchicall Aristocraticall or Democraticall the major part determines the Question But this is mis-applyed to the businesse in dispute concerning the Soveraign power Our Government is Monarchicall The people of England are not Governed by a Parliament The use of a Parliament as before appeares is onely in some things when necessity requires To alter the old or make new Lawes wherein the foresaid three bodies viz. the King the Lords House and the Commons House are joyntly trusted If Mr. Pryn be asked what he meanes by the Major part of that Corporation which he in this place calls the Parliament His Answer must be one of these viz. Any two of the aforesaid three bodies or else That the King the Lords and the Commons
promiscuously put together are to Vote as one Assembly and the greater number of single voices not distinguishing the severall bodies to carry it Grant the first And then the King and either House or both Houses without the King have power to make Lawes Therefore against that I suppose both Mr. Pryn and the Members themselves will conclude But the latter it is he intends for by that the House of Commons shall obtaine the sole power of making Laws That Assembly being in number almost treble to the King and the Lords And so both King and Peer-age excluded And that not all but in effect the Gentry too for the Burgesses are in number farre more then all the rest And as before appears these Burgesses not onely may but by the true intent and meaning of the Law ought to be tradesmen Then for his particular cases cited for his proof viz. the Major and Commonalty the Deane and Chapter the Bishop Deane and Chapter they are all guided by their Charters and foundations which they ought to pursue And none of them have power without their head to make any binding Act. viz. The Commonalty without the Major the Chapter without the Deane or the Deane and Chapter without the Bishop And so it is with the Parliament although both Houses concurre in one opinion It binds not without the Kings consent And for the election of the Knights and Burgesses that is very impertinent to the point in question Then M. Pryn saith That if the King propound a Law it binds not unlesse it be consented unto by the Parliament Ergo the chiefe legislative power is in the Parliament not in the King Answer Here M. Pryn according to his wonted sleight divides the King and Parliament making them two things and ascribing unto the two Houses without the King the name and power of a Parliament Whereas he knowes neither name nor power is due to them And for his Argument it makes more for the King then for the Members For as before it appears Lawes made by Act of Parliament although they binde not without the consent of the two Houses yet they are the Kings Lawes and by himselfe alone he may dispence with them Therefore it might properly be concluded Ergo the Legislative power is more in the King then in the Members But for Master Pryns conclusion it is a meere non sequitur Then saith M. Pryn Bils for Acts of Parliament are usually agreed on before they come to have the Kings assent And such Bils saith he the King cannot alter But if the King send a Bill which he desires to have passed It must be thrice read and assented unto by both Houses who saith he have power to reject alter or enlarge it as they think fit Answer This is a grosse juggle all his words in some sense are true yet as he intends the vulgar shall apprehend his meaning nothing is more false It is true if the King send unto the Houses a Bill for an Act of Parliament they may alter the Bill But that done untill the King assent unto it so altered it is no Law And so when both Houses present a Bill to the King he may alter it but his Royall assent makes it not a Law untill the Houses have consented to it so altered yet unlesse M. Pryn be understood thus that when the King sends a Bill to the Members That they may alter it and make it what they please And that new Bill to bind the King without his further consent he hath said nothing and that being his meaning he hath abused his Reader with a grosse falsity Then M. Pryn observes the penning of the Statutes for Subsidies which he sets down thus Your Commons Assembled humbly present your Majesty with the free gift of two intire Subsidies which we humbly beseech your Majesty to accept Therefore saith he the Commons have the sole power to grant or deny Subsidies And saith he they being the cheif Law-makers in these Acts by like reason they are so in all other publick penall Acts. Answer Here M. Pryn affirms that the Commons House without King or Lords may charge the people with Subsidies And infers thereupon that they have the like power in any publick penall Act. But observing his proof And by the same sleight he may as well maintaine even by the Scripture it self That the Devill not God is to be worshiped It is thus Perusing the Acts themselves by which Subsidies are granted and the words are these viz. We the Commons humbly present your Majesty with two Subsidies Thus farre he recites the Act Then the words follow in this manner viz. And therefore we humbly beseech your Majesty that it may be enacted And be it enacted by the Kings Majesty the Lords Spirituall and Temporall and the Commons in this present Parliament Assembled and by authority of the same that the King shall have two Subsidies These being the words which makes the Law are left out Then saith M. Pryn Acts of Parliament made in the time of usurpers oblige the right Heires of the Crown and the people too Therefore saith he the Legislative power is more in the people then in the King Answer It is most false that all Acts of Parliament made by consent of usurping Kings binde the right Heires to the Crown But true it is that some Acts of Parliament made by consent of Vsurpers have been admitted to binde in time of Kings raigning by Just title which is upon this ground The Competition for the Crown may happen to be upon a question doubtfull And the difference as in that between York and Lancaster may continue long and experience shewes That the King in possession whether by right or wrong wants not meanes to declare his Competiter an Usurper And therefore dangerous it were for the Law to declare all such Acts of Parliament voide But admit that every Statute made by the consent of an Vsurper to be as binding a Law as any other How that proves that the Legislative power is more in the Members then in the King is not intelligible It rather proves the contrary it shewes there must be a Kings consent although an usurper else no Law And if so stronger it is when the King reignes by a just Title Then saith Mr. Pryn The King hath little or no hand in making Laws His is but assenting thereunto As saith he the forme of passing Bils import For saith he Bils being passed both Houses and presented to the King his answer is le Roy le veilt the Kings wils it Answer It is the consent which makes the Law when the Bill is ingrossed and read in the House The question by the Speaker is put to the Members whether it shall be a Law or not and such as are of opinion to passe it are directed to say I and those against it no and being passed both Houses it is presented to the King whose answer if He confirme it is le