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
s'avisera that is He will advise whether to confirme them or not It seemes to me strange to conclude thereupon Ergo the two Houses may make Laws without Him that is plainely a non sequitur but it doth directly imply that the King hath election to make it a Law or no Law else it were in vaine for Him to advise upon it And the words of King Rich 2. admitting that story to be true saying He conceived Himselfe bound by His Oath to consent unto that Law shewes first that it was in His power to consent or not to consent secondly that the Members could not do it without Him thirdly that it was only an obligation upon His Conscience And that He because He conceived it to be a just Law thought Himself tied in conscience to confirme it Upon the whole matter clear it is admitting the King to have taken an Oath in the words mentioned by the Members it rather proves the Kings power of a negative Voice then disproves it But the Members I am confident know that the King neither did nor was oblieged to take the aforesaid Oath The King pursuing former presidents recorded in the Exchequer tooke the Oath in words and according to the Ceremony as followeth viz. After the Sermon is done the King ariseth and goeth to the Altar and there the Archbishop administreth these questions And the King Answereth Bishop Sir will you grant and keep and by your Oath confirme to the people of England the Laws and Customes to them granted by the Kings of England your Lawful Religious Predecessors And namely the Laws Customes and Franchizes granted to the Clergy by the glorious King S. Edward your Predecessor according to the Laws of God the true profession of the Gospel established in this Kingdom and agreeable to the Prerogative of the Kings thereof and the ancient Customes of the Realme King I grant and promise to keep them Bishop Sir will you keep peace and godly agreement intirely according to your power both to God the holy Church the Clergy and the people King I will keep it Bishop Sir will you to your power cause Law Justice and discretion in mercy and truth to be executed in all your Judgements King I will Bishop Sir will you grant to hold and keep the Laws and rightfull customes which the Commonalty of this your Kingdome have And will you defend and uphold them to the honour of God so much as in you lieth King I grant and promise so to doe Then one of the Bishops reads this admonition to the King before the people with a loud voice Our Lord and King we beseech you to pardon and to grant and to preserve unto us and to the Churches committed to our Charge all Canonicall priviledges and due Law and Justice And that you would protect and defend us as every good King in His Kingdomes ought to be protector and defender of the Bishops and the Churches under their government King With a willing and devoute heart I promise and grant my pardon and that I will preserve and maintaine to you and the Churches committed to your Charge all Canonicall priviledges and due Law and Justice And that I will be your protector and defender to my power by the assistance of God as every good King in His Kingdome in right ought to protect and defend the Bishops and Churches under their government Then the King ariseth and is led to the Communion table where he makes a solemne Oath in sight of all the people to observe the premises And laying His hand upon the Booke saith The things which I have before promised I shall performe and keep so help me God and by the Contents of this Booke Now for the King to oblish Episcopacy to destroy the whole Government of the Church established by Law for the King so far as in Him lies to transfer unto His Subjects that regall power which is inherently in His Person to change the Monarchicall Government into a confusion to reduce his Subjects being a freeborne people unto a perpetuall slavery under their equals and fellow Subjects certainly cannot stand with this Oath All which in the proposals made to Him by the Members nay more and worse then words can expresse is required and by most Barbarous and inhumane cruelties attempted to be forced from Him Now having done with this Oath I shall proceed further to examine the legality of the Members doctrine to exclude the King from His negative Voice It is an undoubted maxime in every Law that no Person Court or Assembly can Act or do any thing concerning the publike affaires of the Kingdome or Common-wealth without Commission which stands with all the reason in the world else it followeth that every one hath equall power to make Laws Act and do what he thinks fit And by the constitutions of this Realme every Person Court or Assembly must derive its authority by one of these wayes viz. by the Kings grant by Act of Parliament or by custome and use if by the Kings grant the Patent it selfe declares the persons authorised if by Act of Parliament the Statute names the men if by custome and use that use and custome is their Commission For example if the King by His Commission authorize twenty persons or any ten of them whereof A. B. or C. to be one to determine a felony if seventeen of the twenty in the absence of A. B. and C. execute that Commission all their proceedings are void as done without Commission seventeen strangers not named in the Commission might as well act therein as they And if the Commission be by Act of Parliament none can execute that Commission but those authorized by the Statute And the like holds when custome and use is the Commission unlesse that custome and use warrant the persons to act it is done without authority and so void Then for the point in question The Members of the two Houses have no grant from the King nor is there any Act of Parliament to enable them to make Laws nor doth custome warrant it For untill this Parliament they never made Law without and against the Kings consent nor claimed power so to do But say the Members in the foresaid Declaration If there be not an agreement between His Majesty and His Parliament either His Majesty must be Judge against His Parliament or the Parliament without His Majesty for say they that question whereupon the safety of the Kingdome depends must not be undetermined And say they if His Majesty against His Parliament why not as well of the necessity in the question of making a Law without and against their consent as of denying a Law against their desire and advise The Judge of the necessity say they in either case by like reason is Judge in both Besides say they if His Majesty in this difference of opinions should be Judge He should be Judge in His owne case But the Parliament should be Judge between His
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
Authority the power to pardon the transgressours thereof and Authority to dispence with the Law it selfe is totally in Him for example if by Act of Parliament it be made felony or other crime to transport any commodity beyond the Seas the King after the fact committed may pardon the offence and before it be committed by His Letters patents without assent of the Members may by a non abstante dispence with the Law it self and legally Authorize any person notwithstanding that Statute to Transport that prohibited commodity and so in all publike and penall Acts not prohibiting malum in se Thus it appears that originally the Parliament consisted of the King calling to Him for their advice such as He thought fit But now by consent of former Kings as aforesaid no new Law can be made or the old altered or abrogated but by the King with the assent of the two Houses And so the King and the Members of these two Assemblies joyntly concurring at this day are the Parliament Upon which it consequently followeth that the King hath an absolute negative Voice in every Law to be propounded But in regard this is now not onely denied but a power usurped by those Members without the King to make Laws in the next place that point is more fully debated CHAP. III. That the Members of the two Houses have not power in any one particular to make a new Law or to change the old The King of England for the time being having an absolute negative Voice therein AGainst this I have seen a Treatise published by Order of the House of Commons in the name of William Pryn an utter Barrister of Lincolns Inne intituled thus viz. That the King hath no absolute negative Voice in passing Bils of common right and justice for the publike good And to make good his position proceeds to his proof in this manner The King saith he in most proceedings in Parliament as in reversing judgements damning Patents and the like hath no casting Voice 2. That Kings in ancient time have usually consented to Bils for the publicke good else gave such reasons of their deniall as satisfied both Houses 3. That Kingdomes were before Kings and then the people might have made Laws 4. That the King may die without heire and thereby the people may have such power againe 5. That the Lord Protectour in the infancy of a King may confirme Bils and so make Laws 6. That in Countries where Kings are elective and so an interregnum the people in the vacancy of their King may make Laws 7. That the two Houses have frequently denied to grant the King Aide by Subsidies 8. That the Kings of this Realme have been forced to give their Royall assent to Bils as in that of Magna Charta This is the substance of his objections and arguments against the Kings negative Voice in Parliament Answer M. Pryn hath spared no labour to make good his assertion fetching his arguments from a time supposed by him before Monarchy here began secondly upon accidents happening since this Monarchy And then imagineth a time to come that is when the King and all the bloud Royall of England shall be extinct for want of an heire at Law to inherit the Crowne First for his far fetched argument Kingdomes saith he were before Kings These words taken in their literall sense imply a grosse and absurd contradiction and he might as well say that servants were before Masters or the Son before the Father But doubtlesse Mr. Pryns meaning is that Countries and people were before they had Kings over them yet his words being so expounded make nothing to his purpose suppose that before Monarchy began in this Nation the people had been governed by a known Law to conclude thereupon That the Members of the two Houses at this day have power to make Laws without the King or that the King hath not a negative Voice in Parliament is to no more purpose then if he should say The Earth was made before it was peopled Ergo there is neither man woman nor child in the world or thus This Nation was peopled before they were governed by a Law Ergo the people neither had either Law or government The Jews upon the like ground may argue thus viz. our Religion was before Christ Ergo the people at this day ought not to professe Christian Religion But Mr. Pryns argument is more absurd he cannot shew that the people of this Nation before they were governed under Kings had either Literature known Law or Government However cleere it is This Nation hath been Monarchiall above 1200. years before the institution of the two Houses of Parliament And so Mr. Pryns argument that Kingdomes were before Kings is no weight at all to prove That the two Houses have power to make Laws without the King And much like unto it is his argument That the King may die without heire for if that should happen saith Mr. Pryn the people might make what Laws they should thinke fit Now thereupon he concludes thus Ergo the Members at this day have power without the King to make Laws With more reason the King might argue thus All the lands in England mediatly or immediatly are held of the King and if the owners die without heire by the Laws of the Realme Escheats to the Crown and so becomes at the Kings disposall but every man may die without heire Ergo all the lands in England at this present are the proper inheritance of the King No Lawyer can deny major or minor yet the conclution thereupon is absurd But in Mr. Pryns case admit the King should die without heire although it be granted that the people had thereby power to make Laws yet grosse it were to conclude upon it That the Members of the two Houses might so do For if the King and that Stem Royall were extinct without issue the two Houses would be extinct too By the Law of England if the King die during a Parliament ipso facto the Parliament is dissolved because the King who was head to advise with whom and by whose Writ and command the Members were summoned is dead Yet in that case the successour King if he please might call a new Parl. But when the King dies without heire there is no succeding King to summon it And so the constitution of Parliament and the whole Law and Government the fountaine of all which being stopped would be suspended if not ended and the people left without Law Then it might be granted Mr. Pryn That the strongest party concurring in that case would governe yet that is no proof that the Members had thereby power to make Laws And therefore more absurd it is to conclude upon Mr. Pryns reason That the two Houses at this day whilst the King and the blood Royall are in being have that power Then for his objections upon Authority or presidents happening since the beginning of the English Monarchy Kings saith he
have no voice in reversing judgements or damning Patents in Parliament therefore they have not a voice in passing Bils for publike Laws Answer Mr. Pryns words must be understood one of these wayes viz. That these judgements are reversed and Patents damned by Act of Parliament or else in the ordinary way of proceedings of Law as in a Court of Justice if he meane by Act of Parliament he onely beggs the question And false it is to say the King hath not a negative Voice in every Act propounded for a Law If he meane by judiciall proceedings as in a Court of Justice which I conceive he doth then the case truely stated is but thus The Lords House in Parliament time is a Court of Judicature and amongst other things the Members of that Assembly have power the cause being regularly brought before them by writ of errour and by the advice of the Judges and not else to reverse erroneous judgements given in the Kings Bench wherein it is true the King hath no Voice but that nothing disproves His negative Voice in making Laws if so that reason serves as well to exclude the Commons as the King for in reversing judgements in the Lords House the Members of the lower House have no Voice so if this argument of Mr. Pryns be of force the Lords without King or Commons have power to make Laws by Act of Parliament Then for damning Patents neither the Lords nor the Commons nor both Houses joyntly have power judicially or finally to determine the validity of any Patent or grant of the King That properly appertaines to the Judges of the Kings Bench of the Common Pleas and other Courts of Justice before whom as afterwards it is more clearly shewed such cases may be judicially brought to triall wherein neither King Lords or Members of the Commons House hath Voice And for the rest of his arguments they rather prove the contrary then that which Mr. Pryn infers upon them Kings saith he have in former times shewed their reasons why they denied to passe Bils presented unto them by both Houses which proves that those Kings had power to deny them else they could not shew cause of their refusall no more then Mr. Pryn can render reasons of his being at Westmiuster unlesse he have been there But Mr. Pryn knowes all Kings have most frequently rejected Bils passed by both Houses and Bils declared by the Members to concerne the publike good without rendring their reasons for the same And for the power of the Protector to confirme Bils passed by both Houses if that be granted that in some cases of imminent necessity the Protectors consent might make good and perfect such Bils it nothing proves the absolute power of both Houses without the King but rather the contrary and plainly demonstrates the imperfect power of the two Houses who cannot without the consent of a Protector in such cases make any compleat and binding Laws Therefore if not stronger the same it must be when we have a King no infant and Reigning without a Protector But saith Mr. Pryn in Countries where Kings are elective by the death of the Present King untill a new one be chosen the people having no King over them may make binding Laws Here although I beleeve Mr. Pryn cannot for other Countries make his position good yet this admitted to him rather disproves his argument against the Kings negative Voice for of his owne shewing it appears that in those Countries where Kings are elective after such time as the people have chosen a King they cannot make Laws without Him And if so where Kings are elective much more they cannot where Kings are hereditary Therefore by Mr. Pryns owne argument it followeth that in this Nation neither the people nor the two Houses without the King have power to make Laws For we have no interregnum there is not with us any time of vacancy of a King eo instante upon the death of the precedent King the Crowne is vested in the successour And for the two Houses refusall to grant the King Aide by Subsidies and the like That disproves the Kings power of His negative Voice in Parliament as the Kings refusall to confirme Bils passed by both Houses prove that the King at this day may make Lawes without them But saith he if Kings will not passe Laws presented unto them by both Houses they may be compelled thereunto for Kings saith he have been so forced as King H. 3. in that of Magna Charra and other Statutes Answer To admit that a Judge of a Court of Judicature may be forced to declare his opinion or to give judgement against his owne conscience seemes to me to be so absurd as I cannot but suppose that Mr. Pryn himself would grant it to be most unreasonable and even to be destructive of the Law it selfe If the King should assemble powers and by force compell the Lords or Commons to passe Laws by Him propounded it would be judged an act of high Tyranny and I beleeve Mr. Pryn would conceive Laws so obtained bound not And if so in that case if he be not extreame partiall he must upon the same ground agree that the King in the like case ought not to be forced He doubtlesse hath the same authority the same rules and motions to be guided by His Conscience as a Subject hath And methinkes the Law should protect the King from the violence of the people asmuch as it preserves them from the force of their King certainly it is at least reci mony or Oath taken is actually vested in the King succeeding upon which the Law saith that although in hoc individuo Hen. Rex moritur yet the King in His politick capacity never dieth Besides if the King at His Coronation should refuse to take an Oath we have no more Law to compell Him thereunto then we have to force Him to be Crowned And as it is not material to the right power of the King whether he be Crowned or not so it is inconsiderable to the people to have Him sworne for if we had no municipall Law the King unsworne were bound in Conscience to govern the people by naturall equity But we have a knowne Law by which both King and Subjects the one by a directive power the others by both directive and coercive are regulated and every one protected in his just rights and this whether the King be Crowned or not Crowned whether he take an Oath or no Oath Secondly admit Kings obliged to take an Oath at their Coronation yet even by the Members owne shewing they are not bound to take it in the words by themselves mentioned And of all the Kings past they instance but seven who have taken any Oath and but three of those seaven admitting that Oath in French and the other in Latine to be one and the same they name to have taken it And of these three offer proof but for one And themselves shew
that the Oathes taken by the other four viz. King H. 8. King E. 6. King James and King Charles differ in the very words in question and render a quite other sense viz. of that of King H. 8. they set downe the words thus viz. And affirme them which the Nobles and people have made and chosen with my consent And that of King Ed. 6. thus viz. Doe you grant to make no new Laws but such as shall be to the honour of God and the good of the Common-wealth and the same shall be made by consent of your people as hath been acoustomed And for the Oaths of King James and King Charles they say the word choose was left out So that upon the whole matter that which hath been or can be said herein is but thus Some Kings at their Coronation have taken an Oath but that any King is obliged so to doe or being obliged that he ought to pursue the foresaid words it neither doth nor can be made good Thirdly admit that Kings have taken the Oath in the foresaid words and obliged thereunto yet that nothing proves the Members power without him to make Laws William the Conquerour all men must grant might have imposed upon this Nation what Laws he pleased But being resolved to have a setled Government granted to the people such Laws and customes as were just and equall between Him and them And so bound Himself and His successours to Governe by a knowne Law The people being thus freed from the servitude incident to a Conquest nothing could be more acceptable to them then the continuance of that Law And nothing being more safe for a King then to have the love of His Subjects succeeding Kings might be induced at their publike Coronations voluntarily to take an Oath for the preservation of the Laws And in that sense these words quas vulgus elegerit might be aptly used for it is not improperly said the people had chosen those Laws which the Conquerour with their good liking had consented to governe by So that the Coronation Oath admitting it in the words as the Members have expressed cannot in any reasonable sense be rendred otherwise then thus viz. Do you grant to keep and for your self promise to defend and to the honour of God corroborate the just Laws and customs which the people have chosen This imports a settlement of a known Law which the King swears to preserve but to render the words in the future tense and to make the King to swear to confirme such Laws as the people shall choose what ever they be tends to confusion But say the Members if elegerit in this place be Englished have chosen the King is not sworne to keep Laws afterwards made which is utterly mistaken for when a new Law is made it is then part of the Law of England And being sworne in generall words to defend the Law He is sworne to defend all the Law For example the Judges in generall words are sworne to determine controversies according to the Law and frequent it is after the Judges have taken that Oath for the Law to be altered by Act of Parliament yet the former Oath binds those Judges and they are obliged even by that Oath to give sentence as the Law is according to that alteration not as it was when they tooke the Oath And so it is with the King he having taken the Coronation Oath is thereby bound in Conscience to defend and observe every Law afterwards made Fourthly admit the word elegerit in that place to be Englished in the future tense and the King to swear to confirme the just Laws which the people shall propound unto Him That cannot admit of any other interpretation then thus viz. If the people propound Laws to the King which in themselves are just and equall He is by His Oath obliged in conscience to confirme them but He is not thereby bound in conscience to consent to all such Laws as the people shall say are just That were to make one part of the Oath to contradict another part thereof for by the former part of the Oath the King swears to defend the Laws of the Realme And by the same Oath thus expounded He is not onely bereft of power to performe it but swears at the pleasure of the vulgar multitude to destroy it Suppose the King thus sworne be desired by the people to make a Law thereby to exempt persons from punishment for Treason Felony or other crimes or to settle the power of Srveraignty and government upon Subjects in this case the King even by that Oath were obliged to reject such Laws for it is neither a just Law nor doth it stand with reason to exempt any from punishment for such crimes or to exact of the King to quit His Authority nor were it in His power ought He to put His people under the yoake of their fellow Subjects Fiftly but however if the King should in terminis swear to confirme all Laws whether just or unjust to be propounded to Him by the people That doth not enable any to make Laws without Him A King although not sworne is obliged in conscience to consent to such Laws which are in themselves good for the Common-wealth just equall between Him and His Subjects but is not compellable to change either Law or setled Government And if so unsworne it followeth that his being sworne to do it is but a further tie upon His conscience By swearing to confirme such Laws as His people shall propound unto Him that gives not power to them to make Laws without Him such an exposition of an Oath untill this Parliament was never heard of Sixthly if such an absurd exposition of an Oath could be admitted the Members of the two Houses cannot be the people intended by the words of this Oath for Kings have taken Oaths at their Coronations before the institution of the two Houses Secondly the Members of the two Houses do not derive their power from the people but from the King by whose Writs they are summoned And first for the Lords House none can sit there but a Peere of the Realme none can create a Peere but the King not one Member of that House the Prelates excepted but He or His Ancestors from whom he claimes his Peerage derives that honour from this King or from His progenitors Kings of England since the Norman Conquest And for the Prelates And their power as Peeres to sit in that Assembly it was founded by the Kings too It is now and ever was in the sole power of the King of England for the time being by Patent or by Writ of summons to create and call to that House without stint or limitation as many and what persons He thinkes fit which creation and the Kings Writ of summons is their Commission The words whereof follow viz. Carolus c. charissimo c. Comiti Arundell Quia de advisamento assensu Consilii nostri
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
Majesty and the Kingdome as they are in many if not in all cases And say they if His Majesty should be Judge He should be Judge out of His Courts and against His highest Court which He never is But the Parliament should onely Judge without His Personall Assent which as a Court of Judicature it alwayes doth and all other Courts as well as it And say they if the King be for the Kingdome and not the Kingdome for the King and if the Kingdome best knoweth what is for its owne good and preservation and the Parliament be the representative Body of the Kingdome it is say they easie to judge who in this case should be Judge But say they it it not so easie to understand what is the danger of unsetling by this meanes the security of all mens estates Is this danger say they kept of us by His Majesties single Vote And all mens estates without security and exposed to an arbitrary power because in all Courts of Justice and in the Court of Parlialiament and that without any appeale from it mens estates and interests are Judged without His Majesties Personall Assent But say they we do not say this as if the Royall Assent were not requisite in the passing of Laws nor doe nor ever did we say that because His Majesty is bound to give His consent to good Laws presented to Him by His people in Parliament that therefore they shall be Laws without His consent or at all obligatory saving only for the necessary preservation of the Kingdome whilst that necessity lasts and such consent cannot be obtained Answer Here with much art and cunning it is endevoured to misleade the people And for that purpose the true question is declined and other questions raised which at the first sight may to the vulgar seeme plausible When a difference happens say the Members between the King and the Houses and thus in a thing which concerns the safety of the Kingdome it must not rest undetermined therefore say they either the King must be Judge against the Houses or the Houses must be Judge against the King and conclude for themselves But the case being rightly stated and the constitutions of the Realme duly considered every rationall man will conclude that this power being granted the Members all the rest of the people of England are of a free Subject become absolute slaves which is thus This Nation is governed by a knowne Law which hath its prescribed rules therefore as before I said it may be necessary in some things to alter the old and make new Laws And that being so some knowne persons must Judge when necessity requires such a change and consequently untill those persons have so judged it all the people ought to conclude there is no need to alter the Law And by the Laws of England as before is said the King and the two Houses are that Judge no major part it is all joyntly who have that power As if A. seised of Lands upon his marriage is tied not to sell without the consent of B. and C. in this case A. B. or C. may negatively hinder the sale but it were absurd to conclude thereupon that A. B. or C. or any two of them have power to sell but most injurious it were upon that ground to give power to B. and C. to sell the Lands of A. without his personall consent So in this case the Kings of England have debarred themselves from making or changing the Laws without assent of the two Houses whereby the King the Lords House or the Commons House hath power negatively to hinder the making of any new Law or changing the old but it followeth not therefore the King the Lords or Commons or any two of those bodies have power to make a Law The difference is no lesse then between the having and not having a known Law The one imports the settlement of a knowne Law and preserves it and the other introduceth an arbitrary government For example if the King hath power to make what Laws He thinkes fit He may at pleasure bereave the Subject of life and confiscate their estates But now having a knowne Law and thereby protected in our persons and estates the King having a negative Voice to hinder the changing of that Law there ensueth no such evill consequence And the same holds with the members the Lords House and the Commons House having each of them a negative Voice to hinder the changing of the Law or making a new Law doth not lessen the peoples protection of their persons nor alters the property of their estates The knowne and setled Law still preserves both But admit one or both Houses without the King to make what Laws they please it followeth they have power to put to death whom and for what cause they thinke fit and for their owne use to seise and dispose of their estates their will is then the Law So that to give this power to the King alone or to one or both Houses without the King the consequence is equally evill If the King have it both Law and Parliaments are destroyed If the Members Monarchy the Parliament and the Law it selfe are totally abolished And if the King by having this power of a negative Voice be Judge in His owne cause the Members having that authority are so too But that is a meere fiction neither King nor Members by having a negatie Voice in Parliament are Judges in their own cause but all that is to say the King and the Houses are jointly Judges when it is fit to make a new Law or change the old And so long as they extend not beyond the power of a negative Voice the Members of the two Houses are persons indifferent between the King and the people and so is the King indifferent between the Members and the people For example if the King propound a Law to take away the life of His subjects to tax them with payments of money not warranted by the knowne Law or otherwise to inlarge His Prerogative the Members may assent thereunto and so make it a Law or refuse it and herein they are indifferent between King and people for the benefit of those Laws thus propounded accrues not to them And so it is if either or both Houses propound a Law to the King whereby they would assume to themselves the absolute power of Government to put to death whom they please to tax or impose upon the people to confiscate their estates to their own use the King is a person indifferent between the Members and the people to Judge whether to passe it or not But when the Members without the King assume power to make Laws the dispute between the King and the people is ended the businesse is then immediately and totally between the Members and the people Therefore by excluding the King from His negative Voice the Members have made themselves Judges in their owne case By our wofull experience we now find there
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
joyntly concurring to sell and by that sale the Lords are concluded it is done by the Commission of those Lords and therefore in Judgement of Law their owne Act. So for the Parliament the King the Lords and Commons by the constitutions of this Realme are jointly trusted to consent unto the making new or changing the old Law therefore no lesse then all have Commission for it And so if the King and either House or both Houses without the King passe a Bill or make a Law this ought to be judged invalid none are thereby wronged still the knowne Laws are in force the people as before by the knowne Law are protected in their persons and estates and those trusted that is the King the Lords and Commons joyntly concurring have power to make new Laws which consent concludes the whole Nation it is done by its representative body and so by their Commission Thus it appears that when there is a question and dispute in Parliament between the King and the two Houses it is not necessary to have it affirmatively determined nor needfull that His Majesty in such cases be Judge against the two Houses or the two Houses to Judge it without Him That is but a fiction of the Members devised by them to reduce the Nation unto their Tyranny which as the Members knew they could not effect but by excluding the King from His negative Voice in Parliament so that being done their worke was finished Then they without the King arrogate power to make new Laws and change the old for their owne advantage as they pleased And so both King and people inslaved Therefore herein to beguile the people a case was faigned and stated thus That such a difference between the King and the two Houses as concerned the safety of the Kingdome was happened in Parliament That unlesse this question were instantly determined the Kingdome was in danger to perish Then to draw the people to side with the Members they were told that the Lords and Commons were the representative body of the Kingdome That whatever the Members in those Assemblies do it is so much the Act of every particular person in the Kingdome as if he were within the wals of the House personally consenting And perswaded the vulgar that this dispute between the King and the Members in effect is between Him and all the people of England And then offer it to the consideration of the multitude whether it be not more likely that all the people of the Realme concurring in one opinion should better know what is for their owne good then the King being but one single person and dissenting in judgement from the whole Nation The poor people not being of capacity suddenly to discerne the fallacy hereof And being ravished with a conceipt to be Judge in their owne case in smarmes flocked to this Idoll the Members thinking they had thereby adored themselves as well as that beast and never ceased untill by violence they expelled the King from His negative Voice in Parliament But now by wofull experience they both understand by whom and how they are represented which is thus The Knights of Shires Citizens and Burgesses being elected by the Inhabitants of the severall Counties and Townes do in some sort represent the people who chose them but that is no further then their Cōmission extends And they have no other Commission then the Kings Writ of Summons the returne thereof word by word set downe before which gives them no other authority then to consent unto Laws agreed on by the King His great Councell the Peeres consequently they do represent the people no further then to consent unto such Laws And for the Peeres they have no Commission at all from the people nor can be said to represent them their authority is solely from the Kings said Writ of Summons directed to every particular Lord by which likewise his power is declared and stinted That is to advise with the King concerning the affaires of the Realme So that the Lords and Commons put together they have no Commission to make Laws we are still to seeke that Legislative power nor is it to be found but in the King He alone is properly the Law-maker But the Kings of England as before appears having excluded themselves to make Laws without consent of the two Houses Therefore that united body the King and the Members of those Assemblies is called the Legislative power and the representative body of the Kingdom But that either or both Houses or any Assembly or people in this or any other Nation governed by Monarchy hath or ever claimed to have a Legislative power or sofar to represent the Kingdome as to make new Laws or change the old without the Personall consent of the King is such a ridiculaus Bull as never was heard or thought of untill this frantick Parliament Therefore when either or both Houses without the King take upon them to make Laws they extend beyond the bounds of their Commission they thereby act of their owne head not as representatives For example a Lord by Commission gives power to A. and B. to let and set his Land for tearme of years so long as A. and B. pursue this authority they do represent that Lord but if by colour of that Commssion A. and B. demise for life or sell the Inheritance it is done without authority their Commission reacheth not so far and so not representatives Therefore such lease or sale is void it doth not bind the Lord. Or thus A. having contracted with B. to make A. feoffement unto him and his heirs of the Mannour of D. upon a condition by letter of Atturney gives power to C. to make livery and seisin upon that Condition C. performes it In this case the Land is as firmely setled in B. as if A. had executed it in his owne person because it is done by his representative But if C. omitting to express the Condition make livery and seisin absolutely nothing passeth to B. for saith our Law C. extending the bounds of his Commission he doth not represent A. Therefore his whole act void So here the Lords as before appears have Commission to advise with the King the Commons to do and consent unto things agreed on by the King and them Now those Lords and Commons taking upon them without the Personall assent of the King to make new or change the old Law it is a power usurped without Commission or authority therefore no representatives and consequently all their proceedings void Then for the distinctions in the aforesaid Declarations mentioned 1. That no Law made without the Kings consent binds unless His consent be first required and refused 2. That those Laws be necessary for the preservation of the Kingdome 3. That such Laws shall continue no longer in force then that necessity lasteth these are snares and subtilties only to catch the simple no wise man wil be taken with them Suppose the King upon refusall
with the King then they tell us that the question concerning their right thereof having been long and sadly debated both in black and red battles God himselfe hath given the verdict upon their sides meaning if their words have any sense that by their prevailing against the King in that war God hath judged the cause for them and against the King But who sees not this to be a presamptuous blasphemy added to the sin of Rebellion did not this bold hypocrisie as aptly sute with the actions of Ket Cade Wat Tyler and all fore-going Rebels Certainly as long as any Traytor murderer or felon can defend himselfe from the just triall and sentence of the Law it is as easie and upon as just grounds for him to appeale to God for justification of his fact as these Members do now call Him to witnesse for them So that the consequence to the people of England which followeth the excluding the King from His negative Voice in Parliament is no lesse then the losse of that happy condition of a free Subject governed by a knowne Law under a King and in being reduced to the slavery of an arbitrary power under their equals and fellow subjects Therefore all the people of England do generally disclaime the foresaid Members to be their representatives and refuse to submit unto their Orders or Ordinances Upon the whole matter these things appear that the Parliament of England consisteth of the King the Lords House and the Commons House joyntly concurring that every one of them hath a negative Voice in making Laws and consequently all Orders and Ordinances or whatever they may be stiled whereunto the King hath not or shall not voluntarily without compulsion give His Royall Assent are done without Commission warrant or Authority and so not binding King or people In the next Chapter is shewed the power of the Parliament of England CHAP. IV. That the King the Lords House and the Commons House concurring have not an unlimited power to make Laws it being in the brest of the Judges of the Realme to determine which Acts of Parliament are binding and which void and to expound the meaning of every Act. IT may seeme strange to some that the high Court of Parliament should be limited in their power and deny to expound their own Laws But upon consideration had of the use of a Parliament and of the grounds of the Laws of England it appears to be both just and consonant to the Constitutions of this Realme The People of this Nation are not governed by a Parliament Soveraignty is the Kings yet the King Himselfe hath not an absolute or an unlimited power over the people For as the people are governed by and under Him so the Law directs how He is to governe them But in this Nation as in every Common-wealth governed by a setled Law occasions oft happen to do such things as the rules of that Law cannot warrant Therefore necessary it is to have a power to supply those defects and that is the office and true use of a Parliament Which authority rightly considered is of such concernment to the Common-wealth as that the greatest care in the world ought to be had who are trusted therewith It is no lesse then a power to change that Law whereby the people have protection of life and fortune and therefore may require the consent of such persons as are not rightly qualified to judge which Laws are binding and which void or to expound the meaning thereof Upon that ground it is that by the constitution of this Realme no new Law can be made or the old changed but by the King with the assent of the two Houses of Parliament Those persons as before appears are proper to judge when such things have happened as may require the making of a new Law or to alter the old But without derogation from the honour of those persons That body is not of a mould fit to judge which Statutes are binding which void or to expound the meaning of an Act. First cleere it is Acts of Parliament may be so penned and containe such matter as ought not to binde either King or people Suppose it enacted that from henceforth the Members of the two Houses shall be exempt from punishment for Treason Murder Felony and other Crimes Or that the King and the two Houses from time to time shall consent to make such Laws as a close Committee or certaine persons by name shall conclude upon or that every Act of Parliament afterwards made shall be void and the like no man can conceive such Acts would be binding for thereby the true use of Parliaments the Law and government were destroyed Besides all men grant that an arbitrary power is absolutely destructive to the people And it appears in the next precedent Chapter that to give this unlimited authority of making Laws to the King alone or to either or both Houses without the King were no other then to bring upon the people that thraldome Now for this boundlesse power to be in the King and the two Houses joyntly although that were nothing so bad as to have it in the King alone or in either or both Houses without the King yet the people were not thereby so wel secured from the tyranny of an arbitrary power as when the Judges determine which Acts of Parlliament are binding and which void Upon perusall of former Statutes it appears the Members of both Houses have been frequently drawne to consent not onely to things prejudiciall to the Common-wealth but even in matters of greatest waight to alter and contradict what formerly themselves had agreed unto and that even as it happened to please the fancy of the present Prince witnesse that Statute by which it was enacted that the Proclamations of King H. 8. should be equivalent to an Act of Parliament one other Act which declared both Queen Mary and Queen Eliz. to be bastards one other which in words gave power to the same King to dispose of the Crowne of England by his last will and testament And the severall Statutes in the times of King H. 8. Edw. 6. Queen Mary and Queen Eliz. setting up and pulling downe each others Religion every one of them condemning even to death the professour of the contrary Religion And now reflecting upon the proceedings of the present Members we finde they have de facto arrogated unto themselves in the highest straine a power arbitrary It is likewise too evident with what terrors menaces and inhumane cruelties they presse their Soveraigne to passe Acts of Parliament for confirmation thereof Doubtlesse had they not met with a King even beyond humane expectation most magnanimous it had been effected And suppose this Kings consent had been obtained or that He or any other succeeding King shall be drawne by force or fraud to consent thereunto and admit such Acts of Parliament to bind it will follow that no Government can be more arbitrary
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
of them hath its proper and peculiar jurisdiction The Chancery for Equity the Kings Bench for Pleas of the Crowne the Common pleas for reall actions and other matters of the Law The Exchequer for the Kings Revenues And every one of these Courts is circumscribed within its own bounds The Chancery unlesse it be in some particular cases warranted by custome hath not power to determine questions of Law nor the other three Courts matter of Equity The Common pleas not to intermeddle with the Pleas of the Crowne nor the Kings Bench unlesse occasioned by breach of the Kings peace with questions concerning title of Lands And none of them hath authority to extend beyond its bounds in any one particular All which is made good by authority and reason For authority it is resolved in the bookes of the Law that if the Judges of the Common pleas in an Appeale or Indictment for murder felony or other capitall crime condemne any person their proceedings are voide as done coram non Judice That person so condemned although guilty of the fact in the judgement of Law is not attainted nor his blood corrupted he forfeits not his estate and if executed although by the command of the Judges of that Court both Judge and executioner are guilty of felony and punishable as if done without that command If the Lord of a Leete hold his Court or the Sheriff his Turne at other times then custome doth warrant Or the Court of Marshalsey assume jurisdiction not made good by use their proceedings are void In all which cases the Officers or Ministers of those Courts are punishable for executing the commands of the Iudges thereof wherein the Law takes this difference viz. When a Court assumes power to determine that which it hath not Commission to determine and when it hath jurisdiction of the cause yet proceeds inverso ordine in the first as in the cases aforesaid The Minister is not excused or justified by the warrant of the Court In the latter the warrant or processe of the Court is a legall justification as thus If the Court of Common Pleas hold Plea without originall or award processe of Capias against a Peere and the like in these cases although the proceedings be illegall yet in regard the Court hath jurisdiction to determine the cause if it were regularly brought before them the processe or warrant of the Court is a good justification for the Minister thereof And this rule holds with all other Courts Assemblies and persons when they act or doe such things as they have not Commission for their proceedings are void So that the Laws of England admits not of Iudges but persons qualified to performe that office yet ability by it selfe is no Commission to make a Iudge The Judges of the Common Pleas are as learned in the Law and as able for their knowledge to determine Pleas of the Crowne as the Judges of the Kings bench but they have not the same authority The Court of Common Pleas hath not used it and consequently it is out of their Commission And that no Court ought to extend its owne bounds is made good by reason For if any Person Court or Assembly takes upon them in any one thing to execute that which their Commission extends not to by the same reason they may assume it in another and so in infinitum upon which it followeth that the power of that Court Person or Assembly is become boundlesse And if one Court Person or Assembly may inlarge its bounds the like reason holds with every Court Person and Assembly in the Kingdome and so a Parity introduced and consequently the whole Government subverted and destroyed In the next place it is considerable to know what Commission the Parliament the two Houses or either of them hath therein And first for the Commons house That Assembly hath no Commission from the King nor by Act of Parliament to Judge the Law and for Prescription they faile in all the foresaid three particulars for they cannot challenge any thing time out of mind The Assembly it self had its beginning after the Raign of K. Ric. 1. Secondly admit them to have been time out of mind they fail in the use for untill this Parliament they never executed or claimed any such thing Thirdly admit them to have been time out of mind and constantly to have used the power of Judicature yet it ought to be disallowed because not reasonable it is repugnant to the Rules of Law and justice that persons not fitly qualified should have power of Judicature By the constitutions of England controversies are decided thus The Plaintif exhibits his complaint in a Court of Justice and that in the Latin tongue The Defendant answereth in the same Court and Language out of which pleading the case ariseth which sometimes is questio facti and sometimes questio Juris If it be facti it is tried by a Jury sworn by authority of that Court where the suit depends and that cannot be the Members of the Commons house for besides the difficulty of the Language those Members cannot give an Oath and if it be matter of law the sworne Judge is to determine it but they are not sworn to doe justice And for the Lords house it is granted that in some things which custome and use hath made good the Members of that Assembly have power of Judicature for although that House as now it is formed and setled hath not been so auntient as to make a Prescription yet the Prelats the Peers and the Judges time out of mind have been frequently called together by the Kings of England and consulted with concerning making of Laws and other the affaires of the Common-wealth And amongst other things the Lords depending therein on the advice of the Judges have so auntiently as the beginning thereof cannot be made appear by licerse of the King upon Writs of Error reversed erronious Judgements given in the Kings bench But as the Lords have this authority by Prescription so they are excluded from all other power of judicature but that which custome and use doth warrant for Prescription is all the Commission they have Neither Grant from the King nor Act of Parliament they have for a Court of justice Now to give power to the Lords house or to the Commons house to inlarge their Commission or Jurisdiction the same inconveniences would thereupon ensue as by suffering other Courts to doe the like if the Members of the Commons house should at this day take upon them to give an Oath and this legally intitle them to it by the same reason they might as now the present Members of that Assembly in effect doth without King or Lords assume the whole Government And for the two Houses jointly they are not a Court of judicature they have therein no Commission at all neither from the King nor by Act of Parliament nor by Prescription And for the Parliament that is the King
and the two Houses that body cannot properly be said a Court of Justice The Office of a Judge is upon a Question depending before him to declare what the Law is but the office of the Parliament is only to make new laws By this it appears that neither the Members of the Lords house nor of the Commons house are qualified to be Judges of the Law nor have they either jointly or severally Commission for that purpose And lastly admit every Member of either house in Learning sufficiently qualified to make a Judge their composure considered they are not capable jointly to perform that Office they being two distinct bodies their proceedings severall and distinct it cannot be expected but they shall frequently differ in Opinion and judgment therefore were they never so learned should the King grant unto them power of judicature or should they have that authority given them by an Act of Parliament the Lawes of England would judge both that Grant and Statute absolutely void as a thing most incongruous against sense and reason Upon which it followeth that if the Lords House or the Commons house or both Houses jointly have or shall condemne any person for Treason Felony or other capitall offence try any title of Land tax the people with payments of money seise or confiscate the Subjects estates or the like be it by Order Ordinance or any other way all such proceedings are void done coram non Judice and consequently both the Members and all persons executing their commands therein are by the Lawes of England punishable as Murderers Felons or other transgressours because done without warrant or authority And how long soever they shall continue this power and how frequently soever it is used that alters not the case the Law is still the same it was Yet herein I doe not abridge the power and authority of the Peers of the Realme It is true when the King hath constituted a Lord high Steward and consented to the triall of a Peere for his life for a fact committed against the known Law such a Peere not only may but ought the Lords observing the rules of law to be tried by the Lords his Peers But there is no colour for the Lords or for the Commons or for both Houses jointly although the King should give way thereunto to try or judge any Commoner Every common person ought to be tried by his Peers too that is by a Jury of the Commons and that Iury by the Lawes of England ought to be of that County and neare that place where the fact is committed It is a Rule in our Law that in capitall offences Vbi quis delinquit ibi punietur persons dwelling near the place are most likely to have cognizance of the fact Besides by our law every free-born Subject of this Nation hath at his arraignment power and liberty to challenge Iurors impannelled for his triall But all such liberties are taken away by this usurpation of the Members Thus it appears that the Judges of every Court of Justice so far as their Commission extends and no other persons are Judges of Law But the Judges of no one Court are those unto whom the people are bound lastly to submit themselves for every Court of Justice in some respect is inferiour to another Court or power unto which appeales lie as in the case of a Writ of error and the like unlesse it be in the Exchequer Chamber when the cause regularly depends before the Judges of the Kings Bench the Common Pleas and the Barons of the Exchequer into which Chamber things of great weight and difficulty concerning matter of Law are usually transmitted And being there judicially determined from that sentence t◠conceive no appeale lies to any other Court by Writ of error That is the sentence and judgement of the Judges of the Realme yet from that judgement some persons are of opinion a Writ of errour lieth before the Lords in the upper House of Parliament But upon consideration had of the reason of the Law concerning the proceedings in Writs of error brought there I conceive it were to little purpose to permit any such appeale unto the Lords upon judgements given in the Exchequer Chamber before all the Judges of the Realme The power of the Lords House to reverse erronious judgements I conceive began thus The Court of the Kings Bench is the highest Court of Judicature wherein any suite of Law can legally and regularly be brought and therefore their proceedings not to be examined by any other ordinary Court of Justice every one of them being inferiour to it But the Judges of the Kings Bench are as subject to erre as the Judges of other Courts Therefore as requisite to have their proceedings examined Now in regard the Judges of the Realme were at all times at least assistant to the Lords House it was proper enough to have the errors of the Kings Bench reversed in that place And having had its beginning thus constant use and custome hath Legally intituled them unto it Therefore although peradventure it may have happened that some few particular Writs of errour have been brought in the Lords House upon judgements given in some other Courts I conceive the prescription which is all the Commission they have lieth only for the Kings Bench. And I am the more confirmed therein because the Law bookes mentioning the authority of the Lords House in reversing judgements do generally instance in the Kings Bench not naming other Courts Besides as the Lords House hath this jurisdiction by prescription the same use and custome requires these circumstances 1. That the Kings consent to prosecute a Writ of error be obtained because every judgement in the Kings Bench doth immediately concerne the King the jurisdiction of that Court being properly Pleas of the Crowne 2. That the Lords after the cause is brought before them proceed by the advice of the Judges which is indeed the essentiall part of the prescription To have a profession of Law Courts of judicature erected persons learned in that profession appointed Judges thereof it were most preposterous to have the proceedings of these Judges even in the most difficult points of the Law examined reversed and controlled by persons ignorant in that profession By the constitutions of England no man is capable to be a Judge unlesse he have understanding in the Law to performe that office Therefore shall the King grant to one who is most learned a Judges place to him and his heires as to his heires it were void and the same it were if such a grant were made by Act of Parliament And so consequently if the Lords should prescribe that time out of mind they and their predecessours Lords of the Parliament in Parliament time have without mentioning it to be with the advise and assistance of the Judges reversed erronious Iudgements given in the Kings Bench or in any other Court of Iustice it 〈◊〉 〈◊〉 be disallowed judged as an evil use
not consonant to the rules of Law or reason it were without any disparagement to their Lordships all one if not better when the question is whether the Iudges of the Court of Kings Bench erred in judgement to have it determined by casting of lots for whether right or wrong judgment were given if the Lords determine it it is but chance whether they pursue the Law or not And if by lot expence of money is saved Therefore cleare it is to examine a judgement given in the Exchequer Chamber by a writ of error brought in the Lords House is in effect for the same persons to judge whether themselves erred or not and so whether the Lords have or have not this power the Iudges of the Realme are still depended upon And in case the King and the two Houses make an Act of Parliament concerning the same thing when that Act is passed from them as before appears an appeale lieth by an action or suite at Law unto the Judges who have power to determine whether that Statute be binding or void and therefore clear and manifest it is that in matters of Law the last and finall sentence is the Iudges of the Realme But me thinks for a Nation which hath been governed so many hundreds of years by a known Law and under it so flourishing a people as the Subjects of England have been and yet not to be agreed who are the finall Judges of the Law is so grosse a thing as that all forraigne Nations hearing of it cannot but accompt us men to have lost our wits In every constitution it is oftentimes difficult even amongst the learned in the profession in some particular questions arising to determine what the Law is But not to know what persons have Authority to decide those questions is most ridiculous The Judges of the Law ought to be so conspicuous as that all persons even from the most learned unto the most ignorant may equally alike discerne the men Which considered I conceive it necessary not only for the information of the vulgar people of England which have herein been grosly deceived but for the Vindication and Honour of our own Nation and the Law established so farre to digresse as in a word to shew how this fond question was raised and controverted in this Kingdome which was thus This Nation is governed by a known Law that Law â—â—dgeth the King to be our onely Supream Governour gives power to the King with the assent of the two Houses and no other to alter that Law and to make new Lawes And to the Judges of the Realme it ascribes the power finally to declare the Law Now such whose aime is to usurp Soveraignty or to swallow the wealth of the Nation cannot hope to effect their ends by submitting to the known Law That were to commit a crime immediately submit themselves to the block Therefore they must either deceive the people by mis-informing them what the Law is else by strong hand to enforce upon them a new Law for their own purpose Now that the Members aime was at no lesse then all is too too apparent But at the beginning of these distractions they were not in a condition to force the people Therefore their Iudgements must be deceived Hereupon the Plot was that the Members in the opinion of the people should gaine the reputation of being the finall Judge of the Law which was effected thus The people by reason of some good Lawes obtained of the King by the Members procurement were inclinable to believe whatever they propounded Then the Members Voted Thus viz. That when the Lords and Commons declare what the Law of the Land is it is a high breach of Priviledge of Parliament to question it This being published and the people by Incendiaries spread throughout the Kingdome for that purpose by false Calumnies cast upon the King being grosly abused the Members work was in a manner finished Then they took upon them the power of the Militia declared that the Soveraigne power was not in the Kings Person but virtually in them And from thence what made for their advantage how grosse soever did but the Members declare it for Law and good enough Thus the Iustice seate even by a sleight became both disputed and usurped But now the Scales are turned The peoples understandings are enlightned they see how grosly they were misled They finde that whilst the Judges of the Realme declared the Law both King and Subject were preserved in their Persons lives and fortunes That by this usurpation the known Law is subverted and consequently that protection vanished But as the people have changed their opinions so have the Members framed a new Argument They have left the Word and betaken themselves to the Sword They having Armies to back them their will is now the Law and resolve whilst they can by force to hold it Thus we are fallen into a gulf of misery whereas had the people been but half so carefull to have found out the Truth as they were industrious to effect their owne destruction these calamities had been prevented When the difference first hapned between the King and the Members had not the people leaped into their own ruine but taken the least consideration thereof had they bethought themselves how they were to be rightly informed what the Law was they must have resolved that as we had a Law consequently there must so long have been a Judge of that Law But the Members neither exercised or pretended any such power one minute beyond the foresaid Vote And for Authority to make their pretence good none can be produced but that their own testimony in this their own case and in a thing of no lesse concernment then the gaining of the wealth of the whole Kingdome to their own use and enslaving the people to their owne pleasure Hereupon doubtlesse the people would have concluded that not the Members the Judges of the Realme were the men unto whom all persons were Obliged to submit for matter of Law But it is objected That this is too great a power for the Judges for say they those persons may and doe erre in Judgement and are subject to corruption as in that case of Ship-money Answer It is true the Iudges have erred and it being granted that in the case of Ship-mony they did erre and were corrupt too and that it cannot be expected but they shall againe and againe erre be corrupt yet until we have other Creatures then Men to make choise of for Iudges this Objection ought to be disallowed We finde the Members to be no Gods And for the weight of the businesse concluded to be too great for the Iudges I Answer that that power must be in some To have a Law without a Judge finally to end controversies were worse then to have no Law at all And to have a Law and a Judge of that Law who understands not the profession were a degree worse then
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
Roy le veilt So that if any difference be the Kings words are more prevalent for before that it is but a written piece of parchment not valid but by tht Kings words instantly it hath life and is become a Law binding the whole Kingdome and people And this as before is said is the Kings Law Then Mr. Pryn fals to presidents which he cals proofs King Ed. 2. and King R. 2. saith he were deposed by the Parliament Answer The case concerning these two Kings was thus Against King Ed. 2. after many distractions in the Kingdome the Queen His Wife and other of Her adherents increased the faction raised a Rebellion barbarously tooke the King prisoner and during His imprisonment without any lawfull authority or consent of the King in His name summoned a Parliament and by force drew him in words to resigne His Crowne unto His Son afterwards King Ed. 3. and that of King R. 2. was much to the like purpose He was drawne to resigne His Crowne to H. of Bullingbrooke Afterwards King Hen. 4. and these two lawfull Kings being thus injuriously bereft of their Scepters were shortly after most barbarously murdered too The whole proceedings of which Acts all such Pryn excepted as have mentioned them have condemned the same not onely to be illegall but as Acts most wicked and notoriously impious But saith Mr. Pryn Pierce Gaveston and the two Hugh Spencers were by Parliament banished the Spencers violently put to death Humphrey Duke of Gloucester arrested of high Treason at a Parliament at Berry and there murdered That the Earle of Strafford this Parliament lost his head against the Kings will Answer For the banishment of Gaveston and the two Spencers his Argument is but thus The King with the assent of the two Houses made an Act of Parliament to banish them Ergo the two Houses without the King have the Soveraigne power of Government And admit Mr. Pryn hath proved which he endeavours that the Members of the two Houses murdered the Duke of Gloucester and the Spencers still that proves not the Soveraigne power of government to be in the Members That example of the late Bishop of Canterbury I conceive to be a President far more proper to be cited for this purpose then the case of the Duke of Gloucester or the Spencers For all men know that Bishop was put to death by no other authority then by order of the two Houses yet this no more proves the Soveraigne power to be in the Members then that murder acted by Felton upon the person of the Duke of Buckingham proves Felton to be the King of England For the Members of the two Houses had no more authority to condemne to death the Bishop then Felton had to kill the Duke And consequently the murder of the Bishop whatever his offence was or however guilty it â—â—…ing done by pretext and colour of Law was more horrid And for the Earle of Strafford it was thus By the Laws of England no man can or ought to be convict of a crime but by Act of Parliament by utlagare or by triall of his Peeres That is if a Lord of the Parliament by a Jury of Lords if under that degree by a Jury of like quality and being convict the Judge ought to give no other sentence but what the knowne Law doth pronounce for that fact Now that Earle by the Members of the Commons House was accused of high Treason The King thereupon declared His resolution not to protect him from the tryall or just sentence of the Law After this the Members waving the ordinary proceedings of the Law passed a Bill to attaint him of Treason by Act of Parliament This Bill was presented to the King He for some time refused to make it a Law which peradventure He might be induced unto by the Bill it selfe There being a speciall proviso therein that the Judges shall not condemn any other for the like offences which might cause the King to be very tender of passing the Act thereby to condemne a man as a Traytor for facts passed which at the time committed was not Treason This if duely considered is so far from being evill in the King as that the whole Kingdome hath thereby great cause to acknowledge his goodnesse It hereby appears he desired to governe as King not as a Tyrant to proceed against offenders according to the knowne Law not by an arbitrary power And if some particular persons too much thirsting after Straffords blood occasioned such things as might draw the King against His conscience to consent unto that Act woe be unto them But however whether the King passed this Act willingly or against His will or whether the Earle of Strafford were guilty or not guilty of Treason That nothing proves that the Members have Soveraigne power of government above the King Thus for Mr. Pryns objections against the Kings right to Soveraignty And that the Members have no authority therein is further proved thus 1. So long as the people have been governed by a knowne Law there must have been a Supreame Governour but we have had the same Law by which we are now governed long before the Institution of the two Houses 2. It is absolutely necessary that the supreame Governour be a person constantly permanent and visible but the Members out of Parliament are not in being they are invisible 3. It is a contradiction to Soveraignty to be subject to the commands of an other But the Members are called together and dissolved againe at the Kings pleasure 4. The Composier of the Members is such As that to make them supreame Governours tends to the destruction not to the preservation of the Kingdome and people If a woman bring forth a Monster not having the shape of man-kind our Law judgeth it no issue it is lawfull to kill it it ought not to be baptized To have two heads of one body is monstrous so to have two Kings of one Kingdome must be destructive to that Nation But here which is a far more prodigious monster we by the Members usurpation are governed by two severall distinct bodies consisting of multitudes without any head This government is new there yet never was the like upon the face of the earth It is not Monarchicall Alligarchicall Aristocraticall Democraticall nor although the neerest to it Anarchicall it is worse then confusion It can have no proper name unlesse it be called contradiction Thus for the negative part that the two Houses have not the Soveraigne power it now rests to shew in whom it is And for that these two things are considerable first what is the office of the Supreame Governour secondly who hath performed that duty For the first all men grant it is to preserve the people in peace by causing the Laws to be justly distributed and the like which have ever been performed by the King of England for the time being and by none else He hath denounced War proclaimed peace inhaunced and
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
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
of the Kings learned Councell and the Masters of the Chancery whom the King adviseth with as His great Councell It is the office of the Commons as likewise by this Writ appears to do and consent unto such things as the King the Prelates and Peeres agree upon The second are such as the King makes choice of to advise Him in matters of State and are sworne to secrecy And the third are the Judges of the Realme and others of the Long Robe whom the King elects and are sworne to advise Him in matters of Law Now whilst these Councellors keepe within their owne bounds and faithfully performe their severall duties the known Law is preserved and so every one protected But when they extend beyond their bounds confusion ensueth Absurd it were for a sick man concerning his Cure to advise with a Lawyer or for any one in point of Law to take advise of a Physitian So for the Privy Councellors to judge the Law for the Judges to determine matter of State And the like holds with the Members of the two Houses They are neither qualified nor have Commission either to intermeddle with the Law or the affaires of State otherwise then the King shall thinke fit to intrust them by asking them their advise wherein they are onely to deliver their opinions not to controle Therefore when the two Houses have passed a Bill for a new Law and have presented it to the King they have performed their duty it then rests in the King whether to make it a Law or not wherein it may be necessary for Him to take the advise of His Privy Councell His learned Councell or of both And I conceive that may be the reason why Kings have used to answer Bils which they passe not by these words le Roy le veili By these words of the Writ viz. Quia de advisamento assensu consilii nostri c. quoddam Parliamentum nostrum c. teneri ordinavimus c. It appears that the King depends upon His Councell in calling Parliaments which oftentimes is occasioned upon State-affaires such as requires the assembling of a Parliament yet not safe to reveale those reasons to the Parliament men And so the King by advise of His Privy Councell or His learned Councell may and oftentimes doth reject Bils presented unto Him by both Houses and yet not convenient to render His reasons to that multitude Therefore clear it is the men at Westminster have extended beyond their Commission and so all these Votes are absolutely invalid not binding either King or people The King notwithstanding these Votes is or whatever the Members shall or can Vote will and must be our only Supreame Governour And consequently these men at Westminster by breaking their bounds are themselves guilty of those things which in and by their declarations to the people they grossely and falsely aspersed their King with They have and do arrogate to use their owne words an arbitrary power without above against all the Courts of Justice the Parliament it selfe not excepted And thereby the knowne Law is subverted and consequently they are most palpably guilty of that crime for which they themselves condemned as a Traytor the late Earle of Strafford but for attempting to do and that upon a slender proof too Upon the whole matter it may with as much justice sense be said that there was yet never one King of England as to question whether the King for time being hath inherently in His person the Soveraigne power of Government But that man who hath taken consideration hereof and yet so absurdly peevish as to remaine unsatisfied of the Kings right herein the whole world must judge Him worse then out of his wits to give it unto the Members Suppose the Steward of a Lord or Commoner to claime property in the estate of his Master I presume the Houses would account him an unjust Judge who should determine the case on the Stewards behalfe upon his owne testimony So here the Members challenge not onely the Soveraignty due unto their Leige Lord and King but an authority arbitrary over King and people wherein they have not the least colour of proof more then their owne affirmation Besides when a witnesse although not a party contradicts himselfe his testimony becomes invalid But the Members solemnly upon their Oathes even this Parliament have declared the King their only Supreame Governour wherein they swore not for themselves but on anothers behalfe that is for the Kings Interest So that every prudent man in common sense and reason ought to beleeve that which these men have thus sworne for the King And absolutely to reject this their affirmation contrary to that Oath and for their owne advantage And so I conclude this point concurring with the Lords and Commons 1 Jacobi that the Imperiall Crowne of this Realme is by inherent birth-right descended and come to this our King Charls And that according to the Oathes of these Members and their predecessors in former Parliaments he is our onely Supreame Governour In the next place it is shewed that the Militia of the Kingdom is in the King CHAP. VIII That the Militia of the Kingdome by the knowne Laws of the Realme is inherent in the Crowne And at the absolute command of the King and none else IT appears before that the King is the onely Supreame Governour which of it selfe is sufficient to satisfie any man of judgement that the Militia of the Kingdome is likewise in Him yet Mr. Pryn by licence of the Commons House hath published a Treatise Intituled thus The Parliaments Interest in the Militia Whereby he endeavours to prove that the Members of the two Houses which he miscals the Parliament have the power over the Militia the Forts the Navie and Revenues of the Crown And begins thus It must saith he be granted that the power which His Majesty hath or His Predecessors enjoyed ever the Militia the Forts the Navie Ammunition and Revenues of the Crowne was originally granted to His Ancestors by the Parliament and Kingdomes free consent Answer The Militia the Forts the Navy Ammunition and Revenues of the Crowne saith M. Pryn were granted to the Kings Ancestors by the Parliament and Kingdomes free consent So that neither the Parliament nor the Kingdome by his owne confession made the grant nor who he meanes was this grantor himself cannot imagine However it is not worth the labour to make further inquiry thereof for most certaine it is never any such grant was made But admit that before the Kings Ancestors enjoyed them some persons had power and Interest therein and made a grant thereof to the Kings Ancestors It is as hard a taske thereby to prove that the Members have title to these things as to find out this imagined grantor who never yet was in esse The Argument is but thus The Militia the Forts the Navy Ammunition and Revenues of the Crowne were originally granted to the Kings Ancestors Ergo at
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
the Militia unto the Members is the same as to put the Sword into the hands of a mad-man for as the one hath no reason to restrain himself from doing mischief so the Members are not guided by any known Law but having usurped an Arbitrary power over King and Subject we finde by our wofull experience make use of the power of the Sword to compell the people to submit unto their insatiable lusts Witnesse besides the infinite murders and slaughters of the people the vast summes of money these Members since this Parliament by the power of the Sword have unlawfully wrested from the Subject which being justly cast up would amount to more then all the Subsidies grants of that nature given unto all the Kings of England for the space of 500. yeares before that Upon the whole matter clear it is the Militia of the Realme by the known Law of the Land is the sole and onely Right of the King And consequently all Commissions Powers and Authorities granted or given by the Members of the two Houses concerning this Warre are voide in Law and no Justification for those acting thereby But for the nature of that offence it is shewed in the next Chapter CHAP. IX That all persons who have promoted this Warre in the name of King and Parliament and such as have acted therein or adhered thereunto are guilty of Treason THe Office of the King and Duty of the Subject appeares before to be thus The King to Command and Govern according to the Established Lawes of the Realme The Subject to obey those Commands wherein the Law of all things abhors force and enjoynes peace which Peace by the Lawes of England is called the Kings Peace Therefore in every Indictment for Murder Felony or Trespasse done upon the person or estate of a subject These words viz. contra pacem domini Regis nunc Coronam dignitatem suam ought to be expressed for although the fact be done immediately against a Subject yet it trencheth against the Kings Authority His Law is thereby broken And the Lawes of England not onely protects the Kings Person from violence but preserves Him in His Royall Throne and Government Therefore if any persons in this Kingdome without command or assent of the King raise Forces Powers or Armes be it upon what pretence soever it is a Warre levied against the Kings Authority His Crown and Dignity For in that the Subject assumes the Regall power of the King Then for the Authors and Actors of this Warre the Kings Castles Forts His Navy Armes Ammunition and Revenues of His Crown are by force wrested out of His Hands Armes raised conducted into the Field Himself fought with in severall Battailes His Subjects in every part of the Kingdome by the awe of those Armies forced from their Allegeance Therefore a War it is and a War against the King The next Question is what the Law declares this offence to be And that appeares by the Statute of 25 Edw. 3. in these words Whereas divers opinions have been before this time in what case Treason shall be said and in what not The King at the request of the Lords and of the Commons hath made a Declaration in this manner When a man doth compasse or imagine the death of our Soveraigne Lord the King or of my Lady the Queen or of their Eldest Sonne and Heire or if a man do levy War against our Soveraigne Lord the King in this Realme or be adherent to the Kings Enemies in this Realme giving aide or comfort in the Realme or elsewhere and thereof be probably attainted of open deed by people of their condition c. It is to be understood that it ought to be Judged Treason By this clear it is That it is Treason to Levy War against the King to compasse or imagine the death of the King the Queen or Prince to adhere unto or aide the Kings Enemies Of all which the death of the King Queen and Prince excepted the Authors and Actors of this War are guilty But M. Prin hath by Authority of the Commons House of Parliament published a Treatise intituled thus The Parliaments present necessary defensive Warre is Just and Lawfull both in Law and Conscience and no Treason or Rebellion Answer This Title is like his whole discourse totally either impertinent or false This is not the Parliaments War but a War of the Members of the two Houses Nor is it a War on the Members behalf defensive but offensive which omitting to expresse when and by whom the Armies and Forces were first raised that being obvious to all men appeares by considering the Cause of the Warre which was thus The Members having formed a Law to take out of the Crown the power of the Militia and to settle it in themselves the King refused to consent unto it which refusall was the ground of this War wherein the King was onely Passive and the Members Active They pressed upon Him to change the Law He refused It were grosse in this case to conceive the King should make a War But the Members had no way to gain their ends but by force and so began the War Then Master Prin proceeds to prove that this Warre of the Members is not Treason For saith he they intended no violence to the Kings Person His Crown or Dignity onely to rescue Him from His Cavaleers and bring Him backe to His Great Councell Answer It is true sometimes the intent of the party committing the fact alters the case For example A man travelling the passage is stopt by water And finding a horse there makes use thereof to get over the water This is not Felony But it is a Trespaas Suppose this party indicted for felony at his triall it is pertinent for him to confesse the fact That he used the horse and by circumstances to make it appear he intended thereby onely to get over the water and so to quit himself of the fellony But this man being indicted onely for a Trespasse for him to confesse he used the horse to get over the water alledging he could not otherwise have passed thereby to quit himself of the Trespas were foolish So here raising of Armies against the Kings Command conducting them into the field c. is confessed But saith M. Pryn that is not Treason for they intended no harme to the Kings Person His Crown or Dignity Which is a fond contradiction for admitting they intended no harme to the Kings Person the fact confessed is a harme to His Crown and Dignity And that in the highest nature that may be It is a Warre Levied against Him and His Regall Authority which by the Laws of England is High Treason Raviliake who killed the King of France upon M. Pryns ground might have justified the fact Although he had confessed to have willfully killed that King yet he might with as much truth and sense have said he intended not to hurt the Kings Person As M. Pryn
or man although they be the greatest Tyrants in the world the highest persecutors of Christian Religion be it either spirituall or temporall although never so pernicious to foul or body it must be admitted for good Law and true Gospel Thus the people being drawne to recede from their true principle have occasioned their owne confusion Whereas by their observing the Laws of the Realme these distractions have been avoyded For by the constitutions of this Kingdome both King and Subject are regulated by a knowne Law which Law permits neither King nor people to be Judge in their owne case If one Subject wrongfully imprison the person of another seize his Lands or take away his goods the party injured hath his legall remedy but is not permitted to be his owne carver or revenger if he for his owne satisfaction kill his adversary it is murder If he seize his Lands or take his goods it is a trespasse So in the Kings case If by His Command any Subject be imprisoned or his estate taken from him against the rules of the knowne Law that Subject hath his legall remedy against the Kings ministers wherein neither the King nor his officers are Judge Therefore if that Subject thus injured should to revenge himself kill the King or seize His Revenues it were a most barbarous and unjust Law not to condemne this Act unlawfull And that being admitted it must be unlawfull to attempt His death or to leavy War against Him for any such cause And consequently all those facts although committed upon the grounds aforesaid are Treason Now that person who conceives himselfe to be most highly injured being required to set downe the motives of his taking up Armes against the King his pretence can be no other then this That his person hath been imprisoned his Lands seized and his goods taken from him And this in his judgement against Law none but Brutes can conclude these are legall justifications to act and do such things against their King And so consequently the authors and actors of this War are guilty of Treason But saith Mr. Pryn The Parliament is not within the meaning of this Statute of 25 Ed. 3. Therefore not Treason for the Members to seize the Kings Forts Armes Ammunition and Revenues of the Crowne for saith he the King is a Member of the Parliament and therefore if the Parliament could commit Treason the King should commit Treason against himself And saith he the Parliament is a corporation and a Court of Justice and so not capable of the guilt of Treason Answer Most true it is That the King is exempt from the guilt of Treason for all Treasons are committed against Him But every Subject which includes all the rest of the people is capable both to commit the fact and is subject to punishment for the same And herein there is no difference of persons It is no more lawfull for a Peere then for a pezant to commit that crime the place where alters not the nature of that fact nor doth it availe the actors in being Members of any Assembly Corporation body politick or Court of Justice For every one of these Members or persons besides their pollitick capacity hath a naturall capacity too In which capacity he is subject to the frailties of man he may actually breake the Law and passively suffer for it But the Assembly it selfe the Corporation the body politick or the Court of Justice can neither commit a crime nor is capable of punishment For example the Parliament that is the King the Members of the Lords House and the Members of the Commons House their power is onely to make Laws by Act of Parliament Therefore when the Members of the two Houses in a Parliamentary way passe a Bill which the King confirmes with His Royall Assent Absurd it were to thinke this could be an Act of Treason And so it is for the Judges of every Court of Justice keeping themselves within their jurisdiction they cannot in the proceedings of their owne Court commit Treason And the like holds with all Corporations and bodies politick But if a Member in either House assault or strike his fellow Member that is a trespasse and wilfully to kill him is murther And by the same reason to kill the King although within the wals of the House is Treason And that being granted it followeth that to imagine His death or attempt to kill the King or agree to levy War against Him although in that place is Treason in such Members And herein no formall or seeming Parliamentary proceedings will alter the case The putting it to the question voting the businesse and setling it by a Major part or composing it into a formall Law and calling it by the name of an Ordinance of Parliament neither alter the nature of the crime nor takes away the guilt of Treason If one who hath acted in this War be indicted for Treason who at his arraignment shewes an Ordinance of both Houses for his justification The triall being before a just Judge It will no more availe him then Adam was justified saying Eve tempted him to eat the forbidden fruit And the Members who commanded those things to be done being legally questioned have no more to say then Eve had For it was the Serpent who tempted them to commit this treason The rightfull Judge will informe them that the Law cannot be altered but by Act of Parliament The Judges of the Realme understand not the Language of an Ordinance of the two Houses nor is any such thing pleadable in a Court of Justice the Law takes no notice thereof These things are done by the Members not in their politick but in their naturall capacities They are not Acts of Parliament they are unlawfull facts of Parliament-men And such offenders being attainted and executed the Parliament suffers not Besides it is the fact which the Law doth looke upon And in this case the greatnesse of the person offending the number committing the offence and the place where acted is so far from extenuating as that it rather aggravates the crime For a conservator of the peace in his owne person to breake it or a Judge of the Law to be an example of transgressing it is more odious then in other men Then considering the persons acting viz. Members of the House of Parliament the thing acted high Treason the place where in those Houses words cannot expresse the barbarousnesse of it Now to conclude this point I here set downe what facts the knowne Law judgeth Treason the Members Law therein and the proof on both sides What facts the Law judgeth high Treason the foresaid Statute of 25 Ed. 3. makes it manifest in these words viz. Whereas divers opinions have been before this time In what case Treason shall be said and in what not then declares that by the Law of the Land these particular facts following are Treason 1. To compasse or imagine the death of the King the Queen or the
Prince 2. To violate the Queen the Kings eldest daughter unmarried or his eldest sons wife 3. To leavy War against the King or to adhere unto His enemies giving them aid or comforts in this Realme or elsewhere 4. To counterfeit the Kings Great Seale the Privy Seale or His money 5. To bring false money into this Realme counterfeit to the money of England 6. To slay the Chancellor Treasurer or the Judges of either Bench the Justices of Eyre of Assize and all other Justices assigned to hear and determine in their places doing their office And then it is enacted in the negative that no other thing shall be judged Treason untill it be declared by the King and His Parliament And accordingly by severall Acts of Parliament some other things have been made Treason viz. 7. To deny the King to be our onely Supreame Governour and so in some other particulars The Members Law herein both Affirmatively and Negatively follow thus 1. That it is not Treason to imagine the death of the King the Queen or Prince 2. That it is not Treason to Levy War against the King to adhere unto His Enemies or to give aide or comforts to them in England or elsewhere 3. That it is not Treason to Counterfeit the Kings Great Seal or His Money 4. That it is not Treason to deny the King to be the Supreame Governour Then for their Doctrine in their Affirmative it followeth thus 1. That it is Treason to endeavour the preservation of the Kings Person from violence 2. That it is Treason for a Subject to aide the King against His Rebellious Subjects Levying War against Him 3. That it is Treason to maintain or affirme that the King is the onely Supreame Governour 4. That it is Treason for any Man to deny the Members their fellow Subjects to have the Soveraigne power of Government 5. That it is Treason for a Subject without leave of the Members to recide or dwell in London But it is not possible to instance in all the particulars of the new Treasons therefore in general the people must know that whatever the Members shall say is Treason They must beleeve it to be Treason Now for the poofs The foresaid Statute doth clearly demonstrate what the known Law is And therewith agrees all the Authorities Judgements and Resolutions of the Law But for the Members their Law is so new as that they cannot look beyond the beginning of this Parliament nor produce any one Judgement Resolution or Opinion to make good any one of their Doctrines And consequently their own fictions Let them speak out and all that they can say for themselves is but thus viz. We have gotten possession of the Kings Revenue we have besides that setled unto our selves a yearly Revenue amounting to at least thrice treble the profits of the Crown of England and which is still more sweet we have the dominion over King and People we have a power unlimited to impose taxes and payments upon whom we please and what summes we thinke fit their persons we have in vassalage and can take away their lives when and for what cause we please for the obtaining whereof we did Levy War against the King we did in that Warre attempt to kill the King the Queen and Prince we did adhere unto His Enemies and gave unto them relief and comforts we have counterfeited the Kings Great Seal and His Money we have and yet doe most barbarously imprison the Kings Person we have subverted both Law and Religion Now for us to confesse the known Law and submit our selves thereunto were no other then to put our necks into the halter Therefore we must of necessity deny the old and forge new Lawes These things considered I suppose every one not particeps criminis in this odious Rebellion will judge it more absolutely necessary for him to endeavour his infranchisement from His slavery then it was for the Members to commit this foul Treason and Rebellion whereby the people are brought to this Vassalage Upon the whole matter clear it is that all those Members of either House of Parliament who consented to the making of any Order or Ordinance for the promoting of this War pretended for King and Parliament and all other persons who have acted therein consented or adhered thereunto are guilty of High Treason CHAP. X. That the Subjects of this Nation are not onely commanded from doing violence to the Kings Person or prejudice to His Authority but are obliged with their lives and fortunes to assist and preserve His Person and Just Rights from the fury of His enemies both forraigne and domestick ALL the people of this Nation are divided thus viz. King and Subject which of it self is proof sufficient to make this good The word King as before appears implies a duty in the King to protect His people and the word Subject a duty in them to assist Him By the Laws of England for a servant to kill his Master is an offence of a higher nature and the punishment for it more severe then for the meanest Subject without such relation of service to kill the greatest Peere for besides the Subordination between them a trust is implyed the breach whereof by an act of that nature by the Lawes of England is petty Treason Besides the Law expects from the servant a personall assistance to preserve his Master from violence or hurt and in that regard the Master being assaulted the servant by the Lawes of England may justifie to resist the assailant in defence of his Masters person And between the King and His Subjects the Subordination and Subjection is of a far higher nature The trust reposed in the Subject and his duty to the King is far more transcendent the King being head of the weal publick By violating his person saith our Law every Member of the Common-wealth suffers Therefore in assisting Him we doe defend our selves He is Pater Patriae we are His naturall born Subjects and so by the Law of nature obliged to preserve Him from injury Now the person of my Soveraigne Leige Lord the King by an unnaturall Warre raised and prosecuted by His owne Subjects being assaulted and Warre made against His Crowne and Dignity And the King having by His Proclamations summoned His Loyall Subjects to assist him upon serious consideration thereof I found that nothing was more clear or pregnant both by Authorities of the books of Law and severall Acts of Parliament by which it is abundantly declared to be our bounden duty to serve the King in His Wars both against forrain invasions domestick insurrections and rebellions Then that I was obliged in duty by the Lawes of this Realm by the Law of Nature by the Law of Reason and by the Law of God even by that precept of Saint Paul in these words viz. Let ' every soul be subject to the higher powers to assist Him against these assaults And upon these grounds I took up Armes for Him and
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
still carry the face of Justice although nothing ever was or can be more pernitious to King and people Ket Cade Wat Tyler and the like in their insurrections pretended reformation To remove bad Councellors from the King To restore the people to their Liberties and to set up the Law they protested were the things they aimed at Now admit their intention had been to reforme yet their proceedings must necessarily destroy both Law and Government Suppose Ket had been asked who should judge what persons had broken the Law who were bad Councellours who should nominate the Officers of State and the like Ket would have answered that he who reformes must judge of the reformation Therefore none but Ket should judge of these things which had been no lesse then to have arrogated an Arbitrary power to enslave the people And if so in Kets case It is the same when any persons what ever their quality or number be for it is the Authority and Commission which the Law lookes upon to justifie the fact not the dignity or number of the persons acting And as those things alter not the nature of the crime so the consequence thereof to the people is all one They are as much and more damnified by an unlawfull act committed by a Lord as by a peasant by a thousand as by one single person Then for the Members proceedings Their assuming power to judge the Law to exclude the King from His Negative voice in Parliament taking upon them Authority to make Laws and the like are in themselves as unlawfull as the foresaid acts of Ket c. The Members have no more Commission for this then Ket had for that And the consequence thereupon to the people is one and the same Suppose a single person to have conquered the Kingdome And thereupon to assume an Arbitrary power The lives estates and fortunes of the people were at his command And so they now be at the will of the Members And thus the Subjects were enslaved CHAP. XV. The way how to restore the people to their former Liberties WHen the Physitian hath discovered the nature of his sick patients disease and not before he knowes what medicine to apply for the cure Which holds with a Common-wealth fallen into disorder And for England the cause of its grief is apparent It is rather out of joynt then sick of a disease Our misery is occasioned as before appears onely by setting aside the King For by that the Soveraign power of Government the Authority to make Lawes and the power to judge the Law are wrested out of their proper places and drawne into one hand The Members by excluding the King have usurped all these so that there is no other power or rule to guide their actions but their own will But whilst the King held His right the power of Government was His the Authority to make Lawes was in Him and the two Houses joyntly and to declare the Law in the Judges whereby every one was limited within His own bounds and so avoid all Arbitrary power Thus for the cause of our grief Then for the cure when any limbe of a man is out of joynt it so much distempers every part as that if not timely prevented the whole body is in danger to perish And as no medecine without putting it into joynt againe will ease the paine so by setting straight that joynt at once it is a perfect cure to the whole body Now by setting aside the King the disorder in our Common-wealth is no lesse then an absolute subversion both of Law and Government The people are thereby totally enslaved this incurable but by restoring the King again For so long as the Members exclude the King so long the aforesaid authorites are usurped by them and so a power Arbitrary For example If the Members condemne an innocent man to death And for a fact if guilty not punishable by Law The Members having power without appeal both to determine the fact and to declare the Law upon that fact And those Members having Judged him to dye and to forfeit his Estate unto themselves This innocent man all the world must confesse is without remedy he is hopelesse without the mercy of those who gaine by his destruction But the King being restored the foresaid Authorities are returned into their proper places and againe divided into severall hands instantly from thence every Court Assembly and person not only enjoyes its own Authority but is limited within its own bounds no man then is permitted to be both Judge and Party he ought not by our Law to give sentence of death if by that Sentence the Judge gave the fortune of the man condemned Thus for the Medicine In the next place it is considerable who shall apply it And for that as the people were the immediate instruments of their own thraldome they ought to be the principall Agents of their own freedome Their motives to returne to their obedience are farre greater then they had to recede from it Was any heretofore hindred to exercise his owne opinions in matters of Religion Was his person imprisoned taxes and impositions laid upon him not warranted by the Law If so his condition is now farre worse First for Religion The sence of those Members we now finde is made the rule of every mans faith he is bound to change his Religion as the Major part of the Houses shall Vote The Ecclesiasticall Judges heretofore were limited in their punishments The Members are boundlesse And as they are not guided either for Doctrine or Discipline but by their owne will So in their punishments they are a large too Shall the Members Vote that no man shall use the word Trinity or call upon our Saviour by the name of Jesus or what else soever it be The punishment upon those breaking that Law may be losse of all his Estate or death if the Members please Then for imprisoments formerly the Judges had power by whose warrant or command soever committed as the cause required to bail or set him at liberty But now once committed by the Members the cause is not examinable unlesse released by them who committed him without redemption or examination in the gaol he must starve and perish And for taxes and impositions it is true we have heard of Loans and Benevolences and we know the businesse of Ship-money But the people are now taxed by Assessements Excize and otherwise at pleasure Peradventure the Excize now laid upon London exceeds not 20000. l. a week but by the same Law that such a summe is imposed it may be multiplyed to a Million a day If one County be assessed at 1000. l. a moneth it may be raised to 10000. l. a weeke And as these are new wayes to tax the people The Members by the same rule every day may devise other new wayes to burthen them And doubtlesse he who hath his Estate taken from him by Assessements or Excize is left as little to feed
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
He is not Judge in His own case nor hath a power Arbitrary His Authority and interest is regulated by a known Law Thus appears the different condition of the people between that in the worst of times under the Kings Government and what they are now reduced unto under the men at Westminster So that if the people had onely exchanged that Government for this it had been miserable enough Therefore considering the blood which hath been spilt herein most irksome it must be to every honest soule to think thereof But still the peoples case is worse the former grievances under the King was no cause of their defection For before this War began they were reformed Ship-money and all grievances were taken away In a word the people had no other motive to draw their sword against their Soveraigne but thus They were by these incendiaries falsely told that the King meant not what he said nor intended to keep those Laws he had made But now every person thus seduced by his owne wofull experience finds that it was these persons at Westminster who meant contrary to what they pretended If he looke for the Protestant Religion freedome of conscience the Laws of the Realme Liberty of his person or property in his estate due unto 〈◊〉 〈◊〉 subject not one of them is to be found But instead thereof he finds himselfe poore man catched in the Members net His conscience His life His Liberty His estate and fortune is now at their arbitrary power These things considered he that thinkes either of this world or of the world to come upon his soule or body if he love himselfe or his Country if he fear God or honour the King must instantly make one in this worke to restore that King to his Throne Thus for the persons who ought to apply the medicine the next is to know how it shall be done And for that although considering the calamities this Nation hath suffered in being brought to bondage To redeeme it againe may seeme difficult yet upon consideration had thereupon it appears to be a thing easily effected That of the Members in excluding the King opposed the Law Therefore could not be done but by War and force But this of restoring the King pursues the Law and so proclaimes peace And as the Members could not have usurped this power but by War so they cannot hold it but by force Instantly upon the Law having its free passage their Kingdome is at an end And to every War is absolutely necessary the peoples personall assistance and money to pay the Soldiers If either of these faile the War is ended And obvious it is that the persons at Westminster can have neither of them but from those whom by the same persons have been thus brought to thraldome So that to perfect all this worke if every one would do his duty there would be no danger of bloodshed Then there needed no weapons not doing would do the worke Therefore whether thou bee'st in armes or not obey thy King according to the Law make thy payments to whom by Law they are due pay no Excise Loanes Benevolences Assessements Tax Tollage or other new impositions by them laid upon thee And if these Usurpers require these things as due by Law Tell them it is contrary to their owne doctrine Wish them to read the Petition of right whereby the Lords and Commons in Parliament declared That the people ought not to be Taxed with payments of money but by Act of Parliament that is by the King the Lords House and the Commons joyntly concurring Put them in minde of their Declarations this Parliament wherein they call it pernitious â—â—…mpt to goe about to Tax the people by way of Excise That it is against the liberty of the Subject to be charged with payments of money otherwise then the knowne Law doth warrant that nothing is more horrid then to have Soldiers billited to force upon the people voluntary contributions or to have new Oathes put upon them Yet these and thousand more exactions laid upon thee against Magna Charta the Petition of right and the knowne Law thou maist charge them with And needs no other Judge to condemne them but themselves out of their owne mouthes And further for thy incouragement herein be assured that by this restauration of the King not onely the people of England obtaine their freedome but instantly thereupon ensueth peace and unity throughout all the Kings Dominions For by that the Kingdomes of England Scotland and Ireland are againe united The people will then with great joy and acclamation according to the foresaid just recognition of the Lords and Commons unto King James performe their duty unto this our King Charls And acknowledge Him according to the foresaid Oath of Supremacy their onely Supreame Governour Upon the whole matter so long as the people continue in this slavery they are not onely their owne wilfull tormentors but disobeyers of the Laws of God and man And by quitting themselves from bondage which is at every instant in their power to do they performe their duty to both FINIS ERRATA PAg. 8. lin 11. read or our p. 10. l. 20. r. his advice p. 12. l. 14. r. never had p. 15. l. 32. r. motives p. 28. l. 34. r. we having p. 30. l. ult r. without consent p. 32. l. 26. blot the first and. p. 39. l. 28. r. denied p. 48. l. 29. r. the Law and l. 31. r. can gaine p. 53. l. 9. r. have been p. 58. l. 4. r. I conceive p. 67. l. 14. blot out the last that p. 88. l. 11. r. le Roy savisera p. 98. l. 7. r. he could not p. 116. l. 26. r. sterne p. 118. l. 31. r. of this p. 121. l. 34. blot out and. p. 124. l. 12. r. one p. 127. l. 2. r. left 25. Febr. 1641. 27. Maii 1642. Vide Pref. Cok. 8. Report Preface to Cok. 4. Report Coke 9. fol. 75. Plo. 195. 319. Cokes Preface 4. Report Magna Chart. 9 H. 3. The Charter of the Forrest 9 H. 3. Stat. of Ireland 9 H. 3. Stat. of Merton made 20 H. 3. Stat. of Marlebridge made 52 H. 3. Westminst the 1. made 3 E. 1. Stat. of Bygamy made 4 E. 1. 6 E. 1. Stat. of Mortmaime made 7 E. 1. Articuli super Cart. 28 E. 1. Stat. of Escheators made 29 E. 1. Coke Calvins case b. Stat. 33. H. 8. cap. 21. Coke 8. fo 20. b. 12 H. 7. 20 H. 8. Dyer 59. 60. 34 E. 1. c. 1. Statute of Staple made 27 E. 3. 7 H. 4. cap. 15. 1 H. 5. cap. 1. Stat. 33 H. 8. cap. 21. Coke 8. fo 20. 11 H. 7. 27. 7 H. 7. 14. Dyer 59. 60. Co. 4. Inst p. 25. Stat. 24 H. 8. ca. 12. Coke 5. f. 28. Coke 8. fo 20. Coke 7. fo 36 37. 2 H. 7. 6. Co. 7. 14. Plo. 502. 〈◊〉 f. 59. p. 19. Coke 8. fo 20. 12 H. 7. 20 H. 8. Plo. 79 4 H. 7.