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
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
THE ROYALISTS DEFENCE VINDICATING THE KING'S PROCEEDINGS IN THE LATE WARRE MADE AGAINST HIM Clearly discovering How and by what Impostures the Incendiaries of these Distractions have subverted the knowne Law of the Land the Protestant Religion and reduced the people to an unparallel'd Slavery Veritas emerget Victrix Printed in the Yeare 1648. To all the People of ENGLAND IN every Common-wealth where the tyranny of an Arbitrary power prevailes not some known persons are assigned unto whom for matter of law both the Governours and the Persons governed do submit For example where a King hath the Soveraignty if it be likewise in his power to judge the Law his authority is Arbitrary He may then take the life or confiscate the estate of whom he pleaseth and for what cause he thinks fit And the same it is when the soveraigne power is in severall persons whatever their number be and however composed if they have also authority to judge the Law by which they govern the rest of the People are inslaved to their will But herein the Subjects of England are a most happy people By the constitutions of this Realm our King hath inherently in His Person the soveraigne power of government but He hath not authority to judge the Law The Judges of the Realme declare by what law the King governs and so both King and people regulated by a known law giddy multitude out goes Presidents found in the Old Testament shewing that Subjects so anciently sometimes resisted lawfull Authority and have rebelled against their King Nor be the Lawyers herein excusable too many of them declining the authority of the Iudges of the Realme make their own expositions of the Books and Records their rule to know the Law Now amongst those he who hath once got the reputation of an Antiquary and hath accustomed himself to discourse of things out of the common roade ipso facto is Master of this Art It is then but making use of some dull expressions found in an old worm-eaten Record selecting the mistaken opinions of some particular Iudges obiter delivered in Arguments or some dark Sentences taken out of a rotten Manuscript And if any printed Book be daigned the mentioning it must not be the known authentique Authours reporting the resolutions of the Court of Justice nor such as shew the common and constant practice of the Kingdome which is the Law it self but some antiquated thing whose Authour is unknowne and his meaning as obscure These rules being observed his work is done the people observing this Cynicks discourse to be different from other men presently conclude him to be far more learned in his profession then his fellow Lawyers and gaze upon him as an infallible guide Those sorts of people both Divines and Lawyers thus prepared are equally armed to assault either King or Subject and ever looking upon their particular interest as they find Instruments to work upon make their applications sometimes by the assistance of a greedy Sycophant-Courtier the KING is abused being by those persons drawn to act things not warranted by the constitutions of the Realme Other times by the aide of discontented Spirits whoever affect popularity the people are incited to disobey the Kings just commands And so misunderstanding oftentimes is occasioned between the King and His Subjects whereupon ariseth feares and jealousies on both sides This in some sort was our condition before this Parliament which was the ground-work whereupon these men at Westminster even by a totall destruction of the whole Nation have compleated the business At the first meeting of this Parliament the confusion began visibly to appear The Incendiaries of that Faction not only cherished the old but by casting false calumnies upon the King fomented new jealousies whereby the people were put into such a pannick fear as that they believed a present destruction inevitably must befall them if not preserved by the Members of the two Houses of Parliament And the King on the other side with wonderfull expressions of loyalty even by the same Serpent was told He should be made more Glorious then any of His Ancestors or Predecessours But the Members having thus encreased the flame between the King and the Subject and having by these false surmises and cunning dissemblings gulled the people into a belief That whatever the Members declared be it in things either Spirituall or Temporall the one was good Law and the other true Gospel which the Members perceiving they instantly made use thereof and upon that score Voted it a high Breach of the Priviledge of Parlialiament for any the Iudges the Courts of Iustice nor the King himself excepted either to oppose their Commands or to deny that to be Law which they declared so to be By which sleight their whole work was finished for by this the known Law was absolutely subverted and both King and people for their Consciences their Lives Estates and Fortunes inslaved to their will and doome But this Arbitrary power thus by the Members usurped rested not long there Shortly after that a Faction in the City of London who were the mony'd men and so interessed in buying the Church Lands and those who were possessed of beneficiall places in gathering that cursed tax of Excise and the like gave the law unto these Members And now we see it is a Councell of War although acted in the name of the Westminster men called the Parliament and none else who dare declare the Law And so for the present six or eight empty soules and untill inriched by theft and plunder indigent persons are our Legislators And in this condition the people must be It cannot be otherwise until the King be restored to His just Rights for till then although we have as many new Governours as new Moons it is but so often changing the Theif It is not at all considerable to the people whether this or that Faction or which opinion in Religion prevailes in the Houses be it the true Protestant Religion established Popery Presbytery Independency or what else soever it is whilst the King is kept from his just Rights of His Negative Voice in Parliament and his Soveraigne power of Government every predominant Party makes his Will the Law and consequently the people for their Consciences their Lives Estates and Fortunes inslaved to that Faction Therefore whether thou beest a Royalist or against thy King what Religion soever Sect or opinion thou doest professe If thou hast not lost thy wits thou must be sensible of thy present sad condition Doest thou enjoy a competent estate doest thou find comfort in having freedome of thy conscience in matters of Religion In the society of thy wife family kindred or friends if thou doest consider what hopes thou hast to enjoy them to thinke thereof will rather adde grief unto thy soul then increase thy consolation for being defeated of thy Protector the knowne Law which is banished thou canst not for the least instant of time promise to thy self continuance of
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
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
of the Members to have power to make a Law it is all one as to have that authority without asking them the question The Members upon broaching such a doctrin for the King would cal it tyranny they might justly too in that case account themselves but ciphers And the like reason holds via versa if the Kings deniall to make a Law hinder not the force of it the absolute power is in the Members And whether a Law be of necessity to be made for the preservation of the Kingdome or not he who will be sole Judge of that necessity excludes the other if the King be Judge thereof the Houses are excluded if the Houses assume that power the King is excluded And then for the continuance of those Laws it is as easie for the Members to say they have cause to continue them as to pretend necessity to make them The Members judged it necessary for the preservatiō of the Kingdome to take from the Crowne the Militia of the Realme and to settle it upon themselves they desired the King to consent He refused thereupon the Members without the King usurped that power into their owne hands The Members now declare it necessary for the preservation of the Kingdome for them without the King to impose upon the people impositions taxes and payments without stint to make what Laws they thinke fit to exclude the King from His Regall Authority to assume the whole power of Government and that to be Arbitrary the King having been desired to consent hereunto He refuseth Upon this we see the Members without the King assume it witness the imposition of that horrid Tax by Excise Assesments condemning of their fellow Subjucts to death confiscating their Estates and the like so that no man can apprehend that the asking of the Kings consent which in shew they seemed to desire is in their esteeme indeed of any moment And the Members by excluding the King from His negative Voice having got possession of the wealth of the whole Nation and dominion over the people having thereby wrested from the King the Sword His Scepter and Soveraignty it selfe no doubt but the same necessity pretended by them at first to incroach this power will be still alleadged by them to make their usurped authority lasting which accordingly we find the Members have as much as in them lie made their raigne perpetuall They tell us first in generall that in all matters either concerning Church or State we have no Judge upon earth but themselves And so by their doome we are both for soul and body in an everlasting and absolute slavery unto our fellow Subjects Then they proceed to particulars and begin with the Militia of the Realme which they judge usetesse and as a thing lying dead whilst it is in the power of the King of England For say the Members by the constitutions of the Realme the King cannot by himselfe alone without consent of the two Houses raise money by taxing the people Therefore the power of the Militia say they inables Him not to do the Kingdome any effectuall service But those Members having arrogated a power without the King to impose upon the people without stint they do therefore judge the Militia to be their owne And I confesse they are in some sort necessitated thereunto for both we and they see that otherwise then by troopes of Horse and bands of Soldiers it is impossible to leavy upon the Subject those illegall burthens by the Members laid upon them So that it is now come to passe that our greatest happinesse is made the foundation of our greatest misery because the King governs us by a knowne Law these Members tell us we must not be governed by a King the Kings justnesse to His people hath furnished these Tyrants with arguments to dis-throne Him By the government under the King and that authority claimed by Him the people have such protection of their persons and property in their Lands and goods as that otherwise then the known Law declared by the sworne Judges of the Realme doth warrant the King cannot molest them in either therefore say the Members He ought not to have the power of the sword But on the other side the Members having usurped an arbitrary and tyrannicall power over the persons lives estates and fortunes both of King and people therefore the Militia of the Kingdom say they belongs to them so that upon the matter better it had been both for King and people if the King had assumed the Turkish tyranny for then the King even by the Members owne argument had kept His Crown nor had the Subject been in so great a slavery as now we had then been subject only to one tyrant but by this doctrine we are vassals to seven hundred The Members have already besides the whole Revenue of the Crowne which they have barbarously wrested from the King the Queen and the Royall Progeny taxed upon the people by way of Excise Assesments and such like new impositions before this Parliament never known nor heard of in England above 3000000. l. per annum for their owne setled Revenue yet all this serves not the turne of these blessed self-denying reformers Besides all this they force the people to lend to give they confiscate where they please and convert to their own use what summes of money they thinke fit Yet setting aside their owne pompe and glory no visible cause of expence appears saving the Souldiery who are kept for no other end but to awe the people and force those exorbitant and illegall contributions Secondly they have Judged the King whom themselves even this Parliament have sworne to be their onely Supreame Governour to be unfit to Governe And this for refusing to acknowledge it His duty to be governed by them His Subjects and so much as in Him lay perpetually to vassalage unto those Rebels Himselfe His Royall Posterity and all the rest of the people And to compleat the worke they have Judged it Treason for any Subject of England either to make application to His Soveraigne or to receive any Message from Him By which Tyranny the people of this Nation are brought into that sad condition as doubtlesse was never yet parallel'd even from the Creation upon the face of the whole earth For Traytors we are denounced both for doing and not doing one and the same thing By Act of Parliament it is high Treason to refuse to sweare the King to be the only Supreame Governour over all the people of the Realme And these Members against this knowne and declared Law although themselves have taken that Oath murther such Subjects as according to their duty make addresse unto Him And call that their due allegeance Treason And to colour these proceedings the Members have the boldnesse to vouch God himselfe to justifie the legality thereof The power of the Militia say they was the principall cause both of this late War and the quarrell
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
thing but by Act of Parliament And if they shall in this case make a new Statute that Law must even by the same Judges be expounded too 3. The Parliament is a body so composed as that it is not onely improper but almost impossible for these persons finally to determine any one point of Law A Court of Judicature ought to consist of one entire body and of such a body as at all times hath power not onely to deliver its owne opinion but by that sentence to decide the question depending before them but the Parliament is not so composed The Members of that Assembly are divided into three severall bodies and their proceedings severall and distinct and obvious it is that in one and the same thing they frequently conclude opposite each to other yet untill all three concur it binds not And so though every Member of those bodies hath given his sentence according to his owne conscience yet the question is not decided and that which is worse peradventure never can be brought to a period for it may fall out these three bodies of the King the Lords House and the Commons may in that perpetually differ in opinion These things considered every rationall man must conclude that the Parliament is not of a Composure fit for this worke nor instituted for that purpose Those things as afterwards in its proper place is more fully shewed are the office of the Judges of the Realme By this it appears that when the two Houses have passed a Bill for an Act of Parliament and to it the Kings Royall Assent is had the Parliaments power ends and then begins the authority of the Judges of the Realme whose office is the case being regularly brought before them first to judge whether the Act it selfe be good and if binding then to declare the meaning of the words thereof And so the necessity of having a power upon emergent occasions to make new Laws is supplied and yet the fundamentall grounds of the Law by this limitation of the power of the Law-maker with reference to the Judges to determine which Acts of Parliament are binding and which void is preserved Upon the whole matter cleere it is The Parliament it selfe that is the King the Lords and Commons although unanimously consenting are not boundlesse the Judges of the Realme by the fundamentall Law of England have power to determine which Acts of Parliament are binding and which void and to expound the meaning of every Statute Thus whilst every person Court and Assembly keep within its owne bounds the knowne Law protecteth every man in his just rights the Subject whilst that is observed need not doubt protection of his person and may securely challenge a property in his estate But the Members do now teach or to speake more properly force upon the people another doctrine They without the King not onely assume the power of a Court of Judicature and that without any appeale from it but an authority and power to make and declare the Law and that boundlesse too whereby Law it selfe is totally destroyed It is a Maxime in Law that every disseisor of Land is seised in fee simple and that no man can give a particular estate by wrong for example A. Tenant for years remainder to B. for life remainder to C. in taile remainder to D. in fee E. outs A. from his possession E. doth not hereby get the estate for years but by that entry hath displaced all the remainders and untill re-entry by A. is wrongfully seised to him and his heires Like unto this was that of the Members They injuriously excluded the King from his negative Voice in Parliament They have not by it gained power to make Laws without Him but whilst they continue this usurpation they wrongfully disinherit both King and people of all their birth-rights The knowne Laws of the Land is by this totally subverted untill the King be reinvested herein we have neither common Law particular custome or Statute Law nor can any man challenge protection of his person or property in his Lands or goods for what Law they make how repugnant to sense and reason how barbarous soever it be neither the Judges of the Realme nor any other if we may believe the Members have power to examine controle or oppose it Thus our excellent Laws the Members have so much so often boasted to defend are by the same persons at the same instant and even by the same medicine excluding the King from His negative Voice they pretended to preserve them destroyed So that I confesse the Members were necessitated not onely to deny the King this power but to assume authority without Him to make Laws and that without stint or limitations for by the knowne Law the facts and proceedings of these Members are Treason Therefore they must make new ones else be judged by the old And to make new Laws yet to admit the Judges power to determine whether they binde or not were to fall into the same Predicament of Treason In the next place it is shewed who are the Judges of the Law which power although with as little reason or sense as the former the Members have usurped too CHAP. V. That the Judges of the Kings Bench of the Common Pleas and the Barons of the Exchequer are the Judges of the Realme unto whom the people are bound lastly and finally to submit themselves for matter of Law BUt some give this power to the Parliament others to the two Houses joyntly others to the Lords House singly and some make the House of Commons Judge of the Law All which are meere surmises by faction raised and spread abroad since this Parliament for besides what before is said herein in the next precedent Chapter upon consideration had of the quality of the persons of those Members the Commission required to authorize a Judge of the Law and the composier of that Body It will appear they are so far from having any such power as that the Lords House in some particular things excepted neither the Parliament nor the two Houses joyntly nor either of them singly can judicially or finally determine any one point of Law First for the quality of the persons And to begin with the House of Commons They consist of Knights of Shires Citizens and Burgesses The Knights of the Shire we see by experience although sometimes men of estates are chosen yet not alwaies of the best understanding For the Citizens and Burgesses the Cities and Corporations for which they serve are Instituted onely for advancement of trade and accordingly the bodies of such townes and places consist of Tradesmen whose educations are onely to learne Crafts and occupations and the far greater number of them mecanick handy-crafts Besides the true cause of authorizing Corporations to send Burgesses to Parliament is that they may give information concerning the Trading in those places to the end if need be to make Laws for the increase thereof And
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
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
that Suppose it granted that the Iudges in that case of Ship-mony gave Sentence by corruption whereby about 200000. l. per annum was drawn from the people To conclude hereupon that we must from henceforth have no more learned men chosen Iudges is extreame harsh It might as well be argued thus The Members of the two Houses have erred in Iudgement and have been corrupt ergo we ought to have no more Parliaments For as before appeares the Members of former Parliaments have most grosly erred And for these present Members they have not only erred but have been in the highest nature corrupt too First They erred in Iudgement by assuming the Iustice seat the Soveraign power of Government and so in infinite other particulars Then for corruption since these Authorities were by them arrogated twice twenty times 200000. l. per annum illegally and barbarously drawn from the people doth not stint them They have corruptly by one Vote not onely given themselves the wealth of the whole Nation but have likewise enslaved both King and People for their lives and fortunes to their owne will But clear it is no constitution can avoid every mischiefe it is the best Law which prevents the most inconveniencies therefore in this case that which can be done is to have persons who are learned in the profession made Iudges of the Law and all possible care taken that they doe Iustice and for that by our Law no man is capable of a Iudges place unlesse he have ability to execute the same And although he be sufficient for learning yet being advanced for bribes or rewards he is by Law likewise disabled to performe the office They are sworne to do right to all persons and although error in judgement is no crime yet corruption in the Iudge be it for bribes affection malice desire of preferment fear or any other cause is by our Law an offence of an high nature and and most severely punished Now if in stead of exalting themselves the Members had as they made some shew for a while made inquiry how and by whom the Judges were drawne as the Members alleadge to give that corrupt sentence and had presented the same to the King to the end not onely exemplary punishment might have been inflicted upon them but they put out of their places and new Iudges elected the Members had done like Parliament men that had pursued their Commission And so whilst the King the Parliament the Judges every Court and Assembly retaine their owne proper authority without clashing with or encroaching each upon other As by the Laws of England they ought to do both King and Subject are preserved in their just rights And this ought to be exactly observed notwithstanding the superiority or inferiority of any Court power person or Assembly because one Court in some respect is superiour to another that takes not away nor lesseneth the proper jurisdiction of the inferior Court Scarce any inferior Court but it hath some powers which the superior Court hath not For example The Court of CommonPleas hath power between party and party to determine reall actions which the Kings Bench hath not The Assembly of the Commons House cannot give an oath yet the meanest Court of Justice even a Court of Pipowders hath that power So that if it were admitted that the two Houses of Parliament were a Court of Justice as it is not And that it were the highest Court of that nature in this Kingdome that would not at all make good their pretence to be the finall Judge of the Law from whom no appeale should lie But by this Vote and practise of the Members all Courts of justice and rightfull powers in the Kingdome are put downe the Law totally subverted and all things reduced to their arbitrary power Upon the whole matter clear it is that the Judges of the aforesaid three Courts are the Judges of the Realme and the persons unto whom all the people of this Nation are bound lastly and finally to submit themselves for matter of Law But notwithstanding all this the same necessity which made the Members exclude the King from His negative Voice and so to usurpe a boundlesse power to make Laws enforceth them to arrogate the Justice seate too For it were to little purpose for them to declare it Treason for a Subject to speake to His King and infinite such like grosse contradictions both to reason and the knowne Law and yet permit the rightfull Judges to determine the same questions that were both to exalt themselves up and at the same instant to cast themselves downe againe But they tell us they are no such babies So long as the people will be fooled nothing is more certaine but Tyrants they will be to us their slaves In the next place it is shewed who ought to nominate and authorize the Judges of the Realme CHAP. VI. That the Judges of the Realme ought to be elected and authorized by the King of England for the time being and by none else THe legall authorizing of the Judges of the Law is of that importance as upon it depends the preservation of the people for no Law no government no Judge no Law and if authorized by an illegall Commission no Judge It appears before that when the Iudge extends beyond the bounds of his Commission his proceedings are void as done coram non Judice Upon the same grounds be the words of the Commission never so large if the authority be derived from such as have not power to grant it the whole Commission is voide Yet Mr. Pryn by the authority of the Commons House hath published a Treatise intituled thus The Parliaments right to elect Privy Councellors great Officers and Judges Wherein he endeavours to prove the two Houses by the Laws of England ought to elect the Iudges And proceeds thus Kings saith he were first elected by the people and as he beleeves the people at the first elected the Judges and great Officers and bound them by publike Laws which appears saith he by infinite Acts of Parliament regulating both the power of the King and His Officers That in ancient time Lieutenant Generals and Sheriffs were elected by the Parliament and people That the Coroners Majors Aldermen of Corporations Constables and other such like officers at this day are elected by the people Knights of Shires and Burgesses are elected by the Commons of the Realme That the King can neither elect a Commoner nor exclude a Member of either House to sit or Vote That the Parliament consists of Honourable wise grave and discreet persons That although the Kings have usually had the election of great officers and Judges it hath rather been by the Parliaments permission then Concession That the Judges and Officers of State are as well the Kingdomes as the Kings And saith that Mr. Bodin a grave Politician declares That it is not the right of electing great officers which prove the right of Soveraignty because it oft
is and may be in the Subject Answer Although his whole discourse is either false or impertinent yet his saying that Kings were first elected by the people That the people as he beleeves elected the Judges and bounded them by publike Laws And for proof positively affirming although not naming one Act That all this appears by infinite Acts of Parliament regulating the King and His officers The vulgar may thereby conceive that the Members of the two Houses without the King have made Acts of Parliament That by those Acts it appears That the people elected the first King of England and the Judges and bounded them by publike Laws Although Mr. Pryn himselfe well knowes that never any Act of Parliament was or could be made without the Kings expresse consent And that the people of this Nation have been governed under Kings 1200. years before the first Act of Parliament at this day extant So that if Mr. Pryn had made his Argument according to the truth of the fact it had been but thus After King H. 3. begun his reigne and not before the Kings of England have made some Laws by Act of Parliament whereby in some things they have regulated their owne authority and the power of their officers and Judges Ergo the people although we had Kings 1200. years before that elected the first King the Judges and bounded them by publike Laws Besides admit the people had elected the first King and the Judges That nothing proves that the Members of the two Houses at this day by our Law outgh to nominate the Judges And for the rest of his Arguments they are to this effect A question being asked who ought to elect the Judges Mr. Pryn saith Leiutenant Generals and Sheriffs were anciently elected by the Parliament and people Colonels Majors Aldermen Constables Knights of the Shire and Burgesses are elected by the people Kings cannot elect a Member or exclude him from sitting That the Members are honourable grave and wise That the Judges are the Kingdomes as well as the Kings That although the Kings have usually had the election of them perchance it was by usurpation and Mr. Bodin a great Polititian saith that the election of these officers may be and often are in the Subject Now hereupon to conclude Ergo By the Laws of England the Members of the two Houses ought to elect the Judges I cannot more aptly parallel the Argument then thus How many miles to London Answer a poke full of plums Ergo it is 20. miles to London upon this it might as well have been concluded 40. 100. or 1000. miles to London as 20. and so for electing the Judges upon any of Mr. Pryns reasons or upon all together admitting them all true It might with as much sence and reason have been concluded thus Ergo the Major of Quinborough the great Turke or the man in the Moon ought to elect them Besides the Members of the two Houses cannot have the election of the Judges for these reasons First the Chancery the Kings Bench the Common Pleas and the Court of the Exchequer are Courts of Justice by prescription they were instituted before the time of memory none knows the beginning thereof but certaine it is they were Courts of Iustice before the House of Commons had being Secondly as it is necessary that the Iudges of the Law be knowne persons It is as requisite that such as elect them should be constantly visible But the Members out of Parliament are invisible Thirdly suppose it enacted That none that shall be a Iudge unlesse elected by A. and B. It were no wonder for them irreconcileably to differ in their choice And the two Houses are as distinctly two as A. and B. That difference which is renders the Members more improper for the worke and consequently not of a Composier fit to elect the Iudges And that this is the Kings right is made good thus First It appears before that those Courts have had Judges time out of mind And so long as any may can shew or prove there hath been Judges of those Courts so antiently the Kings of England and none else have elected and authorized them which is the strongest proof in the Law It is the Law it selfe It were absurd for any man to deny that it is felony to steale or that the eldest son is heir to his Fathers land yet there is no other proof to make it good but use and practise And the Kings have as antiently and constantly elected the Iudges as theft hath been punished or that the eldest son hath by discent enjoyed his fathers land Secondly if this King hath not right to elect the Iudges no former King had it and consequently we never had one Judge rightly authorized So that Mr. Pryn hath found out a point in Law which at once makes a nullity of all former proceedings in those Courts as things done coram non Judice But this not all If Mr. Pryns doctrine be true we have had no Parliament for the Kings not having power legally to authorize the Lord-keeper all creations of Peeres are void and so the Writs for electing the Knights and Burgesses were illegall and void too And consequently Mr. Pryns Law admitted there is no Member of either House Lawfully authorized to sit or Vote And for authority of bookes either Law or History I dare be bold to say there is not one man in the World untill the sitting of these Members who hath upon any occasion mentioned these things but hath delivered it as a fundamentall ground and a positive truth That the authority to elect the Iudges is in the King alone So thatsuch as are unsatisfied of the Kings right herein may with as much reason doubt whether we have had a King Law or government Nothing can herein be alledged against the King or on the Members behalfe unlesse a new maxime of Law be started up That no proof be it never so clear is sufficient to entitle the King to any Interest or authority But for the Members although they have neither authority use practise president or reason to make it good have title and interest to what they list But if the two Houses have the finall power to judge the Law and that every one who shall dispute their Votes break the priviledge of Parliament It matters not who hath the election of them nor who are chosen If the man be flexible enough the meanest capacity in one dayes study and with the expence of one single penny may be sufficiently compleat for a States Judge his Library needs not consist of more bookes then a copy of the Houses Votes whereby we are declared breakers of the priviledges of Parliament to deny that to be Law which they declare so to be For by these Votes we have no Law but the Members will And consequently those persons they call Iudges are no other but their Ecchoes But the true Judges authorized by the King have not only the
debaced Coyne commanded forraigne Coyne to be current here ordered all forraigne negotiations All matters of War either foraigne or domestick And so in all civill affaires The Judges of the Law authorized by Him All legall proceedings in his name and by His authority The Law it selfe called His Law He hath usually dispensed with Acts of Parliament at pleasure pardoned transgressours of the Law To Him appertaines the forfeitures for Treason and other offences In a word He is the sole fountaine of Justice Mercy and Honour And with this constant practise agrees all authorities histories and stories among which that of the Oath of Supremacy if there were no more is sufficient to satisfie all the World the words are these I A. B. do utterly testifie in my conscience that the Kings Highness is the onely Supreame Governour of this Realme and of all other His Highnesse Realmes Dominions and Countries as well in all Spirituall things or causes as Temporall Now if the contents of this Oath be true that is If the King be the onely Supreame Governour all the rest of the people from the highest to the lowest whether Members or not Members are subject unto Him and persons governed And as all persons are hereby included so it extends to all things both Spirituall and Temporall And me thinks it strange an Englishman should make doubt of the truth of this Oath It was composed by the Lords and Commons in Parliament in the time of Queen Elizabeth And at their suite by Act of Parliament made high Treason for a Subject to deny to take it And further enacted that every Judge of the Law and other Officer either Spirituall or Temporall every person of any profession or calling before he be enabled to exercise the same every ward before he be permitted to sue out his Livery every one elected Member of the Commons House before he be permitted to sit or Vote there shall take this Oath Yet the Members of this Parliament would make an evasion out of it Thus. The Kings Supreamacy say they is meant in Curia non in Camera in His Courts not in His private Capacity And to speak properly onely His high Court of Parliament wherein He is absolutely Supream Head and Governour from whence there is no appeal And say they if the Parliament may take an Accompt what is done by His Majesty in His inferiour Courts much more what is done by Him without Authority in any Court. And say they It is preached to the people by the Kings Declarations that by the Supreamacy is meant a power inherent in the Kings Person without above against all His Courts the Parliament not excepted whereby say they the excellent Lawes are turned into an Arbytrary Government Answer That which the Members in this discourse say in effect is but thus The King is Supreame Governour Yet under the Members Government He hath Authority without appeal to determine all things yet hath not power to determine any one thing To blear the eyes of the Vulgar they are contented the King shall be called the onely Supream Governour But the Authority Power and Execution thereof if we may believe the Members is their owne The King and People are herein used as a Father sometimes deals with his child telling his little son the flock of sheep is his yet the Father shears them takes the profits to his own use Even so are King People dealt with They are told bythe Members that the King by the Supreamacy claimes such a power As that the Subjects thereby have lost both their Law and Liberty and would make them believe that they are by those Members thereunto restored againe Whereas all but naturalls may now discerne That whilst the King together with the name enjoyed both the Power and Execution of the Supreamacy The people were a free Subject And that by this usurpation upon the King They are inslaved For the Supreamacy is in the Kings Person But by it He neither hath nor claimes an unlimited power The People are Governed under Him but that Government is directed by a known Law of which Law the King is not Judge nor can He by Himselfe alone alter that Law Now whilst the Supreamacy the Power to Judge the Law and Authority to make new Lawes are kept in severall hands the known Law is preserved but united it is vanished instantly thereupon and Arbytrary and Tyrannicall power is introduced For example the Members condemne a Subject to die they confiscate his estate to their own use and without appeal have power to Judge the Law thereupon This granted clear it is the Will of the Members is the Law they are hereby Judge Party and Witnesse It were fruitlesse for that condemned person although guiltlesse to urge his innocency of the Fact or to dispute the Law upon that Fact with them who have condemned him And as the Members tell us there is none else to appeal unto It is therefore to be feared the greater Estate the Delinquent hath or the more spleen some Members bear to his person the more Capitall is his offence So that it is the Members not the King who claime a power in their owne persons without above against all Courts of Justice The Parliament it self not excepted Our excellent Lawes are by them destroyed and turned into their own Arbitrary power And thus the people are enslaved by a distinction never heard of or thought on before this Parliament the aforesaid two Spencers onely excepted It is true they having committed acts of Treason to colour their proceedings divulged an opinion suitable to this they pretended that the Oath of Allegeance was more in respect of the Crown then the Kings Person That the King might be removed and the people ought to governe But those opinions are condemned as damnable execrable by two Acts of Parliament One called exilium Henrici de Spencer And the other made 1 Ed. 3. But that this of the Members and that of the Spencers are meere fictions and delusions to gull the people is evident both by Authorities of Law and the common practice of the Kingdome It is resolved in Calvins case which therein agrees with the whole current of our Law-bookes that Allegeance is due onely to the King That theKing hath two Capacities one of a natural body descended of the Royal Blood this is subject to death and infirmities The other a politick body and in that immortall invisible not subject to non-age c. That the King having but one person and severall capacities It was resolved Allegeance is due to his naturall Capacity And consequently the Soveraigne power of Government inherently in his person By the common Law of the Land Treason is to kill or endeavour to kill the King His consort the Queen or the Prince Therefore it is the naturall body the Law lookes upon for the politick body cannot die Besides neither the Queen nor the Prince hath a
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
this day by the Laws of England the Members of the two Houses have right thereunto which is most absurd But Mr. Pryn affirming that these things were granted to the Kings Ancestors and the truth being that the King and His Ancestors time out of minde have enjoyed them It is a good argument to prove the King hath title to them And for Parliaments as before appeares The first Act we have is Magna Charta made 9 H. 3. but the Kings Auncestors and predecessors enjoyed the Militia the Forts the Navy Ammunition and Revenues of the Crowne many hundred of yeares before that time therefore could not be granted by the Parliament or by its consent And for the Kingdomes consent Master Pryn must explaine his meaning what he intends thereby before it be Intelligible Then saith M. Pryn the King hath no power to array arme or muster His Subjects but in such manner as the Parliament by speciall Acts hath prescribed Answer This being granted makes directly against Master Pryn it disproves the Members pretended power to the Militia and makes good the Kings interest therein The Argument is thus The King cannot muster His Subjects but in such sort as is prescribed by Act of Parliament To conclude thereupon that the Members of the two Houses have the power of the Militia nothing can be more absurd But it directly implies that none but the King can muster the people And consequently the Militia is in the King And for Acts of Parliament prescribing how or in what manner the people shall be mustered or arrayed we have none of that nature untill the Raign of King Ed. 1. But the Militia of the Kingdome was executed and commanded by the Kings of England 1200. yeares before that time And by every Act of Parliament which doth in any sort order or appoint the mustering or arraying of the Subject It appeares that the Power and Authority it self before that Law was in the King And by none of them is taken out of him And so this Argument of Master Pryns is to no purpose But saith M. Pryn The King hath these things and the Revenues of His Crown in His politick Capacity as saith he a Major and Commonalty a Dean and Chapter and the like are seized of their Lands And therefore saith he the King neither by His Will nor by His Letters Patents can devise alien or sell the same Answer If it be admitted that the King cannot alien such Lands and Revenues as He is seized of in His politick Capacity which is in it selfe most absurd how this disproves his title to the Militia the Forts the Navie Ammunition and Revenues of the Crowne is not intelligible The Argument in effect is but thus The King hath the Militia c. in his politick capacity Ergo he hath it not Or thus The King cannot sell the Revenues of his Crowne Ergo the Members have the Interest therein and may seize them But saith Master Pryn the Ships Armes and Ammunition seized of by the Members were bought with the Kingdomes Money And therefore the Members may seize them Answer Suppose it understood what is the Kingdomes Money and that with such Money Ships Armes and Ammunition are bought It seemes a good Argument for the King to Seize them For He as King ex Officio is obliged to preserve His people in Peace Besides that money or other things which no particular Subject can challenge property in by the Lawes of the Kingdome is the Kings But by the Lawes of England we have no person or pollitick body by the name of the Kingdome which is capable to have property either in Lands or Goods And for the Members of the two Houses as Parliament men they have not any politick Capacity they are not a body to sue or to be sued nor are capable to buy or sell nor have property in any estate And consequently Master Pryn by his own Argument hath as much title to seize the foresaid Ships Armes and Aummunition as they Then saith M. Pryn the Members seized the Ships and Revenues of the Crown to prevent the arrivall of forraign forces and a Civill Warre which they foresaw As saith he Queene Elizabeth in time of War with Spaine granting letters of Mart to seize all materialls for Warre transported through the narrow Seas Answer By this discourse we are told what moved the Members to seize the Kings Navy and the Revenues of his Crown which in effect is thus viz. The Members having usurped an Arbitrary power over King and people and thereby having destroyed the Monarchy of England had just cause not only to expect opposition from their own Soveraign but in his relief arrivall of forraigne forces from all the Kings in Christendome For upon the same grounds as the Members made this seizure the Subjects of any King may doe the like It is as easie for the people of Spaine France or any other Nation in the world to say they foresee a War as these Members pretend it And I am certaine it is as unlawfull and directly against the constitutions of England for the Subjects here to assume this power as for the people of any other Country to doe the like to their King Therefore I grant it was an act of Pollicy for the Members to seize the Kings Ships and the Revenues of His Crown It was a great and principle means to prevent the suppression of this their Rebellion But all that proves the legality of their proceedings no more then a high-way man having taken a purse murders the party robbed to prevent his own discovery makes the robbery lawfull And so M. Pryns Argument in effect is but thus The Members de facto have seized the Kings Ships and Revenues of his Crown ergo they have done it lawfully Thus in Answer to Master Pryns Arguments whereby he endeavours to prove that the Members have power over the Militia c. But that they have no colour to claime any Authority therein further appeares thus First all men must grant That so long as the people have been governed by a Law so long the power of the Militia must have been in some But the people of England as before appears have been governed by a Monarchicall power above 1200 yeares before the institution of the two Houses And all that while the Kings of England for the time being and none else have executed that Authority Therefore not in the Members Secondly it is absolutely necessary that the power of the Militâ—â— be in such hands as may at all times provide against approaching dangers to the Common-wealth But that cannot be the Members they are not in esse out of Parliament Suppose this Nation in the vacancy of a Parliament be suddenly invaded by a Forraigne enemy or infested by a domestick insurrection If none have power to command the people to assemble and make resistance untill the summoning of the two Houses of Parliament nothing but distraction to King and people
Kings right Besides it is resolved in our books of Law that if all the people of England should break a League with a forraign Prince without the Kings consent the League were not broken And consequently by the Judgement of the Law the sole power of the Militia is in the King And with this agrees all the Authorities both of our Books of Law and History It was never for the space of 1700. yeares past questioned or disputed untill now by these Vsurpers injuriously wrested from the Crowne But the Members in the name of the Lords and Commons upon serious consideration have lately Voted to this effect That the Militia hath been long debated in black and red letters and that God hath now given his Verdict on their sides That however the English men please themselves with their Magna Charta and because their Lives and Estates are not at the Kings Will and for that He cannot make Lawes or raise money without consent in Parliament All this say they signifies nothing if the Militia be in the King for by that say the Members He may destroy the People For say the Members if there be a true intention to leave unto the People their knowne rights that no Law be made or Money levied to maintaine the Militia without their consent in Parliament It cannot inable Him to do the Kingdom effectually any good alone But may serve to make Him capable alone to do them hurt Answer Every man may be satisfied these men have spoke what they can to maintaine this their pretended Right yet these their Votes being duely examined every indifferent person will thereby rather think that the Devill himself who hath long owed them a shame hath now paid that debt then by these Votes be drawn to believe the Members Doctrine First for their supposed Verdict to be given by God himself Their Argument therein is sutable to that of the Jewes and Turks whose examples and presidents I presume they follow The Jewes even to this day audaciously scoffe and taunt us Christians for receiving Christ Jesus for our Messias because upon the Crosse he being required by them to manifest his authority by saving himself and thereupon then offering to believe his Doctrine which he did not Therefore the wicked Jewes concluded they could not And the Turkes for the space of 1000. yeares past to make good their Doctrine of Mahomet and their claime to be the only Monarch of the World much insult upon the Christians for their Victories obtained against them whereby we cannot deny but they doe possesse amongst infinite other Kingdomes and Countries wrested from Christian Kings the places both of the Birth and Passion of our Saviour And upon this the Turks infer that God hath Judged the cause for them against the Christians Now that difference which is to be found between the Arguments of the Jews and Turks and these of the Zelots at Westminster renders the latter to be the greater Blasphemous They althoughly wickedly protesting against Christ pursued their Conscience Neither Turk nor Jew for any thing appeares did know or believe Christ to be the Saviour of the World These hypocritically make use of the name of God himself and to establish themselves in their usurped possessions with insolent boldnesse call him to testifie nay affirme that God in this point of the Militia hath given his Verdict for them and against the King which themselves doe not only know but have acknowledged to be the Kings Right And having with this semblance of sanctity prepared the People with this forged Verdict Then they Vote reasons to perswade the vulgar That for the King to have the Militia tends to their destruction but that Authority being placed in the Members the people are if we may believe them secured from harme But of their owne shewing the expresse contrary Appeares First they tell us as the truth is that by the Laws of England the King hath not power by himself alone to tax or impose payments of money upon the Subject therefore say they mark this consequence so long as the Law is therein observed the Kings having of the Militia is not effectuall to the Kingdome Hence it followeth by the Members own Argument that if the King had an Arbitrary power then the Militia were his own So that by the Members Doctrine none but Tyrants have title to the power of the Sword which I confesse is a foundation aptly laid for their own structure All the world will witnesse for them that in point of Tyranny the malice of man with the advise and assistance of all the devils in hell cannot out-strip them Let the Members search Histories and Stories Presidents and Examples from the first Creation untill this Parliament and not onely of this Nation but throughout the face of the whole Earth and I defie the most vigilant amongst them to finde one Tyrannicall act which these Members since their usurpation upon the King have not done or audatiously claimed by the Law of the Land to have power to execute Thus appeares the different condition of the people concerning the Militia under the Kings Government and this under the Members By that under the King whilst the people submit unto their lawfull Superiors and obey the just Sentence of Law there is no need of the power of the Sword for the King neither hath nor claimes Authority by the Militia to force his Subjects to make payment of money or to doe any one thing more or otherwise then the known Law commands We are not Governed by the Will of the King but under Him according as the Law of the Land directs And the use of the Militia is no other then to preserve the Law And therefore in case of disobedience to compell submission thereunto wherein the power of the Sword that is the Militia is as necessary as the Law it self for as the people cannot be protected in their persons lives or estates without the Law so that Law is fruitlesse where there wants power to put it in execution Hence it followeth even by reason it selfe that he who hath the Soveraign power of Government hath as an incident inseperable unto it the power of the Sword And by our Law the King hath the Soveraignty From him as before appeares is due to the people protection of their persons and Estates That by the Lawes of England is implyed in the word King And so the word Subject implies a duty in the people to assist their King And as this duty is reciprocall between King and Subject so the performance thereof is equally beneficiall to both And if either faile in their duty both King and People are destroyed Therefore to deny our King the Militia of the Realme is no lesse an absurdity then to appoint a Generall of an Army with commands to fight an approaching Enemy and to deny that Generall use of Armes and power to command his Souldiers But on the other side to give
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
first confessing the foresaid facts of Levying Warre doth deny an intent to harme the King in His Crowne or Dignity Then for rescuing the King from His Cavaleers If M. Pryn reflect upon the case of Robert Earl of Essex in the time of Queen Elizabeth he will finde That that Earl in comparison of Edg-hill Battaile gathered together but a handfull of men nor was that Queen fought with nor her Person in danger All which things the foresaide Earl at his Arraignment alledged for himself And protested his intent was onely to remove from the Queen some evill Councellors about her yet not available The fact by him confessed viz. without warrant from the Queen in a tumultuous manner to raise force was Judged Treason for which that Earl and his Adherents were executed as Traitors Thus for the point of Levying Warre against the King Then for imagining the death of the King Queen and Prince In this case the intent of the party acting is considerable For example suppose the King to be distracted or distempered endeavours to violate himself or assaults a Subject To lay hands upon the King to preserve His or the Subjects life in those cases and such like the facts are lawfull And it may so happen that the King may be slaine and yet no Treason As in case of tilting and such like Now the intent of any man cannot appeare otherwise then by the parties confession or by Proofes Circumstances and Presumptions Then for the Authors and Actors in this War It is true they deny an intention to kill the King the Queen or Prince But the Circumstances are as full and pregnant to prove they intended it as is possible A man seeme to come out of a house with a naked sword bloody none being in the house but the Corps of a dead body newly slaine with a Sword This is so pregnant a presumption as that before a just Judge and an equall Jury the mans deniall will not availe him Suppose one should assault and strike the King the Queen or Prince and with violence pursue the same and for this be indicted to have imagined their death for that man to alleadge he intended not to kill him or them so assaulted were in vaine But certainly the presumptions to prove the Authors and Actors of this War intended to kill the King the Queen and Prince are far more pregnant Suppose the Members and their Souldiers had declared their intent to be to kill them no man can devise how they could have endeavoured to have effected it more then hath been done by this Warre Severall Battailes have been joyned the King and Prince in person And many thousands on the Kings party slaine And for the Queen witnesse the businesse at Burlington The Authors and Actors of the powder-plot were justly condemned for Treason Upon that point of imagining to kill the King the Queen and and Prince But upon this ground of M. Pryns they might have escaped punishment It had been as easie for them to have alledged that they intended not to kill the King the Queene and Prince As for the Actors in this Warre to pretend it But Master Pryn undertakes to make this War against the King to be Lawfull by Authority and presidents Julius Caesar saith he by a Conspiracy of the Senate of Rome was murdered having 23 wounds given him And then shewes the Rebellions in the Raigne of King John Henry 3. Edward 2. Richard 2. and other Kings And some of them it is true were murdred by their Subjects Answer I confesse if presidents and examples of this kinde be Authorities to prove the facts lawfull It is easie enough to justifie this and every Rebellion And M. Pryn having cited that president of Julius Caesar and himself acknowledging that fact to be murder he was overseen to omit citing that of Judas for it was somewhat later in time it excels that fact against Caesar and is very sutable with this of the Members He betrayed his Master and the Saviour of the world with a Kisse these their Soveraigne with an Oath And like unto those Treasons and Murders against Caesar King Edw. 2. and King Rich. 2. they might very aptly have cited the examples of some of their deare brethren the Scots severall King have been Rebelled against and Murdred too by the Subjects of that Nation Yet we see they are not by the people of Scotland made examples or cited for Authorities to prove the lawfulnesse thereof But contrarywise That Nation doth unanimously declare it their duty to relieve and rescue their King from out of the hands of His Rebellious English Subjects And many other examples I confesse there be in forraigne Countries both Christians Turks and Infidells where Kings by their own Subjects have been betrayed and murdered And so the discontented people in any Nation may alledge that King Edw. 2. Rich. 2. of England being lawfull Kings were by their owne Subjects Rebelled against and Murdered And so be the scene in Spaine France or any other Kingdome conclude it is lawfull for them to doe the like Then M. Pryn explaines the meaning of the aforesaid Statute of 25 Edw. 3. by which it is declared to be Treason to Levy Warre against the King to compasse or imagine the death of the King the Queen or Prince But the words of the foresaid Act saith he must be understood with this Limitation viz. so long as Kings execute their Just Royall powers according to the Laws of God and of their Realmes that saith he is the meaning of the holy Ghost And even so saith he are these words of Saint Paul viz. let every Soul be subject to the higher powers to be understood with that limitation yet saith he No private man of his owne authority ought to rise in Armes against them without the generall consent of the whole Kingdome or both Houses of Parliament Answer This was a doctrine aptly divulged for the justification of this Rebellion And a ready way I confesse to draw the multitude to their party who oftentimes are as in this case they were misled upon pretence of Law and Religion to their owne ruine Now admit the Members to have got the Soveraigne power If Mr. Pryn be asked this question How he will have the holy Ghost now to speake If the Members make a Law and declare it Treason for the people to leavy War against them whether that Law shall be understood with the same limitation Mr. Pryns answer will be that the limitation is now ended The Members he will say must expound the meaning of their owne Law and S. Pauls words too For the Members themselves tell the people that they are the Kingdome whatever they do they would have us beleeve to be the act of every person in the whole Nation And so not examinable but by God himselfe in the next world so that the Members having got the power into their owne hands whether they governe by the Laws of God
by the law of nature of Nations by the Laws of the Realme and by the Laws of God are obliged to doe their uttermost endeavour For to their dores it is now brought wherein they cannot expect any formall Warrants according to the ordinary proceedings For as before appears the Malefactors themselves have stopped the passage of the Law the people therefore ought not onely to declare these Westminster men no Houses of Parliament and no Members of them but they are obliged to reject all their Orders Ordinances and Commands what name or title soever they have given or shall give them And also to apprehend their persons and bring them to due punishment of Law CHAP. XII Results upon the premises That the people of England under the government of the KING according to the known Laws of the Realme are a free Subject THe use of a Law is to protect every one under it in his just Rights which I grant cannot be done unlesse by that Law the lives and estates of the people be subject to the judgement of some known persons without that neither Malefactor can be punished nor Controversie decided Hence it followeth that the happinesse or misery of the people depends upon the good or the bad constitution of that law under which they are governed For such a law may be as that the people are thereby little altered from that condition they were in when they had no Law at all For example where there is no Law and so the strongest party hath the best interest every one is a Tyrant each to other and where the supream Magistrate hath an arbitrary power the people are no better then legall slaves to that supreame Governour Now this Arbitrary power cannot be avoided but by observing these principles viz. By placing the Soveraigne power of Government in one hand and the absolute determination of that Law by which under the Supreame Magistrate the people are governed in an other hand And for making new Lawes or altering the old That neither the supreame Governour by himself alone nor any other without him have that authority But that such a composed body be therewith trusted as have not the power of government All which is observed by the Laws of England The King by our law is the onely supream Governour but his power is not unlimited for the people under Him are governed by a knowne Law And this Law not declared by the King but by the Judges of the Realme being persons unconcerned and sworne to decide controversies according to the Law To the King is due forfeitures for Treason fines imposed upon offenders transgressing the Law and the like But the King doth neither Judge what is Treason what fact doth breake the Law nor hath power to impose a fine upon any offender And for making Laws the King alone hath not that power nor is it in any other without him It is no Law without the joynt consent of the King and the Members of the two Houses which united Body hath not the government of the people And so every one is limited and kept within his owne bounds But although we have a knowne Law and for the most part in the execution thereof knowne processe which and no other the people are obliged to obey yet sometimes for necessity the Law refers severall things to be acted and done according to the discretion of persons trusted whose Commands although they doe not observe the ordinary rules and knowne processe of the Law the people are bound to submit unto For example It is the office of every Sheriff of his County to preserve the Kings peace within his liberty Therefore upon any suddaine insurrection tumult or other just occasion the Law to enable him to performe that duty gives him authority to raise the power of that County wherein it is best to the discretion of the Sheriff to judge when it is necessary to command the peoples assistance But herein he is not the finall Judge In that case it is at the equall perill of the Sheriff and the inhabitants of the County To the one when to command and to the other when to obey If the Sheriff without just cause force the people to rise himsefe is punishable And if he requires the inhabitants to assist him when it is necessary and they refuse the people are punishable In which case both Sheriffs and Inhabitants being equally concerned therefore neither the one nor the other is Judge to determine whether there was cause to require assistance or not That question the cause being regularly brought before them properly belongs to the Judges of the Law And therein he who findes himselfe agreived hath liberty to commence his action and bring it to tryall And as in that case of the Sheriff for his particular County the like accidents may happen whereby the whole Kingdome may be in such danger as not possible by the ordinary meanes and knowne practise of Law to prevent the destruction of it The Nation may be so suddenly invaded by a forraigne enemy or infested by a domestick insurrection as that without present supplies and assistance of men money and other provisions of War the whole people and Kingdome may perish It were grosse in such a case to be tyed unto the formalities of Law or to want meanes to prevent that danger And this cannot be supplied unlesse some have legall power to command and the people obliged to obey Therefore by our Law the King ex officio as King hath that power He may in such cases by His regall authority compell His subjects in His and His peoples defence to serve in person and contribute with their purses Yet herein the King is not the finall Judge if so the estate and fortune of the subject were at His will He might then upon pretence of necessity draw from the people their whole fortunes and estates which were in effect a power arbitrary Therefore as before in the case of the Sheriff so here as the people are at their extreame perill in case of danger bound to obey the Kings commands So it is at the perill of the Kings Ministers therein imployed that the King hath just cause to make that command For every subject who by the Kings commands or warrants is molested either in person or estate may prosecute suit in a Court of Justice against the Kings officers who interrupted him wherein the Kings Warrants Writs or Commands are no legall justification unlesse it judicially appear to the Judges of that Court where the suite depends that the King had just cause to require that assistance For the King is not the finall Judge in such a case So that our Law in the first place preserves the Kingdome and people from danger by providing remedy against those sudden accidents yet protects the subject from tyranny and arbitrary power And this rule for the liberty of the subject holds in all cases that is to say The Subject of England under the
government of the King cannot be forced either in person or estate otherwise then the knowne Law judged by indifferent persons unconcerned as aforesaid doth permit And consequently the people of England a most free subject CHAP. XIII That the people of England under the government claimed by the Members of the two Houses are absolute slaves IT cannot be denied but that where the King or the Supreame Magistrates authority over the people is arbitrary that government is tyrannicall No tyrant ever had or can have a greater power Nor is it possible for people where any Law is admitted to be under a greater servitude For he whose will is a Law as he hath no superiour so by any under his command he cannot be said to erre in judgement be his sentence never so bloody cruell or barbarous the dispute is ended no appeale or Writ of Error lyes so that the wisest man how industrious or conscientious soever cannot for the least instant of time promise to himselfe security of life or challenge property in his estate Therefore if the government in England practised and claimed by the Members be arbitrary it followeth that the people are absolute slaves wherein these things are considerable 1. Who they be that arrogate the government 2. What those persons act de facto 3. What power they claime to have de jure 1. For the first they are the Members of the two Houses being in number the Assemblies admitted full about seven hundred persons They are divided into two severall distinct bodies without any head and every body having equall power Then for their priviledges It is by themselves declared to this effect viz. That none of them although he hath committed Treason Sacriledge Murther Rape Felony or any other crime how execrable soever is to be appehended questioned or prosecuted for the same untill licence be thereunto obtained from that House whereof he is a Member Every offender herein is by their Declarations denounced a breaker of the liberty of the Subject of the priviledge of Parliament and a publike enemy to the Common-wealth And such a licence being obtained and the Malefactor thereupon apprehended he is not say they to be prosecuted by indictment or otherwise but in such manner and before such persons as that Assembly thinks fit to direct their persons are so sacred as that none but themselves must judge their actions Thus for the persons commanding 2. What they act de facto We see by a new Law called an Ordinance made by themselves without the King the late Arch-Bishop of Canterbury was condemned to death and executed They have confiscated his and other mens estates and by the same pretence they have taxed the people to the twentieth and fift part of their fortunes They have laid an imposition upon the Subject heretofore not heard of in England called an Excise They have taxed them with vast impositions and payments of money by way of assessements and otherwise at pleasure They receive and dispose of the confiscations and of all the aforesaid summes of money as themselves thinke fit They assume the power finally to declare and Judge the Law and by colour of their owne authority they have de facto repealed severall Acts of Parliament And have imposed upon the people new Lawes of their devising 3. What they claime to have de Jure if themselves be asked whether by Law they have not power to act the foresaid things If they have not authority without appeale to determine what is Treason murder felony or other capitall offence To put to death who they please To confiscate any mans estate To tax or impose upon the people without stint whether the profits of those confiscations taxes and impositions be not at their owne dispose and all this without any account To these they doe they have already answered affirmatively However all men of judgement may be herein satisfied The Members had lawfull power to put to death the Bishop of Canterbury and to seize his estate else he was murdered and his estate seized against Law now if they had therein lawfull authority it followeth that by the same Law they may whether guilty or not guilty of a crime put to death any other who they shal say deserveth to dye and may confiscate whose estate they please dispose thereof to their own use or otherwise as they thinke fit And accordingly we see they have and are going fast on as theives do their booties to divide and share the wealth of the Kingdome amongst themselves If they did lawfully tax the people to a fifth part by the same Law they may tax them to their full worth And for excise admit them to have power to charge any commodity with one peny and it cannot be denied them to have power to tax every one for every drop of drinke or morsell of mâ—â—t or what he buyes or sels to the full double or treble value thereof If they have power to repeale one Act of Parliament they have authority to repeale all the statutes in England And if they have authority to impose upon the people one Law their power therein is without limitation They may inforce upon the Subject what Laws they please and consequently their power claimed as highly arbitrary and tyrannicall as any have or can claime to have And having made this claime Then for their security therein they tell us that in all matters both for soul and body we have no Judge upon earth but themselves and denounce every one an enemy to this new State who shall deny that to be the Law which they declare Law Yet even now the people are told that they are and shall be governed by the knowne Law because say they Judges are appointed and suites of Law admitted Answer There was never any Tyrant but in some sort permitted a known Law among his vassals else the slaves could not acquire estates and so confiscations to the Tyrant would prove inconsiderable By the Laws of England a villaine hath power to buy and purchase and is therein protected against all persons his Lord excepted But the Lord may seize his estate beate or strike his villaine at his pleasure The Turke who hath been accompted the greatest tyrant his vassals acquire vast fortunes and are by a Law protected therein against their fellow slaves But the Turke at pleasure may not onely seize their whole estates but take their lives too Even so it is at present with the people of England we have liberty to buy and sell and acquire wealth we are as an English villaine or Turkish slave sometimes that is when the Members please else not protected therein against one another But when the Members thinke fit every mans estate his fortune his person his life all is at their will and doome That Law permitted amongst the people reacheth not so high as the Members when they thinke fit their will is the Law so that our slavery for the present is worse
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
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
pro quibusdam arduis urgentibus negotiis c. quoddam Parliamentum nostrum apud civitatem nostram West 1. Die Maii prox futur ' teneri ordinavimus ibidem vobiscum cum Prelatis magnatibus proceribus dicti regni nostri colloquium habere tractatum vobis sub fide ligeantiis quibus nobis tenemini firmiter injungentes mandamus quòd personaliter c. So that to the institution of the Lords House and the power which the Members of that Assembly have to sit and Vote in Parliament the people are not at all consulted with in any particular And for the Commons House the institution thereof and the Commission which the Members of that Assembly have is derived from the King too That which the people act and do therein is only to elect the Knights of the Shires Citizens and Burgesses and therein too their authority is by the Kings Writ the direction whereof they are bound to pursue It is not in the power of the Inhabitants of any County or towne to adde unto or lessen the number of persons to be elected or to inlarge or limit the authority of those chosen But former Kings as before is shewed sometimes called more sometimes fewer and at their pleasure created new Corporations and gave them power to send Burgesses And every King had and at this day hath authority to enable and command every towne in England to send Burgesses to Parliament And when the Knights and Burgesses are elected the peoples power is ended then the persons chosen are to performe their duties wherein they must be guided by their Commission it is that which doth distinguish them from other men else every one in the Kingdome had equall power to sit and Vote in Parliament And they have no other Commission then the Kings Writ of summons which followeth in these words viz. Rex Vicecomiti salut ' Quia de avisamento assensu consilii nostri pro quibusdam arduis urgentibus negotiis nos statum defensionem regni nostri Angliae Ecclesiae Anglicanae concern quoddam Parliamentum nostrum apud Civitatem nostram Westm ' tertio die Novembris prox ' futur ' teneri ordinavimus ibidem cum Praelatis Magnatibus proceribus dicti regni nostri colloquium habere tract ' tibi praecipimus firmiter injungentes quod facta proclam ' in prox Comitatu tuo post receptionem hujus brevis nostri tenend die loco predict ' duos milit ' gladiis cinctos magis idoneos discretos Comit ' praedicti de qualib ' civitate Com' illius duos cives de quolibet Burgo duos Burgenses de discretior ' magis sufficientibus libere indifferenter per illos qui proclam ' hujusmodi interfuer ' juxta formā statutorum inde edit ' provis eligi nomina eorundum milit ' Civium Burgensiū sic electorum in quibusdam Indentur ' inter te illos qui hujusmodi election ' interfuerint inde conficiend ' sive hujusmodi elect ' presentes fuerint vel absentes inter eosque ad dict' diem locum venire facias Ita quod iidem milites plenam sufficientem potestatē pro se cōmunitate Comit ' Civitatū Burgorū praedictorum divisim ab ipsis habeant ad faciendum consentiendum his quae tunc ibid ' de communi consilio dicti regis nostri favente Deo contigerint ordinari super negotiis ante dictis Ita quod pro defectu potestatis hujusmodi seu propter improvidam electionem militum Civium aut Burgensium predictorum dicta negotia infecta non remaneant quovis modo Nolumus autem quod tu nec aliquis alius Vicecomes dicti Regis nostri aliqualiter sit electus electionem illam in pleno Comitatu factam distincte aperte sub Sigillo tuo singulis corum qui electioni illi interfuerint nobis in Cancellar ' nostram ad dictum diem locum Certifices indilate remittens nobis alteram partem Indenturarum predictarum praesentibus consuet ' una cum hoc breve Teste meipso apud Westminster And the returne of the aforesaid Writs in these words viz. Virtute istius Brevis eligi feci duos milites gladiis cinctos magis idoneos discretos de Comitatu meo viz. A. B. qui plenam sufficientem potestatem pro se Communitate Comit ' predict ' habent ad faciendum consentiendum iis quae ad diem locum infra contentos de Communi Consilio regni Angliae ordinari contigerint Et predicti A. B. manucapti sunt per quatuor manucapt ' ad assulendū ad Parliamentū dom ' Regis apud Westminster ad diem infra contentum ad faciendum quod hoc breve in se exigit requirit I have here exactly set downe all those Commissions by authority whereof the Lords House and the Commons House sit and Vote in those Assemblies which is far short of giving them power to make Laws That of the Lords commands them to advise and consult with the King concerning the great affaires of the Realme both in Church and Common-wealth That of the Commons to doe and consent unto such things as the King and the Peeres shall agree upon And as the Members have their authority to sit and Vote in the House from the King so it is at His will to summon a Parliament when and as often as He thinkes fit And the Members being met together are kept there as long as he pleaseth and at every instant time when he seeth cause dissolved againe And whilst they are continued together their office is to enquire and informe themselves of the grievances of the Kingdome to consult how to reforme them and for that purpose if need be to compose Laws and present them to the King But all this is onely by way of advise it binds not untill the King hath taken their Councell and put life into those Laws by His Assent All which is not onely pursuing their Commission but is made good by the constant practise of the Kingdome For there was never any Law Statute Act of Parliament or Ordinance made in this Nation which bound the people whereunto the King did not give His Royall Assent And scarce one Parliament since the Institution of the two Houses but the Members of both those Assemblies have passed Bils for new Laws presented them to the King which He hath rejected whereupon every such Bill was instantly set aside acknowledged by the Members and judged by all men to be invalid neither binding King or people And for these words le Roy s'avisera the opinion of Justice Hutton and the words of King Richard the second nothing can be inferred thereupon against the Kings negative Voice but rather the contrary The Kings answer say they to Bils presented to Him by the two Houses which He rejects is thus le Roy
is none either to umpire or mediate between the Members and the people And so the Members by this have assumed an arbitrary power Nor doth this power of a negative Voice in the King take away or lessen the authority of any Court of Justice Every Court of Judicature pursuing its Commission hath power to determine the interest both of King and people and that without assent either of King or Member The knowne Law is their ground to judge by not the opinion of the King or of either or both Houses Nor can the King in this be said to Judge out of his Courts or against the two Houses of Parliament for the King and the two Houses have herein equall power that is every one of them a negative Voice they are all together joyntly Judge of that high Court of Parliament but no one or two of these bodies is Judge thereof So that by the Kings and either Houses having a negative Voice it cannot be said they Judge each other out of that or any other Court of Justice But some object that if the refusall of the King shall hinder the making of Laws the Common-wealth is in danger to suffer for say they the King may be refractory and deny to passe good Laws Answer No humane Law can preserve a Common-wealth from every mischief That Law which avoideth the most inconveniencies is the best Law It is granted that the will of the King or of either House by refusing to passe a Law propounded may prove mischievous But upon pretence of necessity to give power to the King and either House or both Houses without the King to alter the Law or to make new Laws were more dangerous If that rule serve them to make good Laws it enables them to make bad ones too If they be Judge when to make one Law they are Judge to make as many and what Laws they please they who have this power may declare what they list to concerne the safety of the Kingdome Once breake this rule That no new Law can be made with consent of the King and the two Houses and there is no end of the distraction Upon the same ground that the Lords and Commons in the case of the Militia pretending a necessity and that the King was refractory assumed power to make Laws without Him the Lords House may exclude both King and Commons the Commons House Lords and King or the King both Houses When there ariseth a difference between the King and the two Houses if it be of necessity that the King or the two Houses must so far Judge the businesse as to make a Law without the other by the same reason when a difference happens between the two Houses one of them must be Judge against the other and make a Law without the others consent for such a difference between the two Houses may as well happen to concerne the safety of the Kingdome as when the difference fals out between the King and both Houses And if either House obtaine the sole power to make Laws still there is no period for if reason or reall necessity require it and should be Judge when and what Laws are to be made the lesser number of one of those Assemblies peradventure may be in the right But whether right or wrong the zelots may chance to side with the little flock rise up and in tumults call it Justice And so consequently the good Law of the Land destroyed and club-law introduced and the very being of Parliaments taken away whereas by observing the constitutions of the Realme in submitting this power of making Laws to the Judge thereof that is the King without the assent of the two Houses all these absurdities and inconveniences are avoided Which constitution being rightly understood is grounded upon great reason and is most equall between King and people for the Commons House upon just grounds for any thing to them appears may passe a Bill which the Lords upon as just reasons may reject the Members of that Assembly being persons who for the most part have a greater deeper reach insight in State affaires And both Houses may passe a Bill conceiving it necessary for the preservation of the Kingdome to have it made a Law and thereupon desire the Kings consent which the King may as justly reject And for such reasons they may be matters of that nature as not convenient and most unfit to be imparted and revealed to such a multitude as the seven hundred Members or more of both Houses But when all that is when the King and the two Houses concur the Common-wealth may as safely depend upon it as upon any humane institution Upon these grounds it is that when a dispute happeneth concerning the making of a Law the King being of one opinion the Lords of another and the Commons of a third or when any one of the three bodies dissent from the other two there is no umpire but themselves to end that controversie nor can they decide the question by any other way but by a joint agreement or quitting the dispute for untill a joint concurrence of all three their proceedings are but conferences and their results what they would have to be Lawes but no Laws indeed untill by consent of all three they be reduced to Acts of Parliament No Order Ordinance or what ever it is or shall be called made by consent of any one or two of these bodies alone hath the strength or force of a Law our Law takes no notice thereof like a verdict for life lands or goods in which case the major part of the Jury determineth not the question all twelve must agree else it is no verdict for the question being fact some one of the Jury may have better knowledge thereof then all the rest So in this case by the constitutions of the Realme no new Law can be made or the old altered without a joint concurrence of the King and the two Houses It is that united body which at this day as to the Legislative power represent the whole Kingdome The Members of the Commons House alone do not in that manner represent the Commons of England the Lords the Peers and the King for Himself but all together do represent the whole Kingdom no one or two of these bodies can herein be said to represent only any part every common person doth herein by the Laws of England asmuch depend upon the judgement of the King and the Lords as upon the Members of the Commons House And so do the King and the Lords upon those Members for the King the Lords and Commons as now by consent of former Kings it is setled are herewith joyntly trusted As if three Lords authorize three severall persons to sell their Lands if two of them sell it binds not therefore in judging that sale void no man is injured the Lords are seized of their Lands as before and the persons trusted have the same power that is
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
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
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
in His defence against the forces raised by command of the foresaid Members of the two Houses of Parliament CHAP. XI That the persons at Westminster who call themselves the Parliament of England are not the two Houses nor Members of the Parliament IN my foresaid Treatise I have by way of admittance granted these men at Westminster to be the two Houses of Parliament The Houses from their first Assembling to have been compleatly full To have unanimously concurred in Votes and every Member to have consented unto all those horrid things acted in the name of the Parliament And in case it had so fallen out still the Law in every particular before mentioned had been the same That concurrence of the Members had nothing altered the case Therefore sure without dishonouring the two Houses of Parliament injuring in a manner the whole Peereage and the far greater number of the Members duly elected of the Commons House I cannot omit First to expresse the cause of these my admittances Secondly to shew that these men at Westminster who now assume the name and power thereof are so far from being the Parliament of England as that they are neither the two Houses of Parliament nor Members of them For the first had I at the beginning fallen upon these questions whether Members or not Members Houses or no Houses I had thereby barred all further progresse in that my Treatise For if no Houses of Parliament then no dispute can arise what votes or proceedings of the Members are valid and which voide Therefore to introduce these questions viz. what is a Parliament the Authority and use thereof The proper office of either House singly and of both Houses joyntly without the King I granted but that I say only by way of admittance the foresaid persons to be the two Houses of Parliament and to have all powers and authorities due unto those Assemblies Then for the second viz. that these men at Westminster are neither the two Houses nor Members of them is proved thus 1. First clear it is that the essency of a House of Parliament doth not consist meerely in the legall assembling of the Members thereof Besides that it is necessarily required that every Member have liberty to repaire unto the place of sitting And there freely according to his conscience to Vote and deliver his opinion in all things agitated For example a Commission is granted to twenty with power to them or any five or more of them to execute the same Here although five if no more appear have full power Yet if all be present and consenting to act no five nor lesse then the whole twenty have authority So that if nineteen of them injuriously exclude one the proceedings of the nineteen are void which stands with great reason for if nineteen may exclude one eighteen may exclude another And in like manner one by one they may expell each other untill reduced to the last man Besides frequent it is in every Assembly consisting of many where the major part determineth the question For the businesse in dispute of what nature or moment soever to be carried on either side by one voice Therefore injuriously to exclude one single person from Voting is as destructive to Justice as to reject Two Three or more Yet herein let not me be mistaken I grant that either House of Parliament frequently doth and may legally proceede although not compleatly full And that each Assembly hath authority in some cases to suspend particular Members from sitting But I say that whilst either House without lawfull cause wrongfully hinders any one of their fellow Members to sit or freely to Vote with them according to his conscience The rest of the Members of that Assembly what number soever have not Parliamentary authority to proceed in any thing Therefore when a competent number of either House is Assembled all those so met and no lesse I meane without expelling them or any of them or forcing any ones conscience have power to performe the office of that House And the same it is if any one legally returned shall by his fellow-Members be hindered to repaire unto the House Those disturbers do thereby disable themselves to act in that Assembly Now for application to these men at Westminster It cannot be forgotten But that within few dayes after the first meeting of the two Houses the election of many Knights and Burgesses knowne to be honest moderate men were questioned Their persons instantly suspended from sitting but unto this day whether rightfully or wrongfully elected notwithstanding all possible endeavours to obtaine it not suffered to be determined Therefore manifest it is that to be rid of those Members out of the House was the onely cause of such questions and suspensions But that more cleerely appears by the progresse of the businesse For not long after those suspensions by Order of the Commons House every Member of that Assembly whose name had been used in any Patent of Monopoly or acted therein was in words disabled to sit or Vote there And by colour of this Order divers Members were expelled and forced to quit the House For no other cause but for that their names were used in some Patents or grants of the King which grants these Members before and without any legall triall judgement or determination thereof Voted to be void Yet which is a remarkable signe of their injustice their owne babes of grace such of them I meane as the faction could confide in although within the expresse words of that Order and at least as guilty of that fact as any other have ever since been and still are principall Voters there Now if these Members expelled by the foresaid Order were wrongfully expulsed it followeth that the whole Assemby did therby suspend it selfe from acting as the House of Commons And that they were wrongfully expulsed and injuriously debarred sitting or voting there is thus proved No person duly elected and returned of the House of Commons can be lawfully expulsed that House but for such cause as by the Law of the Land he is disabled to sit or Vote there But the cause mentioned in that Order by which those Members were expulsed doth not by the Law of the Land disable any man to sit or Vote in the House of Commons Ergo. To deny the major cannot enter into the heart of any honest English-man That is no lesse then to give unto the greater part of that Assembly at all times an arbytrary power without lawfull cause to expell thence although equally trusted and authorized by King and people with themselves their fellow Members which being admitted unto them it followeth that the peoples power of electing is in effect taken away and consequently no representatives in that House For although it be admitted that after such expulsion the inhabitants shall elect againe The people cannot expect an end of choosing untill returne be made of such as the present prevalent faction likes of And we see almost
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
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
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